76 / 294
Appellants'
Claim succeeds, because Regulations
overrule 1920 Act
Sir Robert Lowry went on: " Mr. McSparran submits
that Regulation 38 (1), because of its specific confer-
ment powers on ' any commissioned officer * and 'any
members of Her Majesty's forces on duty, is a law made
in contravention of the limitations imposed by Section
4 and is therefore (without prejudice to his second
point) void so far as it contravenes those limitations".
In summarising his decisions, Sir Robert said:
" (1) The words ' any commissioned officer of Her
Majesty's forces on duty' and ' any member of . . . Her
.Majesty's forces on duty' are descriptive of subject
matter within the forbidden field comprised in Section
4 (1)(3) of the 1920 Government of Ireland Act.
" (2) Regulation 38(1) of the Special Powers Act is a
Jaw ' in respect of ' that subject matter; (3) The words
' in respect of ' have the same general meaning through-
out Section 4(1) and are nowhere confined to the imposi-
tion of burdens, controls or obligations:
"(4) The intention of the legislature is to be derived
from the words of Section 4(1); (5) The reference to the
forbidden subject matter is not a matter of incidental
effect as defined by Gallagher v. Lynn, but is an
example of the achievement of a lawful object by
invalid methods; and (6) Even though Regulation 38(1)
*s in respect of the preservation of peace and the main-
tenance of order, it is also, by virtue of the powers con-
ferred on officers and members of Her Majesty's forces
on duty, in respect of the subject matter included in
Paragraph (3) of Section 4(1) and to that extent con-
travenes the limitations thereby imposed".
Convictions quashed, and leave granted to appeol
to the House of Lords
He added: "Mr. McSparran's second point for the
applicants was that Regulation 38(1) is not conducive
to peace, order and good government or in particular
to the pereservation of the peace and the maintenance
of order and is excessively far-reaching and oppressive.
It is unnecessary, having regard to the conclusion I
have already expressed, to analyse fully the arguments
on this point and I will refrain from doing so".
Finally Sir Robert said: " Lest there be any misunder-
standing it should be pointed out that the conclusion
reached in these proceedings does not affect whatever
powers members of Her Majesty's forces have at com-
mon law or by virtue of any valid statutory provisions
or regulations which may exist or be enacted or made".
Sir Robert said the appeal was therefore upheld and
and the conviction on each of the five quashed. For the
Crown. Mr. R. J. Carswell asked leave to appeal on the
grounds that the House of Lords should examine the
judgment as a matter of public importance. Mr.
McSparran agreed that the matter was of urgent public
importance and after consultation and a brief adjourn-
ment an agreed wording for the certificate was arrived
at. It was to ask the House of Lords to decide whether
Regulation 38(1) of the Special Powers Act is void as
contravening the limits imposed by the Government of
Irealnd Act, 1920. Section 4(1) in so far as it provides
that any commissioned officer on duty or any member
of Her Majestys' forces acting on his behalf may order
the persons in the assembly to disperse forthwith".
Sir Robert was sitting with Mr. Justice Gibson and
Mr. Justice O'Donnell. As well as Mr. McSparran, Mr.
Charles Hill appeared for the five appellants.
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75