SQUARING THE CIRCULAR
By Dr. C. K. ALLEN, K.C.
ONE of the most moving ballads in our language tells us that "There's a famous seaside place called Blackpool That's noted for fresh air and loon."
Mr. Locker, the hero of the ensuing epic, was destined to get little foon out of Blackpool, but he thought so highly of its fresh air that he was determined to live there for the benefit of his health. His house, however, which was temporarily unoccupied, was too large for his needs, and he proposed to sell it and to buy a smaller one. A purchaser stood ready and had paid a so per cent, deposit under the usual agreement "subject to written contract." All was going smoothly when Mr. Locker suddenly found himself a David pitted against the Goliath of the Ministry of Health, with no weapon but his little sling and stone, and at an even greater disadvantage than the firstoDavid, since he was blindfolded throughout the encounter. What Lord Justice Scott has called an "almost incredible case" has been hanging over Mr. Locker since June, 1946, and he has recently scored his first direct hit on the giant—a knock-out, let us hope—in the Court of Appeal. Old-fashioned Britons with a linger- ing affection for the Rule of Law (quaint, archaic term!) may wish that the case were indeed "incredible " ; but many of its features may drive them to the melancholy conclusion that it is only too true and only too characteristic.
Two days after the prospective purchaser had paid the deposit for Mr. Locker's house, the Corporation of Blackpool, through its Town Clerk, placed it under requisition for accommodation of the homeless. The purchaser at once withdrew, as he was entitled to do. Mr. Locker then, having no other roof to his head in salubrious Blackpool, went into possession and notified the local authority, in proper form, that he proposed himself to live in the house, which contained a substantial quantity of his furniture. He was fully entitled to do this ; but he was told that if he did not immediately quit he would not only be committing a crime under the Defence Regulations but would be liable for damages for trespass ; and indeed, when a summons for possession did eventually come before a County Court Judge, the Corporation was awarded £5 damages for trespass as well as an injunction. The Court of Appeal has now held that the requisition notice was bad and ultra vires from the beginning, on technical grounds which need not be discussed here ; suffice it that the Corporation had flagrantly disregarded instructions from the very authority, the Ministry of Health, to which it turned for "confirmation" whenever its illegal procedure was questioned.
It is instructive to study the manner in which this local authority (in common with many others throughout the country) obtained its requisitioning powers ; but in order to explain the tortuous process of devolution, it would be necessary to set forth the relevant provi- sions of Defence Regulations 49, 5x and too, an Order in Council No. 1616 of 1945, and the Supplies and Services (Transitional Powers) Act, 1945, with, for full measure, some reference to the Emergency Powers (Defence) Acts of 1939 and 1940 and the Ministry of Supply Act, 1939. I would not, however, wantonly inflict pain, and I therefore content myself with saying that the Minister was a "competent authority" to make the regulations in question, that he was authorised to sub-delegate his powers, and that he did sub- delegate to local authorities his requisitioning powers for the purpose of "providing houses for the inadequately housed."
In that situation the local authority, encouraged by the Minister, gave the prettiest possible exhibition of "having it both ways." There is a difference in law (and in common experience) between a delegate and an agent. An agent is the instrument of a principal who is liable for the subordinate's acts so long as the subordinate keeps within the scope of his authority. To a delegate is entrusted a separate and distinct responsibility, including initiative, decision and discretion in' the exercise of the powers committed to him. As the delegate of the Minister the Corporation issued its decrees peremp- torily; but whenever it wished to reinforce its illegal demands, it posed as the mere agent of the Ministry and obtained menacing " confirmation" of its actions from that Olympian source. The supreme achievement of this kind was a pontifical document, issued from the Ministry after action had been joined, purporting to validate "all such acts, including the taking of any legal proceedings" as the Corporation (or, apparently, anybody else at the will of White- hall) might do in relation to the seizure of these premises. This document has the air of a "common form" employed by the Ministry, and of it Lord Justice Scott said that it "was so great a breath of constitutional propriety that I do not know any legal epithet suitable for it." Vulgar parlance may, perhaps, fill the gap in the Lord Justice's vocabulary.
The most remarkable feature of the case, however, is the im- penetrable secrecy which surrounded the actual machinery of requisition. Here we approach a further stage of demi-semi- legislation, for the detailed regulations about requisitioning are embodied in a series of " circulars " issued by the Minister to local authorities. These documents are legion ; but the Court was con- cerned with eight principal ones, ranging from 1940 to 1946. They, and their numerous amendments, deal with all sorts of practical particulars—the form of requisition, the disposal of furniture, the classes of persons to be housed, the rights of the owner to make representations and to occupy for his own use, existing contracts and leases—in short, every detail of method, procedure and power which really matters to the householder when, faced with expropria- tion, he wants to know the what, when and why of his legal position. For nearly six months Mr. Locker, through his legal advisers, asked, persistently but always courteously, to see these circulars in order to be informed of his rights and liabilities. After interminable correspondence, he was allowed to see two of them ; the rest were kept jealously behind an Iron Curtain ; indeed, privilege was actually claimed for these circulars (among many other documents) on the ground that they were "professional communications of a confidential nature."
Let it be clearly understood that this Ministerial literature is law—just as much law, within its own ambit, as the most authorita- tive rule of statute or precedent. Thus the law of the land becomes a "professional communication of a confidential nature." All men must know it at their peril—presumably by telepathy, by clairvoyance or by burgling the Town Clerk's office. There appears to be no existing or promised remedy for this fantastic situation. The Statutory Instruments Act, 1946, which was intended to replace the clumsy scheme of the Rules Publication Act, 5893, makes no pro- vision for the publicity of sub-legislation by circulars, or by the numerous other buff and bluff " instructions " now commonly em- ployed by Departments for laying down the law.
Lord Justice Evershed found the Iron Curtain "shocking." Others, perhaps, will feel neither shock nor sympathy at the rough handling of a mere member of the parasitical class of property- owners. And yet Mr. Locker is hardly a bloated landed proprietor, but, we are told, a man of small means, earning his living as an interpreter in the courts. He did not defy the law, but merely asked to be told what it was ; and there is a plain and perturbing moral to be drawn from the treatment which he received. It is stated in unvarnished terms by Lord Justice Evershed. "Those who seek to refuse him that elementary right" (to be informed of the law which is applicable to him) "cannot in my judgement escape the imputation of having sought to bludgeon him into sub- mission, or the charge of involving him, as an alternative to submission, in the costs of litigation which may turn out to be futile."
As the present writer knows from experience, if it is ever sug- gested that the Executive resorts to this kind of " bludgeon " (for which, in private life, there is an ugly name), there are indignant protests that our high-minded civil servants never dream of abusing their powers for the oppression of the individual or for the obstruc- tion of justice. Those who still cherish that illusion are recom- mended to study the masterly, if depressing, narrative and analysis of Lord Justice Scott's judgement in this case—and then to render• thanks that we still have a few shots in our Lockers:
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