Cours de M. Michel fromont, Professeur, Université Paris 1 (Panthéon-Sorbonne)

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titreCours de M. Michel fromont, Professeur, Université Paris 1 (Panthéon-Sorbonne)
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The 'Electricity Commissioners' formula

Discussion of the scope of the modern law begins with a classic statement made by Atkin LJ in 1923. The case concerned an electricity scheme for the London area, where the Electricity Commissioners had statutory power to make schemes for grouping electricity authorities into districts for the general improvement of the supply. Any scheme was subject to confirmation by the Minister of Transport and to approval by both Houses of Parliament; it was also subject to the usual public inquiry procedure in case of objection. There was a difference of opinion between the London County Council, which wanted one district for the whole area, and the electric supply companies, who wanted two districts. The Commissioners attempted to compromise by making a scheme under which there was only one district, but the district authority was to be required to delegate its powers to two committees, so that there would be a division of the kind that the companies wanted. The companies, however, challenged the legality of the scheme, and the Court of Appeal held it ultra vires on the ground that the Act did not permit the Commissioners to set up two authorities in the form of one.5 A writ of prohibition was granted against the Commissioners at the instance of the companies, who had applied for it only a few days after the public inquiry had opened. It was objected that the function was not judicial but executive; that the application was premature as nothing decisive had yet happened; and that in any case the court should not intervene where the scheme had to be approved by Parliament.6 All these objections were swept aside, and the court made it plain that any statutory

5 R. v. Electricity Commissioners ex p. London Electricity Joint Committee Co. (1920) Ltd. [1924] 1 KB 171.

6 See above, pp. 26, 376.

Page 597

authority acting ultra vires could be called to order by the prerogative writes—by prohibition, to prevent them proceeding further with an unauthorised scheme, and by certiorari, to declare that any decision already taken was ineffective. The judgments explained how this wide power had been exercised for centuries. It had been said in a case of 1700:7

For this court will examine the proceedings of all jurisdictions erected by Act of Parliament. And if they, under pretence of such Act, proceed to incroach jurisdiction to themselves greater than the Act warrants, this Court will send a certiorari to them, to have their proceedings returned here.

This was restated in modern terms by Atkin LJ in the case of 1923 in what has become the definitive statement, approved in many later cases:

Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs.8

Canonical though these words are, they require much interpretation. Though they overstate the true position in one respect,9 in almost every other respect they understate it, the scope of the remedies being in reality substantially wider. For instance, the requirement of 'legal authority' is no longer invariable, since extralegal bodies are now sometimes subject to the remedies.10 Nor, for the same reason, are the remedies concerned only with the 'rights' of subjects in the sense of legal rights. Nor are they limited to 'subjects', since aliens lawfully within the realm in time of peace have the same civil rights as British citizens.11 Nor need the power be exercised by a 'body of persons' in the plural: the principle applies equally to an individual minister or official.12

7 R. v. Glamorganshire Inhabitants (1700) 1 Ld. Raym. 580. The words are evidently those of Holt CJ. Certiorari was granted to bring up an order of justices for a rate for the repair of Cardiff bridge, despite the objection that 'it was a new jurisdiction erected by a new Act of Parliament, the trust and the execution of which is reposed in the justices, and this Court has nothing to intermeddle with it'.

8 [1924] 1 KB at 205. Similar language was used by Brett LJ in R. v. Local Government Board (1882) 10 QBD 309 at 321; but since the Court of Appeal there declined to decide whether certiorari would lie to a central government department, they left a large area of doubt.

9 Read literally they could include bodies having a contractual duty to act judicially (i.e. fairly) such as disciplinary committees of trade unions and clubs. But in their context they are confined to the area of public law. For this see below p. 610.

10 See below, p. 626. Nor did this formula cover error of law on the face of the record, which at the time had been forgotten (above, p. 274).

11 Johnstone v. Pedlar [1921] 2 AC 262.

12 See below, p. 598.

Page 598

Acting 'judicially'

The above quotations of 1700 and 1923, though separated by so long an interval of time, are essentially similar in meaning. But the former speaks of 'jurisdiction', the latter of persons 'having the duty to act judicially'. The former is the more accurate, since 'jurisdiction' can easily include all kinds of administrative power, whereas 'the duty to act judicially' suggests a judicial as opposed to an administrative function.13 In reality nothing could be plainer than that the acts controlled, both in the cases themselves and in many other cases decided both before and since, were administrative acts.

In the Electricity case the Court of Appeal cited a long series of precedents where certiorari or prohibition, or both, had issued to administrative authorities such as the Board of Education, the Poor Law Commissioners, the Tithe Commissioners, inclosure commissioners, and licensing justices. Plenty of other authorities could be added to this list including ministers of the Crown. The truth was that certiorari and prohibition were general remedies for the judicial control of both judicial and administrative decisions, and could be invoked just as freely where a minister made an invalid clearance order14 or a local authority wrongfully granted a licence15 or planning permission,16 as where justices of the peace convicted without jurisdiction. But the courts failed to give candid expression to this truth. At two different times they threw themselves into confusion by forgetting that in this context they had made 'judicial' a synonym for 'administrative', and by drawing the false inference that an act which was administrative could not be judicial in the sense required.

The first occasion was in the late nineteenth century, when it was suddenly held that the decisions of liquor licensing authorities, since they were administrative, were not subject to certiorari.17 This fallacy was soon corrected,18 and the House of Lords explained how licensing functions, though administrative in nature, are

13 An administrative (or quasi-judicial) decision is a decision determined by the policy or expediency of the moment, as opposed to a judicial decision which is determined according to some rule or principle of law: see above, p. 40.

14 As in R. v. Minister of Health ex p. Davis [1929] 1 KB 619 (prohibition); R. v. Minister of Health ex p. Yaffé [1930] 2 KB 98 (certiorari), reversed on other grounds [1931] AC 494. Whether certiorari lay to a minister or central government department was left open in R. v. Local Government Board (1882) 10 QBD 309; that it did so lie was accepted without argument in Board of Education v. Rice [1911] AC 179.

15 As in R. v. London County Council ex p. Entertainment Protection Association [1931] 2 KB 215. See similarly R. v. London County Council ex p. Commercial Gas Co. (1895) 11 TLR 337 (breach of natural justice: certiorari granted); R. v. Greater London Council ex p. Blackburn [1976] 1 WLR 550 (licensing of indecent films: prohibition).

16 R. v. Hendon Rural District Council ex p. Chorley [1933] 2 KB 696 (breach of natural justice); R. v. Hillingdon London Borough Council ex p. Royco Homes Ltd. [1974] QB 720 (permission vitiated by unreasonable conditions).

17 R. v. Sharman [1898] 1 QB 578; R. v. Bowman [1898] 1 QB 663.

18 R. v. Woodhouse [1906] 2 KB 501, reversed on other grounds, Leeds Cpn. v. Ryder [1907] AC 420.

age 599

subject to certiorari.19 Nevertheless the aberration left a permanent mark, for it led to the use of mandamus as a substitute for certiorari in liquor licensing cases, which still lingers on illogically.20

Confusion again began to reign about 1950 in the erroneous decisions on natural justice discussed in an earlier chapter.21 By overlooking the fact that these remedies had long been used to control administrative functions, the courts relapsed into a profound muddle. The Court of Appeal went so far as to suggest that certiorari might not lie in matters determined by policy and expediency.22 Yet the Electricity Commissioners case itself arose out of a question of pure policy and expediency: how best to organise the electricity companies in London. Policy and expediency play a dominant role in licensing functions, but there is abundant authority for the control of licensing authorities by certiorari.23

The law was once again saved from its own backsliding in Ridge v. Baldwin,24 where Lord Reid reinterpreted Atkin LJ's words about 'the duty to act judicially'. This was a case of a breach of natural justice remedied by a declaratory judgment, as has been seen. But Lord Reid perceived the close parallel with cases where certiorari and prohibition were applied for. He explained how 'judicial' had been made a stumbling-block in earlier cases which had treated it as a superadded condition.25 In the correct analysis it was simply a corollary, the automatic consequence of the power 'to determine questions affecting the rights of subjects'. Where there is any such power, there must be the duty to act judicially. In the Electricity Commissioners case the Court of Appeal 'inferred the judicial element from the nature of the power'. Atkin LJ might therefore have said

 . . . and accordingly having the duty to act judicially . . .

Lord Reid explained how any other interpretation was impossible to reconcile with a long line of unquestionable authorities, including the Electricity Commissioners case itself,26 and Lord Hodson criticised the fallacy of saying that 'the giver of the decision is acting in an executive or administrative capacity as if that was the antithesis of a judicial capacity'.27 Thus the law was for the second time brought back on to its course. Certiorari and prohibition were once again recognised as general remedies for the control of administrative decisions affecting

19 Frome United Breweries Co. v. Bath Justices [1926] AC 586 (Lord Sumner). Counsel contesting this proposition in 1953 was told that he was about 60 years too late: R. v. Brighton Borough Justices [1954] 1 WLR 203.

20 R. v. Cotham [1898] 1 QB 802; see below, p. 614.

21 Above, p. 481.

22 R. v. Manchester Legal Aid Committee ex p. R. A. Brand & Co. Ltd. [1952] 2 QB 413.

23 As in the Woodhouse and Frome cases, above.

24 [1964] AC 40; above, p. 483.

25 Notably R. v. Legislative Committee of the Church of England ex p. Haynes-Smith [1928] 1 KB 411 at 415.

26 [1964] AC at 75.

27 [1964] AC at 130.

Page 600

rights, simply giving effect to the principle that powers of decision must be exercised lawfully.28

Certiorari thus performs a function not unlike that of a declaratory judgment: by quashing the court declares that some purported decision or determination is irregular or futile and therefore of no effect in law. The result is to establish that no one need take heed of it. The question at issue has not been lawfully determined, and the responsible authority must start again and determine it properly. The difference from a declaratory judgment is that quashing positively invalidates the offending decision or act, whereas a declaration of invalidity merely leaves it exposed to other remedies if required.

Decisions, determinations and acts

'It cannot be too clearly understood that the remedy by way of certiorari only lies to bring up to this court and quash something which is a determination or a decision'.29 This was said in a case where the court refused to grant the remedy to quash a mere report, being the report of the visitors of a hospital as to the need for continued detention of a mental defective. The power to order continued detention rested in another body, the board of control, who were required to consider the report of the visitors before deciding. Consequently the visitors had no power to make any decision affecting the rights of anyone: they could merely recommend, and their report was no more than a piece of evidence which the board of control were required to obtain.30 Had they not obtained it, or had it not been a proper resort as required by the Act, certiorari would have issued to quash the decision of the board.

Certiorari was similarly refused against justices who had power to license cinemas but who made it their practice to approve or disapprove plans for building cinemas and then to grant or refuse licences accordingly.31 The object was to save abortive expenditure, but the statute gave no power to approve plans. An applicant aggrieved at the refusal of his plans was therefore unable to have the refusal quashed by certiorari, nor for the same reason could he enforce consideration of his plans by mandamus.

As the law has developed, certiorari and prohibition have become general

28 The Privy Council's disparaging reference to Lord Reid's analysis in Durayappah v. Fernando [1967] 2 AC 337 at 349 was marred by unfathomable reasoning and factual inaccuracy as noted above, p. 489. For the correct view see O'Reilly v. Mackman [1983] 2 AC 237 at 279 (Lord Diplock).

29 R. v. St Lawrence's Hospital Statutory Visitors ex p. Pritchard [1953] 1 WLR 1158 at 1166 (Parker J).

30 See also R. v. Macfarlane (1923) 32 CLR 518 (immigration board's recommendation for deportation not subject to certiorari or prohibition).

31 R. v. Barnstaple Justices ex p. Carder [1938] 1 KB 385.

Page 601

remedies which may be granted in respect of any decisive exercise of discretion by an authority having public functions, whether individual or collective.32 The matter in question may be an act rather than a legal decision or determination, such as the grant or refusal of a licence,33 the making of a rating list on wrong principles,34 the taking over of a school,35 the dismissal of employees who have statutory protection36 or the issue of a search warrant.37 They will lie where there is some preliminary decision, as opposed to a mere recommendation, which is a prescribed step in a statutory process which leads to a decision affecting rights, even though the preliminary decision does not immediately affect rights itself. Where a telegraph operator was entitled to claim compensation for telegraphist's cramp on production of a medical certificate from a medical officer specified in the Act, the refusal of a certificate by a different and unauthorised medical officer was quashed as being 'so much waste paper'.38 The court thus removed what would otherwise have been a legal obstacle to claiming a certificate from the proper officer. In the same way certiorari was granted to quash a medical certificate stating that a boy was an imbecile and incapable of benefiting from attendance at school, when one of the signatory doctors had not himself seen the boy and the question was, in any case, for determination by the Board of Education under the Act.39 Even a report may be quashed if it is substantially a decision rather than a mere recommendation, e.g. where the Act provides that it shall be final.40 There is no magic in the word 'report'. The question is whether some issue is being determined to some person's prejudice; and the court's ability to intervene has been increased by the new doctrine that decisions which are wholly non-statutory may nevertheless be reviewable wherever there is a 'public element'.41

32 Despite the reference to 'any body of persons' in the classic formula (above, p. 597).

33 Above, p. 363.

34 R. v. Paddington Valuation Officer ex p. Peachey Property Corporation Ltd. [1966] 1 QB 380.

35 Maradana Mosque Trustees v. Mahmud [1967] 1 AC 13.

36 R. v. British Coal Corporation ex p. Vardy [1993] ICR 720.

37 The Court of Appeal quashed search warrants in R. v. Inland Revenue Commissioners ex p. Rossminster Ltd. [1980] AC 952, though the House of Lords held that the warrants were lawful; and see R. v. Tillett ex p. Newton (1969) 14 FLR 101.

38 R. v. Postmaster-General ex p. Carmichael [1928] 1 KB 291.

39 R. v. Boycott ex p. Keasley [1939] 2 KB 651. The report confirming the certificate and the letter transmitting it were also quashed as being consequential to the certificate.

40 As in R. v. London County Council ex p. Commercial Gas Co. (1895) 11 TLR 337 (gas tester's report made in breach of natural justice). But a mere statement of opinion, such as that a licence will be necessary, is not reviewable: R. v. London Waste Regulation Authority ex p. Specialist Waste Management Ltd., The Times, 1 November 1988. See also R. v. Secretary of State for Employment ex p. Equal Opportunities Commission (below).

41 See below, p. 620. In R. v. Ethical Committee of St Mary's Hospital ex p. H [1988] 1 FLR 512 it was assumed that judicial review might lie to quash the advice of an informal and non-statutory committee as well as a consultant's decision to refuse fertilisation treatment to a woman; but relief was refused on the merits. In R. v. Metropolitan Police Commissioner ex p. P. (1995) 8 Admin. LR 6 a mere police caution, given contrary to guidelines, was quashed.

Page 602

The courts are accustomed to granting certiorari so freely that they sometimes do so, illogically, where it does not fit the facts and other remedies would be more suitable. In one such case, where a local authority had a statutory duty to provide accommodation for a homeless person, the Court of Appeal quashed their decision to take no action.42 Yet this 'decision' was not made under any specific power to decide any question. The local authority had merely stated its unwillingness to perform its duty, and the natural remedy was mandamus. Certiorari was also granted to quash a 'determination' of the Commission for Racial Equality to hold a formal investigation into alleged discrimination, when in fact there was no distinct power to make such a determination, but prohibition could have been granted to forbid an unauthorised investigation.43 Cases of this kind are now common. So long as public authorities act in the spirit of the court's order, no problems arise. But it is obvious that to 'quash' a 'decision' that by itself has no legal effect must be an impotent remedy in case of disobedience unless some further order, such as mandamus or an injunction, will be granted if necessary.44 If confusion and complication are to be avoided, judicial review must be accurately focused upon the actual exercise of power and not upon mere preliminaries. The House of Lords perhaps appreciated this point in refusing to review letters in which a minister refused to accept that legislation about unfair dismissal and redundancy pay was sexually discriminatory or contrary to European Community law.45 That was a case of prematurity, where the issue was not ripe for review.46 Other such examples have already been given in the context of natural justice.47

The emphasis now given to decisions, whether or not made under a legal power of decision, is greatly extending the scope of certiorari. It appears to derive from opinions of Lord Diplock. In a case where the Act provided that a tax officer, under a power of entry and search, 'may seize and remove' anything reasonably believed to be required as evidence of tax fraud, Lord Diplock said that the seizure 'involves a decision by the officer as to what documents he may seize', and said that

42 R. v. Hillingdon LBC ex p. Streeting [1980] 1 WLR 1425. For criticism see (1985) 101 LQR 153. In contrast to the American 'certiorarified mandamus' (below, p. 638) this might be called 'mandamusified certiorari'.

43 R. v. Commission for Racial Equality ex p. Hillingdon LBC [1982] QB 276. See also the Court of Appeal's order in the North Wales Police case (above, p. 569), which presents the same problem in the context of the declaration.

44 In Wheeler v. Leicester CC [1985] AC 1054, where on judicial review the House of Lords upheld the quashing of the council's decision not to allow a club to use their football ground, instead of granting prohibition or an injunction; it was recognised (at 1079) that further relief might be needed.

45 R. v. Secretary of State for Employment ex p. Equal Opportunities Commission [1995] 1 AC 1, holding the minister wrong on both issues of substance, however.

46 See J. Beatson, Prematurity and Ripeness for Review in Forsyth and Hare (eds.), The Golden Metwand, 221.

47 Above, p. 540. See also R. v. Inland Revenue Commissioners ex p. Bishopp [1999] COD 354 (informal opinions of IRC not reviewable).

Page 603

'Parliament has designated a public officer as decision-maker'.48 He then discussed the question of 'setting aside his decision', either for error on the face of the record or else as being ultra vires. Yet the Act gave no power to decide anything: it gave power to seize evidence and it was the act of seizure, rather than any decision, which was in dispute. Then in a later case Lord Diplock said: 'The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the "decision-maker" or else a refusal by him to make a decision'.49 Yet many cases of judicial review necessarily turn upon the legality of acts, as opposed to decisions.50 When an order is quashed, for example, it is the legality of the order itself, and not of the decision to make it, with which the law is concerned. The attempt to extract a 'decision' out of every legal act led the House of Lords into an unsound dichotomy, as explained later.51

Certiorari to quash nullities

Over a century ago there was a short-lived fallacy that 'certiorari will not lie to quash nullities'.52 It seems that the court would sometimes refuse certiorari to quash a patently ineffective act, for example where an inquisition was held by a coroner's clerk instead of by the coroner himself, since new proceedings would have to be taken and the void proceedings could simply be disregarded.53 Yet the fact remained that the matter was brought before the court and the court held that the act was a nullity. This fallacy died a natural death, since certiorari was constantly in use for quashing acts which were ultra vires and nullities, as is shown by most of the cases cited in the foregoing discussion of this remedy.54

But in two modern cases Lord Denning said that in the case of an order which is a nullity there is 'no need for an order to quash it' and that it is 'automatically null and void without more ado'.55 The difficulties of this proposition have already been pointed out.56 However null and void a decision may be, there is no means by which its nullity can be established except by asking the court to say so.57 Lord

48 The Rossminster case (above) at 1013.

49 Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 at 408. See Appendix 1 for the context.

50 In West v. Secretary of State for Scotland 1992 SLT 636 at 650. The Court of Session more accurately speaks of 'acts or decisions' as the subjects of judicial review.

51 Cocks v. Thanet DC [1983] 2 AC 286, for which see below, p. 654.

52 Rubinstein, Jurisdiction and Illegality, 83.

53 Re Daws (1838) 8 Ad & E 936.

54 A good example is R. v. Postmaster-General ex p. Carmichael [1928] 1 KB 291; above, p. 601.

55 Director of Public Prosecutions v. Head [1959] AC 83 at 111; R. v. Paddington Valuation Officer ex p. Peachey Property Corporation Ltd. [1966] 1 QB 380 at 402. For comment see (1967) 83 LQR at 521.

56 Above, p. 00.

57 As to the presumption of validity see above, p. 302.

Page 604

Denning's successor pointed this out very clearly in the case of the Take-over Panel, quoted below.58 If for example a licensing authority refuses a licence for wrong reasons or in breach of natural justice, so that its decision is ultra vires and void, nothing will avail the applicant except a judicial decision quashing the refusal and ordering a proper determination.59 In other situations, such as that mentioned in the preceding paragraph, it is possible to ignore a void order only if the public authority makes no attempt to enforce it.

The Crown

Prerogative remedies do not lie against the Crown, since it is at the suit of the Crown that they are sought. But they lie against ministers and officials and since the practice is to give statutory powers to ministers or other government agencies as such rather than to the Crown, the Crown's immunity is of little consequence.60 The correct remedy for use against the Crown itself, in the cases where such proceedings are allowed, is an action for a declaratory judgment against the responsible minister.61 The same is true in matters which may concern Parliament for which a declaratory judgment is more suitable than prohibition.62

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