McEldowney v Forde [1969] UKHL 6 (18 June 1969)

McELDOWNEY (A.P.)

v.
FORDE

Lord Hodson
Lord Guest
Lord Pearce
Lord Pearson
Lord Diplock

Lord Hodson

MY LORDS,

The question for determination on this appeal is whether the Resident
Magistrates sitting as a Magistrates’ Court for the Petty Sessions District
of Maghera on 12th June 1968 were right in law in dismissing a complaint
against the present Appellant. He was charged in these words:

” You the said defendant were and remained a member of an unlawful
” association, namely, a Republican Club, contrary to Regulation 24A
” of the Regulations made under the Civil Authorities (Special Powers)
” Acts (Northern Ireland) 1922-1943.”

The Act of 1922. which I will call ” the Act”, was enacted, as the title
shows, to empower certain authorities of the Government of Northern Ireland
to take steps for preserving the peace and maintaining order in Northern
Ireland and for purposes connected therewith. Section 1 provides:

” 1. (1) the civil authority shall have power, in respect of persons,
” matters and things within the jurisdiction of the Government of
” Northern Ireland, to take all such steps and issue all such orders
” as may be necessary for preserving the peace and maintaining order,
” according to and in the execution of this Act and the regulations
” contained in the Schedule thereto, or such regulations as may be
” made in accordance with the provisions of this Act (which regulations,
” whether contained in the said Schedule or made as aforesaid, are in
” this Act referred to as ‘ the regulations ‘):

” Provided that the ordinary course of law and avocations of life
” and the enjoyment of property shall be interfered with as little as
” may be permitted by the exigencies of the steps required to be taken
” under this Act.

” (2) For the purposes of this Act the civil authority shall be the
” Minister of Home Affairs for Northern Ireland, but that Minister may
” delegate, either unconditionally or subject to such conditions as he
” thinks fit, all or any of his powers under this Act to any officer of
” police, and any such officer of police shall, to the extent of such
” delegation, be the civil authority as respects any part of Northern
” Ireland specified in such delegation.

” (3) The Minister of Home Affairs shall have power to make regu-
” lations—

” (a) for making further provision for the preservation of the peace
” and maintenance of order, and

” (b) for varying or revoking any provision of the regulations ;
” and any regulations made as aforesaid shall, subject to the provisions
” of this Act, have effect and be enforced in like manner as regulations
” contained in the Schedule to this Act.

” (4) All regulations made as aforesaid shall be laid before both
” Houses of Parliament as soon as may be after they are made, and,
” if an address is presented to the Lord Lieutenant by either House
” within the next fourteen days on which such House shall be sitting
” after any such regulation is laid before it praying that the regulation
” may be annulled, the Lord Lieutenant may annul that regulation
” and it shall thenceforth be void, without prejudice to the validity of
” anything done thereunder, or to the power of making a new regula-
” tion ; and regulations made as aforesaid shall not be deemed to be
” statutory rules within the meaning of section one of the Rules
” Publication Act 1893.”

Section 2 deals with offences against the Regulations.

Section 3 provides for trial of such offences by a Court of Summary
Jurisdiction and requires that the prosecution must be by an officer or person
authorised by the Attorney-General. No question arises as to these procedural
requirements in this case.

On the 22nd May 1922 the then Minister of Home Affairs made a further
regulation under the powers conferred by section 1(3) of the Act. This
was Regulation 24A and reads:

” Any person who becomes or remains a member of an unlawful
” association or who does any act with a view to promoting or calculated
” to promote the objects of an unlawful association or seditious con-
” spiracy shall be guilty of an offence against these Regulations.

” If any person without lawful authority or excuse has in his
” possession any document relating to or purporting to relate to the
” affairs of any such association or emanating or purporting to emanate
” from an officer of any such association or addressed to the person
” as an officer or member of any such association or indicating that
” he is an officer or member of any such association that person shall
” be guilty of an offence against these regulations unless he proves
” that he did not know or had no reason to suspect that the document
” was of any such character as aforesaid or that he is not an officer
” or member of the association.

” Where a person is charged with having in his possession any such
” document, and the document was found on premises in his occupation,
” or under his control, or in which he is found or has resided, the
” document shall be presumed to have been in his possession unless
” the contrary is proved.

” The following organisations shall for the purposes of this Regulation
” be deemed to be unlawful associations:

” The Irish Republican Brotherhood
” The Irish Republican Army
” The Irish Volunteers

” The Cumann na m’Ban

” The Fianna na h’Eireann.”

These named organisations were specific existing organisations of a militant
type and it was conceded before your Lordships, as it was before the Court
of Appeal in Northern Ireland, that they were in fact unlawful organisations.

On the 7th March 1967 the present Minister of Home Affairs purporting
to act under section 1 (3) of the Act made a further regulation by way of
addition to the list of organisations deemed to be unlawful associations.
This, which is the impugned regulation, recites that it is expedient that
further provision for the preservation of the peace and maintenance of order
should be made, and runs:

” 1. Regulation 24A of the principal Regulations shall have effect
” as if the following organisations were added to the list of organisa-
” tions which for the purpose of that Regulation are deemed to be
” unlawful associations:

” ‘ The organisations at the date of this regulation or at any time
” ‘ thereafter describing themselves as ” Republican Clubs ” or any
” ‘ like organisation howsoever described.’ “

The Appellant was found by the magistrates to have been on the date
stated in the charge and thereafter a member of the Slaughtneil Republican
Club. They also found that no evidence was given that he “or the said
” Club was at any time a threat to peace law and order but it was conceded
” by witnesses for the Complainant in cross examination that in so far as
” the Police were aware there was nothing seditious in its pursuits or those
” of its members.”

In dismissing the complaint the Magistrates bore in mind the contents and
purposes of the Act, that the Regulations thereunder are ” Regulations for
” Peace and Order in Northern Ireland ” and, noting the words ” or any like
” organisation howsoever described ” in the Statutory Rule and Order of
1967 and that no definition of the term ” Republican Club ” was shown to
them, came to the conclusion that the only reasonable interpretation to be
given to the words ” organisations . . . describing themselves as ” ‘ Republican
” ‘ Clubs'” is ” Clubs which have as their object the absorption of Northern
” Ireland in the Republic of Ireland the activities of whose members in
” seeking to further that object constitute a threat to peace and order in
” Northern Ireland—or any like organisation howsoever described.”

The magistrates accordingly found that the complainant had not proved
that the Slaughtneil Republican Club was an unlawful association within the
meaning of Regulation 24A and dismissed the Complaint.

The Court of Appeal in Northern Ireland by a majority allowed the appeal
and the question posed in the Case Stated was answered in the negative.
The case was accordingly remitted to the Magistrates to do as to justice
may appertain.

The Appellant obtained leave to appeal to this House but in argument
has not sought to sustain the opinion expressed by the Magistrates or the
reasons given by them for their decision in his favour.

As the Lord Chief Justice pointed out in his dissenting judgment their
reasoning is unsound, for the ultimate result would be in effect that the
prosecution would have to prove that the club in question was an unlawful
association but that is just what the list of named bodies at the end of
Regulation 24A was intended to avoid. The convenience of the list is that
specific organisations notoriously unlawful had not to be proved unlawful
on the occasion of every prosecution. They were deemed unlawful and
the 1967 addition to the list was intended to extend this “deeming” so
that the unlawful nature of ” Clubs ” could be assumed without proof. The
interpretation favoured by the Magistrates would, as the Lord Chief Justice
pointed out, tend to defeat rather than to favour such an intention for the
unlawful nature of the club would have to be shown.

The arguments directed to the Court of Appeal and to your Lordships
have been directed solely to the question whether or not the impugned regu-
lation is ultra vires the Act.

The majority of the Court of Appeal held that it was for the Minister to
decide whether a particular association should be deemed to be unlawful and
the Court could not question what he had done. The Lord Chief Justice,
on the other hand, held that the 1967 regulation was far too vague and wide
to come within even the extensive powers conferred by section 1 of the Act.
It was not, to apply the language contained in the judgment of the Privy
Council in Attorney-General for Canada v. Hallet & Carey Ltd. [1952] AC
427 at 450 ” Capable of being related to one of the prescribed purposes “.
The Lord Chief Justice attached importance to the use of the words ” any
” like organisation howsoever described ” as making the regulation even more
vague than it would otherwise be and taking it even further out of the scope
and meaning of the Act.

The question may be put in this way—Is the whole regulation too vague
and so arbitrary as to be wholly unreasonable as if, to take an example
from one of the cases, a person were to be proscribed because he had red
hair; or is the regulation, as the majority of the Court held, a legitimate and
valid exercise of the Minister’s power confirmed on him by statute?

Both sides referred to and relied upon the judgment of the Privy Council
in the case of Attorney-General for Canada v. Hallet & Carey Ltd. (supra).
By section 2(l)(c) of the National Emergency Transitional Powers Act 1945
the governor in Council was authorised to do such things and to make such
orders and regulations as he might, by reason of the continued emergency

arising out of the war against Germany and Japan, deem necessary or
advisable for the purpose of, inter alia, ” Maintaining, controlling and regu-
” lating supplies and services, prices, transportation, use and occupation of
” property, rentals, employment, salaries and wages to ensure economic
” stability and an orderly transition to conditions of peace “. Under the
powers conferred by that Act the Governor in Council passed an Order in
Council which provided that oats and barley in commercial positions in
Canada, with certain exceptions, should be vested in the Canadian Wheat
Board. The Order was successfully challenged in Manitoba and in the
Supreme Court of Canada but was upheld by the Privy Council on the
ground that although the Act of 1945 made no specific reference to appropri-
ation yet the wide language of section 2(1) ending with the words “as he
” may . . . deem necessary or advisable ” gave the amplest possible discre-
tion in the choice of methods. The expression ” as he may deem necessary ”
or like words are often found in statutes in which a discretionary power is
given to a minister or other authority. (Compare Padfield v. Minister of
Agriculture, Fisheries & Food [1968] AC 997 where a discretion was con-
sidered which was conferred on a Minister to act as he thought fit and it
was held by this House that the discretion was not wholly unfettered in that
it had to be used to promote the policy and objects of the Act in question.)
Other examples could be given.

In this case no words directing the Minister to act as he thinks fit or
similar words are employed. He is given power to make further provision
for the preservation of the peace and the maintenance of order which are to
be enforced in like manner as regulations contained in the Schedule of ” the
” Act “. ” Unlawful associations ” were referred to in Regulation 24(1) of
the regulations for peace and order in Northern Ireland contained in the
Schedule to the Act. These regulations in the Schedule form part of the Act
and regulations made under section 1 subsection (3) have to be laid before
both Houses of Parliament and are liable to be annulled upon address
presented by either House of Parliament.

It is not contended that for that reason the impugned regulation can not
be assailed in the Courts. A similar situation arose in R. v. Halliday [1917]
A.C. 260 where a statutory regulation was impugned as ultra vires. The
House upheld the regulation as being within the scope of the power given
to the minister by the statute on the ground that the regulation was intra
vires the Act there being, as here, no deeming provision. I do not find that
the absence of a deeming provision in this Act assists the argument one way
or the other.

There was a difference of opinion in the Court of Appeal as to the effect
of the words which are contained in subsection (1) of section 1 of the Act
giving the civil authority power to take all such steps and issue all such
orders as may be necessary for preserving the peace and maintaining order
according to and in the execution of the Act and the regulations contained
in the Schedule or such regulations as may be made in accordance with the
provisions of this Act. These words are followed by a proviso that the
ordinary course of law and avocations of life and the enjoyment of property
should be interfered with as little as may be permitted by the exigencies of
the steps required to be taken under this Act. I cannot, however, accept
the argument that regulations made under subsection (3) are invalid unless
it is proved that they are made for the preservation of peace and good order
or that the word ” necessary ” limits the power to be exercised within the
confines of that word.

In my view section 1 (1) is directed to the enforcement of regulations not
to the making of them. As was pointed out in the Court of Appeal there
are a number of regulations in the Schedule to the Act under which the
civil authority must issue orders to make the regulations effective. These
orders do not, like regulations, have to be laid before both Houses of
Parliament. The regulations are in the nature of enactments requiring a
high degree of formality whereas orders are not in this category and are
issued pursuant to powers contained in the regulations.

I agree with the majority of the Court of Appeal that the Act in sub-
section (1) is saying no more than that the words in question refer simply
to taking such steps and issuing such orders as are permissible under either
the Act or regulations including not only those contained in the Schedule
but also any which may be made under subsection (3). I observe that the
Lord Chief Justice, although taking a different view of the proper con-
struction of section 1 of the Act and regarding the earlier provisions as
giving assistance in the way of guide lines, did not accept the argument
that every step taken by the minister, although he thought taking steps
included making regulations, must, if challenged, be proved to be necessary
for preserving the peace and maintaining order.

In my opinion there is a distinction between the powers given by section 1
subsection (1) and those given by subsection (2) of the same section, in that
the former are executive and the latter legislative powers. The minister is
not restricted by the language relating to his executive powers when execut-
ing his legislative powers though no doubt he will not be unmindful of the
language of Parliament in the whole Act.

The vexed question remains whether the impugned regulation is capable
of being related to the prescribed purpose, that is to say, the preservation
of the peace and the maintenance of order. The authorities show that
where, as here, there is no question of bad faith the Courts will be slow
to interfere with the exercise of wide powers to make regulations.

There is, on the face of the impugned regulation, no apparent misconstruc-
tion of the enabling Act or failure to comply with any conditions prescribed
by the Act for the exercise of its powers.

The proscription of present and future ” Republican clubs ” including ” any
” like organisations howsoever described ” is said to be something outside
the scope and meaning of the Act and so incapable of being related to the
prescribed purposes of the Act. Accepting that the word ” Republican ”
is an innocent word and need not connote anything contrary to law, I can-
not escape the conclusion that in its context, added to the list of admittedly
unlawful organisations of a militant type, the word ” Republican ” is capable
of fitting the description of a club which in the opinion of the minister
should be proscribed as a subversive organisation of a type akin to those
previously named in the list of admittedly unlawful organisations. The
context in which the word is used shows the type of club which the minister
had in mind and there is no doubt that the mischief aimed at is an associa-
tion which has subversive objects. On this matter, in my opinion, the Court
should not substitute its judgment for that of the Minister, on the ground
that the banning of ” Republican clubs ” is too remote. I agree that the use
of the words ” any like organisation howsoever described” lends some
support to the contention that the regulation is vague and for that reason
invalid but on consideration I do not accept the argument based on vagueness.
It is not difficult to see why the minister, in order to avoid subter-
fuge, was not anxious to restrict himself to the description ” Republican ”
seeing that there might be similar clubs which he might seek to proscribe
whatever they called themselves. If and when any case based on the words
” any like organisation ” arises it will have to be decided but I do not, by
reason of the use of those words, condemn the regulation as being too vague
or uncertain to be supported. I would dismiss the appeal.

Lord Guest
my lords.

The Appellant was charged in the Magistrates’ Court at Magherafelt,
Northern Ireland with being a member of an unlawful organisation, namely
a Republican Club, contrary to Regulation 24A of the Regulations made
under the Civil Authorities (Special Powers) Acts (Northern Ireland) 1922-
1943. The complaint was dismissed and the Respondent appealed to the

Court of Appeal (Northern Ireland) by way of Stated Case. The result was
that the Court of Appeal, by a majority (Lord MacDermott CJ. dissenting),
allowed the appeal and remitted to the Magistrates.

Regulation 24A was made under section 1(3) of the Civil Authorities
(Special Powers) Act (Northern Ireland) 1922. This section is in the
following terms: —

” 1.—(1) The civil authority shall have power, in respect of persons,
” matters and things within the jurisdiction of the Government of
” Northern Ireland, to take all such steps and issue all such orders
” as may be necessary for preserving the peace and maintaining order,
” according to and in the execution of this Act and the regulations
” contained in the Schedule thereto, or such regulations as may be
” made in accordance with the provisions of this Act (which regulations,
” whether contained in the said Schedule or made as aforesaid, are in
” this Act referred to as ‘ the regulations ‘):

” Provided that the ordinary course of law and avocations of life and
” the enjoyment of property shall be interfered with as little as may
” be permitted by the exigencies of the steps required to be taken under
” this Act.

” (3) The Minister of Home Affairs shall have power to make
” regulations—

” (a) for making further provision for the preservation of the peace
” and maintenance of order, and

” (b) for varying or revoking any provision of the regulations;

” and any regulations made as aforesaid shall, subject to the provisions
” of this Act, have effect and be enforced in like manner as regulations
” contained in the Schedule to this Act.

” (4) All regulations made as aforesaid shall be laid before both
” Houses of Parliament as soon as may be after they are made, and,
” if an address is presented to the Lord Lieutenant by either House
” within the next fourteen days on which such House shall be sitting
” after any such regulation is laid before it praying that the regulation
” may be annulled, the Lord Lieutenant may annul that regulation and
” it shall thenceforth be void, without prejudice to the validity of any-
” thing done thereunder, or to the power of making a new regulation;
” and regulations made as aforesaid shall not be deemed to be statutory
” rules within the meaning of section one of the Rules Publication Act
” 1893.”

The Schedule to the Act contains a number of regulations made under
section 1. Regulation 24 provided that any person who does an act with
a view to promoting the objects of an unlawful association within the meaning
of section 7 of the Criminal Law and Procedure (Ireland) Act 1887 is to
be guilty of an offence.

On 22nd May 1922. Regulation 24A was added by the Minister acting
under section 1(3) of the 1922 Act which empowers him to make regulations
for making further provision for the preservation of peace and the mainten-
ance of order. This regulation provides as follows:

” Any person who becomes or remains a member of an unlawful
” association or who does any act with a view to promoting or calculated

” to promote the objects of an unlawful association or seditious con-
” spiracy shall be guilty of an offence against these Regulations.”
It was also provided :

” The following organisations shall for the purposes of this Regula-
” tion be deemed to be unlawful associations: —

” The Irish Republican Brotherhood,
” The Irish Republican Army,
” The Irish Volunteers,
” The Cumann na m’Ban,
” The Fianna na h’Eireann.”

Later regulations made in 1931, 1933 and 1936 respectively added to the
list of organisations deemed to be unlawful for the purposes of Regulation 24A
the following:

” Saor Eire
” The National Guard
” Cumann Poblachta na h’Eireann “.
The latter name means ” Group of the Republic of Eire “.

Regulation 24 was, together with a number of other regulations, revoked
in 1949, presumably on the ground that these stringent powers were no
longer thought to be necessary, but Regulation 24A still remained.

On 7th March 1967 Regulation 24A was amended by adding to the list
of organisations deemed to be unlawful the following:

” The organisations at the date of this regulation or at any time
” thereafter describing themselves as ‘ Republican Clubs’ or any like
” organisation howsoever described.”.

The Case Stated by the Magistrates that the Appellant was on 28th
March 1968 and still is a member of Slaughtneil Republican Club. It was
further stated that there was no evidence that the Appellant or the club
were at any time a threat to peace, law and order. There was nothing
seditious in its pursuits or those of its members. The resident magistrates
expressed their conclusion in this form:

” Bearing in mind the contents and purposes of ‘ the Act’ that the
” Regulations thereunder are ‘ Regulations for Peace and Order in
” ‘ Northern Ireland ‘ and noting the words ‘ or any like organisation
” ‘ howsoever described ‘ in the said Statutory Rule and Order of 1967
” and that no definition of the term ‘ Republican Club ‘ was shown to
” us, we came to the conclusion that the only reasonable interpretation
” and the true meaning of the portion of paragraph 1 of the said
” Statutory Rule and Order within the inverted commas in the context
” in which it has to be considered is ‘ The Organisations at the date
” ‘ of this Regulation or at any time hereafter describing themselves
” ‘ as ” Republican Clubs “—being Clubs which have as their object the
” ‘ absorption of Northern Ireland in the Republic of Ireland the activities
” ‘ of whose members in seeking to further that object constitute a
” ‘ threat to peace and order in Northern Ireland—or any like organisation
” ‘ howsoever described.”

They accordingly dismissed the complaint.

The Appellant’s counsel did not seek to uphold this ground of acquittal
before your Lordships. His argument was that the 1967 amendment to
Regulation 24A was ultra vires of the powers contained in section 1(3) of
the 1922 Act. He prefaced his argument by suggesting that the regulation
purported to cover three types of organisation (1) existing organisations
calling themselves ” Republican Clubs “; (2) any organisation which might
in the future call itself a ” Republican Club ” and (3) ” like organisations
” howsoever described “.

He also submitted that the terms of section 1(1) along with the proviso
were incorporated in subsection (3) of section 1 and that in accordance
with section 1(1) the regulation, to be valid, must be shown to be necessary
for preserving the peace and maintaining order, and that it must also comply
with the proviso to section 1(1). In my view this is not a correct inter-
pretation of section 1. Section 1(1) and section 1(3) are dealing with
different matters; subsection (1) deals with executive steps and orders and
subsection (3) is dealing with legislative acts. Subsection (3) must, in my
view, be construed quite independently of subsection (1). In this regard I
find myself, with respect, in disagreement with the Lord Chief Justice.

The Appellant’s counsel argued that it was for the prosecution to show
that the regulation was intra vires of the Act and that as there was no
evidence that a Republican Club so called was a threat to peace and order
in Northern Ireland the amending Regulation 24A was ultra vires. In my
view this is not the true position. There is no doubt that it is open to the
Courts to hold that a regulation made under a statute is ultra vires of the
empowering Act. Such an argument was advanced in Rex v. Halliday [1917]
A.C. 260 but unsuccessfully. The contention for the subject in that case
was that although the regulation came, upon a certain construction of
the Act, within the powers, the Act must be construed in a way so as to
limit the ambit of the regulation. Since that case I have been unable to
discover any case in which a regulation made under an Act of Parliament
in the form of a Statutory Instrument has ever been challenged. Your
Lordships were certainly not referred to any such case. There are a multitude
of statutes in which powers are given to Ministers by order to make regula-
tions and indeed in some cases to alter the terms of the statute by regulation.
In the absence of any such challenges of the validity of Regulations made
in virtue of statutory power it must be plain that the task of a subject who
endeavours to challenge the validity of such a regulation is a heavy one.

There are in the authorities indications of the principle upon which a
Court construes the validity of such regulations. For example in Minister of
Health v. The King ex parte Yaffe [1931] A.C. 494 Lord Thankerton at page
532 said:

” In this case, as in similar cases that have come before the Courts,
” Parliament has delegated its legislative function to a Minister of the
” Crown, but in this case Parliament has retained no specific control
” over the exercise of the function by the Minister, such as a condition
” that the order should be laid before Parliament and might be annulled
” by a resolution of either House within a limited period. In my opinion
” the true principle of construction of such delegation by Parliament of
” its legislative function is that it only confers a limited power on the
” Minister, and that, unless Parliament expressly excludes the jurisdiction
” of the Court, the Court has the right and duty to decide whether the
” Minister has acted within the limits of his delegated power.”

Again at page 533:

” Where, however, the power delegated to the Minister is a discre-
” tionary power, the exercise of that power within the limits of the
” discretion will not be open to challenge in a Court of law.”

In such a case as this the discretion entrusted to the Minister to make
regulations for the preservation of peace and the maintenance of order in
Northern Ireland is a very wide power and his discretion will not lightly be
interfered with. The Court will only interfere if the Minister is shown to
have gone outside the four corners of the Act or has acted in bad faith (see
Lord Greene M.R. in Carltona Ltd. v. Commissioners of Works [1943] 2 All
E.R. page 560). Lord Radcliffe in Attorney-General for Canada v. Hallet
& Carey Ltd. [1952] AC 427 said at page 450 that the executive act to be
valid must be ” capable of being related to the prescribed purposes of the
” empowering Act.”

Approaching the present regulations with these principles in view I turn
to the argument for the Appellant which was that as there was no evidence
that there was anything sinister about the word ” republican ” which could be

a threat to peace and order the regulation was ultra vires. My answer to
that argument is that I do not know what significance the word ” republican ”
has in Northern Ireland. It may well be that it will bear a different con-
struction in Northern Ireland from what it might bear in another context.
These, however, are matters for the Minister. It is important to observe that
the inclusion of republican clubs eo nomine is an additional category to a
list of organisations in Regulation 24A all of which, according to the Lord
Chief Justice, were notoriously of a militant type and were unlawful organis-
ations. Three of these organisations bear the name “republican”. No
challenge was made of the validity of Regulation 24A as originally made
which was admittedly intra vires. In these circumstances I am not able to
say that a Minister acting in good faith—as it is conceded he did—under
section 1(3) of the Act was exceeding his powers in adding to the category
of organisations deemed to be unlawful organisations described as ” Repub-
” lican Clubs “. In my view, in the words of Lord Greene, the regulation
was ” within the four corners of the Act ” or, in the words of Lord Radcliffe,
was ” capable of being related to the powers ” conferred by the Act. In
these circumstances the Court cannot, in my view, interfere with the exercise
of the Minister’s discretion.

There is a long line of authorities dealing with executive orders made by
ministers under powers conferred on them by the Defence (General) Regula-
tions 1939 of which Carltona Ltd. v. Commissioners of Works (supra) and
Point of Ayr Collieries Ltd. v. Lloyd George [1943] 2 All E.R. 546 are only
examples. In the latter case the minister was given power under the Defence
(General) Regulations 1939 ” if it appeared to him that in the interests of the
” public safety, the defence of the Realm, or the efficient prosecution of the
” war it was necessary to take control ” of property. It was held that there
was no jurisdiction to interfere with the exercise of an executive power within
his delegated authority.

The present case, as I have already stated, is not a case of an executive
order made by a Minister under a regulation, but the challenge of a regula-
tion made by a minister under an Act of Parliament conferring power on
him to make regulations for certain specified purposes, the regulation to be
laid before Parliament under section 1(4). The fact that in the cases above
referred to there was a provision in the regulations to the effect that if it
appeared to the Minister to be necessary for the specified purposes does not,
in my view, distinguish these cases from the present. In the regulation
in question the expediency is stated in the Regulation and in the absence of
any charge of bad faith expediency is presumed provided that the exercise
of the power is capable of being related to the specified purposes.

The final argument for the Appellant related to the third category of
organisations which it is said the regulation covered, namely ” or any like
” organisation howsoever described”. It was submitted that this would
cover any club whatever its name and whatever its objects and that such
an exercise of the Minister’s power was unreasonable, arbitrary and
capricious. In my view this argument is not well founded. The regulation
first of all embraces Republican Clubs eo nomine and they are caught by
their very description. If they do not bear the name ” Republican “, it
would be a question of interpretation after evidence whether any particular
club was covered by the words ” any like organisation howsoever described “.
It is indeed not necessary for the purposes of this case where the organisa-
tion bore the name ” Republican Club ” to examine this question in any
great detail. But my provisional view is that the regulation would cover
any organisation having similar objects to those of a Republican Club or
of any of the named organisations or of any organisation whose objects
included the absorption of Northern Ireland in the Republic of Ireland.

Having regard to all these matters I cannot say that the class of ” like
“organisations” is either ambiguous or arbitrary so as to invalidate the
Regulation. In my view this ground of attack also fails.

I agree with the majority of the Court of Appeal in holding that the
regulation was not ultra vires. I would therefore dismiss the appeal.

Lord Pearce

MY LORDS,

The 1922 Act was passed at a time of unrest and disturbance. Its object
was to empower certain authorities of the Government of Northern Ireland
to take steps for preserving the peace and maintaining order. It laid down
certain stringent regulations in its schedule. By section 1 the Minister of
Home Affairs was given power ” to take all such steps and issue all such
” orders as may be necessary for preserving the peace and maintaining
” order, according to and in the execution of this Act and the regulations”
or such further regulations as might be made in accordance with the Act.
There was a proviso that the ordinary course of law and avocations of life
and the enjoyment of property should be interfered with as little as might
be permitted by the exigencies of the steps required to be taken under the
Act. The section also gave the Minister power to make regulations for
making further provision for the preservation of the peace and maintenance
of order and for varying or revoking any provision of the regulations in the
schedule. The regulation here in question purported to be made in 1967
under that power. Was it within that power or was it ultra vires?

Before considering the content of the 1967 regulation, it is convenient to
see what was the extent of the Minister’s power. He was not in express
terms given a subjective discretion or indeed any discretion at all. But
clearly some discretion was intended. Its extent must be determined by
the context in which it is given. It was a discretion to carry out the pur-
poses of the Act which gave it. In Julius v. Bishop of Oxford 5 A.C. 214
at 235 Lord Selborne said—

” The question whether a judge or a public officer to whom a power
” is given by such words is bound to use it upon any particular occasion
” or in any particular manner must be solved aliunde, and, in general,
” it is to be solved from the context, from the particular provisions, or
” from the general scope and objects of the enactment conferring the
” power.”

That case was dealing with a somewhat different point, namely whether
when a power was given there was a duty to use that power in proper
circumstances. But it is an example of the principle that when Parliament
gives a power without any indications of its extent, one must read the limita-
tions from the context. It is a power given to carry out the purposes of the
Act and any discretion given is limited to those purposes. Even where such
wide words are used as ” may make such regulations as he may think fit”,
the subjective power is limited to such things as the general context of the
statute shows to be its objectives. It cannot be suggested that he can make
any regulations that he likes, regardless of the intentions to be derived from
the statute conferring the power. A fortiori is this so when no subjective
licence is given ; for it certainly should not be implied.

When one is seeking to define the extent of this power from its context
and the objects of the Act, one cannot divorce subsection (3) from the rest
of the section and derive from such severance a justification for regarding
subsection (3) in vacuo. The section as a whole clearly shows that Parlia-
ment was intending the stringent powers under the Act to be used only in
respect of such steps and orders as may be necessary for preserving the peace
and maintaining order. And a proviso was deliberately inserted that ” the
” ordinary course of law and avocations of life and the enjoyment of
” property shall be interfered with as little as may be permitted by the
” exigencies of the steps required.” There is thus manifested a clear inten-
tion by Parliament to limit the scope of the restrictive measures to such as
were made essential by the demands of the crisis and any power to make
regulations must be similarly limited.

I can find no reality in the argument that whereas Parliament was thus
carefully and somewhat apprehensively restricting any repressive steps and

orders to the minimum demanded by the crisis, it was giving a free rein
to the making of repressive regulations. Such a refinement could not, I
feel sure, have occurred to any of the Members of Parliament who voted
for the Act.

The convention by which our Courts construe statutes in order to find
the so-called “intention of Parliament” compels one to disregard the fact
that this was an Act passed by Members of Parliament. It subjects the
words of a statute to critical analysis and construction with all the expertise
of legal professional experience. Our Courts also (unlike the Courts of
some other countries) disregard the debate which preceded the passing of the
Act and any assurances that may have been given to the Members by their
law officers.

This somewhat artificial convention makes it all the more important to
avoid refinements of construction which may be attractive to the expertise
of the skilled lawyer but could never conceivably have occurred to a Member
of Parliament when he read an apparently comprehensible statute. In my
opinion the normal ordinary meaning which this statute would bear is that
the Minister, whether making orders or regulations or enforcing the statute,
must confine himself to that which any crisis made necessary, and which
caused the minimum disruption of the citizen’s rights. It is within that
limited area that his discretion was confined.

Does the 1967 regulation come within the power thus given? In my
opinion it does not. I agree with the judgment of the learned Lord Chief
Justice.

The Justices construed the 1967 regulation with glosses intended to make
rough and ready sense of it. On principles akin to the maxims ejusdem
generis and noscitur a sociis, they assumed that the clubs aimed at were those
whose activities were subversive, like those whose names were already set
out in the regulation. Thus they concluded that it only affected clubs whose
activities were unlawful. But in that case the 1967 regulation was pointless,
since a club whose activities were unlawful was already dealt with under
the previous regulations. The Lord Chief Justice, therefore, rightly, I am
inclined to think, rejected the Justices’ gloss on the regulation.

The original regulation 24 was aimed at subversive activities by unlawful
associations. After the Act there was added by the Minister a valid regula-
tion 24A which deemed to be unlawful associations certain named militant
organisations whose activities were well known to be subversive. That was
within the Minister’s discretion. Thus, in any prosecution their known
unlawfulness need not be proved in evidence. By the 1967 regulation,
however, there were added to the list of those deemed unlawful under 24A
” The organisations at the date of this regulation or at any time thereafter
” describing themselves as the ‘ Republican Clubs’ or any like organisation
” howsoever described “. It was under this addition to the regulations that
the appellant was prosecuted. It is admitted that the Republican Club to
which he belonged was innocent of any unlawful activities. He can only,
therefore, be guilty of an offence if the regulation makes the club unlawful
howsoever innocent may be its activities.

It is argued that it is for the Minister alone to decide how he should use
his power and that the court should not interfere, however wrong it thinks
that decision, unless there is some element of bad faith. But in my opinion
the duty of surveillance entrusted to the courts for the protection of the
citizen goes deeper than that. It cannot take the easy course of ” passing by
” on the other side ” when it seems clear to it that the Minister is using a
power in a way which Parliament, who gave him that power, did not intend.
When there is doubt, of course the courts will not interfere. But if it seems
clear on grounds of rationality and common sense that he was exceeding the
power with which Parliament was intending to clothe him to further the
purposes of the Act, the courts have a duty to interfere. The fact that this
is not an easy line to draw is no reason why the courts should give up the
task and abandon their duty to protect the citizen.

I accept the observations of the Lord Chief Justice as to the regulation
being ” too sweeping and too remote on any rational view “. ” It is not”,
he said, ” to use the words of Lord Radcliffe, ‘ capable of being related to’
” these prescribed purposes. An association may call itself a Republican
” Club without exhibiting any evidence that its objects or activities are in
” any sense seditious or otherwise unlawful. That is not to say that the
” name chosen for an association by its members could not amount to an
” indication that its objects or activities were unlawful. To call a club the
” ‘ The Freedom Through Violence Club ‘, for instance, would be asking for
” trouble. But even in Ireland the word ‘ Republican ‘ need not connote
” anything unconstitutional or contrary to law. If this regulation is good
” where must the Minister stop? Will ‘ Irish Clubs ‘ or ‘ Ulster Clubs’
” or’ Green Clubs’ or’ Orange Clubs ‘ or ‘ Gaelic Clubs ‘ or ‘ Friends of the
” ‘ Republic ‘ or ‘ Friends of the North ‘ or ‘ Catholic Clubs ‘ or ‘ Protestant
” ‘ Clubs’ all have to be deemed unlawful associations if similar regulations
” are made regarding such titles? Mr. Gibson had to concede that if the
” Minister thought fit he could in the exercise of his discretion make any
” club with any name in effect an unlawful association. I do not think that
” width of power lies within the Act of 1922 “.

Further, the 1967 regulation is too vague and ambiguous. A man must
not be put in peril on an ambiguity under the criminal law. When the
1967 regulation was issued the citizen ought to have been able to know
whether he could or could not remain a member of his club without being
subject to a criminal prosecution. Yet I doubt if one could have said
with certainty that any man or woman was safe in remaining a member of
any club in Northern Ireland, however named or whatever its activities or
objects.

Had the final phrase “or any like organisation howsoever described”
been absent, the regulation would have simply been an attack on the descrip-
tion ” Republican Club “, however innocent the club’s activities. Presumably
the justification for it would have to be that the mere existence of the word
Republican in the name of a club was so inflammatory that its suppression
was “necessary for preserving the peace and maintaining order” and that
the ” exigencies ” of the need for its suppression did not permit the citizen’s
right in that respect to prevail. For the reasons given by the Lord Chief
Justice I do not accept that such a justification could suffice. But be that
as it may, the final phrase shows that this is more than an attack on nomen-
clature, since the club is deemed equally unlawful if it is a like organisation
whatever be the name under which it goes.

And what is the ” likeness ” to a Republican club which makes an organi-
sation unlawful ” howsoever described “? Since a Republican club is banned
whatever may be its activities, the likeness cannot consist in its activities.
And since the organisation is unlawful, howsoever described, the ” likeness ”
cannot consist in a likeness of nomenclature. The only possibility left seems
to be that the ” likeness ” may consist in the mere fact of being a club.
In which case all clubs, however named, are unlawful—which is absurd.

One cannot disregard the final phrase, since that would wholly alter the
meaning of the regulation. Without the final phrase it is simply an attack
on nomenclature. But with the final phrase it cannot simply be an attack
on nomenclature. One cannot sever the bad from the good by omitting a
phrase when the omission must alter the meaning of the rest. One must
take the whole sentence as it stands. And as it stands it is too vague and
ambiguous to be valid.

I would therefore allow the appeal.

Lord Pearson

MY LORDS,

The question at issue in this appeal is whether the Regulation dated the
7th March 1967, purporting to have been made by the Minister of Home

Affairs under section 1(3) of the Civil Authorities (Special Powers) Act
(Northern Ireland) 1922, is within the powers conferred by that Act.

The whole of section 1 is relevant but it has already been set out and
I will not repeat it.

The power to make regulations is conferred on the Minister by sub-
section (3) and not by subsection (1) of section 1. The scheme of the
section is that the provisions of the Act and the regulations, both those set
out in the Schedule to the Act and those which may be made subsequently,
constitute the authority under and in accordance with which orders may be
made and steps may be taken under subsection (1). An examination of the
language of the regulations set out in the Schedule shows clearly that
” orders” are to be made and ” steps ” to be taken under the regulations.
The orders and steps are executive or administrative acts. The making of
regulations is part of the legislation and is not the making of an order or
the taking of a step within the meaning of subsection (1). Accordingly, the
limitations imposed on the making of orders and the taking of steps by the
words ” As may be necessary for preserving the peace and maintaining order ”
and by the proviso to subsection (1) do not apply to the making of regulations
under subsection (3). It is clear that the regulations made by the Minister
of Home Affairs under subsection (3) are legislative in character, because
they may vary or revoke any provisions of the regulations and they are to
have effect and be enforced in like manner as regulations contained in the
schedule. They are thus on the same plane as the initial legislation contained
in the Act.

The directly relevant power under subsection (3) is ” to make regulations
“… for making further provision for the preservation of the peace and
maintenance of order”. That is not an unlimited power. It is a power to
make regulations for the specified purposes—the preservation of the peace
and maintenance of order. If regulations purporting to be made under this
power could be shown to have been made otherwise than for the specified
purposes, I think they could be held to be ultra vires. I am dealing only
with the construction of subsection (3) of section 1 of the Act, and conse-
quently using the phrase ” otherwise than for the specified purposes”
without further definition or elaboration.

I should add that of course the Act is to be construed as a whole, and
consequently, when one is construing subsection (3) of section 1, subsection
(1) can be taken into account. But, taking it into account, I do not find that
it alters in any way the natural meaning of subsection (3).

The Northern Ireland Parliament must have intended that somebody
should decide whether or not the making of some proposed regulation would
be conducive to the ” preservation of the peace and maintenance of order “.
Obviously it must have been intended that the Minister of Home Affairs
should decide that question. Who else could? He might consult other
Ministers before making the decision, but it would be his decision. The
Courts cannot have been intended to decide such a question, because they
do not have the necessary information and the decision is in the sphere of
politics, which is not their sphere.

When the Minister has made a regulation, and purports to have made it
under section 1 subsection (3) of the Act, the presumption of regularity
(omnia praesumuntur rite esse acta) applies and the regulation is assumed
Prima facie to be intra vires. But if the validity of the regulation is
challenged, and it is contended that the regulation was made otherwise than
for the specified purposes, the courts will have to decide this issue, however,
difficult the task may be for them in some circumstances.

The ways in which an instrument may be shown to be ultra vires have
been discussed in many cases, and I do not find it necessary to enter into
such a discussion in this case. I shall assume that the regulation might be
shown prima face to be ultra vires (made otherwise than for the specified
purposes) either by internal evidence from the provisions of the regulation

itself—e.g. if it purported to render all chess clubs unlawful—or by external
evidence of the factual situation existing at the time when the regulation was
made.

To see what the relevant internal evidence is, one has to begin with the
original Regulation 24A made in 1922 soon after the enactment of the Act.
The principal provisions are as follows:

” Any person who becomes or remains a member of an unlawful
” association or who does any act with a view to promoting or
” calculated to promote the objects of an unlawful association or
” seditious conspiracy shall be guilty of an offence against these
” Regulations.

. . . . . . . . .

” The following organisations shall for the purposes of this Regula-
” tion be deemed to be unlawful associations: —

” The Irish Republican Brotherhood
” The Irish Republican Army
” The Irish Volunteers
” The Cumann na m’Ban
” The Fianna na h’Eireann.”

Later regulations made in 1931, 1933 and 1936 respectively added to the
list of organisations deemed for the purposes of Regulation 24A to be
unlawful associations the following:

” Saor Eire

” The National Guard

” Cumann Poblachta na h’Eireann “.

Counsel has stated that ” Cumann Poblachta na h’Eireann ” means ” Group
” of the Republic of Eire “. It is conceded that the original Regulation 24A
and these supplementary regulations are valid.

Then the regulation with which this appeal is concerned was made in
1967 by the Minister of Home Affairs. One of its recitals was “And
” whereas it is expedient that further provision for the preservation of the
” peace and maintenance of order should be made”. The operative
provision was—

” Regulation 24A. of the principal Regulations shall have effect as if
” the following organisations were added to the list of organisations
” which for the purpose of that Regulation are deemed to be unlawful
” associations: —

” ‘ The organisations at the date of this regulation or at any time
” ‘ thereafter describing themselves as “Republican Clubs” or any
” ‘ like organisation howsoever described ‘.”

That recital and those provisions do not to my mind afford any evidence
that the regulation was made otherwise than for the specified purposes. The
recital is evidence that it was made for those purposes. The deeming of
Republican Clubs to be unlawful organisations is in line with the deeming
of the Irish Republican Brotherhood, the Irish Republican Army and the
Cumann Poblachta na h’Eireann to be unlawful organisations. A Republican
Club in Northern Ireland is presumably one whose members believe in a
republican form of government, and wish to have such a form of government
introduced into Northern Ireland, which would naturally be effected by
Northern Ireland being severed from the United Kingdom and incorporated
in the Irish Republic. Did such clubs in Northern Ireland at the time when
the regulation was made have a tendency to become militant, causing dis-
turbances and perhaps committing acts of violence, or did they not? I could
not answer that question, not having the relevant information. But presum-
ably the Minister of Home Affairs in Northern Ireland did at that time have
relevant information and on the basis of that information did form the

opinion that the continued existence of those clubs would be a threat to the
preservation of the peace and maintenance of order. In saying that, I am
applying the presumption of regularity. At any rate there is not in the
provisions of the regulation any evidence that it was made otherwise than
for the specified purposes.

The external evidence is summarised in paragraph 8 of the Stated Case:

” 8. No evidence was given that the Respondent or the said Club
” was at any time a threat to peace, law and order but it was conceded
” by witnesses for the Complainant in cross examination that in so
” far as the Police were aware there was nothing seditious in its pursuits
” or those of its members.”

This evidence relates only to one particular club, which had come into
existence shortly before the date of the regulation, and it relates to a later
date (in June 1968) and it only shows that the Police did not know of
anything seditious in the pursuits of this Club or its members. It is relevant
evidence which has to be taken into account, but it is far from sufficient
to prove that the regulation, made on the 7th March 1967, was made otherwise
than for the specified purposes.

There is one further argument against the validity of this Regulation, and
it is the most formidable one. It is that the Regulation is too vague, because
it includes the words ” or any like organisation howsoever described “. I
have had doubts on this point, but in the end I think the argument against
the validity of the regulation ought not to prevail. The Minister’s intention
evidently was (if I may use a convenient short phrase) to ban Republican
Clubs. He had to exclude in advance two subterfuges which might defeat
his intention. First, an existing Republican Club might be dissolved, and
a new one created. The words ” or at any time thereafter ” would exclude
that subterfuge as well as applying to new Republican clubs generally.
Secondly a new club, having the characteristic object of a Republican club,
might be created with some other title such as ” New Constitution Group ”
or ” Society for the alteration of the Constitution “. The words ” or any
” like organisation however described ” would exclude that subterfuge.

In construing this regulation one has to bear in mind that it authorises
very drastic interference with freedom of association, freedom of speech and
in some circumstances the liberty of the subject. Therefore it should be
narrowly interpreted. Also it should if possible be so construed as to have
sufficient certainty to be valid—ut res magis valeat quam pereat.

In my opinion the proper construction of the regulation is that the organi-
sations to be deemed unlawful are—

(i) any organisation describing itself as a ” Republican Club “, whatever
its actual objects may be, and

(ii) any organisation which has the characteristic object of a Republican
Club—namely to introduce republican government into Northern
Ireland—whatever its name may be.

I would dismiss the appeal.

Lord Diplock

MY LORDS,

The question in this appeal is whether the Civil Authorities (Special Powers)
Acts (Amending) (No. 1) Regulations (Northern Ireland) 1967, by which
the Minister of Home Affairs for Northern Ireland purported to add further
provisions to Regulation 24A of the Regulations in force under the Civil
Authorities (Special Powers) Act (Northern Ireland) 1922, fall within the
description ” regulations … for making further provision for the preservation
“of the peace and maintenance of order ” contained in section 1(3) of that
Act (which for brevity I shall call ” the Special Powers Act”). If they
do, the Minister was empowered by that subsection to make the regulations

and this appeal must be dismissed. If they do not, the regulations are ultra
vires and void, the appeal must be allowed and the Appellant acquitted.

The legislative powers of the Parliament of Northern Ireland, unlike those
of the Parliament of the United Kingdom, are limited by the Constitution
of Northern Ireland contained in the Government of Ireland Act 1920 as
amended. But it is not contended that the Regulations challenged in the
present appeal, even if they bear the meaning for which the Respondent
contends, are ultra vires the legislative powers of the Parliament of Northern
Ireland. The sole question is whether the making of these Regulations is
within the legislative powers delegated to the Minister of Home Affairs
by the Parliament of Northern Ireland. This falls to be determined by
the same principles as would apply to an enactment in similar terms of the
Parliament of the United Kingdom.

The division of functions between Parliament and the Courts as respects
legislation is clear. Parliament makes laws and can delegate part of its power
to do so to some subordinate authority. The Courts construe laws whether
made by Parliament directly or by a subordinate authority acting under
delegated legislative powers. The view of the Courts as to whether particular
statutory or subordinate legislation promotes or hinders the common weal is
irrelevant. The decision of the Courts as to what the words used in the
statutory or subordinate legislation mean is decisive. Where the validity of
subordinate legislation made pursuant to powers delegated by Act of Parlia-
ment to a subordinate authority is challenged, the Court has a three-fold task:
first to determine the meaning of the words used in the Act of Parliament
itself to describe the subordinate legislation which that authority is authorised
to make, secondly to determine the meaning of the subordinate legislation
itself and finally to decide whether the subordinate legislation complies with
that description.

I turn then first to the words used in the Special Powers Act to describe
the subordinate legislation (therein called ” Regulations “) which the Minister
of Home Affairs was authorised to make by the Special Powers Act. The
actual delegation is to be found in section 1 (3) but the words there used
take their colour from their context and must be construed in the light of the
scheme disclosed by the Act as a whole and in particular those parts of it
which deal with ” Regulations “.

Your Lordships’ House is entitled to take judicial note of the fact that in
1922 when the Act was passed there was a state of civil insurrection in
Northern Ireland. The Act (1) created a whole series of criminal offences on
the part of private citizens made triable under section 3 by a court of summary
jurisdiction consisting of two or more resident magistrates and punishable
under section 4 by fine up to £100 or imprisonment up to two years; and (2)
empowered the civil authority, defined in section 1 (2) as the Minister of
Home Affairs and any police officer to whom he delegates his powers, to
take various steps interfering with the personal liberty and the rights of
property of citizens, subject in the case of interference with rights of property
to the payment of compensation under section 11.

The offences created and the powers conferred upon the civil authority
by the Act itself are set out not in the body of the Act but in the Schedule
containing what are described as ” Regulations for Peace and Order in
” Northern Ireland “. The reason for the use of this legislative technique
becomes apparent from section 1 of the Act. It was to enable the provisions
of the Act which created offences or conferred powers to be added to, varied
or revoked by the Minister of Home Affairs as the exigencies of the situation
might require without the need to obtain any fresh Act of Parliament.

One further comment on the nature of the regulations contained in the
Schedule is germane before turning to section 1 of the Act. Some of the
regulations which create offences are self-operating. They define acts and
omissions which constitute offences in themselves without need for any further
action by the civil authority. Other regulations, however, are only brought
into effect by the making of an ” order ” by the civil authority the offence

being non-compliance with such an ” order “. An order made under regula-
tions of this kind is in itself of the nature of subordinate legislation, but we
are not concerned in this appeal with the validity of an order.

Section 1 of the Act is in the following terms: —

” 1. (1) The civil authority shall have power, in respect of persons,
” matters and things within the jurisdiction of the Government of
” Northern Ireland, to take all such steps and issue all such orders as
” may be necessary for preserving the peace and maintaining order,
” according to and in the execution of this Act and the regulations
” contained in the Schedule thereto, or such regulations as may be made
” in accordance with the provisions of this Act (which regulations,
” whether contained in the said Schedule or made as aforesaid, are in
” this Act referred to as ‘ the regulations ‘):

” Provided that the ordinary course of law and avocations of life and
” the enjoyment of property shall be interfered with as little as may be
” permitted by the exigencies of the steps required to be taken under this

” Act.

” (2) …

” (3) The Minister of Home Affairs shall have power to make regu-
” lations—

” (a) for making further provision for the preservation of the peace
” and maintenance of order, and

” (b) for varying or revoking any provision of the regulations;
” and any regulations made as aforesaid shall, subject to the provisions
” of this Act, have effect and be enforced in like manner as regulations
” contained in the Schedule to this Act.

” (4) . . .”

The power to make regulations conferred upon the Minister by subsection
(3) is exclusively legislative in character. Regulations made by him pursuant
to the power thus delegated are to have effect as if they were contained in the
Act of Parliament itself. The regulations challenged in the present appeal
are purported to be made under the powers conferred in paragraph (a) of the
subsection. To be valid they must comply with the description contained in
that paragraph of the kind of regulation which the Minister is empowered
to make.

The relevant characteristic of regulations to which that description refers
is the effect to be achieved by them. To be valid their effect must be to
promote the preservation of the peace and the maintenance of order. I use
the expression ” effect ” rather than ” purpose ” for purpose connotes an
intention formed by the maker of the regulation to achieve a particular object,
and substitutes for the objective test of the effect which the regulation is in
fact likely to achieve, the subjective test of what effect the Minister himself
whether rightly or mistakenly believes that the regulation is likely to achieve.
It is to be observed that in contrast to the words of delegation of legislative
powers used in modern statutes the description in section 1(3) of the kind
of regulations which the Minister is empowered to make contains no reference
to the Minister’s own opinion as to the necessity or expediency of the regu-
lation for achieving the effect defined. He is not empowered to make such
further provision as he may think or deem fit or necessary or expedient or
advisable for the preservation of the peace or the maintenance of order,
It was words of delegation of this latter kind which were under consider-
ation in the authorities relied upon by the majority of the Court of Appeal.
The relevant characteristic of subordinate legislation so described in the
words of delegation is the belief of the person empowered to make it that it
will achieve the effect described. If he does so believe it is valid. It is only
if he does not that it is ultra vires and void. The relevant inquiry which the
Court has to make when subordinate legislation made under words of dele-
gation of this kind is challenged is not whether his belief was justified but
whether it existed. The absence of such belief may connote mala fides on

the part of the maker of the subordinate legislation i.e. that he has used
the delegated power with the deliberate intention of achieving an effect
other than that described in the words of delegation but it does not neces-
sarily do so. He may have honestly misconstrued the words of the statute
describing the effect to be achieved and for this reason have failed to form
the relevant belief. These are two of the grounds referred to by Viscount
Radcliffe in Attorney-General for Canada v. Hallett & Carey Ltd. ([1952]
A.C. 427 at pages 444 and 445) as invalidating subordinate legislation made
under words of delegation in which the belief of the subordinate authority
in the effect to be achieved by the subordinate legislation is expressly stated
to be the characteristic of the legislation which he is empowered to make.
But in practice it is seldom possible to distinguish between these two grounds.
The subordinate authority is not normally compellable to disclose his own
mental processes and the Court is powerless to declare the subordinate
legislation invalid unless, in the words of Viscount Radcliffe (at page 450)
it is not ” capable of being related to one of the prescribed purposes ” so
that its very terms give rise to the inference that the subordinate authority
whether deliberately or as a result of his misconstruing the statute cannot
have formed the relevant belief.

But where, as in the present case, the subordinate legislation which the
Minister is empowered to make is described in the statute by reference to the
effect to be achieved and not by reference to the Minister’s own belief in
the effect which it will achieve, the relevant inquiry which the Court has to
make if the subordinate legislation is challenged is not in my view the same.
Onmia praesumuntur rite esse acta and the onus lies upon the party challeng-
ing the subordinate legislation to establish its invalidity. The Minister’s
belief in its necessity or expediency is cogent evidence of its validity but it is
not conclusive and the ultimate decision whether or not the likelihood that
it will achieve the effect described in the statue is sufficient to bring it within
the words of delegation and whether or not that it will not have any effects
which may be prohibited by those words is one for the Court itself to make
upon the facts proved in evidence before it, or of such general public
notoriety that the Court may take judicial notice of them without further
proof. What degree of likelihood is sufficient and to what extent the likely
effect must be confined to that stated in the description are questions for the
Court itself to determine by construing the words of delegation in the light
of the general object that the statute serves, the gravity of the mischief at
which the subordinate legislation is aimed and the effect (if any) which it
will have upon otherwise lawful acts or property rights of citizens which
neither cause nor contribute to that mischief.

In R. v. Halliday ([1917] AC 260) the words of delegation in the Defence
of the Realm Consolidation Act 1914 were in a form comparable to that
employed in the Special Powers Act. Your Lordships’ House by a majority
upheld the challenged Regulation, but did so by forming its own opinion
based upon matters of which it was entitled to take judicial notice that the
regulation was reasonably likely to achieve the effect described in the words
of delegation.

Subsection (3) of section 1 itself contains no reference to necessity or
expediency. The only characteristic referred to in the description of the
regulations which the Minister is empowered to make is that they will have
the effect of promoting the peace and maintaining order, and regulations may
do this though they strike also at conduct which in no way endangers the
preservation of the peace or the maintenance of order. But subsection (1)
does limit the power of the civil authority to take steps according to and in
execution of the Act to such steps as may be necessary for preserving the
peace and maintaining order and the proviso manifests the intention of
Parliament that the ordinary liberties and rights of citizens should be inter-
fered with as little as practicable consistent with the preservation of the
peace and the maintenance of order. In the Court of Appeal there was a
division of opinion as to whether the making by the Minister of a regulation
under subsection (3) was the taking of a ” step ” within the meaning of sub-
section (1). I agree with the reasoning which led Curran and McVeigh L.JJ

to reject this submission. The ” orders ” referred to in subsection (1) are
orders made under those regulations which authorise the making of ” orders ”
and the ” steps ” are in my view confined to the administrative action taken
by the civil authority in the execution of the regulations.

But I nevertheless agree with my noble and learned friend Lord Pearce
that the provisions of subsection (1) are relevant as throwing light upon the
intention of Parliament as to the way in which the powers under the Act
generally including the power of the Minister to make regulations under
subsection (3) of the same section were to be exercised. A regulation which
creates an offence so wide in its terms as to make unlawful conduct which
cannot have the effect of endangering the preservation of the peace and the
maintenance of order is not in my view rendered valid merely because the
description of the conduct penalised is also wide enough to embrace conduct
which is reasonably likely to have that effect.

I turn next to the second task of determining what the words used in the
regulations challenged in the present appeal mean. They add an additional
provision to the existing Regulation 24A previously made by the Minister
for Home Affairs under the same provision of the Special Powers Act. So
far as is relevant to the present appeal, Regulation 24A read as follows:

” Any person who becomes or remains a member of an unlawful
” association or who does any act with a view to promoting or cal-
” culated to promote the objects of an unlawful association or seditious
” conspiracy shall be guilty of an offence against these Regulations. . . .
” The following organisations shall for the purposes of this Regulation
” be deemed to be unlawful associations: —

” The Irish Republican Brotherhood.

” The Irish Republican Army.

” The Irish Volunteers.

” The Cumann na m’Ban.

” The Fianna na h’Eireann.”

The subject matter of the first paragraph of this regulation is ” unlawful
“associations” and “seditious conspiracies”—both of them expressions
of which the meaning in the context of the regulation is clear.

Confining myself to ” unlawful associations “, an association is unlawful
if any of its objects are unlawful, i.e. if either the end which it seeks to
achieve is unlawful or, though the end is lawful, the means by which it seeks
to achieve that end are not. The characteristic of an association which
makes it an ” unlawful association ” within the meaning of the first part of
Regulation 24A is the unlawfulness of its objects. In any prosecution of a
person for becoming or remaining a member of an unlawful association or
doing any act with a view to promoting or calculated to promote the objects
of an unlawful association, it would be necessary for the prosecution to
prove that the objects of the association were unlawful. Though if it were
a matter of general public knowledge that the objects of a particular associa-
tion were unlawful the court would be entitled to take judicial notice of that
fact.

The last paragraph of the regulation places within the category of associa-
tions with unlawful objects the associations named therein and thus removed
the need for the prosecution to prove what their objects were. It is,
however, conceded that at the time that Regulation 24A was made, viz.
22nd May 1922, it was a matter of general public knowledge that the objects
of the named organisations were unlawful and the paragraph does no more
than assert facts of which the Courts would have been entitled to take
judicial notice, even apart from that paragraph. For this reason it is
conceded that Regulation 24A as it stood prior to 1967 is intra vires:
although different considerations would have applied if the last paragraph had
listed apparently lawful organisations such as the Automobile Association
or the Athenaeum.

The regulation challenged in the present appeal added to the list of the
organisations named in the last paragraph of Regulation 24A not merely

329223 A 4

additional organisations identified by name but a class of organisations
identified by the words ” The organisations at the date of this regulation
” or at any time thereafter describing themselves as ‘ Republican Clubs’ or
” any like organisation howsoever described “.

If these words include any association which is not in fact unlawful
within the meaning of the first part of Regulation 24A they alter the mischief
at which that regulation was previously aimed by adding a different kind of
mischief; and for the new regulation to be valid this different kind of
mischief must also be one the suppression of which will have the effect
of preserving peace and maintaining order. The inclusion in the definition
of this new class of proscribed associations of ” any like organisation”
shows that the mischief struck at is some characteristic of organisations
describing themselves at the date of the regulation or at any time thereafter
as ” Republican Clubs “. The only characteristics of such organisations to
which reference is made in the regulation either expressly or by implication
are—

1. 1. that they are organisations composed of members and, as is implicit
    in the word ” organisation “, possessing objects of some kind ; and
  2. that they describe themselves as ” Republican Clubs “.

But the possession of characteristic (2) cannot constitute the mischief aimed
at for the relevant likeness can exist ” howsoever [the organisation is)
” described “.

The Magistrates’ Court took the view that the Minister cannot have
intended to include in this category organisations composed of members
irrespective of the objects for which the organisation was formed, for on this
construction it would be an offence to become or remain a member of any
club or organisation in Northern Ireland. They therefore construed the
regulation in the light of the first paragraph of Regulation 24A as limited
to organisations composed of members and possessing objects which are
unlawful.

In your Lordships’ House, it has not been contended that this is a legiti-
mate construction to put on the regulation. So construed it adds nothing to
what was already contained in the first part of Regulation 24A.

The majority of the Court of Appeal for Northern Ireland evaded the
difficulty involved in the words ” any like organisation howsoever described ”
by confining their attention to some of the words of the regulation only,
viz. ” The organisations at the date of this regulation . . . describing
” themselves as ‘ Republican Clubs’ . . .” The ” Slaughtneil Repub-
” lican Club ” of which the Appellant was found to have remained a member
fell within this category.

The argument for the Respondent then runs thus: It must be inferred that
the Minister not merely believed but knew at the time that he made the
regulation challenged that all organisations then in existence which described
themselves as ” Republican Clubs ” in fact had unlawful objects. That part
of the regulation which relates to organisations in this category does not
alter the mischief previously struck at by Regulation 24A. It does no more
than enable the court to take judicial notice that these organisations as well
as those previously listed have unlawful objects. But even if it were
legitimate to treat the regulation as severable by merely striking out the two
groups of words omitted above, the inference that the Minister had such
knowledge is an inference of fact which cannot be drawn if it can be shown
that the ” facts ” of which his ” knowledge ” is sought to be inferred did
not exist. If. therefore, the evidence establishes that not all organisations
which described themselves as ” Republican Clubs ” at the date of the
regulation had unlawful objects this destroys the ground for the inference
that membership of an organisation with unlawful objects was the mischief
against which the regulation was aimed.

It was found as a fact in the present case, which we are informed is the
only prosecution which has so far been brought under the regulations
challenged, that as respects one club in this category “The Slaughtneil

” Republic Club “, there was nothing seditious in its pursuits or those of its
members so far as the police were aware. It is to be noted that the prosecu-
tion in which this fact was elicited from the police witnesses was brought
by a police officer on the direction of the Attorney-General, as required by
section 3 (2) of the Act. What was known to the police was presumably
known to the Minister and this admission gravely weakens any inference
of fact that the Minister did have the knowledge postulated when he made
the regulation upon which to base the conclusion of law that upon the true
construction of the regulation the mischief intended to be struck at even
in organisations describing themselves as Republican Clubs at the date of
the regulations lay in their unlawful objects.

But there is another reason for rejecting this inference construction of
the regulation which I find compelling. It is not, in my view, permissible
to treat the regulation as severable in the way adopted by the majority of
the Court of Appeal. To do so is to treat it as striking at more than one
unrelated mischief whereas the inclusion in the description of the organisa-
tions deemed to be unlawful association of the words ” any like organisation ”
makes it plain that it is organisations possessing a common mischievous
characteristic that are intended to be proscribed.

What then is that characteristic? Even if it were legitimate to infer that the
Minister had knowledge of the objects of ” Republican Clubs ” in existence
at the date of the regulation he could not have knowledge of what would
be the objects of clubs to be formed in the future which would describe
themselves as ” Republican Clubs “. The characteristic struck at, therefore,
cannot be the possession in fact of unlawful objects by the organisations
proscribed. Nor for the reasons previously indicated can the common
characteristic struck at be the use of the name “Republican Club”. It is
conceivable that the adoption of a particular name might of itself be so
inflammatory in Northern Ireland as to endanger the preservation of peace
and the maintenance of order, but the regulation proscribes ” like organisa-
” tions ” which do not adopt this name.

But there are no other ascertainable common characteristics of the organisa-
tions described in the regulation except that they are composed of members
and possess objects of some kind or other and describe themselves by some
name or other. If the Minister’s intention was to proscribe all clubs and
associations in Northern Ireland whatever their objects and name the regula-
tion plainly falls outside the power delegated to him by section 1 (3) of the
Special Powers Act to make regulations “for making further provision for
” the preservation of the peace and the maintenance of order “. It makes
unlawful conduct which cannot have the effect of endangering the preserva-
tion of the peace or the maintenance of order. But if the Minister’s intention
was to proscribe some narrower category of organisations the suppression
of which would have the effect of preserving the peace and maintaining
order he has in my view failed to disclose in the regulation what that
narrower category is. A regulation whose meaning is so vague that it
cannot be ascertained with reasonable certainty cannot fall within the words
of delegation.

It is possible to speculate that the Minister when he made the regulation
now challenged bona fide believed that the sort of club which at that date
described itself as a ” Republican Club ” was likely to have unlawful objects
which would endanger the preservation of the peace and the maintenance of
order and by the words that he added he may have intended to do no more
than to prevent such clubs from evading the regulation by dissolving and
re-forming or by changing their names. If this was his intention he signally
failed to express it in the regulation, for by no process of construction can
it be given this limited effect. Or he may have thought it administratively
convenient to insert in the regulation a description of proscribed organisa-
tions so wide as to include also those with lawful objects in order to be sure
that none with unlawful objects should be omitted and to rely upon the
administrative discretion of the Attorney-General under section 3 (2) of the
Act not to enforce the regulation. But to do this however administratively
convenient would be outside his delegated legislative powers.

But this is speculation not construction and your Lordships’ function is
limited to construing the words which the Minister has used. In my view
the words used by the Minister in the regulation are either too wide to fall
within the description of the regulations which he is empowered to make
under section 1 (3) of the Special Powers Act or are too vague and uncertain
in their meaning to be enforceable.

I would allow this appeal.

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