open government closed to the governors

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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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.



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