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Editorial Committee of the Cambridge Law Journal
Open Government Closed to the GovernorsAuthor(s): Roger GregorySource: The Cambridge Law Journal, Vol. 40, No. 1 (Apr., 1981), pp. 7-10Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4506314 .
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This content downloaded from 195.34.79.228 on Sun, 15 Jun 2014 09:38:35 AMAll use subject to JSTOR Terms and Conditions
This content downloaded from 195.34.79.228 on Sun, 15 Jun 2014 09:38:35 AMAll use subject to JSTOR Terms and Conditions
This content downloaded from 195.34.79.228 on Sun, 15 Jun 2014 09:38:35 AMAll use subject to JSTOR Terms and Conditions
This content downloaded from 195.34.79.228 on Sun, 15 Jun 2014 09:38:35 AMAll use subject to JSTOR Terms and Conditions
10 The Cambridge Law Journal [1981]
in fact did not know whether further action was needed or not. "
It is not permissible," he said, "
for a caucus of old members to
exclude new members by keeping them in the dark."
This aspect of the case might have attracted a more detailed
exposition than appears in the law report. For there is a much-
respected principle to the effect that persons or bodies with powers and duties to perform for public purposes cannot divest themselves
of their powers and duties, and cannot " take any action incom-
patible with the due exercise of their powers or the discharge of
their duties "
(Birkdale District Electric Supply Co. Ltd. v. South-
port Corp. [1926] A.C. 355, 364). Invoking this principle the
courts have compelled corporations to fulfil their charters, invali-
dated business transacted at meetings when all the members have
not been equally or adequately notified of the business, and
declared "
illegal" resolutions by which members abrogated their
duties. It is interesting to note that in company law, where the
somewhat high-minded standard demanded of public authorities is
thought likely to hamper, rather than assist, proper commercial life,
the Court of Appeal refused to countenance a resolution carried by
procuring members to sign proxies "in the dark" (Lindley L.J.'s
expression in Kaye v. Croydon Tramways (1898) 78 L.T. 238, 241).
Could one not argue that a resolution to prevent one-third of the
members from giving proper consideration to further action or
from reaching a properly informed conclusion, amounts effectively
to keeping them in the dark, and, as such, is not a " due
" exercise
of power by the committee, or a "
due "
discharge of its members'
duties?
In conclusion, it is submitted that by its free-thinking approach
to Humphreys J.'s words, and its failure to take proper account
of the " Birkdale principle," the Court of Appeal has come closer
to overruling ex p. Conlan than to applying it. This may have a
profound effect on local government. The independence of a coun-
cillor's office could be seriously weakened both as against his fellow
members and (de facto) his council's senior officers. As a result,
any majority which wishes to bury a committee paper like the
Osmond Report need not worry unduly about obtaining a death
certificate. Roger Gregory.
10 The Cambridge Law Journal [1981]
in fact did not know whether further action was needed or not. "
It is not permissible," he said, "
for a caucus of old members to
exclude new members by keeping them in the dark."
This aspect of the case might have attracted a more detailed
exposition than appears in the law report. For there is a much-
respected principle to the effect that persons or bodies with powers and duties to perform for public purposes cannot divest themselves
of their powers and duties, and cannot " take any action incom-
patible with the due exercise of their powers or the discharge of
their duties "
(Birkdale District Electric Supply Co. Ltd. v. South-
port Corp. [1926] A.C. 355, 364). Invoking this principle the
courts have compelled corporations to fulfil their charters, invali-
dated business transacted at meetings when all the members have
not been equally or adequately notified of the business, and
declared "
illegal" resolutions by which members abrogated their
duties. It is interesting to note that in company law, where the
somewhat high-minded standard demanded of public authorities is
thought likely to hamper, rather than assist, proper commercial life,
the Court of Appeal refused to countenance a resolution carried by
procuring members to sign proxies "in the dark" (Lindley L.J.'s
expression in Kaye v. Croydon Tramways (1898) 78 L.T. 238, 241).
Could one not argue that a resolution to prevent one-third of the
members from giving proper consideration to further action or
from reaching a properly informed conclusion, amounts effectively
to keeping them in the dark, and, as such, is not a " due
" exercise
of power by the committee, or a "
due "
discharge of its members'
duties?
In conclusion, it is submitted that by its free-thinking approach
to Humphreys J.'s words, and its failure to take proper account
of the " Birkdale principle," the Court of Appeal has come closer
to overruling ex p. Conlan than to applying it. This may have a
profound effect on local government. The independence of a coun-
cillor's office could be seriously weakened both as against his fellow
members and (de facto) his council's senior officers. As a result,
any majority which wishes to bury a committee paper like the
Osmond Report need not worry unduly about obtaining a death
certificate. Roger Gregory.
clean breaks and custodial rights
Mixed feelings may be engendered by the judgments in Dipper v.
Dipper [1980] 3 W.L.R. 626, where the Court of Appeal has
dispelled uncertainty in one area of family law while promoting it
in another.
clean breaks and custodial rights
Mixed feelings may be engendered by the judgments in Dipper v.
Dipper [1980] 3 W.L.R. 626, where the Court of Appeal has
dispelled uncertainty in one area of family law while promoting it
in another.
This content downloaded from 195.34.79.228 on Sun, 15 Jun 2014 09:38:35 AMAll use subject to JSTOR Terms and Conditions