Lord Advocate v Dumbarton District Council; Lord Advocate v Strathclyde Regional Council [1990] 2 AC 580
House of Lords, on appeal from Scotland — 30 November 1989
Facts
The Ministry of Defence arranged improved security fencing at the Faslane submarine base. Its contractors occupied part of the A814 beside the base with temporary fencing, a safety barrier, cabins and building materials.
Strathclyde Regional Council, the roads authority, issued notices requiring removal of the structures and reinstatement of the road under the Roads (Scotland) Act 1984. Dumbarton District Council, the planning authority, issued enforcement and stop notices under the Town and Country Planning (Scotland) Act 1972.
The Lord Advocate challenged the notices on the Crown’s behalf. Lord Cullen initially held that the relevant provisions did not bind the Crown. The Inner House reversed that decision, and the Lord Advocate appealed to the House of Lords.
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Issue
Did the relevant statutory provisions apply to works undertaken by or on behalf of the Crown? The case concerned the interpretation of the legislation, rather than a general immunity from court orders.
Decision
The House of Lords allowed both appeals. The relevant provisions did not bind the Crown, and the challenged notices were ineffective. The House restored the Lord Ordinary’s orders, except for the interdicts restraining enforcement.
By the time of the appeal, the fencing work had been completed and the road restored. The issue of expenses remained, as did an important question of statutory interpretation.
Reasoning
Lord Keith applied the rule that the Crown is bound by a statutory provision only through express words or necessary implication. He rejected the suggestion that a different approach should apply in Scotland.
The question was what the legislation meant. The Inner House had distinguished between restricting conduct that the Crown could otherwise lawfully undertake and regulating conduct that would already be unlawful at common law. Lord Keith rejected that distinction: it would make the same statutory provision apply differently according to a separate examination of the Crown’s underlying powers.
The House therefore examined the wording of the two Acts to determine whether Parliament intended the Crown to be bound. It did not treat the Crown’s ability to invoke the rule as depending on whether the particular activity was an exercise of the royal prerogative.
The important distinction is between construing the scope of an Act and claiming power to disregard it. The decision was that these provisions did not bind the Crown. It did not establish that the executive could override legislation which did apply to it.
