Cours de M. Michel fromont, Professeur, Université Paris 1 (Panthéon-Sorbonne)
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CERTIORARI AND PROHIBITION Common principles Certiorari and prohibition are complementary remedies, based upon common principles, so that they can be classed together. Certiorari issues to quash a decision which is ultra vires.73 Prohibition issues to forbid some act or decision which would be ultra vires. Certiorari looks to the past, prohibition to the future. In this way they are respectively comparable to the declaration and injunction in the sphere of private law remedies. Like private law remedies, they may be sought separately or together. Unlike private law remedies, they have never been dependent on the applicant showing a specific personal right. Nominally they are granted to the Crown, and the Crown always has sufficient interest to call upon public bodies to act lawfully. Certiorari and prohibition are discretionary remedies, and must be sought by the procedure of judicial review. Both these features are explained in the following chapters.74 Certiorari Certiorari is used to bring up into the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If the decision does not pass the test, it is quashed—that is to say, it is declared completely invalid, so that no one need respect it. The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers and must be kept within their legal bounds. This is the concern of the Crown, for the sake of orderly administration of justice, but it is a private complaint which sets the Crown in motion. The Crown is the nominal plaintiff but is expressed to act on behalf of the applicant, so that an application by Smith to quash on order of (for instance) a rent tribunal would be entitled R. v. The—Rent Tribunal, ex parte Smith. The court will then decide whether the tribunal's order was within its powers. There are normal rights of appeal both for the applicant and the tribunal.75 The form of the old writ was that of a royal demand to be informed (certiorari) of some matter, and in early times it was used for many different purposes.76 It 73 Or, formerly, vitiated by error on the face of the record. 74 Below, pp. 640, 688. 75 See e.g. R. v. Immigration Appeal Tribunal ex p. Alexander [1982] 1 WLR 430. 76 Originally it issued out of the Chancery or the King's Bench: Holdsworth, History of English Law, i. 228, 658. Page 592 became a general remedy to bring up for review in the Court of King's Bench any decision or order of an inferior tribunal or administrative body. Its great period of development as a means of controlling administrative authorities and tribunals began in the later half of the seventeenth century, and its wide modern application was promoted particularly by Holt CJ.77 Something was needed to fill the vacuum left by the Star Chamber, which had exerted a considerable degree of central control over justices of the peace, both in their judicial and their administrative functions, but was abolished in 1640. There was also the problem of controlling special statutory bodies, which had begun to make their appearance. The Court of King's Bench addressed itself to these tasks, and became almost the only coordinating authority until the modern system of local government was devised in the nineteenth century. The most useful instruments which the Court found ready to hand were the prerogative writs. But not unnaturally the control exercised was strictly legal, and no longer political. Certiorari would issue to call up the records of justices of the peace and commissioners for examination in the King's Bench and for quashing if any legal defect was found. At first there was much quashing for defects of form on the record, i.e. for error on the face. Later, as the doctrine of ultra vires developed, that became the dominant principle of control. Failure to return the record into the High Court was punishable as contempt; in the seventeenth century commissioners of sewers several times found themselves fined and incarcerated for disobedience.78 Prohibition Prohibition developed alongside certiorari as part of the system of control imposed by the Court of King's Bench.79 It was a similar remedy, but was prospective rather than retrospective. Primarily it lay to prohibit an inferior tribunal from doing something in excess of its jurisdiction. In what might be called the jurisdictional warfare of the seventeenth century it was an important weapon of the King's Bench when that court struck down the pretensions of competing jurisdictions such as those of the Court of Admiralty and the ecclesiastical courts. Later, like 77 See the quotation below, p. 597. In Groenvelt v. Burwell (1700) 1 Ld. Raym. 454 at 469 Holt CJ said: 'for it is a consequence of all jurisdictions to have their proceedings returned here by certiorari, to be examined here . . . Where any court is erected by statute a certiorari lies to it; so that if they perform not their duty, the King's Bench will grant a mandamus.' 78 See Hetley v. Boyer (1614) Cro. Jac. 336; Smith's Case (1670) 1 Vent. 66; Bacon's Abridgement, ii. 542. 79 Formerly prohibition was commonly awarded on the direct application of the party rather than at the suit of the Crown: London Corporation v. Cox (1867) LR 2 HL 239 at 279. A modern example is Turner v. Kingsbury Collieries Ltd. [1921] 3 KB 169. The opinion of the judges delivered by Willes J in London Corporation v. Cox is a classic source of information on prohibition. See also Bl. Comm. iii. 113; Holdsworth, History of English Law, i. 228, 656. All the superior courts could grant the writ: Bl. Comm. iii. 112. Page 593 certiorari, it developed into part of the regular mechanism of judicial control both of inferior tribunals and of administrative authorities generally. In a much-cited case Atkin LJ said:80 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. Typical modern examples are its use to prevent an electricity authority from proceeding with a scheme which was outside its powers;81 to prevent the execution of a decision vitiated by a breach of the principles of natural justice;82 to prevent a housing authority from requiring the demolition of a house which was improperly condemned;83 to prevent a rent tribunal from proceeding with a case outside its jurisdiction;84 and to prevent a local authority from licensing indecent films.85 In the last-mentioned case86 Lord Denning MR said of prohibition: It is available to prohibit administrative authorities from exceeding their powers or misusing them. In particular, it can prohibit a licensing authority from making rules or granting licences which permit conduct which is contrary to law. Although prohibition was originally used to prevent tribunals from meddling with cases over which they had no jurisdiction, it was equally effective, and equally often used, to prohibit the execution of some decision already taken but ultra vires. So long as the tribunal or administrative authority still had some power to exercise as a consequence of the wrongful decision, the exercise of that power could be restrained by prohibition.87 Certiorari and prohibition frequently go hand in hand, as where certiorari is sought to quash the decision and prohibition to restrain its execution. But either remedy may be sought by itself. Where only prohibition is applied for to prevent the enforcement of an ultra vires decision, as happened in the last-cited case, the effect is the same as if certiorari had been granted to quash it; for the court necessarily declares its invalidity before prohibiting its enforcement. Prohibition is a remedy strictly concerned with excess of jurisdiction.88 80 R. v. Electricity Commissioners ex p. London Electricity Joint Committee Co. (1920) Ltd. [1924] 1 KB 171 at 206. 81 R. v. Electricity Commissioners (above). 82 R. v. North ex p. Oakey [1927] 1 KB 491 (ecclesiastical court: no notice to vicar of order against him); R. v. Liverpool Cpn. ex p. Taxi Fleet Operators' Association [1972] 2 QB 299 (licensing authority not to act before giving fair hearing). Similarly a biased adjudicator may be prohibited from acting: R. v. Kent Police Authority ex p. Godden [1971] 2 QB 662. 83 Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust [1937] AC 898. 84 R. v. Tottenham and District Tribunal ex p. Northfield (Highgate) Ltd. [1957] 1 QB 103. 85 R. v. Greater London Council ex p. Blackburn [1976] 1 WLR 550. 86 At 559. 87 See the Estate and Trust Agencies case (above). 88 Rubinstein, Jurisdiction and Illegality, 94. Page 594 The court will not be disposed to issue prohibition if the effect will be to prevent Parliament from considering some proposal or report. If its presentation should be shown to be unlawful, the court will prefer to state the legal position by a declaratory judgment.89 Occasionally prohibition will lie where certiorari will not, e.g. to an ecclesiastical court. This is explained below.90 Disobedience of a prohibition is punishable as contempt of court.91 Scope of these remedies Certiorari and prohibition are employed primarily for the control of inferior courts, tribunals and administrative authorities. Crown courts,92 county courts, justices of the peace, coroners and all statutory tribunals93 are liable to have their decisions quashed or their proceedings prohibited, except where Parliament provides otherwise—and sometimes even when it does.94 So are all other public authorities, whether their functions are judicial or administrative.95 Minsters' decisions are frequently quashed by certiorari. In earlier times prohibition was often used to restrict the jurisdiction of tribunals existing by virtue of common law, such as the ecclesiastical and admiralty courts. But both certiorari and prohibition, in their modern applications for the control of administrative decisions, lie primarily only to statutory authorities. The reason for this is that nearly all public administrative power is statutory. Powers derived from contract are matters of private law and outside the scope of prerogative remedies.96 In refusing to grant certiorari or prohibition against arbitrators appointed privately under a contract of apprenticeship Lord Goddard CJ said:97 But the bodies to which in modern times the remedies of these prerogative writs have been applied have all been statutory bodies on whom Parliament has conferred statutory powers and duties which, when exercised, may lead to the detriment of subjects who may have to submit to their jurisdiction. But the existence of statutory power is no longer the sole touchstone, since judicial 89 R. v. Boundary Commission for England ex p. Foot [1983] QB 600 (report of Boundary Commission: complaint not upheld). 90 p. 622. 91 Bl. Comm. iii. 113. 92 See below, p. 623, for particulars affecting this and other courts. 93 Including the Patents Appeal Tribunal, though consisting of a High Court judge: Baldwin & Francis Ltd. v. Patents Appeal Tribunal [1959] AC 663; and an election court: R. v. Cripps ex p. Muldoon [1984] QB 68, affirmed [1984] QB 686. 94 As in the Anisminic case, below, p. 706. 95 Including the Commissioners of Inland Revenue: R. v. Inland Revenue Commissioners ex p. National Federation of Self-Employed and Small Businesses Ltd. [1982] AC 617. 96 See below, p. 624. 97 R. v. National Joint Council for Dental Technicians ex p. Neate [1953] 1 QB 704 at 707. Page 595 review has been extended to a number of non-statutory bodies.98 The scope of review covers all varieties of ultra vires and unlawful action, including unreasonableness, breach of natural justice and error of law, as explained in Chapter 18. Where the bad part of a decision is severable from the good, certiorari may be granted to quash the bad part only. Severability is discussed elsewhere.99 An authority or tribunal whose decision is quashed has failed to dispose of the case and may normally be called upon to begin again and do so properly.1 It will not suffice merely to ratify the invalid decision.2 'Judicial' functions. Originally certiorari and prohibition lay to control the functions of inferior courts, i.e. judicial functions. But the notion of what is a 'court' and a 'judicial function' has been greatly stretched, so that these remedies have grown to be comprehensive remedies for the control of all kinds of administrative as well as judicial acts. This is because the judges very naturally saw no reason to abdicate the control which they achieved at the zenith of their power in the eighteenth century. In that age the chief organs of local government were the justices of the peace, who in addition to their regular judicial business had many administrative functions such as the upkeep of roads and bridges, the licensing of ale-houses and the administration of the poor law. These administrative duties were discharged in the most judicial style possible: not only were the justices themselves primarily judicial officers, whose proceedings naturally tended to follow legal patterns—they were almost completely free from central political control.3 Maitland epitomised the position of 'the amphibious old justice who did administrative work under judicial forms':4 Whatever the justice has had to do has soon become the exercise of a jurisdiction; whether he was refusing a licence or sentencing a thief, this was the exercise of jurisdiction, an application of the law to a particular case. Even if a discretionary power was allowed him, it was none the less to be exercised with a 'judicial discretion'; it was not expected of him that he should have any 'policy'; rather it was expected of him that he should not have any 'policy'. Local administration thus had a strong judicial tradition. When, in the nineteenth century, most of the administrative functions of the justices were transferred to 98 See below, p. 620. 99 Above, p. 287. 1 An example is Kingswood DC v. Secretary of State for the Environment (1987) 57 P & CR 153. 2 R. v. Rochester CC ex p. Hobday, The Times, 22 February 1989. 3 Thus when the government were in need of recruits under the Militia Acts during the Seven Years War they had to move the Court of King's Bench for writs of mandamus to the county authorities. This was the height of 'judicial' administration. See Holdsworth, introduction to Dowdell, A Hundred Years of Quarter Sessions, ix; History of English Law, x. 156. 4 Collected Papers, i. 478. Page 596 elected local councils or to new statutory authorities, they carried this tradition with them. Political control was imposed, but a judicial technique was inherited. The courts had fallen into the habit of calling many administrative acts 'judicial', meaning simply that the person wielding the power was required by law to keep within his jurisdiction and to observe the elements of fair procedure, such as the principles of natural justice. For a long time this abuse of language was masked by the mixture of functions which were performed by justices of the peace. When these functions were later sorted out, the label 'judicial' still stuck to administrative acts. Certiorari and prohibition were still described as remedies for the control of judicial functions, and for preventing excess of jurisdiction. But 'jurisdiction' had become synonymous with 'power', and in fact certiorari and prohibition were used to control all kinds of irregular administrative acts, from those of justices to those of ministers. Their scope expanded automatically with the development of the doctrine of ultra vires. |
