Public Law within Government: Sustaining the Art of the by T. P. B. Rattenbury

By T. P. B. Rattenbury

Drawing on wealthy resource fabric - one neighborhood authority's involvement within the epic central/local war of words over neighborhood executive spending in Nineteen Eighties England - this publication develops a multifaceted and greatly acceptable research of public legislation inside govt as a strategy of 'sustaining the artwork of the possible'.

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For statutory local authorities, however, it has been settled since at least the House of Lords’s decision in LCC v A-G (1902) that the same rule applied. This appears to be about the same time that, in the United States, the ultra vires-like ‘Judge Dillon’s Rule ultimately won out against Judge Thomas Cooley’s assertion of an inherent right to local self-government’ (McCarthy and Reynolds 2003: 18–19). Dillon’s Rule is that: A municipal corporation possesses and can exercise only the following powers: (1) those granted in express words; (2) those necessarily or fairly implied in or incident to the powers expressly granted: (3) those essential to the accomplishment of the declared objects and purposes of the corporation – not simply convenient, but indispensable.

Sharland (2006: 166) gently disapproves this blurring of the ‘irrational’ with the ‘irrelevant’. Hall & Co Ltd v Shoreham-by-Sea UDC (1963: 8–9) provides a clear example, with the judge saying on one page that the council’s aim in imposing a particular planning condition was ‘a perfectly reasonable one’, but only a page later that ‘Bearing in mind that another and more regular course is open to the defendants, it seems to me that this result would be utterly unreasonable and such as Parliament cannot possibly have intended’.

Fourth, however, even when all these refinements are taken into account, who can exercise a power remains an important question. In the realms of the Crown’s prerogative power to grant a passport, for example, Khadr v Canada (2006) revolves in part around the question of who, as between the Canadian Passport Office, the Minister of Foreign Affairs and the Governor-in-Council, can withhold a passport when the reasons for doing so are not listed in an existing non-statutory Order-in-Council on the subject.

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