COUNSEL: Talbot K.C., Tyldesley Jones K.C., W. S. Kennedy, T. R. Harker and A. Tylor for the appellants.

Sir Douglas Hogg A.-G., Macmorran K.C. and Bowsteadfor the respondents.

 

SOLICITORS: For appellants: Sydney Morse; Ashurst, Morris, Crisp & Co.; Sherwood & Co.; Slaughter & May.

For respondents: The Solicitor to the Treasury.

 

JUDGES: Bankes, Atkin, and Younger L.JJ.

 

DATES: 1923 July 9, 10, 11, 12, 27.

 

 

Prohibition – Certiorari – Electricity Commissioners – Scheme – Electricity District – Joint Electricity Authority – Delegation of Powers – Separate Committees – Draft Order – Operation subject to Confirmation and Approval – Minister of Transport – Resolutions of Parliament – Electricity (Supply) Act, 1919 (9 & 10 Geo. 5, c. 100), ss. 5, 6, 7.

 

The Electricity Commissioners, a body established by s. 1 of the Electricity (Supply) Act, 1919, are empowered by that Act to constitute provisionally separate electricity districts and in certain events to formulate schemes for effecting improvements in the existing organization for the supply of electricity in any electricity district so constituted, and are directed to hold local inquiries upon the schemes. A scheme so formulated may provide for the incorporation of a joint electricity authority representative of authorized undertakers within the electricity district.

 

By s. 6, sub-s. 2, of the Act a scheme may provide for enabling the [*172] joint electricity authority to delegate, with or without restriction, to committees of the authority any of the powers or duties of the authority. By s. 7, sub-s. 1, the Commissioners may make an order giving effect to a scheme embodying the decisions they arrive at after holding a local inquiry, and present the order for confirmation by the Minister of Transport. By s. 7, sub-s. 2, the order after confirmation is to be laid before each House of Parliament and is not to come into operation until approved, with or without modification, by a resolution passed by each House, and when so approved is to have effect as if enacted in the Act of 1919.

 

The Commissioners constituted an electricity district and formulated a scheme providing for the incorporation of a joint electricity authority which purported to be representative of the authorized undertakers, both local authorities and electricity companies, in the district so constituted. The scheme provided that the joint authority should at its first meeting appoint two committees, namely a local authority committee and a company committee, and assigned to each of these committees definite and separate portions of the electricity district, and delegated separate powers and duties to each committee in respect of the portion assigned. The Commissioners began to hold a local inquiry with a view to making an order embodying the scheme.

 

Certain companies affected by the scheme applied for writs of prohibition and certiorari on the ground that the scheme was ultra vires in so far as it compelled the joint authority to appoint the two committees and delegate to them powers and duties of the joint authority:–

 

Held, that the scheme was ultra vires, and that a writ of prohibition should issue prohibiting the Commissioners from proceeding with the further consideration of the scheme, notwithstanding that an order embodying the scheme could not come into operation until confirmed by the Minister of Transport and approved by resolutions of the Houses of Parliament.

 

Church v. Inclosure Commissioners (1862) 11 C. B. (N. S.) 664 approved and followed.

 

Reg. v. Hastings Local Board (1865) 6 B. & S. 401 distinguished.

 

Order of Divisional Court reversed.

 

APPEALS from orders of a Divisional Court discharging a rule nisi for a prohibition and a rule nisi for a certiorari, which rules had been granted on the motion of the London Electricity Joint Committee Company (1920), Ld., hereinafter called the Joint Committee Company, the City of London Electric Lighting Company, Ld., the County of London Electric Supply Company, Ld., the Lotting Hill Electric Lighting Company, Ld., the South London Electric Supply Corporation, Ld., the South Metropolitan Electric Light and Power Company, Ld., and the West Kent Electric Company, Ld., hereinafter called the relators. [*173] The Electricity Commissioners were established by s. 1, sub-s. 1, of the Electricity (Supply) Act, 1919, to promote, regulate, and supervise the supply of electricity and to exercise and perform the powers and duties conferred and imposed upon them by the Act, and subject thereto to act under the general directions of the Board of Trade. (1) By sub-s. 2 they are not to exceed five in number, of whom one is to be chairman, and are to be appointed by the Board of Trade. (1)

 

By s. 5, sub-s. 1, of the Act they may provisionally determine that any district in the United Kingdom shall be constituted a separate electricity district for the purposes of the Act, and, in considering what areas are to be included in a district, areas shall be grouped in such manner as may seem to the Commissioners most conducive to the efficiency and economy of the supply of electricity and to convenience of administration. Before finally determining the area of the district, they are to publish notice of their intention so to do and of the area proposed to be included in the district, and also to give notice thereof to all county councils, local authorities, and authorized undertakings any part of whose county district or area of supply is proposed to be included in the district, and, if any objection or representation is made on account of the inclusion in or the exclusion from the proposed district of any area, the Commissioners are to hold a local inquiry with reference to the area to be included in the proposed district.

 

By sub-s. 2 where it appears to the Commissioners with respect to any electricity district so provisionally determined that the existing organization for the supply of electricity therein should be improved, they are to give notice of their intention to hold a local inquiry into the matter, and to give to authorized undertakers, county councils, local authorities, railway companies using or proposing to use electricity for traction purposes, large consumers of electricity, and other

 

(1) Now the Minister of Transport, by virtue of the Ministry of Transport (Electricity Supply) Order, 1920 (Statutory Rules and Orders, 1920, No. 58), made under s. 39 of the Electricity Supply Act, 1919. [*174] associations or bodies within the district which appear to the Commissioners to be interested, an opportunity to submit, within such time as the Commissioners may allow, a scheme or schemes for effecting the improvement, including proposals for altering or adjusting the boundaries of the district and, where necessary, the formation of a joint electricity authority for the district. By sub-s. 3 if no scheme is submitted within the time so allowed, or if no scheme submitted is approved by the Commissioners, they may themselves formulate a scheme. By sub-s. 4 the Commissioners are to publish, in such manner as they think best adapted for ensuring publicity, any scheme which they have approved, with or without modifications, or which they have themselves formulated, and are to hold a local inquiry thereon.

 

By s. 6, sub-s. 1, a scheme under s. 5 may provide for the establishment and (where desirable) the incorporation with power to hold land without licence in mortmain, of a joint electricity authority representative of authorized undertakers within the electricity district, either with or without the addition of representatives of the council of any county situate wholly or partly within the district, local authorities, large consumers of electricity, and other interests within the district, and, subject as later in the Act provided, for the exercise by that authority of all or any of the powers of the authorized undertakers within the district, and for the transfer to the authority of the whole or any part of the undertakings of any of those undertakers, upon such terms as may be provided by the scheme, and the scheme may contain any consequential, incidental, and supplemental provisions which appear to be expedient or proper for the purpose of the scheme, including provisions determining the area included in the electricity district: Provided that no such scheme shall provide for the transfer to the authority of any part of an undertaking except with the consent of the owners thereof.

 

The Act contains the following provisions: Sect. 6, sub-s. 2, “The scheme may provide for enabling the joint electricity authority to delegate, with or without restrictions, to [*175] committees of the authority any of the powers or duties of the authority.” …. Sect. 7, sub-s. 1, “The Electricity Commissioners may make an order giving effect to the schemes embodying decisions they arrive at as the result of such inquiry as aforesaid, and present the order for confirmation by the Board of Trade (1), who may confirm the order either without modification or subject to such modifications as they think fit.” Sub-s. 2, “Any such order shall be laid, as soon as may be after it is confirmed, before each House of Parliament, but shall not come into operation unless and until it has been approved either with or without modification by a resolution passed by each such House, and when so approved shall have effect as if enacted in this Act.” ….

 

It appeared that the London County Council was unwilling to transfer its powers of purchase unless there were one electricity authority only for the whole district, and that the electric lighting companies were unwilling to transfer their generating stations unless there were two authorities for the district. In order to get rid of this difficulty the Electricity Commissioners in February, 1923, in pursuance of s. 7 of the Act of 1919 and of all other powers enabling them in that behalf, published a document which they described as a “Draft Order under s. 7 of the Electricity (Supply) Act, 1919, constituting the London and Home Counties Electricity District and establishing and incorporating the London and Home Counties Joint Electricity Authority.” It proposed as its short title “The London and Home Counties Electricity District Order, 1923.” After defining “The Joint Authority” as the London and Home Counties Joint Electricity Authority established under the scheme set out in the schedule to the order; “The District” as the London and Home Counties Electricity District constituted under the said scheme, and “Constituent Body” as any authorized undertaker, county council, or other body entitled under the said scheme to appoint or elect or participate in the election of members of the joint authority, the order provided as follows:–

 

(1) See note (1) ante, p. 173. [*176]

 

“3. The scheme set out in the schedule to this order shall operate and have effect, and accordingly the London and Home Counties Electricity District shall be and is hereby finally determined and the London and Home Counties Joint Electricity Authority shall be and is hereby established and incorporated.”

 

“6. This order shall come into operation as soon as it has been approved by a resolution passed by each House of Parliament.”

 

The scheme set out in the schedule to the above order was formulated by the Electricity Commissioners and published by them on February 8, 1923, under s. 5 of the Electricity (Supply) Act, 1919, for effecting an improvement in the existing organization for the supply of electricity in a district comprising London and Middlesex, and portions of Berkshire, Buckinghamshire, Essex, Hertfordshire, Kent, and Surrey, which was to be constituted a separate electricity district and to be called the London and Home Counties Electricity District.

 

Sect. 2 of the scheme provided that there should be established a joint electricity authority under the name of the London and Home Counties Joint Electricity Authority, a body corporate with a perpetual succession and a common seal and power to hold land without licence in mortmain.

 

Sect. 3, sub-s. 1, provided that the joint authority should consist of the members specified in the first annex to the scheme, which annex should be deemed to form part of the scheme and have effect accordingly. Sect. 4 provided that the joint authority might appoint such officers and servants at such salaries, wages, or remuneration as the joint authority might determine.

 

The scheme contained the following sections:–

 

“7. – (1.) The Joint Authority shall, at their first meeting, appoint two Committees of the Joint Authority, and thereafter keep such Committees appointed until such time as they have exercised and performed the powers and duties conferred upon them under this Scheme. The said Committees shall be constituted in the style and manner following:– [*177]

“(a) A Committee of Local Authority Undertakers (hereinafter called ‘the Local Authority Committee’) consisting of eight members appointed or elected by the Local Authority undertakers as set out in Part II. of the First Annex hereto.

 

“(b) A Committee of Company undertakers (hereinafter called ‘the Company Committee’) consisting of the six members appointed or elected by the Company undertakers within the administrative county of London as set out in Part II. of the First Annex hereto. ….”

 

“9. – (1.) The Joint Authority shall delegate to the Local Authority Committee and to the Company Committee respectively such of the powers and duties of the Joint Authority as are specified in the Third Annex to this Scheme, which Annex shall be deemed to form part of this Scheme and shall have effect accordingly: ….

 

“(2.) Subject as hereinafter provided, the delegated powers and duties specified in the Third Annex shall be exercised and performed by the Local Authority Committee and the Company Committee respectively within the portions of the District specified in the Fourth Annex to this Scheme, which Annex shall be deemed part of this Scheme and shall have effect accordingly. ….

 

“(3.) The Local Authority Committee and the Company Committee respectively shall, in the name and on behalf of the Joint Authority, exercise or perform any delegated power or duty in accordance with the provisions of this Scheme in like manner as the Joint Authority could have exercised or performed such power or duty if the said power or duty had not been delegated to the aforesaid Committees.”

 

By Part I. of the first annex to the scheme it was provided that the members of the joint authority should be appointed by:–

 

(a) Local authorities supplying electricity within the district under statutory powers, therein called “local authority undertakers”;

 

(b) companies or persons supplying electricity within [*178] the Administrative County of London under statutory powers, therein called “company undertakers inside London”;

 

(c) companies or persons supplying electricity within the district but outside the Administrative County of London under statutory powers, therein called “company undertakers outside London”;

 

(d) power companies supplying electricity within the district under statutory powers, therein called “power companies”;

 

(e) county councils whose counties were wholly or partly within the district;

 

(f) the Railway Companies’ Association to represent the railway companies operating in the district.

 

The members of the joint authority were to be appointed or elected by the constituent bodies in the following proportions: eight by the local authority undertakers; six by the company undertakers inside London; one by the company undertakers outside London; one by the power companies; six by the London County Council; three by the other county councils, and two by the Railway Companies’ Association.

 

Part II. of the first annex was headed “Members to be appointed or elected by Constituent Bodies,” and was as follows:–

 

                                                          Members.

  1. Authorized undertakers supplying electricity:–

     (a) Local authority undertakers   ..       ..           8

     (b) Company undertakers within the Administrative

         County of London     ..       ..       ..           6

     (c) Company undertakers outside the the Administrative

         County of London..    ..      ..       ..           1

     (d) Power companies ..    ..      ..       ..           1

 

  2. County councils:–

     The London County Council ..      ..       ..           6

     The County Council of Middlesex  }

                                      }..       ..           1

            ,,      ,,     Buckingham }

 [*179]

     The County Council of Essex      }                   Members.

                                      }   ..     ..          1

          ,,      ,,       Hertford   }

 

          ,,      ,,       Surrey     }

                                      }   ..      ..         1

          ,,      ,,       Kent       }

 

  3. Railway companies:–

     The Railway Companies’ Association   ..    ..           2

                                                            --

                                  Total         ..          27

 

The third annex to the scheme was headed “Powers and duties of the Joint Authority to be delegated to the Local Authority Committee and the Company Committee respectively in accordance with the provisions of s. 9 of the Scheme.” It contained: 1. Powers and duties relating to the generation and transmission of electricity and to the supply of electricity in bulk to authorized undertakers; 5. The carrying out of negotiations for bulk supplies on behalf of authorized distributors outside the Administrative County of London if so required by such distributors with any authorized undertakers empowered to give bulk supplies; 6. “Power to incur expenditure on capital account within the limits of estimates submitted by the aforesaid Committees to the Joint Authority and approved by the Commissioners from time to time: Provided that for the purposes of s. 17 of the Electricity (Supply) Act, 1919, but without prejudice to the provisions of s. 1 of the Electricity (Supply) Act, 1922, the prior approval of the Commissioners shall not be required to capital expenditure not exceeding 5000l.”; 7. Power to incur expenditure on revenue account; 9. Powers under s. 4 of the scheme (relating to the appointment and remuneration of officers and servants) in so far as relates to the officers and servants of the Local Authority Committee and the Company Committee respectively.

 

The fourth annex specified the portions of the district within which the Local Authority Committee and the Company Committee respectively were to exercise and perform the powers and duties delegated to the aforesaid committees by the .joint authority in accordance with the provisions of s. 9 of the scheme. Shortly, the areas of supply of thirty-nine [*180] local authorities as defined by the same number of Electric Lighting Orders were assigned to the Local Authority Committee, and the areas of supply of thirty-two electricity companies as defined by thirty-two other Orders were assigned to the Company Committee.

 

On March 12, 1923, the Electricity Commissioners opened a local inquiry into the scheme so published. Objection was taken by counsel for the relators and for a number of other companies that the scheme was ultra vires. On March 16, 1923, the relators obtained rules nisi:–

 

(1.) For a writ of prohibition to prohibit the Electricity Commissioners from proceeding with the further consideration of the scheme published on February 8 and from making an Order giving effect thereto, and

 

(2.) for a writ of certiorari directed to the said Commissioners ordering them to remove the said scheme into the King’s Bench Division. The grounds for the rule in each case were that the provisions of the scheme:–

 

(a) compelling the Joint Electricity Authority at their first meeting to appoint and keep appointed two committees of the authority, and

 

(b) compelling the authority to delegate to the aforesaid two committees the powers and duties of the authority mentioned in the third annex to the scheme,

 

were ultra vires of the Electricity Commissioners and contrary to the provisions of the Electricity (Supply) Acts, 1919 and 1922.

 

On April 12, 1923, the Divisional Court (Lord Hewart C.J. and Avory and Roche JJ.), without deciding whether a writ of certiorari or prohibition would lie to the Electricity Commissioners, or whether the scheme was ultra vires or not, discharged the rules on the ground that the scheme did not become operative until it had been approved by the Minister of Transport and by a resolution of each House of Parliament, and consequently that at the present stage neither rule ought to be granted.

 

The relators appealed. [*181] Talbot K.C., Tyldesley Jones K.C., W. S. Kennedy, T. R. Harker and A. Tylor for the appellants. The objection of the appellants is not directed to the merits of the scheme, but to its validity. Before proceeding to act in accordance with its terms they desire to be assured that it may not hereafter be declared ultra vires and void. They contend that it is ultra vires for the following reasons: By s. 6 the Act of 1919 a joint electricity authority is to be representative of authorized undertakers within the district and it may accept a transfer of the undertakings with the consent of the owners thereof. By s. 8 the joint authority must provide or secure the provision of a cheap and abundant supply of electricity within their district and for that purpose may exercise powers and duties, conferred upon them by a scheme, of constructing generating stations, main transmission lines, and other works required for the purpose, and of acquiring undertakings; and the authority may with the approval of the Commissioners establish a scheme for payment of superannuation allowances and gratuities to officers and servants who become incapable. The authority may acquire generating stations or main transmission lines or land for the purpose of any generating station. By s. 12 the authority is empowered to supply electricity within their district with certain immaterial exceptions. By s. 13 the authority may take a transfer of the undertaking of any local authority. By s. 15 it may be authorized to abstract water from rivers and canals. By s. 1 of the Electricity (Supply) Act, 1922, it may with the consent and subject to the regulations therein mentioned borrow money for the purpose of paying for generating stations or main transmission lines or other permanent work or of providing working capital, and any money so borrowed may be charged on the undertaking and revenues of the joint authority. By s. 3 a joint authority may be authorized to issue stock to be charged on its undertaking and revenues. By s. 10 a joint authority may dispose of works or property no longer required. Other powers and duties are conferred and imposed by these statutes upon joint electricity authorities; but enough has been said to [*182] show that wide powers have been indicated by the Legislature as exercisable by joint bodies representative of the authorized undertakers, whether companies or local authorities, in their districts. The scheme does not carry out, on the contrary it obviates, the intention of the Legislature. By s. 7, sub-s. 1, the first act of the joint authority is to put itself out of action, to constitute two separate authorities instead of one joint authority; and its second act is by s. 9, sub-s. 1, to delegate to these separate authorities, or committees as they are called, the powers specified in the third annex to the scheme; so that if the local authority undertakers in a district are minded to incur a capital expenditure, the company undertakers in the district are to have no voice in the matter; and the local authority undertakers will no longer have any concern in the remuneration the company undertakers allow their officers and servants; whereas by the Act of 1919 both sets of undertakers are entitled to have a voice in each of these matters. By s. 39 of the scheme it shall be the duty of the joint authority to provide all sums of money required for the purpose of meeting such capital expenditure as is approved by the Commissioners. By s. 43 the joint authority shall allocate all moneys borrowed or raised by them to meet the requirements of the Local Authority Committee or the Company Committee to those committees respectively. By s. 45 all moneys arising from the disposal of lands acquired by the joint authority for the purpose of the scheme and all other capital moneys received by them in respect of their undertaking shall be applied in the reduction of the capital moneys borrowed or raised by them. By s. 46, save as thereinbefore provided, all moneys received by the joint authority in respect of their undertaking shall be applied by them in manner in the order following:– (a) in payment of the working and establishment expenses; (b) in payment of any pensions or gratuities granted under any scheme established under s. 8 of the Act of 1919; (c) in payment of the interest or dividend on any stock or other securities issued by the joint authority in respect of money borrowed; (d) in providing any instalments [*183] or sinking fund required to be provided in respect of money borrowed. In short the scheme provides for a complete financial separation between the Company Committee and the Local Authority Committee.

 

The Divisional Court only decided that at this stage the application for the writs was premature. That decision would prevent the validity of a scheme or order embodying a scheme from ever being questioned until it had become a statutory enactment, as it will when approved by a resolution of each House of Parliament: Institute of Patent Agents v. Lockwood. (1) Each House will assume that the Commissioners have acted within their powers, and so the legality of the scheme will never be called in question. And surely if a body is acting ultra vires a writ of prohibition cannot be applied for too early; it ought to be applied for at the earliest possible moment so that unnecessary expense may not be incurred.

 

Both certiorari and prohibition lie to a body like the Electricity Commissioners: “This Court will examine the proceedings of all jurisdictions erected by Act of Parliament. And if they, under pretence of such Act, proceed to encroach jurisdiction to themselves greater than the Act warrants, this Court will send a certiorari to them, to have their proceedings returned here; to the end that this Court may see, that they keep themselves within their jurisdiction; and if they exceed it, to restrain them”: Rex v. Inhabitants in Glamorganshire. (2) So a certiorari will lie to the Poor Law Commissioners: Rex v. Poor Law Commissioners (3); a prohibition will lie to Tithe Commissioners: In re Ystradgunglais Commutation (4); In re Appledore Commutation (5); In re Crosby Tithes (6); to the Commissioners of Woods and Forests: Chabot v. Lord Morpeth (7); to Inclosure Commissioners: Church v. Inclosure Commissioners (8); to Income Tax Commissioners Rex v. Clerkenwell Commissioners

 

(1) [1894] A. C. 347.

 

(2) (1701) 1 Ld. Raym. 580.

 

(3) (1837) 6 Ad. & E. 1.

 

(4) (1844) 8 Q. B. 32.

 

(5) (1845) 8 Q. B. 139.

 

(6) (1849) 13 Q. B. 761.

 

(7) (1850) 15 Q. B. 446.

 

(8) 11 C. B. (N.S.) 664. [*184]

 

of Taxes. (1) Certiorari or prohibition will lie to the Commissioners of Light Railways: Rex v. Light Railway Commissioners (2); and certiorari to licensing justices: Rex v. Woodhouse (3); to the Board of Education: Board of Education v. Rice. (4) And to put it generally, “Wherever the Legislature entrusts to any body of persons other than to the superior Courts the power of imposing an obligation upon individuals, the Courts ought to exercise as widely as they can the power of controlling those bodies of persons if those persons admittedly attempt to exercise powers beyond the powers given to them by Act of Parliament”: per Brett L.J., Reg. v. Local Government Board. (5)

 

The fact that the act prohibited or the order sought to be quashed is not an effective act or order until confirmed or approved by some other authority is no reason why the Court should hold its hand. In In re Crosby Tithes (6) a prohibition issued against the Commissioners of Tithes prohibiting them from making an award, although the award had no effect until it had been confirmed by the Commissioners after hearing any objections thereto. In Church v. Inclosure Commissioners (7) a prohibition issued to prohibit the Inclosure Commissioners from acting on the report of an assistant Commissioner under s. 27 of the Inclosure Act, 1845, and from certifying that the inclosure of part of a common would be expedient, although their certificate had no operation without the sanction of Parliament. Orders of the Light Railway Commissioners are provisional only and have no effect till confirmed by the Board of Trade as provided by the Light Railways Act, 1896. Yet prohibition and certiorari lie to the Light Railway Commissioners if their orders are irregular: Rex v. Light Railway Commissioners. (2)

 

The Divisional Court relied upon Reg. v. Hastings Local Board (8), where it was held that a certiorari would not lie to bring up a provisional order of the Secretary of State

 

(1) [1901] 2 K. B. 879.

 

(2) [1915] 3 K. B. 536.

 

(3) [1906] 2 K. B. 501.

 

(4) [1911] A. C. 179.

 

(5) (1882) 10 Q. B. D. 309, 321.

 

(6) (1849) 13 Q. B. 761.

 

(7) 11 C. B. (N. S.) 664.

 

(8) 6 B. & S. 401. [*185]

 

empowering the local board to put in force the compulsory powers of the Lands Clauses Consolidation Act, 1845, as having been made without jurisdiction. That decision can only be supported, if at all, on the ground that the Local Government Act, 1858, under which the provisional order was made, provided that the order should “be of no validity” unless confirmed by Act of Parliament; and that, whatever may be said of a prohibition, a certiorari would not lie to bring up an order which was “of no validity.” The provisional order in that case was regarded as a stage in legislation, and not as a judicial act.

 

[Reg. v. London County Council (1) was also cited.]

 

Sir Douglas Hogg A.-G., Macmorran K.C. and Bowsteadfor the respondents. The scheme is within the powers which may be conferred on a joint electricity authority by s. 6, sub-s. 2, of the Act of 1919. The power of delegation is very extensive, “with or without restrictions.”

 

But even if the respondents were conferring greater powers than authorized by the Act, the Court has no jurisdiction to entertain these applications. To found an application for a prohibition it must be shown that the persons sought to be prohibited are a body of persons who claim to exercise judicial powers and profess to do acts judicially determining rights or imposing obligations. The same applies to certiorari, with the addition that the body in question must have made an order.

 

“The writ of prohibition is a judicial writ, issuing out of a Court of superior jurisdiction and directed to an inferior Court for the purpose of preventing the inferior Court from usurping a jurisdiction with which it is not legally vested or, in other words, to compel Courts entrusted with judicial duties to keep within the limits of their jurisdiction.” (2) This passage, which was cited with approval by Lord Cave L.C. in In re Clifford and O’Sullivan (3), defines the scope of the writ of prohibition in terms

 

(1) [1893] 2 Q. B. 454.

 

(2) Short and Mellor, Practice of the Crown Office, 2nd ed. (1908), p. 252.

 

(3) [1921] 2 A. C. 570, 582. [*186]

 

much more restricted than those of Brett L.J. in Reg. v. Local Government Board (1) in the passage cited by the appellants. In In re Clifford and O’Sullivan (2) the Lord Chancellor referred to a number of cases in support of the rule that the writ only lies to bodies exercising judicial functions, but does not lie to bodies charged with the duty of inquiring and advising. For examples, in Rex v. Inhabitants in Glamorganshire (3) justices authorizing a rate for the repair of a bridge were acting judicially; so were the Tithe Commissioners in In re Crosby Tithes (4) in certifying that a proposed inclosure of common land would be expedient; and the duties of the licensing justices in Rex v. Woodhouse (5) were also judicial. The order of the respondents in this case is not a judicial act. It binds no one. It is merely a stage in legislation, a method of furnishing information upon which the Legislature may or may not act after it has been considered by the Minister of Transport. In these circumstances the Courts of Law will not interfere, for that would be to trespass on the domain of the Legislature: Reg. v. Hastings Local Board. (6) That case has been followed in Ireland in Ex parte Kingstown Commissioners (7), and in Scotland in Glasgow Insurance Committee v. Scottish Insurance Commissioners. (8) In the latter case the National Insurance Act, 1911, having authorized the Insurance Commissioners to make regulations for carrying into effect Part I. of the Act, and having provided that the regulations should be laid before both Houses of Parliament and should have effect as if enacted in the Act unless annulled by His Majesty in Council on an address presented by either House; it was held that regulations made by the Commissioners but not yet laid before Parliament could not be challenged by an action of interdict (the Scottish equivalent of a prohibition) as being ultra vires provided they dealt with matters within the scope of Part I. of the Act. That case is indistinguishable from

 

(1) 10 Q. B. D. 309, 321.

 

(2) [1921] 2 A. C. 570.

 

(3) 1 Ld. Raym. 580.

 

(4) 13 Q. B. 761.

 

(5) [1906] 2 K. B. 501.

 

(6) 6 B. & S. 401.

 

(7) (1885) 16 L. R. Ir. 150; (1886) 18 ibid. 509.

 

(8) 1915 S. C. 504. [*187]

 

the present. The attention of the Court in Rex v. Board of Trade (1) was not directed to the crucial difference between advisory and judicial orders.

 

Talbot K.C. in reply. Reg. v. Hastings Local Board (2) and the cases which followed it are inconsistent with Church v. Inclosure Commissioners. (3) If it be true to say that the order of the Secretary of State in the Hastings Case (2) was merely advisory and not judicial, it is certainly not true to say the same of the order of the respondents in this case.

 

Cur. adv. vult.

 

 

July 27. The following written judgments were delivered.

 

BANKES L.J. These appeals are from two orders of the Divisional Court discharging two rules nisi, one for certiorari and the other for prohibition, obtained at the instance of the London Electricity Joint Committee (1920) Ld., and directed to the Electricity Commissioners. The object of the application was to test the validity of a proposed scheme published by the Commissioners on or about February 8, 1923, for effecting an improvement of the existing organization for the supply of electricity in the London and Home Counties Electricity District. The Electricity Commissioners are a statutory body set up by the Electricity (Supply) Act, 1919, as the authority to whom a reorganization of supply of electricity is entrusted. The Act contemplates the division of England, Scotland and Wales, or parts of them, into separate electricity districts with joint electricity authorities who are to exercise full powers within their respective districts. The Electricity Commissioners are the authority to approve, or to themselves formulate schemes for the formation of electricity districts, and the setting up of joint electricity authorities. Sect. 7 of the statute provides as follows: “(1.) The Electricity Commissioners may make an order giving effect to the schemes embodying decisions they arrive at as the result of such inquiry as aforesaid, and present the

 

(1) [1915] 3 K. B. 536.

 

(2) 6 B. & S. 401.

 

(3) 11 C. B. (N.S.) 664. [*188]

 

order for confirmation by the Board of Trade, who may confirm the order either without modification or subject to such modifications as they think fit. (2.) Any such order shall be laid, as soon as may be after it is confirmed before each House of Parliament, but shall not come into operation unless and until it has been approved either with or without modification by a resolution passed by each such House, and when so approved shall have effect as if enacted in this Act.”

 

The scheme to which objection is taken appears at the present stage of its existence as a “Draft Order under s. 7 of the Electricity (Supply) Act, 1919, constituting the London and Home Counties Electricity District, and establishing and incorporating the London and Home Counties Joint Electricity Authority.” The objection to this draft order is that the Electricity Commissioners are travelling outside their parliamentary powers, and are acting without jurisdiction in putting forward for adoption this scheme in its present form. Whether there are any good and sufficient reasons from the point of view of the business interests of the objectors for taking the objection it is not for this Court to determine. The materials upon which to form any opinion upon that question are not before us. The only question on this part of the case is whether the objection as to want of jurisdiction is made out. In my opinion it is, and on this short ground: Sects. 5 and 6 of the Act of 1919 enable the Electricity Commissioners to formulate, or to approve schemes, which contain provisions enabling the joint electricity authority to delegate to committees of the authority any powers of the authority. In order to get over objections made by the London County Council to having more than one district, and more than one electricity authority for the London and Home Counties, and the objections of the authorized undertakers within the district to having only one, the Electricity Commissioners have propounded this scheme, which, while in name providing for one electricity authority, and one district, in fact provides for two. The way in which this is proposed to be done is this: The scheme provides for the creation of a joint electricity authority under the name of the London and Home Counties Joint [*189] Electricity Authority. It then provides that the joint committee at their first meeting shall appoint two committees of the joint committee, one to be called the Local Authority Committee, the other the Company Committee. In order to create the two authorities under the one name the scheme goes on to provide (cl. 9) that the joint authority shall delegate to the Local Authority Committee, and to the Company Committee respectively, such of the powers and duties of the joint authority as are specified in the third annex to the scheme, and it assigns to each committee a separate portion of the joint electricity district. The effect of this provision is to set up within the one joint electricity district, which the scheme purports to create, two joint electricity authorities, each with its separate district, and its independent powers. This is not, in my opinion, authorized by the Act of 1919.

 

A further objection to the validity of the proposed scheme is that the power of delegation which, by the statute, may be vested by a scheme in a joint electricity authority, is, by this scheme, exercised by the Electricity Commissioners themselves. My view of the construction of the Act of 1919 on this point is that the Electricity Commissioners have the statutory right of determining whether a power of delegation to committees shall be conferred by a scheme upon a joint electricity authority, and that the statutory right of exercising that power, if conferred, is vested in the joint authority alone. Without going into other questions I am of opinion that upon the grounds I have mentioned the scheme proposed by the Electricity Commissioners is, to some extent, ultra vires. On the point raised as to the effect of s. 26 of the Act of 1919, it is sufficient to say that I do not think that the section can be read as giving the Electricity Commissioners wider powers on the particular matters which I have dealt with than those conferred upon them by the Act itself.

 

The important part of the appeal has reference to the jurisdiction of the Court to make any order either for prohibition or certiorari. The first objection taken was that any application was premature, the matter being still only [*190] in its opening stage. The Commissioners, it was said, have decided nothing, they have merely published the scheme preparatory to holding the local inquiry thereon which they are directed by s. 5, sub-s. 4, of the Act of 1919 to hold before making any order. This objection may be a valid objection to the granting of a writ of certiorari, but as it is not necessary to decide the point I express no opinion upon it. With regard to prohibition, if the writ lies at all I do not think that the objection is a sound one. The point was raised in the case of Byerley v. Windus. (1) Bayley J. deals with it in this way. He says: “And this brings me to the second question, whether the proceedings are in such a state in the Court below as to warrant a prohibition at present”; and he proceeds: “But when once it appears by the proceedings in the spiritual court, that the prescription, instead of being admitted, is disputed, and that the parties are in progress to bring its existence to trial, the Courts of common law are not bound to wait till the parties have incurred the expense of putting it in issue, but the prohibition is grantable at once; and it was upon this principle that the prohibitions were granted in Darby v. Cosens (2) and in French v. Trask.” (3) The statement of what occurred at the local inquiry, as set out in para. 15 of Mr. Fladgate’s affidavit (4), brings this case, in my opinion, well within the principle laid down by Bayley J., and I think that this objection fails.

 

The other objections to the granting of any writ were much more serious, and they raise difficult and important questions, constitutional as well as legal. In substance, the objections come to this. (a) that the proceedings of the Electricity Commissioners are of an executive, and not a judicial, character; (b) that whether that be so or not, their proceedings in reference to the preparation of schemes, as directed

 

(1) (1826) 5 B. & C. 1, 21.

 

(2) (1787) 1 T. R. 552.

 

(3) (1808) 10 East, 348.

 

(4) This paragraph stated that the Electricity Commissioners at the local inquiry invited discussion of the scheme on the assumption that it was intra vires, but that counsel for the companies objected to this course and the inquiry was thereupon adjourned. [*191]

 

by the Electricity Act, 1919, are controllable by Parliament, and by Parliament alone, and are such that there is no moment of time at which the Court can intervene to inquire whether the proceedings are ultra vires or not. The argument on this second contention is presented in the following way: Sect. 7 of the Act, it is said, provides that the Commissioners may make an order giving effect to a scheme, but that order has no force or effect in itself. It is merely a suggestion or advice to be passed on to the Minister of Transport, who may confirm or modify the scheme. Even then the order has no force. It must first be approved by resolution passed by each House of Parliament, and then, and not till then, has the order any force or effect. As soon as the order has been approved by both Houses of Parliament the section provides that it shall have effect as if enacted in the Act. The result, according to the respondents, is that any application to the Courts for a writ of prohibition or certiorari must be either premature or too late; premature if made before the order of the Commissioners becomes an Act of Parliament, too late if made after it has attained that status. This argument has only become possible since the Legislature has adopted the practice of providing that resolutions or orders which are directed to lie on the table for a certain period before becoming effective, or which have to be approved by resolution of the Houses of Parliament, are, when approved, to have effect as if they were themselves Acts of Parliament. The effect of legislation in this form was discussed in the case of Institute of Patent Agents v. Lockwood (1), where Lord Watson concludes his speech by saying: “Such rules are to be as effectual as if they were part of the statute itself.” The effect of accepting the argument of the Attorney-General on this point would be very far reaching. It would amount to a decision that the subject has no longer the right in cases like the present, where this form of legislation is adopted, to come to a Court of law and demand an inquiry whether the action, or decision, of which he is complaining is ultra vires or not. I question very much whether Parliament had

 

(1) [1894] A. C. 347, 365. [*192]

 

any deliberate intention of producing this result by adopting this particular form of legislation.

 

I pass now to consider the contention that if the Court makes an order in the present case for the issue of a writ of prohibition it will be trespassing on ground reserved by Parliament to itself. I cannot see why this action of the Court should be so regarded. By the Act of 1919 Parliament laid down the limits of the jurisdiction of the Electricity Commissioners. It did so presumably because it considered that those limits were the proper ones, and the ones which the Commissioners should observe. Why should Parliament object to a Court of law, if appealed to, using its powers to keep the Commissioners within those limits? Parliament no doubt has, as between itself and the Commissioners, provided that no order of the Commissioners shall have effect unless first approved by Parliament. This reservation must, I consider, be treated as a reservation for the purposes of control, and does not in my opinion exclude the jurisdiction of the Courts of law. If any decision of a Court of law in the opinion of Parliament unduly fetters the action of the Commissioners it is always open to Parliament to extend the limits of that jurisdiction.

 

I have so far only dealt in a general way with the arguments addressed to the Court by the Attorney-General. The real question is whether the principles already laid down in reference to the power and duty of the Courts to issue writs of prohibition apply to the present case. There can, of course, be no exact precedent, as the Electricity Commissioners are a body of quite recent creation. It has, however, always been the boast of our common law that it will, whenever possible, and where necessary, apply existing principles to new sets of circumstances. A study of the decisions of the Courts in relation to writs of prohibition illustrates how true this is. In the case of In re Clifford and O’Sullivan (1) the Lord Chancellor quotes with approval the description of a writ of prohibition given in Short and Mellor (2) as “a judicial writ, issuing out of a Court of superior jurisdiction

 

(1) [1921] 2 A. C. 570, 582.

 

(2) 2nd ed. (1908), p. 252. [*193]

 

and directed to an inferior Court for the purpose of preventing the inferior from usurping a jurisdiction with which it is not legally vested, or, in other words, to compel Courts entrusted with judicial duties to keep within the limits of their jurisdiction.” Originally no doubt the writ was issued only to inferior Courts, using that expression in the ordinary meaning of the word “Court.” As statutory bodies were brought into existence exercising legal jurisdiction, so the issue of the writ came to be extended to such bodies. There are numerous instances of this in the books, commencing in quite early times. In the case of Rex v. Inhabitants in Glamorganshire (1), the Court expressed the general opinion that it would examine the proceedings of all jurisdictions erected by Act of Parliament, and if under pretence of such an Act they proceeded to encroach jurisdiction to themselves greater than the Act warrants the Court could send a certiorari to them to have their proceedings returned to the Court, to the end that the Court might see that they keep themselves within their jurisdiction, and if they exceed it to restrain them. It would appear from the judgments in In re Ystradgunlais Commutation (2) and In re Appledore Commutation (3) that in both those cases the Court was willing to assume that a writ of prohibition would lie against the Tithe Commissioners. In Chabot v. Lord Morpeth (4) the Court certainly proceeded upon the assumption that a writ of prohibition might be issued to the Commissioners of Woods and Forests. The same was the case in Rex v. Clerkenwell Commissioners of Taxes (5) in reference to those Commissioners. In the cases of In re Hall (6) and of Rex v. Light Railway Commissioners (7) writs were ordered to be issued to the Comptroller-General of Patents, and to the Light Railway Commissioners respectively. In Board of Education v. Rice (8) a writ of certiorari was directed to the Board of Education. In Reg. v. London County Council (9)

 

(1) 1 Ld. Raym. 580.

 

(2) 8 Q. B. 32.

 

(3) 8 Q. B. 139.

 

(4) 15 Q. B. 446.

 

(5) [1901] 2 K. B. 879.

 

(6) (1888) 21 Q. B. D. 137.

 

(7) [1915] 3 K. B. 536.

 

(8) [1911] A. C. 179.

 

(9) [1893] 2 Q. B. 454. [*194]

 

this Court doubted, but did not decide, whether prohibition would lie against the County Council. Kay L.J. expressed his doubt as being whether the County Council would be exercising any judicial function in determining whether a churchyard, which is now disused, shall be considered as part of one parish or another parish. In In re Grosvenor Hotel Co. (1) the Court refused to issue a writ of prohibition to the Board of Trade and to their inspector, upon the ground that the examination and report of an inspector under s. 56 of the Companies Act, 1882, was not a judicial proceeding in any proper sense of the term. These authorities are, I think, conclusive to show that the Court will issue the writ to a body exercising judicial functions, though that body cannot be described as being in any ordinary sense a Court. There are, I think, three dicta of learned judges which may usefully be borne in mind in approaching an examination of the decisions which bear most closely upon the present case. There is the dictum of Brett L.J., as he then was, in Reg. v. Local Government Board (2) where he says: “My view of the power of prohibition at the present day is that the Court should not be chary of exercising it, and that wherever the Legislature entrusts to any body of persons other than to the superior Courts the power of imposing an obligation upon individuals, the Courts ought to exercise as widely as they can the power of controlling those bodies of persons if those persons admittedly attempt to exercise powers beyond the powers given to them by Act of Parliament.” There is the dictum of Lord Sumner in In re Clifford and O’Sullivan (3), where he says: “It is agreed also that, old as the procedure by writ of prohibition is, and few are older, there is not to be found in all the very numerous instances of the exercise of this jurisdiction any case in which prohibition has gone to a body which possessed no legal jurisdiction at all.” Lastly there is the dictum of Fletcher Moulton L.J. in Rex v. Woodhouse (4), where he is discussing what, in his opinion, constitutes a judicial act. He there says: “Other instances could

 

(1) (1897) 76 L. T. 337.

 

(2) 10 Q. B. D. 309, 321.

 

(3) [1921] 2 A. C. 570, 589.

 

(4) [1906] 2 K. B. 501, 535. [*195]

 

be given, but these suffice to show that the procedure of certiorari applies in many cases in which the body whose acts are criticized would not ordinarily be called a Court, nor would its acts be ordinarily termed ‘judicial acts.’ The true view of the limitation would seem to be that the term ‘judicial act’ is used in contrast with purely ministerial acts. To these latter the process of certiorari does not apply, as for instance to the issue of a warrant to enforce a rate, even though the rate is one which could itself be questioned by certiorari. In short there must be the exercise of some right or duty to decide in order to provide scope for a writ of certiorari at common law.” In that case the Lord Justice was dealing with an application for a writ of certiorari, but his observations here quoted apply in my opinion equally to prohibition. The authorities which require a close consideration are in order of date: In re Crosby Tithes (1); Church v. Inclosure Commissioners (2); Reg. v. Hastings Local Board (3); In re Local Government Board; Ex parte Kingstown Commissioners (4); Glasgow Insurance Committee v. Scottish Insurance Commissioners. (5) In the first of these cases a rule was made absolute for a writ of prohibition directed to the Tithe Commissioners of England, and to one of the Assistant Tithe Commissioners, prohibiting them from making their award as to the tithes of a parish until the decision of a suit then pending in the Court of Chancery. The application was based on the provisions of s. 50 of the Tithe Act of 1836, which directs that when all the suits and differences referred in the section have been decided the Commissioners or Assistant Commissioner shall proceed to frame the draft of an award. This draft cannot become effective until after the opportunity has been given for dealing with objections to its provisions, and until the Commissioners themselves have finally approved it. The application for prohibition was made because the Assistant Commissioner refused to stay his hand in framing the draft of his award until after

 

(1) 13 Q. B. 761.

 

(2) 11 C. B. (N. S.) 664.

 

(3) 6 B. & S. 401.

 

(4) 16 L. R. Ir. 150; 18 ibid. 509.

 

(5) 1915 S. C. 504. [*196]

 

the suit had been determined. In that case the Court saw no objection to the issue of the writ, although the matter was only in an initial stage, and no draft of an award had been made. The case of Church v. Inclosure Commissioners (1) is the one which requires the closest consideration of any of the cases cited during the argument. It was a case in which the Court granted a writ of prohibition directed to the Inclosure Commissioners prohibiting them from reporting the proposed inclosure of a certain common for the sanction of Parliament, or from taking any further steps towards the inclosure of the said common without first obtaining the consent of the complainant. In order to realize the importance of the decision it is necessary to call attention to the material provisions of the Inclosure Act of 1845 in reference to the procedure to be followed. It appears from the provisions of s. 27 that some lands might be inclosed by order of the Commissioners without the previous consent of Parliament, and some might not. The common in question in this case was one that could not be inclosed without the previous direction of Parliament. The course to be followed to secure inclosure in this case therefore was first the report of the Assistant Commissioner to the Commissioners, followed by their report to Parliament, in which they certify their opinion as to the expediency of the proposed inclosure, which report Parliament might or might not adopt, or which Parliament could alter or vary, and which as adopted is included in an Act of Parliament. The objection on which the application to the Court was made was that the Assistant Commissioner refused to consider a claim which was properly brought to his attention. Objection was made to the Court making the rule absolute on very much the same grounds as are advanced by the Attorney-General in the present case. It was argued that the matter was not the subject of prohibition, as the question was left by the statute to the Commissioners, who if satisfied then made a provisional order which after hearing objections they reported to Parliament,

 

(1) 11 C. B. (N. S.) 664. [*197]

 

who might or might not act upon it. In its essential features this case appears to me undistinguishable from the case with which the Court is dealing. Reliance was placed by the Attorney-General upon the decision in Reg. v. Hastings Local Board. (1) If I could take the same view of the position of the Electricity Commissioners under the Act of 1919 as was taken by the Court in that case of the position of the Secretary of State under the Local Government Act, 1858, I should consider that case a guide as to what course this Court should adopt in the present appeal. It is only necessary to refer to the reasons which led Mellor J. to take the view upon which he acted to see what a very different case the present one is from that. I cannot look upon it cither as a guide or as an authority. The case in the Irish Courts of In re Local Government Board; Ex parte Kingstown Commissioners (2) requires serious consideration. If the view of Palles C.B. is to be accepted, that the proceedings of the Local Government Board which were questioned in that case were neither ministerial nor judicial but “quasi legislative – that is, a proceeding towards legislation,” the decision goes far to support the argument of the Attorney-General. In the Court of Appeal this view was not the one upon which the Court acted. Much that was said by Fitzgibbon L.J. is in favour of the argument of the appellants. The Scotch case of the Glasgow Insurance Committee v. Scottish Insurance Commissioners (3) needs consideration. By s. 65 of the National Insurance Act, 1911, the Insurance Commissioners are empowered to make regulations which must be laid before both Houses of Parliament as soon as may be after they are made, and which are to have effect as if enacted in the Act. The Insurance Commissioners had made regulations the validity of which was challenged, and application was made to the Court to restrain the Commissioners from proceeding to lay the regulations before Parliament. The Lord Ordinary granted the application. On appeal his decision was reversed by a majority of the Court, who laid stress on the special

 

(1) 6 B. & S. 401.

 

(2) 16 L. R. Ir. 150; 18 ibid. 509.

 

(3) 1915 S. C. 504. [*198]

 

provision of the statute in reference to the regulations having the force of statute law.

 

The conclusion I have come to in reference to the whole matter is that there is abundant precedent for the Court taking action at the present stage of the proceedings of the Electricity Commissioners, provided it is satisfied that the Commissioners are proceeding judicially in making their report, even though that report needs the confirmation of the Minister of Transport and of both Houses of Parliament before it becomes effective. In coming to a conclusion on this latter point it is necessary to deal with this case on its own particular circumstances. The Electricity Act of 1919 imposes upon the Electricity Commissioners very wide and very responsible duties and powers in reference to the approval or formulation of schemes. At every stage they are required to hold local inquiries for the purpose of giving interested parties the opportunity of being heard. Their authority extends to the creation of bodies who may exercise all or any of the powers of the authorized undertakers within the electricity district, and to whom the undertakings themselves may be transferred on terms settled by the Commissioners. On principle and on authority it is in my opinion open to this Court to hold, and I consider that it should hold, that powers so far reaching, affecting as they do individuals as well as property, are powers to be exercised judicially, and not ministerially or merely, to use the language of Palles C.B., as proceedings towards legislation, On these grounds I consider that the appeal against the order of the Divisional Court discharging the rule nisi for a prohibition must be allowed with costs here and below, and the rule for prohibition in the terms of the rule nisi must be made absolute. The appeal against the order refusing to make the rule nisi for a certiorari absolute is dismissed without costs.

 

ATKIN L.J. This is an appeal from orders of the Divisional Court discharging rules for writs of prohibition and certiorari addressed to the Electricity Commissioners. The rules were obtained for the purpose of preventing the Commissioners [*199] from proceeding with a scheme published by the Commissioners in February, 1923, under the Electricity Supply Acts, 1919-1922, providing for the appointment of a joint electricity authority in the London area defined in the scheme. The objection taken to the scheme is that it is beyond the powers of the Commissioners. The Divisional Court have not decided this point, but discharged the rules on the ground that at the present stage of the proceedings of the Commissioners there should not be prohibition or certiorari. It appears to me to be necessary to decide what the Commissioners’ powers are, and whether the proposed scheme is within those powers, before deciding whether the stage at which prohibition should be granted has been reached. Indeed if the Commissioners are a body to whom prohibition will lie, and are in fact purporting to exercise a jurisdiction which they do not possess, I find it difficult to see how prohibition can be applied for at too early a stage. This, however, must be considered later.

 

The Electricity Commissioners are a body constituted by the Electricity (Supply) Act, 1919. By s. 1, sub-s. 1, “For promoting, regulating, and supervising the supply of electricity there shall be established as soon as may be after the passing of this Act, a body to be called the Electricity Commissioners, who shall have such powers and duties as are conferred on them by or under this Act, and, subject thereto, shall act under the general directions” of the Minister of Transport. By s. 1, sub-s. 2, the Commissioners, not exceeding five in number, are to be appointed by the Minister of Transport. It will be seen therefore that the Commissioners are not a representative body: they are appointed by a Government department, their powers and duties are expressly limited to those conferred by or under the Act, and subject thereto, which I take to mean within the limits of such powers and duties, they are to act under the general directions of the department that appoints them. By the remaining sections of the Act they are given very considerable powers for the purpose of organizing the supply of electricity throughout the country. The Act is divided into [*200] groups of sections headed “Reorganization of Supply of Electricity,” ss. 5 to 8; “Generating stations,” ss. 9 to 11; “Powers of Joint Electricity Authorities,” ss. 12 to 17; “Transitory Provisions,” ss. 18 and 19; “Amendments of Electric Lighting Acts,” ss. 20 to 27; “Financial Provisions,” ss. 28 to 30; and “General,” ss. 31 to 40. They have power to constitute and incorporate joint electricity authorities within areas defined by the Commissioners, to provide for the exercise by such authorities of any of the powers of authorized undertakers within the district, and for the transfer to such authorities of the undertakings of any of those undertakers. By s. 11 no new generating station may be established or existing generating station extended without their consent. By s. 13 they may transfer to a joint electricity authority any right existing in a local authority to purchase the undertaking of an authorized distributor. By s. 15 they may make representations to the Board of Trade on which the Board of Trade may by order give a joint electricity authority or an authorized undertaking rights of taking water. And by s. 19, before the establishment of a joint electricity authority the Commissioners may require authorized undertakers to render mutual assistance to one another in respect of giving and distributing supplies of electricity, the management and working of generating stations, and the provision of capital for the purpose of such assistance. By s. 26 “Anything which under the Electric Lighting Acts may be effected by a provisional order confirmed by Parliament may be effected by a special order made by the Electricity Commissioners and confirmed by” the Minister of Transport, or by an order establishing a joint electricity authority under the Act, provided that such special order be approved by a resolution passed by each House of Parliament. By s. 33 the Commissioners have powers to hold inquiries and by order to require any person to attend and give evidence on oath, and produce documents at the inquiry, and any person failing to comply with such order is liable on conviction to a fine not exceeding 5l. Further powers are given by the Electricity (Supply) Act, [*201] 1922, of which I need only notice the power to suspend the powers of a joint authority or local authority to purchase an undertaking, but only with the consent of the authority in whom the right to purchase is vested. These are considerable powers, but there are corresponding considerable restrictions. The Commissioners may not define an electricity district, should there be any objection, without holding an inquiry, nor may they approve or publish a scheme for improving an electricity district without holding a local inquiry, nor make an order embodying the scheme without such an inquiry. The joint electricity authority is to be representative of authorized undertakers within the district, and no scheme is to provide for transfer to the joint electricity authority of any part of an undertaking except with the consent of the owners thereof: s. 6 of the Act of 1919. By s. 12 the joint electricity authority have power to supply electricity within their district, but not in the area of supply of an authorized distributor or of a power company without their consent, with certain exceptions, subject to provisoes for appeal to the Electricity Commissioners. By s. 13 the powers of transfer to a joint authority of a local authority’s rights of purchase can only be conferred on a joint authority on which the local authority is adequately represented. There are other limiting provisions as to consents and agreements which it is unnecessary to detail. The effect of the Act is to give the Commissioners power to act within limits, wide indeed but strictly defined by statute, and designed to give a large measure of protection to rights already vested in undertakers and private persons.

 

The question now immediately at issue is the validity of a scheme for the constitution of a joint electricity authority for the London and Home Counties Electricity District as defined in the scheme. The scheme is published by the Commissioners pursuant to s. 5, sub-s. 4, of the Act of 1919, and the Commissioners have given notice of and commenced to hold an inquiry thereon in pursuance of the said sub-section. The scheme by s. 2 of the schedule constitutes and incorporates a joint electricity authority for the district [*202] representative of the authorized undertakers within the district, and also of local authorities and large consumers of electricity within the district, giving eight representatives to local authority undertakers, six to company undertakers within the County of London, one to company undertakers outside the County of London, one to power companies, six to the London County Council, three to six other county councils, and two to the Railway Companies’ Association. But the scheme also provides by s. 7, sub-s. 1, that the joint authority shall appoint and keep appointed two committees of the joint authority – namely, a committee of local authority undertakers consisting of the eight members appointed by the local authority undertakers, and a committee of company undertakers consisting of the six members appointed by company undertakers within the County of London; and by s. 9, sub-s. 1, provides that the joint authority shall delegate to the two respective committees the powers and duties mentioned in the third annex to the scheme, which powers and duties shall continue to be exercised and performed by such committees within their respective areas until the event mentioned in the section. The powers and duties mentioned in the annex include powers and duties relating to the generation and transmission of electricity and to the supply of electricity in bulk to authorized distributors, and include powers to incur expenditure on capital account within the limits of estimates submitted to the joint authority and approved by the Commissioners. The scheme by s. 9, sub-s. 3, provides that the two committees shall exercise and perform any delegated power or duty in the name and on behalf of the joint authority in like manner as the joint authority could have exercised or performed such power or duty if the said power or duty had not been delegated to the committees. There is no dispute, and indeed it is of the essence of the scheme, that by the above provisions the powers and duties in question are for the specified period taken away from the joint authority and confided to the committees without any power of resumption by the joint authority.

 

These provisions appear to me a plain violation of the [*203] provisions of the Act of 1919. The joint authority in whom powers are vested under the Act is to be joint and representative. It must be representative of authorized undertakers within the district (which I take to mean all authorized undertakers), and it may also, if the Commissioners think fit, be representative of local authorities and large consumers. In the present case the Commissioners have decided that the joint authority should be representative of both these classes. It is to such a body, joint and representative, that the statute has confided such powers and duties as it gives direct to a joint authority, and that the Commissioners are empowered to confide such powers and duties as they have authority to give. The two committees to whom the powers in question are given under the scheme are neither joint nor representative, either in their constitution or by inheritance from those who in fact appoint them. In truth and in fact the joint authority are never intended to possess or exercise the powers which they are said to delegate, and they have no voice in the selection of the committees. It is but a play upon words to style the two bodies committees of the joint authority. They are in fact in respect of their powers separate authorities independent for the most part of the joint authority and operating each in its own district.

 

It was sought to justify the provisions by reference to s. 6, sub-s. 2, of the Act, which enacts that the scheme may provide for enabling the joint authority to delegate with or without restrictions to committees of the authority any of the powers or duties of the authority. It is difficult to imagine two things more different than enabling a representative body to delegate powers and duties to a committee of its own choosing and compelling the representative body to transfer from itself to a named few of its constituent members such powers and duties. If the enabling power alone had been exercised it seems to me impossible to suppose that the authority so enabled could divest itself of the powers in question without control or power of resumption.

 

It was further sought to justify the provisions by reference to s. 26 of the Act. Anything which can be done by [*204] provisional order under the Electric Lighting Acts can be done by an order establishing a joint electricity authority, which this is. By the joint effect of s. 3, sub-s. 8, and s. 4 of the Electric Lighting Act, 1882, a provisional order may contain such regulations and conditions as the Board of Trade – now the Minister of Transport – may think expedient, and therefore the Electricity Commissioners may put into their order constituting the authority any regulations and conditions they may think expedient. The answer seems to be first that the granting and imposing of these powers and duties are not things which could be effected under the Electric Lighting Acts by provisional order, for these orders relate to powers to supply electricity which in the case of joint electricity authorities are specially provided for under special conditions by s. 12 of the Act of 1919; and, secondly, that the regulations and conditions mentioned in s. 3, sub-s. 8, of the Act of 1882 are clearly regulations and conditions ancillary to the principal object of the licence or order mentioned, and in any case could not include conditions in contravention of the express statutory checks and restrictions imposed by the principal Act of 1919. I think that it is proved by the affidavits and exhibits in this case that the Commissioners consider this provision as to the two committees an essential part of their scheme, and that they determined to hold their inquiry into the scheme after hearing counsel on the point of its invalidity.

 

The question now arises whether the persons interested are entitled to the remedy which they now claim in order to put a stop to the unauthorized proceedings of the Commissioners. The matter comes before us upon rules for writs of prohibition and certiorari which have been discharged by the Divisional Court. Both writs are of great antiquity, forming part of the process by which the King’s Courts restrained courts of inferior jurisdiction from exceeding their powers. Prohibition restrains the tribunal from proceeding further in excess of jurisdiction; certiorari requires the record or the order of the court to be sent up to the King’s Bench Division, to have its legality inquired into, and, if necessary, [*205] to have the order quashed. It is to be noted that both writs deal with questions of excessive jurisdiction, and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Court of Justice. But the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would not be recognized as, Courts of Justice. Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs. Thus certiorari lies to justices of the peace of a county in respect of statutory duty to fix a rate for the repair of a county bridge: Rex v. Inhabitants in Glamorganshire (1); and to Poor Law Commissioners acting under the Poor Law Amendment Act, 1834, in prescribing the constitution of a board of guardians in a parish where there was an existing poor law authority: Rex v. Poor Law Commissioners. (2) In that case it may be noted that the Attorney-General had obtained a rule for a mandamus to the new board of guardians to obey the order of the Commissioners, and Sir Frederick Pollock subsequently obtained a rule for a certiorari to bring up the order to be quashed; and by agreement the question was argued on the rule for a certiorari. So certiorari has gone to the Board of Education to bring up and quash their determination under s. 7, sub-s. 3, of the Education Act, 1902, on a question arising between the local education authority and the managers of a non-provided school: Board of Education v. Rice. (3) Also to justices acting under the Licensing Act, and not in the strict sense as a court: Rex v. Woodhouse. (4) Similarly prohibition has gone to the Tithe Commissioners, and an assistant Tithe Commissioner, to prevent them from making an award as to the tithes in a particular parish: In re Crosby Tithes (5), and to the Inclosure

 

(1) 1 Ld. Raym. 580.

 

(2) 6 Ad. & E. 1.

 

(3) [1911] A. C. 179.

 

(4) [1906] 2 K. B. 501.

 

(5) 13 Q. B. 761. [*206]

 

Commissioners from reporting the proposed inclosure of a common in the parish of Acton, and from taking any further step towards the inclosure of the common: Church v. Inclosure Commissioners. (1) So it has gone against the Light Railway Commissioners to restrain them from proceeding with an inquiry remitted to them by the Board of Trade after an appeal which it was held did not lie: Rex v. Board of Trade. (2) Here the right to prohibition was not raised by counsel, as a decision was desired on the point as to the validity of the appeal, but the point was raised in the dissenting judgment of Phillimore L.J., and must, I think, have been present to the minds of the majority of the Court. I can see no difference in principle between certiorari and prohibition, except that the latter may be invoked at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters which would result in its final decision being subject to being brought up and quashed on certiorari, I think that prohibition will lie to restrain it from so exceeding its jurisdiction. Reference was made to the case of In re Clifford and O’Sullivan (3), where an attempt was made to prohibit the proceedings of so-called military courts of the Army in Ireland acting under proclamations which had placed certain Irish districts in a time of armed disturbance under martial law. Prohibition, it was held in the House of Lords, would not lie because the so-called courts were not claiming any legal authority other than the right to put down force by force, and because the so-called courts were funct¾ officio. I am satisfied that the observations of the Lord Chancellor in that case were directed to the first point, and that he had no intention of overruling, or indeed questioning, the long line of authority which has extended the writs in question to bodies other than those who possess legal authority to try cases, and pass judgments in the strictest sense.

 

In the present case the Electricity Commissioners have to decide whether they will constitute a joint authority in a

 

(1) 11 C. B. (N. S.) 664.

 

(2) [1915] 3 K. B. 536.

 

(3) [1921] 2 A. C. 570. [*207]

 

district in accordance with law, and with what powers they will invest that body. The question necessarily involves the withdrawal from existing bodies of undertakers of some of their existing rights, and imposing upon them of new duties, including their subjection to the control of the new body, and new financial obligations. It also provides in the new body a person to whom may be transferred rights of purchase which at present are vested in another authority. The Commissioners are proposing to create such a new body in violation of the Act of Parliament, and are proposing to hold a possibly long and expensive inquiry into the expediency of such a scheme, in respect of which they have the power to compel representatives of the prosecutors to attend and produce papers. I think that in deciding upon the scheme, and in holding the inquiry, they are acting judicially in the sense of the authorities I have cited, and that as they are proposing to act in excess of their jurisdiction they are liable to have the writ of prohibition issued against them.

 

It is necessary, however, to deal with what I think was the main objection of the Attorney-General. In this case he said the Commissioners come to no decision at all. They act merely as advisers. They recommend an order embodying a scheme to the Minister of Transport, who may confirm it with or without modifications. Similarly the Minister of Transport comes to no decision. He submits the order to the Houses of Parliament, who may approve it with or without modifications. The Houses of Parliament may put anything into the order they please, whether consistent with the Act of 1919, or not. Until they have approved, nothing is decided. and in truth the whole procedure, draft scheme, inquiry, order, confirmation, approval, is only part of a process by which Parliament is expressing its will, and at no stage is subject to any control by the Courts. It is unnecessary to emphasize the constitutional importance of this contention. Given its full effect, it means that the checks and safeguards which have been imposed by Act of Parliament, including the freedom from compulsory taking, can be removed, and new and onerous and inconsistent obligations imposed without an [*208] Act of Parliament, and by simple resolution of both Houses of Parliament. I do not find it necessary to determine whether, on the proper construction of the statute, resolutions of the two Houses of Parliament could have the effect claimed. In the provision that the final decision of the Commissioners is not to be operative until it has been approved by the two Houses of Parliament I find nothing inconsistent with the view that in arriving at that decision the Commissioners themselves are to act judicially and within the limits prescribed by Act of Parliament, and that the Courts have power to keep them within those limits. It is to be noted that it is the order of the Commissioners that eventually takes effect; neither the Minister of Transport who confirms, nor the Houses of Parliament who approve, can under the statute make an order which in respect of the matters in question has any operation. I know of no authority which compels me to hold that a proceeding cannot be a judicial proceeding subject to prohibition or certiorari because it is subject to confirmation or approval, even where the approval has to be that of the Houses of Parliament. The authorities are to the contrary.

 

In In re Crosby Tithes (1), where prohibition went to the Tithe Commissioners, the Assistant Commissioner, with a view to commutation of tithes, had held an inquiry into the value of certain disputed tithes, and had declared his intention of awarding a particular amount to the vicar. By the Tithe Commutation Act of 1836, s. 50, the Commissioner was not empowered to draft his award until certain pending suits were decided, and there being such a suit pending, prohibition went to the Commissioners and the Assistant Commissioner. It is to be noted that when the writ was granted the Assistant Commissioner had not even drafted his award, but had merely stated his intention so to do, and to ignore the pending suit, and that his award, when drafted, was subject to objection, and to amendment after a further hearing of such objections (s. 51), and was then subject to confirmation by the Commissioners. In Church v. Inclosure Commissioners (2), the writ of prohibition was issued to prohibit the Commissioners from

 

(1) 13 Q. B. 761.

 

(2) 11 C. B. (N. S.) 664. [*209]

 

reporting the proposed inclosure of Old Oak Common in the parish of Acton for the sanction of Parliament, and from taking any further steps towards the inclosure of the said common, without first obtaining certain consents. An Assistant Commissioner had held an inquiry and made a report to the Commissioners, who had made a provisional order providing for inclosure. The Assistant Commissioner had wrongly estimated the values of the interests in question, which was the ground of the invalidity relied on. The inclosure in question, being within fifteen miles of the City of London, could not be made without the authority of Parliament under s. 14 of the Commons Inclosure Act, 1845. By s. 27 of the Act, in such a case, after making the provisional order, it was the duty of the Commissioners to publish it, to verify consents, and to certify in their annual report the expediency of the inclosure, and by s. 32 the provisional order would only become operative when enacted in an Act of Parliament. It is noteworthy that the Court (Erle C.J. and Vaughan Williams, Willes and Keating JJ.) thought the matter so clear that they refused the request of counsel for the Commissioners that the prosecutor should declare in prohibition to give an opportunity of questioning whether prohibition would lie in such a case. (1) I cannot distinguish that case from the present.

 

The case of Reg. v. Hastings Local Board (2), which was relied on by the Divisional Court, seems to me to be of little assistance. The application was for a writ of certiorari to bring up to be quashed a provisional order of the Secretary of State made pursuant to the Local Government Act of 1858, whereby the Hastings Local Board was empowered to put in force the powers of the Lands Clauses Act in respect of certain land required for widening a road. The material section expressly provided that the order of the Secretary of State should not be of any validity unless the same had been confirmed by Act of Parliament, and at the time of the application no confirming Act of Parliament had been obtained. It seems quite clear that there was no order in

 

(1) See 11 C. B. (N. S.) 682, note a.

 

(2) 6 B. & S. 401. [*210]

 

existence in respect of which certiorari could be granted, and all the judges were of opinion that the Secretary of State was in the same position as a Select Committee to whom a Bill for such a purpose might be referred. Blackburn J. stated that the order was not a judicial one. No authorities were cited to the Court. I cannot consider this case, or the Irish case cited which followed it (1), to be inconsistent with the principles on which is based the decision in Church v. Inclosure Commissioners. (2) If there were any inconsistency I prefer the authority of the latter case.

 

In coming to the conclusion that prohibition should go we are not in my opinion in any degree affecting, as was suggested, any of the powers of Parliament. If the above construction of the Act is correct the Electricity Commissioners are themselves exceeding the limits imposed upon them by the Legislature, and so far from seeking to diminish the authority of Parliament we are performing the ordinary duty of the Courts in upholding the enactments which it has passed. Nothing we do or say could in any degree affect the complete power of the Legislature by Act of Parliament to carry out the present scheme, or any other scheme. All we say is that it is not a scheme within the provisions of the Act of 1919. That it is convenient to have the point of law decided before further expense and trouble are incurred seems beyond controversy. I think therefore that the appeal should be allowed, so far as the writ of prohibition is concerned, and that the rule for the issue of the writ should be made absolute.

 

So far as the writ of certiorari is concerned, the matter becomes unimportant. I have considerable doubt whether there is any such definite order as could be made the subject of certiorari, and in this respect I think that the appeal should be dismissed without costs.

 

YOUNGER L.J. I concur so entirely in the judgment just delivered that I hesitate to add anything to it. I permit

 

(1) In re Local Government Board; Ex parte Kingstown Commissioners, 16 L. R. Ir. 150; 18 ibid. 509.

 

(2) 11 C. B. (N. S.) 664. [*211]

 

to myself the privilege of observing only upon two of the matters discussed before us. The first is this: In the proposed scheme, immediately after cl. 7, which requires the joint authority to appoint and keep appointed the Local Authority Committee and the Company Committee, and cl. 9, which requires the authority to delegate to these committees respectively the extensive powers of the authority set forth in the third annex to the scheme, there comes cl. 10, by which it is provided that the Local Authority Committee may delegate, subject to such restrictions or conditions as they may think fit, any of their powers or duties to any other committees appointed by them, with a proviso not for the moment material. I find in the contrast between this clause and clauses 7 and 9 a notable confirmation of the view we take of these two clauses. Clause 10 is the legitimate exercise by the Commissioners of their power under s. 6, sub-s. 2, of the Act of 1919 to provide by a scheme “for enabling the joint electricity authority to delegate with or without restrictions to committees of the authority any of the powers or duties of the authority,” and its very presence in the scheme throws into striking relief the difficulty – the impossibility, as I think – of finding on reference to s. 6, sub-s. 2, of the Act any justification for the insertion in the scheme of such directions as are here contained in clauses 7 and 9. I feel quite satisfied that a scheme containing such clauses is not such a scheme as Parliament by the Act of 1919 empowered the Commissioners to make or formulate or the Board of Trade to confirm.

 

If then this Court be satisfied as it is that it has power to prohibit the Commissioners from further proceeding with such a scheme, ought it to hesitate to exercise that power in the present circumstances of this case? The Attorney-General presented to us a very weighty argument that it should – namely, that the Court, if it were now to intervene here, would be usurping the function of Parliament, which by the Act of 1919 has reserved to itself alone the privilege of expressing effective approval or disapproval of any scheme whether authorized by the Act or not, if brought before it after [*212] being made by the Commissioners and confirmed by the Minister of Transport. This important contention of the Attorney-General is the second matter upon which I wish to observe.

 

If I thought that Parliament by s. 7, sub-s. 2, of the Act of 1919 had so enacted, I would myself at once accept the contention of the Attorney-General. I would conclude that by the terms of the statute the Court had been dispensed from all responsibility in relation to the action either of the Commissioners in making, or of the Minister of Transport in confirming, any scheme under it. In such circumstances any interference by the Court at any stage would, I agree, be in the legal sense of the word an impertinence.

 

But I do not so read s. 7, sub-s. 2, of the Act of 1919. That Act in my judgment contemplates that the Commissioners’ order, which, when approved by a resolution passed by each House of Parliament, is to have effect as if enacted in the Act, embodies only a scheme which under the Act the Commissioners are given power either to approve or formulate. Every scheme under the Act remains the scheme of the Commissioners even after it is confirmed by the Minister of Transport and approved by Parliament. The modifications in a scheme inserted either by the Minister of Transport or by Parliament are limited to modifications, as I read the Act, which might have been lawfully made under the powers of the Act by the Commissioners themselves had they been so minded. Parliament has not by the Act conferred upon the Minister of Transport, nor has it in terms reserved to itself by a mere resolution of both Houses power, under the name of modifications in a scheme of the Commissioners, to insert in a scheme provisions which would under the Act be beyond the powers of the Commissioners if inserted in the scheme by them in the first instance. So, at any rate, I read the Act. Fortunately, however, it is not necessary in this case to decide the very serious question whether, if at any time Parliament should approve by resolution of each House a scheme which, adopting if I may the language of Lord Robertson in Russell v. [*213] Magistrates of Hamilton (1), could in fact be shown to be “an abuse” of the statute, the scheme so approved would nevertheless by virtue of s. 7, sub-s. 2, “have effect as if enacted in this Act,” and would have to be given statutory force by every Court in which its terms were canvassed. To suggest that such a question is one which may in view of the terms of this sub-section arise, is not of course to suggest that Parliament cannot sanction and give the effect of statute law to any scheme it likes. It is only to suggest that it may not have in this Act reserved to itself the power by a mere resolution of each House to give statutory effect to a scheme the formulation of which it has not by the statute authorized. No such serious question however arises for decision now. For the moment it is, I think, enough to say that, whatever may be the effect of such a joint resolution when once it is passed, Parliament in this statute contemplates that no such resolution will approve, except possibly by inadvertence, a scheme which it would under the Act be beyond the powers of the Commissioners to formulate or of the Minister of Transport to confirm. If that be the true view of the statute the interference of the Court in such a case as this, and at this stage, so far from being even in the most diluted sense of the words a challenge to its supremacy, will be an assistance to Parliament. It will relieve each House to some extent at least from the risk of having presented to it for approval by resolution schemes which go beyond the powers committed by the statute to the Commissioners who made them or the Minister of Transport who confirmed them. It will leave each House to a great extent untrammelled by any apprehensions of this kind, to devote itself to the consideration of the question the Act has undoubtedly reserved to it – namely, whether in the particular case the scheme should be approved or not. For these reasons I am of opinion that if we have the power in this case to interfere, we are rendering a service not only to the parties concerned but to each House of Parliament itself by exercising that power as we propose to do.

 

(1) (1897) 25 R. 350, 357. [*214]

 

BANKES L.J. So far as it relates to the prohibition the appeal will be allowed and the rule will be made absolute for a prohibition in the form of the rule nisi. So far as it relates to the certiorari the appeal will be dismissed without costs.

 

Appeal allowed.