Introduction To Administrative Law

INTRODUCTION
TO
ADMINISTRATIVE
LAW
CP
Cavendish
Publishing
Limited
London • Sydney
INTRODUCTION
TO
ADMINISTRATIVE
LAW
Neil Hawke, LLB (Hons), PhD
Professor of Environmental Law
Head of the Department of Law
De Montfort University
Neil Parpworth, LLB, MA
Lecturer in Law
De Montfort University
CP
Cavendish
Publishing
Limited
London • Sydney
First published in 1998 by Cavendish Publishing Limited, The Glass House,
Wharton Street, London WC1X 9PX, United Kingdom.
Telephone: +44 (0) 171 278 8000 Facsimile: +44 (0) 171 278 8080
E-mail: [email protected]
Visit our Home Page on http://www.cavendishpublishing.com
© Hawke, N, Parpworth, N 1996

Reprinted 1998
All rights reserved. No part of this publication may be reproduced, stored in a

retrieval system, or transmitted, in any form or by any means, electronic,
mechanical, photocopying, recording, scanning or otherwise, except under the
terms of the Copyright Designs and Patents Act 1988 or under the terms of a
licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road,
London W1P 9HE, UK, without the permission in writing of the publisher.
Hawke, Neil
Introduction to Administrative Law
I Title II Parpworth, Neil
344.2026
ISBN 1 85941 191 6
Printed and bound in Great Britain

Preface
‘Government, even in its best state, is but a necessary evil; in its worst state,
an intolerable one.’
(Thomas Paine, 1737–1809)
Administrative law provides many of the safeguards which prevent govern-
ment becoming an intolerable evil. It is the purpose of this book to provide an
introduction to administrative law and its control of government power indicat-
ing, wherever possible, the nature of those powers, the purpose of governmen-
tal functions as well as the scope and effectiveness of legal control. The book is
divided into four parts covering the administrative agencies of government, the
nature, characteristics and sources of its powers, the judicial review of adminis-
trative action and the remedies for unlawful and irregular administrative action.
To help the reader through the subject, a glossary of terms used in the book is
provided, together with a selected bibliography of further reading and a range
of self-assessment questions. The book is designed for use by those pursuing
degree level courses in Law or Public and Social Administration. Equally, the
book will be of use to those undertaking sub-degree or professional courses in
similar areas.
The last decade has seen some very significant changes in administrative
law, driven mainly by government policy. This is vividly illustrated by changes
in the status and functions of local government and the stringency of central
government control of local administration. Elsewhere privatisation has pro-
duced many more pages in the statute book. The government’s reliance on pre-
rogative powers has also been reappraised by the courts, particularly through
the landmark decision in the GCHQ case. It is clear that the courts are prepared
to be far more proactive in adjudicating prerogative acts, even if only to delay
the government’s actions on the ground of unfairness. More generally, the
courts’ willingness to develop an increasingly comprehensive view of the
requirements in law of ‘fairness’ has coloured a good deal of judicial review. In
the same way there has been a continuing expansion of those bodies amenable
to judicial review: the self-regulatory bodies in the financial markets, for exam-
ple. Finally, reference is made in the book to the rapidly expanding influence of
the law of the European Union which affects the framework of municipal
administrative law as much as it affects any other area of relevant ‘national’
law.
v
INTRODUCTION TO ADMINISTRATIVE LAW
We are indebted to Liz Steward of the Department of Law for her unfailing
energy and helpfulness in word-processing the text. Without her efforts we
would have found it very difficult to meet any of our deadlines!
Professor Neil Hawke

Neil Parpworth
Department of Law
1 September 1995
vi
Contents
Preface v
Table of Cases xix
Table of Statutes xxxv
Glossary of Terms xlv
Table of Abbreviations xlix
Part 1 Administrative Law and the Administrative Agencies
1 The Scope and Purpose of Administrative Law 1

1.1 Definition of Administrative Law 1
1.2 The Rule of Law 2
1.3 The Constitutional Background to Administrative Law 5
1.3.1 The sovereignty and supremacy of Parliament 5
1.3.2 The separation of powers 9
1.3.3 Conventions 11
1.3.4 Prerogative powers 11
1.4 Administrative Law in Perspective 14
2 The Crown and Central Government 17

2.1 The Conduct of Government 17
2.2 Legal Immunities of the Crown 19
2.3 Crown Servants and Agents 20
2.4 Central Government Functions 22
3 Statutory Inquiries 25
3.1 Categories 25
3.1.1 Accident inquiries 25
3.1.2 Company inquiries 25
3.1.3 Tribunals of inquiry 26
3.2 Inquiries and the Public Control of Land 27
3.2.1 The individual and policy-based decisions 27
3.3 The Franks Report on Tribunals and Inquiries 28
vii
CONTENTS
3.3.1 Implementation of the Franks Report: the Council on

Tribunals 28
3.3.2 Rules of procedure for statutory inquiries 29
3.4 Inquiries Procedure and Organisation 30
3.4.1 Planning appeals and statutory inquiries 30
3.4.2 Planning appeal decisions by inspectors 31
3.5 Inquiries Procedure Rules 32
3.5.1 Inquiry preliminaries 32
3.5.2 Procedure at the inquiry 33
3.5.3 Procedure following the inquiry 34
3.5.4 Notification of a decision and reasons 35
3.5.5 Procedural differences for decisions by inspectors 35
3.6 Legal Enforcement of the Inquiries Procedure Rules 35
3.7 Scope of the Statutory Inquiry System 36
3.7.1 Exclusion of statutory inquiries 36
3.7.2 Restriction of statutory inquiries 37
3.7.3 Statutory inquiries and proposals for
controversial development 38
3.7.4 The Windscale Inquiry 38
3.7.5 The statutory inquiry in future 39
4 Local Authorities 40
4.1 Status and Functions 40
4.1.1 County councils 40
4.1.2 District councils 40
4.1.3 Local government in Wales 41
4.1.4 London government 41
4.1.5 Parish councils 41
4.2 The Local Authority as a Statutory Corporation 42
4.2.1 The acquisition of property 42
4.2.2 Contracts 43
4.2.3 Extended powers 45
4.2.4 Local authorities’ contracts and the doctrine of ultra vires 46
4.2.5 Ultra vires in practice 46
4.2.6 Challenging local authorities’ ultra vires acts 47
4.3 Legal Control of Local Authorities 47
4.4 Local Government Finance and its Control 48
4.4.1 Central government control 48
viii
CONTENTS
4.4.2 Audit 48
4.5 Central Government Control of Local Authorities 50
4.5.1 Statutory control 51
4.5.2 The administrative appeal process 52
4.5.3 The approval process 53
4.5.4 Default powers 53
4.6 The Council Member 54
4.6.1 Right of access to meetings and inspection of documents 55
4.6.2 Disclosure of pecuniary interests 55
4.7 The Council Officer 57
4.8 Bribery and Corruption 57
4.8.1 Coverage of the Acts 58
4.9 Council Meetings 58
4.10 Council Decisions 60
4.11 Legal Liability of Local Authorities 60
4.11.1 Tortious liability 61
4.11.2 Statutory authority 61
4.11.3 Negligence 62
4.11.4 Breach of statutory duty 63
4.11.5 Criminal liability 64
5 Administrative Tribunals 65
5.1 Status 65
5.1.1 Tribunals and inquiries distinguished 65
5.1.2 Tribunals as ‘court substitutes’ 66
5.1.3 Policy-oriented tribunals 66
5.2 Characteristics 67
5.3 Varieties of Tribunal and their Functions 68
5.3.1 Tribunals and appeals from departmental decisions 68
5.3.2 Tribunals and ‘first instance’ claims 69
5.3.3 Tribunals and disputes between individuals 70
5.3.4 Additional functions of tribunals 70
5.4 Allocation of Functions to Tribunals 71
5.4.1 The policy element in administrative decisions 71
5.4.2 The Civil Aviation Authority and the Transport Tribunal 72
5.4.3 Objective decisions: tribunals or courts? 72
5.4.4 Immigration appeals 72
5.4.5 Tribunals and local authority decisions 73
ix
CONTENTS
5.4.6 Tribunals and inferior courts 74

5.5 Tribunals and Inquiries Act 1992 74
5.6 Tribunals and Inquiries Act Safeguards 75
5.6.1 Tribunal membership 75
5.6.2 Rules of procedure for tribunals 76
5.7 Aspects of Tribunal Procedure and Organisation 77
5.7.1 The presidential system in tribunals 77
5.7.2 Openness in tribunal procedure 77
5.7.3 Tribunal representation 78
5.7.4 Legal aid, advice and assistance 78
5.7.5 Legal immunity for tribunal proceedings 79
5.7.6 Precedent in tribunals 80
5.8 Specific Tribunals 80
5.9 The Transport Tribunal 80
5.9.1 Composition 80
5.9.2 Procedure 81
5.9.3 Status 81
5.10 The Vaccine Damage Tribunals 81
5.10.1 Procedure 82
5.10.2 Status 82
5.11 Rent Assessment Committee and Rent Tribunals 82
5.11.1 Rent Assessment Committees 83
5.11.2 Rent Tribunals 83
5.11.3 Status 84
5.12 Social Security Appeal Tribunals 84
5.13 Social Security Commissioners 85
6 Public Corporations, Executive and Privatised Agencies 86

6.1 Status 86
6.1.1 Statutory corporations 86
6.1.2 Public corporations and functions of concern
to government 87
6.1.3 ‘Next Steps’ 87
6.1.4 Industry, commerce and public utilities 88
6.1.5 Economic, social and welfare regulation 88
6.1.6 Social standardisation 89
6.1.7 Government control 89
6.1.8 Judicial control 90
x
CONTENTS
6.1.9 Legal liability of public corporations 90

6.2 The Independent Television Commission 91
6.2.1 Membership and status 91
6.2.2 Powers, duties and functions 92
6.3 British Steel 92
6.4 The Electricity Generating and Supply Companies 92
6.4.1 The regulatory regime 92
6.4.2 General duties 93
6.4.3 The Director General’s powers 93
6.4.4 Powers of direction 93
6.5 The Housing Corporation 94
6.5.1 Government control and membership 94
6.6 The British Wool Marketing Board 94
6.7 The Nature Conservancy Council for England 95
6.7.1 Membership and status 95
6.8 The Advisory, Conciliation and Arbitration Service 95
Part 2 Administrative Powers
7 The Nature and Characteristics of Administrative Powers 97

7.1 Statutory Powers 97
7.2 The Law of the European Union 98
7.2.1 The object of the EU 98
7.2.2 The nature of EU law 99
7.2.3 Administrative law, administrative powers and EU law 100
7.3 The Nature of Statutory Administrative Powers 101
7.3.1 The nature of discretionary powers 102
7.4 Characteristics of Administrative Powers 102
7.4.1 The initiation of administrative action 103
7.4.2 Licensing 103
7.4.3 Financial regulation 104
7.4.4 Contractual regulation 104
7.4.5 Regulation by the criminal law 104
7.4.6 Disciplinary regulation 105
8 The Sources of Administrative Powers 106

8.1 The Range of Administrative Powers 106
xi
CONTENTS
8.2 Legislation 107

8.2.1 The advantages and disadvantages of legislation 107
8.2.2 The Renton Committee on the Preparation of Legislation 109
8.2.3 The categories of legislation 109
8.2.4 The legislative procedure for Public Bills 110
8.2.5 The legislative procedure for Private Bills 111
8.2.6 The status of Private Bills 111
8.2.7 The scope of Private Acts 112
8.2.8 Private Local Acts and reorganisation
of local government 113
8.2.9 Miscellaneous Provisions Acts and Adoptive Acts 114
8.2.10 Provisional Orders 114
8.2.11 Special Procedure Orders 114
8.3 Delegated Legislation 115
8.3.1 Primary and delegated legislation in action 115
8.3.2 Statutory instruments 116
8.3.3 The classification of delegated legislation 116
8.3.4 Bylaws 117
8.3.5 Compulsory purchase orders 119
8.3.6 Standing orders 120
8.3.7 The publication of statutory instruments 120
8.3.8 Parliamentary control of delegated legislation 121
8.3.9 Delegated legislation and the courts 122
8.4 EU Law 124
8.4.1 The EU institutions 124
8.4.2 European Court of Justice 125
8.4.3 Sources of EU law 125
8.4.4 The direct applicability and direct effect of EU law
in Member States 126
Part 3 Judicial Review, Ultra Vires and Natural Justice
9 Procedural Ultra Vires 128

9.1 Statutory Procedures 128
9.1.1 Mandatory and directory procedures 128
9.1.2 Public functions 130
9.1.3 Individual rights and interests 130
9.1.4 Individuals’ procedure obligations 131
xii
CONTENTS
9.1.5 Application requirements 132

9.1.6 Appeal requirements 133
9.1.7 Objections 133
9.1.8 Specific areas of procedure 134
9.2 Consultation 134
9.2.1 Legal effect of a failure to consult 136
9.3 Delegation 137
9.3.1 Government departments and local authorities 139
9.3.2 Implied authority 141
9.3.3 Legal effects of delegation 141
9.4 Estoppel 142
9.4.1 Requirements for common law estoppel 143
9.4.2 Restriction of estoppel 145
9.4.3 Estoppel and government policy 147
9.5 Communication of Decisions 147
9.6 Reasons 148
9.6.1 The purpose of reasons 149
9.6.2 Legal effect of a failure to give reasons or
adequate intelligible reasons 151
10 Natural Justice 153

10.1 Background to Natural Justice 153
10.2 Exclusion or Limitation of Natural Justice 153
10.2.1 Statutory provisions 153
10.2.2 Absence of rights 154
10.2.3 Preliminary processes 155
10.2.4 Absence of contractual or similar relationships 156
10.2.5 Professional advice 157
10.2.6 Disciplinary proceedings 157
10.3 Judicial and Administrative Functions 159
10.3.1 The duty to act judicially 160
10.3.2 Reliance on the distinction between functions 161
10.4 The Duty to Act Fairly 163
10.5 The Rule Against Bias 165
10.5.1 Application of the rule against bias 166
10.5.2 The test for bias 168
10.5.3 Modification or exclusion 169
10.6 The Right to Be Heard 170
xiii
CONTENTS
10.6.1 Prior notice 170

10.6.2 The opportunity to be heard 172
10.6.3 Scope of the rule 172
10.6.4 Legal representation 173
10.6.5 Duty to give reasons 174
10.7 The Effect of Breaches of Natural Justice 176
11 Substantive Ultra Vires 178

11.1 The Nature of Substantive Powers 178
11.2 Judicial Review of Substantive Powers 178
11.3 The Limits of Statutory Powers 179
11.3.1 Defining the limits 180
11.3.2 Fundamental matters of law 181
11.3.3 Inferior courts 181
11.3.4 Administrative agencies 182
11.4 Error of Law on the Face of the Record 183
11.4.1 Error of law on the face of the record and the
doctrine of ultra vires 184
11.5 Ouster Clauses and the Doctrine of Ultra Vires 185
11.6 The Limits of Discretionary Powers 187
11.6.1 The problem of subjectively worded
discretionary powers 189
11.7 Policy and the Exercise of Discretionary Powers 192
11.7.1 Lawful and unlawful policies 192
11.7.2 Acts under dictation 194
11.7.3 The interpretation and application of policy 195
11.8 Relevant Considerations 195
11.9 Improper Purposes 197
11.10 Total Unreasonableness 200
11.11 Proportionality 202
Part 4 Remedies for Unlawful and Irregular Administrative Action
12 Administrative Remedies 204

12.1 Administrative and Judicial Remedies Contrasted 204
12.1.1 Varieties of administrative remedy 205
12.2 Administrative Remedies and the Question of Legality 206
12.2.1 Administrative versus judicial remedies 206
xiv
CONTENTS
12.2.2 Administrative and judicial remedies serving

the same purpose 207
12.2.3 Exclusive administrative remedies 208
13 Judicial Remedies 210

13.1 Judicial Remedies Generally 210
13.2 Appeals 211
13.2.1 The general appeal 211
13.2.2 The appeal on a point of law 211
13.3 Review 212
13.4 The Declaration 213
13.4.1 Uses of the declaration in administrative law 213
13.4.2 Exclusion of the declaration 215
13.4.3 Locus standi generally 215
13.4.4 Locus standi for the declaration 218
13.5 The Injunction 220
13.5.1 Varieties of injunction 220
13.5.2 The prohibitory injunction 220
13.5.3 The mandatory injunction 221
13.5.4 The interlocutory injunction 222
13.5.5 Locus standi for the injunction 223
13.5.6 Injunctions and the Crown 224
13.6 Certiorari 225
13.6.1 The grounds for certiorari 225
13.6.2 Bodies amenable to certiorari 225
13.6.3 Certiorari and the duty to act judicially 226
13.6.4 Certiorari and private bodies 227
13.6.5 Locus standi for certiorari 229
13.7 Prohibition 230
13.8 Mandamus 231
13.8.1 The legally enforceable duty 231
13.8.2 The scope of mandamus 232
13.8.3 Locus standi for mandamus 233
13.9 The Application for Judicial Review 233
13.9.1 Recommendation for reform: the application
for judicial review 234
13.9.2 Remedies available on an application for judicial review 235
13.9.3 Procedures and other requirements 235
xv
CONTENTS
13.9.4 The importance of the application for judicial review 237

13.9.5 The application for judicial review and the protection of
rights in public law 237
13.9.6 Proposals for reforming judicial review 240
13.10 Statutory Review 241
13.10.1 The background to statutory review 241
13.10.2 The scope of statutory review 241
13.10.3 The grounds for statutory review 242
13.10.4 The six-week limitation 242
13.10.5 The person aggrieved 242
13.11 Damages 243
13.12 Powers of Annulment in the European Court of Justice 244
13.12.1 The power of review 244
13.12.2 The scope of review 245
13.12.3 The grounds for annulment 245
13.12.4 Related functions of the European Court of Justice 246
14 Crown Proceedings 247

14.1 The Background to Crown Proceedings 247
14.1.1 The Crown Proceedings Act 247
14.2 Contracts and the Crown 248
14.2.1 Employment contracts 248
14.2.2 The funding of Crown contracts 249
14.2.3 Contracts fettering future executive action by the Crown 249
14.3 Tortious Liability of the Crown 250
14.3.1 Vicarious liability of the Crown 250
14.3.2 The employer’s common law duties 250
14.3.3 Common law duties relating to Crown property 251
14.3.4 Breach of statutory duty 251
14.3.5 The discharge of judicial responsibilities 251
14.3.6 Immunity in respect of certain acts of members of the
armed forces 252
14.4 Judicial Remedies and the Crown 252
14.4.1 Mandamus and the Crown 252
14.4.2 Injunctions and the Crown 253
14.5 Procedure 253
14.6 Public Interest Immunity 254
14.6.1 The conclusiveness of claims opposing discovery 255
xvi
CONTENTS
14.6.2 Public interest immunity recognised 255

14.6.3 The application of public interest immunity 256
14.6.4 Administrative agencies and the disclosure
of confidential confidential information 257
14.6.5 Public interest immunity and Matrix Churchill 258
14.6.6 Public interest immunity certificates 259
15 Remedies for Maladministration 261

15.1 The Ombudsman Remedy 261
15.1.1 Ombudsmen in the UK 261
15.2 The Parliamentary Commissioner for Administration 262
15.2.1 Government departments and authorities
subject to investigation 262
15.2.2 Matters excluded from investigation 263
15.2.3 Complaints 264
15.2.4 Alternative remedies 264
15.2.5 The investigation of administrative functions 265
15.2.6 Procedures for investigations 266
15.2.7 Injustice in consequence of maladministration 267
15.2.8 Maladministration and injustice in practice 268
15.2.9 Judicial review of reports and decisions 269
15.3 Health Service Commissioners 270
15.4 Local Commissioners for Administration 271
15.4.3 Maladministration and injustice in practice 273
15.5 The European Ombudsman 273
Self-assessment Questions 275

Selected Bibliography 283
Index 287
xvii
Table of Cases
Adams v Naylor [1946] AC 543 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .247

Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury
Mushrooms Ltd [1972] 1 WLR 190, [1972] 1 All ER 280 . . . . . . . . . . . . . . . . . . . .134, 213
Ali v Tower Hamlets London Borough Council [1992] 3 All ER 512 . . . . . . . . . . . . . . . . .239
Allen v Gulf Oil Refining Ltd [1981] AC 1001, [1981] 2 WLR 188, [1981] 1 All ER 353 . . .62
American Cyanamid Co v Ethicon Ltd [1975] AC 396, [1975] 2 WLR 316, [1975]
1 All ER 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .222
Anisminic v Foreign Compensation Commission [1969] 2 AC 147, [1969]
2 WLR 163, [1968] 1 All ER 208 . . . . . . . . . . . . . . .9, 176, 182, 183, 185, 186, 204, 213, 214
Anns v Merton London Borough Council [1978] AC 728, [1977] 2 WLR 1024,
[1977] 2 All ER 492 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
Asher v Secretary of State for the Environment [1974] Ch 208, [1974] 2 WLR 466,
[1974] 2 All ER 156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .199
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]
1 KB 223, [1947] 2 All ER 680 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .187, 196, 201
Attorney General, ex rel McWhirter v Independent Broadcasting Authority
[1973] QB 629, [1973] 2 WLR 344, [1973] 1 All ER 689 . . . . . . . . . . . . . . . . . . . . . .221, 223
Attorney General, ex rel Tilley v Wandsworth London Borough Council [1981]
1 WLR 854, [1981] 1 All ER 1162 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .194, 195
Attorney General of Hong Kong v Ng Yuen Shin [1983] 2 AC 629, [1983]
2 WLR 735, [1983] 2 All ER 346 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .164
Attorney General v Bastow [1957] 1 QB 514, [1957] 2 WLR 340, [1957] 1 All ER 497 . . .221
Attorney General v British Broadcasting Corporation [1981] AC 303, [1980]
3 WLR 109, [1980] 3 All ER 161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79
Attorney General v Crayford Urban District Council [1962] Ch 575, [1962]
2 WLR 998, [1962] 2 All ER 147 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47
Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508 . . . . . . . . . . . . . . . . . . . . .12
Attorney General v Melville Construction Co Ltd (1969) 20 P & CR 131, (1969)
67 LGR 309 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221
Attorney General v Sharp [1931] 1 Ch 121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221
Attorney General v Wilts United Dairies Ltd [1921] 37 TLR 884 . . . . . . . . . . . . . . . . .44, 123
Avon County Council v Buscott [1988] QB 656, [1988] 2 WLR 788, [1988]
1 All ER 841, (1988) 86 LGR 569 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .239
Ayr Harbour Trustees v Oswald (1883) 8 AC 623 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .193
xix
Backhouse v Lambeth London Borough Council (1972) Times, 14 October, (1972)

116 Sol J 802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50, 202
Bank of Scotland, Petitioner (1988) SLT 282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .228
Banks Horticultural Products Ltd v Secretary of State for the Environment [1980]
JPL 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .201
Barnard v National Dock Labour Board [1953] 2 QB 18, [1953] 2 WLR 995, [1953]
1 All ER 1113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .138
Barnes v District Auditor for No 11 Audit District, 24 February, 1976 unreported
(Divisional Court of the Queen’s Bench Division) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50
Barraclough v Brown [1897] AC 615 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .208, 215
Barrs v Bethell [1982] Ch 294, [1981] 3 WLR 874, [1982] 1 All ER 106 . . . . . . . . . . . .220, 233
Bates v Lord Hailsham [1972] 1 WLR 1373, [1972] 3 All ER 1019 . . . . . . . . . . . . . . . . . . . .220
Becker v Home Office [1972] 2 QB 407, [1972] 2 WLR 1193, [1972] 2 All ER 676 . . . . . . .158
Birkdale District Electric Supply Co Ltd v Southport Corporation [1926] AC 355 . . . . .194
Blackburn v Attorney General [1971] 1 WLR 1037, [1971] 2 All ER 1380 . . . . . . . . .215, 218
Board of Education v Rice [1911] AC 179 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .172
Boyce v Paddington Borough Council [1903] 1 Ch 109 . . . . . . . . . . . . . . . . . . . . . . . . . . . .219
Bradbury v Enfield London Borough Council [1967] 1 WLR 1311,
[1967] 3 All ER 434 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .136
Brayhead (Ascot) Ltd v Berkshire County Council [1964] 2 QB 303, [1964] 2 WLR 507,
[1964] 1 All ER 149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .151
British Broadcasting Corporation v Johns [1965] Ch 32, [1964] 2 WLR 1071, [1964]
1 All ER 923 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21, 87
British Oxygen Co Ltd v Minister of Technology [1971] AC 610, [1970]
3 WLR 488, [1970] 3 All ER 165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .192
Bromley London Borough Council v Greater London Council [1982] 2 WLR 62, [1982]
1 All ER 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .197
Brooks and Burton Ltd v Secretary of State for the Environment [1977] 1 WLR 1294,
[1978] 1 All ER 733 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .145
Brown v Director of Public Prosecutions [1956] 2 QB 369, [1956] 2 WLR 1087, [1956]
2 All ER 189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56
Bugg v DPP [1993] QB 437, [1993] 2 WLR 628, [1993] 2 All ER 815 . . . . . . . . . . . . . . . . . .119
Burmah Oil Co Ltd v Bank of England [1980] AC 1090, [1979] 3 WLR 722,
[1979] 3 All ER 700 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .257
Burmah Oil Co Ltd v Lord Advocate [1965] AC 75, [1964] 2 WLR 1231, [1964]
2 All ER 648 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 107
Bushell v Secretary of State for the Environment [1981] AC 75, [1980]
3 WLR 22, [1980] 2 All ER 608 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33, 154, 162, 163
Button v Jenkins [1975] 3 All ER 585 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133
Buxton v Minister of Housing and Local Government [1961] 1 QB 278, [1960]
3 WLR 866, [1960] 3 All ER 408 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .242
xx
TABLE OF CASES
Byrne v Kinematograph Renters Society [1958] 1 WLR 762, [1958] 2 All ER 579 . . . . . .156
Calvin v Carr [1980] AC 574, [1979] 2 WLR 755, [1979] 2 All ER 440 . . . . . . . . . . . . . . . .176
Cambridge Water Co v Eastern Counties Leather plc [1994] 2 WLR 53, [1994]
1 All ER 53, HL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 . . . . . . . . . . . . . . . . . .139, 260
Chester v Bateson [1920] 1 KB 829 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .123
Cocks v Thanet District Council [1982] 3 WLR 1121, [1982] 3 All ER 1135 . . . .237, 239, 240
Coleen Properties Ltd v Minister of Housing and Local Government [1971]
1 WLR 433, [1971] 1 All ER 1049 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14, 181, 192
Coney v Choyce [1975] 1 WLR 422, [1975] 1 All ER 979 . . . . . . . . . . . . . . . . . . . . . . . . . . .137
Congreve v Home Office [1976] QB 629, [1976] 2 WLR 291, [1976] 1 All ER 697 . . .191, 264
Continental Reinsurance Corporation (UK) Ltd v Pine Top Insurance Ltd [1986]
1 Ll LR 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .259
Conway v Rimmer [1968] AC 910, [1968] 2 WLR 998, [1968] 1 All ER 874 . . . . . . . .255, 259
Cooper v Wandsworth Board of Works (1863) 143 ER 414 . . . . . . . . . . . . . . . . . . . . . . . . .160
Cory, William & Son Ltd v Corporation of London [1951] 2 KB 476, [1951] 2 TLR 174,
[1951] 2 All ER 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .193
Costello v Dacorum District Council (1983) 81 LGR 1 . . . . . . . . . . . . . . . . . . . . . . . . .198, 200
Council of Civil Service Unions v Minister for the Civil Service [1985]
AC 374, [1984] 3 WLR 1174, [1985] ICR 14, [1984] 3 All ER 935 . . . . . . .11, 178, 201, 202
Covent Garden Community Association Ltd v Greater London Council [1981]
JPL 183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .219, 229
Credit Suisse v Allerdale Borough Council (1994) Independent, 17 June . . . . . . . . . . . . . .44
Credit Suisse v Waltham Forest London Borough Council (1994) Times,
8 November . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
Crompton (Alfred) Amusement Machines Ltd v Commissioners of Customs
and Excise [1973] 3 WLR 268, [1973] 2 All ER 1169 . . . . . . . . . . . . . . . . . . . . . . . . . . . .257
Crown Lands Commissioners v Page [1960] 2 QB 274, [1960] 3 WLR 446, [1960]
2 All ER 726 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .194, 249
Cullimore v Lyme Regis Corporation [1962] 1 QB 718, [1961] 3 WLR 1340, [1961]
3 All ER 1008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .130
Cumings v Birkenhead Corporation [1972] Ch 12, [1971] 2 WLR 1458, [1971]
2 All ER 881 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .192
Customs and Excise Commissioners v Cure and Deeley Ltd [1962] 1 QB 340,
[1961] 3 WLR 798, [1961] 3 All ER 641 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 123, 189
Customs and Excise Commissioners v ApS Samex [1983] 1 All ER 1042 . . . . . . . . . . . . .126
D v NSPCC [1978] AC 171, [1977] 2 WLR 201, [1977] 1 All ER 589 . . . . . . . . . . . . . . . . . .256
DPP v Hutchinson, [1988] QB 834 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .118
DPP v Hutchinson [1990] 3 WLR, [1990] 2 All ER 836 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .118
xxi
Davy v Spelthorne District Council [1983] 3 All ER 278 . . . . . . . . . . . . . . . . . . . . . . . . . . .238

Derbyshire County Council v Times Newspapers [1993] AC 534, [1993] 1 WLR 449,
[1993] 1 All ER 1011, HL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
De Verteuil v Knaggs [1918] AC 557 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .177
Dimes v Grand Junction Canal Proprietors (1852) 10 ER 301 . . . . . . . . . . . . . . . . . . .166, 176
Doody v Secretary of State for the Home Department [1993] 3 WLR 154, [1993]
3 All ER 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155, 175
Dowty, Boulton Paul Ltd v Wolverhampton Corporation (No 1) [1971]
1 WLR 204, [1971] 2 All ER 277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221, 222
Dowty, Boulton Paul Ltd v Wolverhampton Corporation (No 2) [1973]
2 WLR 618, [1973] 2 All ER 491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180
Duncan v Cammell, Laird & Co Ltd [1942] AC 624, [1942] 1 All ER 587 . . . . .254, 256, 259
Dunkley v Evans [1981] 1 WLR 1522, [1981] 3 All ER 285 . . . . . . . . . . . . . . . . . . . . . . . . . .124
Dunn v R [1896] 1 QB 116 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248
Dunne v North Western Gas Board [1964] 2 QB 806, [1964] 2 WLR 164, [1963]
3 All ER 916 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63
Dutton v Bognor Regis Urban District Council [1972] 1 QB 373, [1972]
2 WLR 299, [1972] 1 All ER 462 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
Dyson v Attorney General [1911] 1 KB 410
[1995] 2 AC 633, [1995] 3 WLR 152, [1995] 3 All ER 353 . . . . . . . . . . . . . . . . . . . . . . . .219
E (A Minor) v Dorset County Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63

Eckersley v Secretary of State for the Environment (1978) 76 LGR 245 . . . . . . . . . . . . . .189
Ellis v Dubowski [1921] 3 KB 621, [1921] All ER 272 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .194
Enderby Town Football Club v Football Association Ltd [1971] Ch 591, [1970]
3 WLR 1021, [1971] 1 All ER 215 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173
Epping Forest District Council v Essex Rendering Ltd [1983] 1 WLR 158, [1983]
1 All ER 359, (1983)81 LGR 252 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .148
Equal Opportunities Commission v Birmingham City Council [1989] AC 1155,
[1989] 2 WLR 520, [1989] 1 All ER 769 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .218
Errington v Minister of Health [1935] 1 KB 249, [1934] All ER 154 . . . . . . . . . .160, 162, 163
Essex County Council v Minister of Housing and Local Government (1967)
18 P & CR 531, (1968) 66 LGR 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .161
European Parliament v Council of the European Communities [1987]
ECR 1513, [1986] 1 CMLR 138 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .124, 246
Factortame Ltd v Secretary of State for Transport [1989] 2 All ER 692 . . . . . . .224, 225, 253
Factortame Ltd and Others v Secretary of State for Transport (No 2) [1991]
1 AC 603, [1990] 3 WLR 818, [1991] 1 All ER 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Fairmount Investments Ltd v Secretary of State for the Environment [1976]
1 WLR 1255, [1976] 2 All ER 865 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .163, 170
xxii
TABLE OF CASES
Findlay, Re [1985] AC 318, [1984] 3 WLR 1159, [1984] 3 All ER 801 . . . . . . . . . . . . . . . . .195
Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341 . . .152
Fletcher’s Application, Re [1970] 2 All ER 527 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .231, 266
Francovich v Italian Republic [1991] ECR I-5403, [1992] IRLR 85 . . . . . . . . . . . . . . . . . . .127
Franklin v Minister of Town and Country Planning [1948] AC 87, [1947]
63 TLR 446, [1947] 2 All ER 289 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .161, 162, 167
Fraser v Mudge [1975] 1 WLR 1132, [1975] 3 All ER 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . .174
French Kier Developments Ltd v Secretary of State for the Environment [1977]
1 All ER 296 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34, 35, 151
Fry, Ex p [1954] 1 WLR 730, [1954] 2 All ER 118 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .157
Gaiman v National Association for Mental Health [1971] Ch 317, [1970]

3 WLR 42, [1970] 2 All ER 362 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .153
Gain v Gain [1961] 1 WLR 1469 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .260
Giddens v Harlow District Auditor (1972) 70 LGR 485 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49
Givaudan v Minister of Housing and Local Government [1967] 1 WLR 250, [1966]
3 All ER 696 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .151
Glynn v Keele University [1971] 1 WLR 487, [1971] 2 All ER 89 . . . . . . . . . . . .160, 164, 173
Golden Chemical Products Ltd, Re [1976] Ch 300, [1976] 3 WLR 1, [1976]
2 All ER 543 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .140
Gouriet v Union of Post Office Workers [1978] AC 435, [1977] 3 WLR 300, [1977]
3 All ER 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .219, 223
Gregory v Camden London Borough Council [1966] 1 WLR 899, [1966]
2 All ER 196 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .219, 229
Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration
Service [1978] AC 655, [1978] 2 WLR 277, [1978] 1 All ER 338 . . . . . . . . . . . . . . . . . . .130
Guppys (Bridport) Ltd v Sandhoe (1975) 30 P & CR 69 . . . . . . . . . . . . . . . . . . . . . . . . . . . .150
H K (An infant), Re [1967] 2 QB 617, [1967] 2 WLR 962, [1967] 1 All ER 226 . . . . . .163, 165
Hall & Co v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240, [1964]
1 All ER 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .201
Hammersmith and Fulham London Borough Council v Secretary of State for the
Environment [1991] AC 521, [1990] 3 All ER 589 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .269
Hanks v Minister of Housing and Local Government [1963] 1 QB 999, [1962]
3 WLR 1482, [1963] 1 All ER 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .198
Hazell v Hammersmith and Fulham London Borough Council [1992] 2 AC 1, [1991]
2 WLR 372, [1991] 1 All ER 545, HL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
Hedley, Byrne & Co v Heller & Partners [1964] AC 465, [1963] 3 WLR 101, [1963]
2 All ER 575 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63
Herring v Templeman [1973] 3 All ER 569 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156
Heywood v Hull Prison Board of Visitors [1980] 1 WLR 1386, [1980] 3 All ER 594 . . . .237
xxiii
Hibernian Property Co Ltd v Secretary of State for the Environment (1974)

72 LGR 350 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .162, 163
Hill v Parsons (CA) & Co [1972] 1 Ch 305, [1971] 3 WLR 995, [1971] 3 All ER 1345 . . . .159
Hitchens, Robert (Builders) Ltd v Secretary of State for the Environment [1978]
JPL 554 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .207
Hoffmann-La Roche & Co A G v Secretary of State for Trade and Industry [1975]
AC 295, [1973] 3 WLR 805, [1973] 3 All ER 945 . . . . . . . . . . . . . . . . . . . . . . . . . . . .222, 243
Home Office v Dorset Yacht Co Ltd [1970] AC 1004, [1970] 2 WLR 1140, [1970]
2 All ER 294 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .250
Hone v Maze Prison Board of Prison Visitors [1988] AC 379, [1988] 1 All ER 321 . . . . .174
Horrocks v Lowe [1975] AC 135, [1974] 2 WLR 282, [1974] 1 All ER 662 . . . . . . . . . . . . . .59
Hounslow London Borough Council v Twickenham Garden Developments Ltd
[1971] Ch 233, [1970] 3 WLR 538, [1970] 3 All ER 326 . . . . . . . . . . . . . . . . . . . . . . . . . .157
Howard v Bodington (1877) 2 PD 203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .128
Howard v Secretary of State for the Environment [1975] QB 235, [1974]
2 WLR 459, [1974] 1 All ER 644 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133
Howell v Falmouth Boat Construction Co [1951] AC 837, [1951] 2 TLR 151, [1951]
2 All ER 278 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .145
Huth v Clarke (1890) 25 QBD 391 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .141
Inland Revenue Commissioners v National Federation of Self-Employed

and Small Businesses Ltd [1981] 2 WLR 722, [1981] 2 All ER 93 (sub nom
R v Inland Revenue Commissioners, ex p National Federation of
Self-Employed and Small Businesses Ltd [1982] AC 617) . . . . . . . . . . . . . .216, 229, 233, 235
James v Minister of Housing and Local Government [1965] 3 All ER 602 . . . . . . . . . . . .147
Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551,
[1967] 2 WLR 136, [1966] 3 All ER 863 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .139, 169, 172
John v Rees [1969] 2 WLR 1294, [1969] 2 All ER 274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .160
Johnson, B & Co (Builders) Ltd v Minister of Health [1947] 2 All ER 395 . . . . . . . .160, 163
Jolliffe v Secretary of State for the Environment (1971) 218 EG 565
[1995] 2 AC 633, [1995] 3 WLR 152, [1995] 3 All ER 353 . . . . . . . . . . . . . . . . . . . . . . . .212
Keating v Bromley London Borough Council (1995) Times, 30 June 30, . . . . . . . . . . . . . .63
Kent County Council v Peter Thompson Poultry [1989] COD 517, [1989] Crim LR 651,
[1990] 2 CMLR 893 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115
Kent Messenger Ltd v Secretary of State for the Environment (1976) 241 EG 25 . . . . . .151
Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1992]
3 WLR 170, [1992] 3 All ER 717 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .222
Kruse v Johnson [1898] 2 QB 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .118
xxiv
TABLE OF CASES
L (AC) (An infant) Re [1971] 3 All ER 743 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .134, 146

Laker Airways Ltd v Department of Trade [1977] QB 643, [1977]
2 WLR 234, [1977] 2 All ER 182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 147, 194
Lavender, H & Son Ltd v Minister of Housing and Local Government [1970]
1 WLR 1231, [1970] 3 All ER 871 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .194, 242
Law v National Greyhound Racing Club Ltd [1983] 1 WLR 1302, [1983]
3 All ER 300 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .228
Leary v National Union of Vehicle Builders [1971] Ch 34, [1970] 3 WLR 434,
[1970] 2 All ER 713 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .164, 176
Lee v Department of Education and Science (1968) 66 LGR 211 . . . . . . . . . . . . . . . . . . . .134
Leech v Parkhurst Prison Deputy Governor [1988] AC 533, [1988] 1 All ER 485 . . . . . .158
Legg v Inner London Education Authority [1972] 1 WLR 1245, [1972] 3 All ER 177 . . .135
Leigh v National Union of Railwaymen [1970] Ch 326, [1970] 2 WLR 60, [1969]
3 All ER 1249 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .176
Lever Finance Ltd v Westminster (City) London Borough Council [1971]
1 QB 222, [1970] 3 WLR 732, [1970] 3 All ER 496 . . . . . . . . . . . . . . . . . . . . . . . . . .142, 213
Lewis v Heffer [1978] 1 WLR 1061, [1978] 3 All ER 354 . . . . . . . . . . . . . . . . . . . . . . . . . . . .156
Liversidge v Anderson [1942] AC 206 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .190
Liyanage v R [1967] 1 AC 259, [1966] 2 WLR 682, [1966] 1 All ER 650 . . . . . . . . . . . . . . . .10
Local Government Board v Arlidge [1915] AC 120 . . . . . . . . . . . . . . . . . . . . . . . . . . .171, 172
London and Clydeside Estates Ltd v Aberdeen District Council [1980]
1 WLR 182, [1979] 3 All ER 876 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .129
Lord Advocate v Strathclyde Regional Council (1988) Times, 17 March . . . . . . . . . . . . . .20
Luke v Minister of Housing and Local Government [1968] 1 QB 172, [1967]
3 WLR 801, [1967] 2 All ER 1066
[1995] 2 AC 633, [1995] 3 WLR 152, [1995] 3 All ER 353 . . . . . . . . . . . . . . . . . . . . . . . . .34
M v Home Office [1992] QB 270, [1993] 3 WLR 433, [1992] 4 All ER 97 . . . . . . . . . .224, 253
M (A Minor) and another v Newham London Borough Council . . . . . . . . . . . . . . . . . . . .63
Main v Swansea City Council (1985) 49 P & CR 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .132
Makanjuola v Commissioner of Police for the Metropolis [1992] 3 All ER 617 . . . . . . . .258
Malloch v Aberdeen Corporation [1971] 1 WLR 1578, [1971] 2 All ER 1278 . . . . . . . . . .159
Malone v Metropolitan Police Commissioner [1979] Ch 344, [1979]
2 WLR 700, [1979] 2 All ER 620 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .215
Manchanda v Medical Eye Centre Association (1987) 131 Sol J 47 . . . . . . . . . . . . . . . . . .173
Manchester City Council v Greater Manchester Council (1980) 78 LGR 560 . . . . . . . . . . .45
Manton v Brighton Corporation [1951] 2 KB 383, [1951] 1 TLR 1105, [1951]
2 All ER 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142
Maritime Electric Co Ltd v General Dairies Ltd [1937] AC 610 . . . . . . . . . . . . . . . . . . . . .144
Marleasing v La Commercial Internacional De Alimentacion SA [1992] CMLR 305 . . .127
xxv
Marshall v Southampton and Southwest Hampshire Area Health Authority

(No 1) [1986] QB 401, [1986] 2 All ER 584 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .127
Maxwell v Department of Trade and Industry [1974] QB 523, [1974]
1 WLR 583, [1974] 2 All ER 122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156
Maynard v Osmond [1977] QB 240, [1976] 3 WLR 711, [1977] 1 All ER 64 . . . . . . . . . . . .173
McEldowney v Forde [1971] AC 632, [1969] 3 WLR 179, [1969] 2 All ER 1039 . . . . . . . .123
McInnes v Onslow Fane [1978] 1 WLR 1520, [1978] 3 All ER 211 . . .154, 155, 157, 162, 175
Meade v Haringey London Borough Council [1979] 1 WLR 637, [1979]
2 All ER 1016 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .188
Meroni v Commission [1958] ECR 133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .245
Mersey Docks and Harbour Board v Gibbs (1886) LR 1 HL 93 . . . . . . . . . . . . . . . . . . . . . .21
Metropolitan Asylum Board v Hill [1881] 6 AC 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577, [1968]
3 WLR 694, [1968] 3 All ER 304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .167, 168
Miller v Minister of Housing and Local Government [1968] 1 WLR 992, [1968]
2 All ER 633 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .172
Ministry of Housing and Local Government v Sharp [1970] 2 QB 223, [1970]
2 WLR 802, [1970] 1 All ER 1009 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61
Morgan Grenfell & Co Ltd v Sutton (1995) Times, 23 March . . . . . . . . . . . . . . . . . . . . . . . .44
Mountview Court Properties Ltd v Devlin (1970) 21 P & CR 689 . . . . . . . . . . . . . . . . . . .151
Murphy v Brentwood District Council [1991] 1 AC 398, [1990] 3 WLR 414, [1990]
2 All ER 908 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62, 63
Nagle v Feilden [1966] 2 QB 633, [1966] 2 WLR 1027, [1966] 1 All ER 689 . . . . . . . . . . . .157
Nakkuda Ali v Jayaratne [1951] AC 66, [1951] 66 TLR (Part 2) 214 . . . . . . . . . .161, 162, 190
Neilson v Laugharne [1981] QB 736, [1981] 2 WLR 553, [1981] 1 All ER 829 . . . . . . . . . .256
Nell v Longbottom [1894] 1 QB 767 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56
Nelms v Roe [1970] 1 WLR 4, [1969] 3 All ER 1379 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .141
New South Wales v Bardolph (1934) 52 CLR 455 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .249
Niarchos v Secretary of State for the Environment (1978) 76 LGR 480 . . . . . . . . . . . . . . .195
Norfolk County Council v Secretary of State for the Environment [1973]
1 WLR 1400, [1973] 3 All ER 673 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .143, 145, 148
North Tyneside Metropolitan Borough Council v Allsop [1992] 1 CR 639, (1992)
4 Admin LR 550 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
Norwich City Council v Secretary of State for the Environment [1982] QB 808,
[1982] 2 WLR 580, [1982] 1 All ER 737 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 191
Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133, [1973]
2 All ER 943, [1973] 3 WLR 164 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .257
Nottingham No 1 Area Hospital Management Committee v Owen [1958]
1 QB 50, [1957] 3 WLR 707, [1957] 3 All ER 358 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
xxvi
TABLE OF CASES
O’Reilly v Mackman [1983] 2 AC 237, [1982] 3 WLR 1096, [1982]

3 All ER 1124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .237, 238, 239
Padfield v Minister of Agriculture [1968] AC 997, [1968] 2 WLR 924,
[1968] 1 All ER 694 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .151, 181, 198, 232, 253
Pearlman v Keepers and Governors of Harrow School [1979] QB 56, [1978]
3 WLR 736, [1979] 1 All ER 365 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .181, 183, 186
Pergamon Press Ltd, Re [1971] Ch 388, [1970] 3 WLR 792, [1970]
3 All ER 535 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26, 156, 170
Pett v Greyhound Racing Association (No 1) [1969] 1 QB 125, [1968]
2 WLR 1471, [1968] 2 All ER 545 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173
Pett v Greyhound Racing Association (No 2) [1970] 1 QB 46, [1969]
2 WLR 1228, [1969] 2 All ER 221 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173
Pfizer v Ministry of Health [1965] AC 512, [1965] 2 WLR 387, [1965] 1 All ER 450 . . . . . .21
Philips v Eyre [1870] LR 6 QB 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .107
Pickin v British Railways Board [1974] AC 765, [1974] 2 WLR 208, [1974]
1 All ER 609 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8, 122
Pickwell v Camden London Borough Council (1982) 80 LGR 798 . . . . . . . . . . . . . . . . . . . .50
Plewa v Chief Ajudication Officer [1994] 3 WLR 317, [1994] 3 All ER 323 . . . . . . . .108, 122
Portsmouth Water plc v Secretary of State for the Environment (1993)
66 P & CR 410 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
Potato Marketing Board v Robertsons [1983] 1 CMLR 93 . . . . . . . . . . . . . . . . . . . . . . . . . .100
Powell v May [1946] KB 330, [1946] 1 All ER 444 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .118
Poyser and Mills’ Arbitration, Re [1964] 2 QB 467, [1963] 2 WLR 1309, [1963]
1 All ER 612 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150
Pride of Derby and Derbyshire Angling Association v British Celanese Ltd [1953]
Ch 149, [1953] 2 WLR 58, [1953] 1 All ER 179 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
Princes Investments Ltd v Frimley and Camberley Urban District Council [1962]
1 QB 681, [1962] 2 WLR 940, [1962] 2 All ER 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .144
Province of Bombay v Municipal Corporation of Bombay [1947] AC 58, [1947]
62 TLR 643 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
Punton v Ministry of Pensions and National Insurance (No 2) [1964]
1 WLR 226, [1964] 1 All ER 448 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .213
Pyrford v Secretary of State for the Environment (1977) 244 EG 383,
[1977] JPL 724 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34, 35
Pyx Granite Co Ltd v Minister of Housing and Local Government [1960]
AC 260, [1959] 3 WLR 346, [1959] 3 All ER 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .207, 208
R v Advertising Standards Authority Ltd, ex p Insurance Services plc (1990)

2 Admin LR 77 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .228
R v Altrincham Justices, ex p Pennington [1975] QB 549, [1975] 2 WLR 450, [1975]
2 All ER 78 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .165
xxvii
R v Bailey [1994] Crim LR 367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .169

R v Barnet and Camden Rent Tribunal, ex p Frey Investments Ltd [1972]
2 QB 342, [1972] 2 WLR 619, [1972] 1 All ER 1185 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .196
R v Barnet London Borough Council, ex p Islam [1992] COD 60, [1991] EGCS 83 . . . . . .43
R v Barnsley Licensing Justices, ex p Barnsley and District Licensed Victuallers’
Association [1960] 2 QB 167, [1960] 3 WLR 305, [1960] 2 All ER 703 . . . . . . . . . . . . . .168
R v Barnsley Metropolitan Borough Council, ex p Hook [1976] 1 WLR
1052, [1976] 3 All ER 452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .162, 163, 165, 203
R v Birmingham City Council, ex p o [1983] 2 WLR 189, [1983] 1 All ER 497 . . . . . . . .55,59
R v Blackpool Rent Tribunal, ex p Ashton [1948] 2 KB 277, [1949] 64 TLR 338,
[1948] 1 All ER 900 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .179, 225
R v Bowden [1995] 4 All ER 505, [1995] 159 LG Rev 649 . . . . . . . . . . . . . . . . . . . . . . . . . . . .58
R v Bradford-on-Avon Urban District Council, ex p Boulton [1964] 1 WLR 1136,
[1964] 2 All ER 492 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .229
R v Bristol Corporation, ex p Hendy [1974] 1 WLR 498, [1974] 1 All ER 1047 . . . . . . . . .232
R v British Broadcasting Corporation, ex p Lavelle [1983] 1 WLR 23 . . . . . . . . . . . . . . . .227
R v Broadcasting Complaints Commission, ex p Thames Television Ltd,
(1982) Times, 8 October . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .230
R v Camborne Justices, ex p Pearce [1995] 1 QB 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .166
R v Chief Constable of West Midlands Police, ex p Wiley [1994] 1 All ER 702 . . . . . . . .257
R v Chief Rabbi of the United Hebrew Congregation, ex p Wachmann [1993]
2 All ER 249, (sub nom R v Jacobvitz, ex p Wachmann [1992] 1 WLR 1036) . . . . . . .228
R v Civil Service Appeal Board, ex p Bruce [1988] I CR 649 . . . . . . . . . . . . . . . . . . . .228, 248
R v Code of Practice Committee of the Association of the British Pharmaceutical
Industry, ex p Professional Counselling Aids Ltd (1991) 3 Admin LR 697 . . . . . . . .228
R v Commissioner for Local Administration, ex p Croydon London Borough
Council [1989] 1 All ER 1033 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .265, 269
R v Commissioner for Local Administration, ex p Eastleigh Borough Council [1988]
QB 855, [1988] 3 All ER 151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .269
R v Commissioner for Metropolitan Police, ex p Blackburn [1968] 2 QB 118,
[1968] 2 WLR 893, [1968] 1 All ER 763 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .232, 233
R v Cornwall County Council, ex p Huntington [1992] 3 All ER 566 (DC),
[1994] 1 All ER 694, CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .186, 187
R v Criminal Injuries Compensation Board, ex p Lain [1967] 2 QB 864,
[1967] 3 WLR 348, [1967] 2 All ER 770 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .226
R v Crown Court at Knightsbridge, ex p International Sporting Club
(London) Ltd [1982] QB 304, [1981] 3 WLR 640 [1981] 3 All ER 417 . . . . . .183, 225, 227
R v Crown Court at Reading, ex p Hutchinson [1988] QB 384,
[1987] 3 WLR 1062, [1988] 1 All ER 333 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .117
R v Dairy Produce Quotas Tribunal, ex p Caswell (1988) Times, 7 December . . . . . . . .236
xxviii
TABLE OF CASES
R v Deputy Governor of Camphill Prison, ex p King [1985] QB 735, [1985] 2 WLR 36,
[1984] 3 All ER 897 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158
R v Deputy Industrial Injuries Commissioner, ex p Moore [1965] 1 QB 456,
[1965] 2 WLR 89, [1965] 1 All ER 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .172
R v Director of GCHQ, ex p Hodges (1988) Independent, 21 July . . . . . . . . . . . . . . . . . . .135
R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909,
[1993] 2 All ER 853 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .228
R v Eden District Council, ex p Moffat (1988) Times, 24 November . . . . . . . . . . . . . . . . . .55
R v Electricity Commissioners, ex p London Electricity Joint Committee Co
(1920) Ltd [1924] 1 KB 171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .138, 159, 226
R v Epsom and Ewell Corporation, ex p RB Property Investments Ltd [1964]
1 WLR 1060, [1964] 2 All ER 832 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .131
R v Essex Justices, ex p Perkins [1927] 2 KB 475 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .169
R v Football Association, ex p Football League [1993] 2 All ER 833 . . . . . . . . . . . . . . . . .228
R v Fulham, Hammersmith and Kensington Rent Tribunal, ex p Zerek [1951] 2 KB 1,
[1951] 1 TLR 423, [1951] 1 All ER 482 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .179
R v Gateshead Justices, ex p Tesco Stores Ltd [1981] QB 470, [1981] 2 WLR 419,
[1981] 1 All ER 1027 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .138
R v General Medical Council, ex p Colman [1990] 1 All ER 489, [1990] COD 202,
(1990) 2 Admin LR 469, CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
R v Gough [1993] AC 646, [1993] 3 WLR 883, [1993] 2 All ER 724 . . . . . . . . . . . . . . .168, 169
R v Greater London Council, ex p Blackburn [1976] 1 WLR 550, [1976] 3 All ER 184 . .230
R v Greater London Council, ex p Burgess [1978] ICR 991, (1979) 77 LGR 74 . . . . . . . . . .43
R v Gwent County Council, ex p Bryant (1988) Independent, 19 April . . . . . . . . . . . . . .137
R v HM Treasury, ex p Smedley [1985] QB 657, [1985] 2 WLR 576, [1985] 1 All ER 589 . . .9, 11
R v Hackney London Borough Council, ex p Gamper [1985] 1 WLR 1229,
[1985] 3 All ER 275, (1985) 83 LGR 359 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55
R v Hendon Rural District Council, ex p Chorley [1933] 2 KB 696 . . . . . . .56, 166, 225, 229
R v Hereford Corporation, ex p Harrower [1970] 1 WLR 1424, [1970] 3 All ER 460 . . . .233
R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994]
1 WLR 242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .175
R v Hillingdon London Borough Council, ex p Puhlhofer [1986] AC 484,
[1986] 2 WLR 259, [1985] 1 All ER 467 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180
R v Hillingdon London Borough Council, ex p Royco Homes Ltd
[1974] QB 720, [1974] 2 WLR 805, [1974] 2 All ER 643 . . . . . . . . . .202, 206, 219, 227, 229
R v Housing Appeal Tribunal [1920] 3 KB 334 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170
R v Hull Prison Board of Visitors, ex p St Germain [1979] QB 425,
[1979] 2 WLR 42, [1979] 1 All ER 701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158, 172, 226
R v Hull University Visitor, ex p Page [1993] AC 682, [1992] 3 WLR 1112,
[1993] 1 All ER 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .183
xxix
R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, [1985] 2 WLR 836,

[1985] 2 All ER 327 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .147
R v Inspectorate of Pollution, ex p Greenpeace (No 2) [1994] 4 All ER 329 . . . . . . . . . . .217
R v Islington London Borough Council, ex p Building Employers Confederation,
(1989) Independent, 15 March . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
R v Kensington and Chelsea Rent Tribunal, ex p MacFarlane [1974] 1 WLR 1486,
[1974] 3 All ER 390 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .171
R v Kent Police Authority, ex p Godden [1971] 2 QB 662, [1971] 3 WLR 416,
[1971] 3 All ER 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .157, 167, 230
R v Kerrier District Council, ex p Guppys (Bridport) Ltd (1977) 75 LGR 129 . . . . . . . . .231
R v Khan (1995) unreported, 94/7266/Z2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .169
R v Lewisham London Borough Council, ex p Shell UK Ltd [1988] 1 All ER 938 . .200, 203
R v Licensing Authority, ex p Smith Kline [1988] 3 WLR 896 . . . . . . . . . . . . . . . . . . . . . .253
R v Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association
[1972] 2 QB 299, [1972] 2 WLR 1262, [1972] 2 All ER 589 . . . . . . . . . . .135, 155, 164, 165
R v London Boroughs Transport Committee, ex p Freight Transport Association Ltd
[1991] 1 WLR 828 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .101
R v London Regional Passenger Committee, ex p London Borough of Brent,
(1985) Times, 29 November . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154
R v Lords Commissioners of the Treasury (1872) LR 7 QB 387 . . . . . . . . . . . . . . . . . . . . .252
R v Manners [1978] AC 43, [1977] 2 WLR 178, [1977] 1 All ER 316 . . . . . . . . . . . . . . . . . . .58
R v Medical Appeal Tribunal, ex p Gilmore [1957] 1 QB 574, [1957] 2 WLR 498,
[1957] 1 All ER 796 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .185
R v Metropolitan Police Commissioner, ex p Parker [1953] 1 WLR 1150,
[1953] 2 All ER 717 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .161, 162
R v Newbould [1962] 2 QB 102, [1962] 2 WLR 648, [1962] 1 All ER 693 . . . . . . . . . . . . . . .58
R v North, ex p Oakey [1927] 1 KB 491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .172
R v North Hertfordshire District Council, ex p Sullivan [1981] JPL 752 . . . . . . . . . .219, 229
R v Northumberland Compensation Appeal Tribunal, ex p Shaw [1952] 1 KB 338,
[1952] 1 TLR 161, [1952] 1 All ER 122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .184
R v Panel on Takeovers and Mergers, ex p Datafin [1987] QB 815,
[1987] 2 WLR 699, [1987] 1 All ER 564 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .227, 228
R v Parliamentary Commissioner for Administration, ex p Dyer [1994]
1 WLR 621, [1994] 1 All ER 375 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .269, 270
R v Parliamentary Commissioner for Administration, ex p Lithgow (1990)
unreported CO/37/90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .269
R v Parole Board, ex p Wilson [1992] QB 740, [1992] 2 All ER 576 . . . . . . . . . . . . . . . . . . .155
R v Police Complaints Board, ex p Madden [1983] 1 WLR 447 . . . . . . . . . . . . . . . . . . . . .226
R v Pontypool Gaming Licensing Committee, ex p Risca Cinemas Ltd [1970]
1 WLR 1299, [1970] 3 All ER 241 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133
R v Port of London Authority, ex p Kynoch [1919] 1 KB 176 . . . . . . . . . . . . . . . . . . . . . . .193
xxx
TABLE OF CASES
R v Post Office, ex p ASTMS [1981] ICR 76 [1981] 1 All ER 139 . . . . . . . . . . . . . . . . . . . . .135

R v Registrar-General, ex p Smith [1991] 2 QB 393, [1991] 2 WLR 782, [1991] 2 All ER 88 . . .10
R v Richmond-upon-Thames London Borough Council, ex p McCarthy and Stone
(Developments) Ltd [1992] 2 AC 48, [1991] 3 WLR 941, [1991] 4 All ER 897, HL . . . . .9
R v Secretary of State for Education, ex p Hardy (1988) Times, 28 July . . . . . . . . . . . . . .148
R v Secretary of State for Employment, ex p Equal Opportunities Commission [1993]
1 WLR 872, [1993] 1 All ER 1022, CA, [1994] 1 All ER 910, HL . . . . . . . . . . . .7, 214, 218
R v Secretary of State for the Environment, ex p Brent London Borough
Council & Others [1982] QB 593, [1982] 2 WLR 693 . . . . . . . . . . . . . . . . . . . . . . . .162, 193
R v Secretary of State for the Environment, ex p Hillingdon London Borough
Council, [1986] 1 WLR 807, [1986] 2 All ER 273, (1986) 84 LGR 628 . . . . . . . . . . . . . . .60
R v Secretary of State for the Environment and Secretary of State for Wales,
ex p NALGO [1992] COD 282 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
R v Secretary of State for the Environment, ex p Ostler [1977] QB 122,
[1976] 3 WLR 288, [1976] 3 All ER 90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .186
R v Secretary of State for the Environment, ex p Rose Theatre Trust Co [1990]
1 QB 504, [1990] 2 WLR 186, [1990] 1 All ER 754 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .217
R v Secretary of State for the Environment, ex p RSPB [1996] JPL 844,
[1995] 7 Admin LR 434 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
R v Secretary of State for Foreign Affairs, ex p World Development
Movement Ltd [1995] 1 All ER 611 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .218
R v Secretary of State for Foreign and Commonwealth Affairs, ex p Everettt [1989]
2 WLR 224, [1989] 1 All ER 655 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
R v Secretary of State for Foreign and Commonwealth Affairs, ex p Rees-Mogg [1994]
2 WLR 115, [1994] 1 All ER 457 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .217
R v Secretary of State for Health, ex p Keen [1990] COD 371, (1991) 3 Admin LR 180 . . . .7
R v Secretary of State for the Home Department, ex p Asif Khan [1984]
1 WLR 1337, [1985] 1 All ER 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .197
R v Secretary of State for the Home Department, ex p Bentley [1994] QB 349, [1994]
2 WLR 101, [1993] 4 All ER 442 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696, [1991]
2 WLR 588, [1991] 1 All ER 720, HL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 203
R v Secretary of State for the Home Department, ex p Duggan, [1994] 3 All ER 277,
[1994] COD 258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .175
R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995]
2 WLR 1, [1995] 1 All ER 888, CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
R v Secretary of State for the Home Department, ex p Gunnell (1985)
135 New LJ 357 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155, 160, 163
R v Secretary of State for the Home Department, ex p McQuillan [1995] COD 137 . . . . . .6
R v Secretary of State for the Home Department, ex p Northumbria Police Authority,
[1988] 2 WLR 590, [1988] 1 All ER 556 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
xxxi
R v Secretary of State for the Home Department, ex p Oladehinde [1991] 1 AC 254 . . .140
R v Secretary of State for the Home Department, ex p Tarrant [1985] QB 251 . . . . . . . . .174
R v Secretary of State for Social Security, ex p Britnell [1991] 1 WLR 198 . . . . . . . . . . . .122
R v Secretary of State for Social Services, ex p Association of Metropolitan
Authorities [1986] 1 WLR 1, [1986] 1 All ER 164, (1985) 83 LGR 796 . . . . . . . . . . . . . .137
R v Secretary of State for Social Services, ex p Association of Metropolitan
Authorities (1993) 5 Admin LR 6, [1993] COD 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135
R v Secretary of State for Transport, ex p Factortame Ltd (case C-213/89),
[1990] 3 CMLR 807 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .253
R v Sevenoaks District Council, ex p Terry [1985] 3 All ER 226 . . . . . . . . . . . . . . . . .168, 194
R v Sheer Metalcraft Ltd [1954] 1 QB 586, [1954] 2 WLR 777, [1954] 1 All ER 542 . . . . . .120
R v Sheffield City Council, ex p Chadwick (1985) 84 LGR 563 . . . . . . . . . . . . . . . . . . . . . . .55
R v Skinner [1968] 2 QB 700, [1968] 3 WLR 408, [1968] 3 All ER 124 . . . . . . . . . . . . . . . . .139
R v Somerset County Council, ex p Fewings [1995] 1 WLR 1037,
[1995] 1 All ER 513 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43, 198
R v Spencer [1987] AC 128, [1986] 3 WLR 348, [1986] 3 All ER 928 . . . . . . . . . . . . . . . . . .169
R v Stratford on Avon District Council, ex p Jackson [1985] 1 WLR 1319,
[1985] 3 All ER 769, (1986) 84 LGR 287 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .236
R v Sussex Justices, ex p McCarthy [1924] 1 KB 256 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .168
R v Thames Magistrates’ Court, ex p Polemis [1974] 1 WLR 1371,
[1974] 2 All ER 1219 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173
R v Trafford Magistrates’ Court, ex p Riley (1996) 160 JP 418, [1995] COD 373 . . . . . . .171
R v Westminster Assessment Committee [1941] 1 KB 53 . . . . . . . . . . . . . . . . . . . . . . . . . .167
R v Wirral Metropolitan Borough Council, ex p Milstead (1989) 87 LGR 611 . . . . . . . . . .43
R v Wood (1855) 119 ER 400 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .118
R v Worthing Borough Council, ex p Burch (1983) 49 P & CR 53 . . . . . . . . . . . . . . . . . . .194
Racal Communications Ltd, Re [1980] 3 WLR 181, [1980] 2 All ER 634 . .181, 182, 183, 185
Rands v Oldroyd [1959] 1 QB 253, [1958] 3 WLR 583, [1958] 3 All ER 344 . . . . . . . . . . . . .56
Ridge v Baldwin [1964] AC 40, [1963] 2 WLR 935,
[1963] 2 All ER 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .159, 172, 176, 177, 213, 214, 226
Roberts v Hopwood [1925] AC 578 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .196
Robertson v Minister of Pensions [1949] 1 KB 227, [1949] 64 TLR 526,
[1948] 2 All ER 767 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .144, 145, 249
Roebuck v NUM (Yorkshire Area) (No 2) [1978] ICR 676 . . . . . . . . . . . . . . . . . . . . . . . . . .166
Rogers v Home Secretary [1973] AC 388, [1972] 3 WLR 279, [1972] 2 All ER 1037 . . . . .255
Rollo v Minister of Town and Country Planning [1948] 64 TLR 25,
[1948] 1 All ER 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .136
Roy v Kensington and Chelsea and Westminster Family Practitioner Committee
[1992] 1 AC 624, [1992] 2 All ER 705 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .239
xxxii
TABLE OF CASES
Royal Aquarium and Summer and Winter Garden Society v Parkinson [1892]
1 QB 431 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .79
Royster v Cavey [1947] KB 204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .247
Rylands v Fletcher (1868) LR 3 HL 330 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63, 251
Save Britain’s Heritage v Secretary of State for the Environment [1991]

1 WLR 153, [1991] 2 All ER 10, (1991) 89 LGR 809, HL . . . . . . . . . . . . . . . . . .36, 151, 180
Schmidt v Home Secretary [1969] 2 Ch 149, [1969] 2 WLR 337, [1968] 3 All ER 795 . . . .165
Secretary of State for Education and Science v Tameside Metropolitan Borough
Council [1977] AC 1014, [1976] 3 WLR 641, [1976] 3 All ER 665 . . . . . . . . . . . . .191, 192
Secretary of State for Employment v ASLEF (No 2) [1972] 2 QB 455,
[1972] 2 WLR 1370, [1972] 2 All ER 949 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .190
Secretary of State for Social Services v Tunnicliffe [1991] 2 All ER 712,
(1992) 4 Admin LR 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .108
Secretary of State for Trade and Industry v Langridge [1991] Ch 402,
(1992) 4 Admin LR 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .129
Selvarajan v Race Relations Board [1976] 1 All ER 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .138
Simmonds v Newell [1953] 1 WLR 826, [1953] 2 All ER 38 . . . . . . . . . . . . . . . . . . . . . . . . .120
Simpson v Attorney General [1955] NZLR 271 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .130
Sloan v General Medical Council [1970] 1 WLR 1130, [1970] 2 All ER 687 . . . . . . . . . . . .171
Smith v East Elloe Rural District Council [1956] AC 736, [1956] 2 WLR 888,
[1956] 1 All ER 855 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .186, 242
Smith v Inner London Education Authority [1978] 1 All ER 411 . . . . . . . . . . . . . . . . . . . .222
South-East Asia Firebricks v Non-Metallic Mineral Products Manufacturing
Employees Union [1981] AC 363, [1980] 3 WLR 318, [1980] 2 All ER 689 . . . . . . . . .186
Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416,
[1961] 2 WLR 806, [1961] 2 All ER 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .144
Sovmots Investments Ltd v Secretary of State for the Environment [1977]
QB 411, [1976] 2 WLR 73, [1976] 1 All ER 178 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .196
Staden v Tarjanyi (1980) 78 LGR 614 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .118
Stanbury v Exeter Corporation [1905] 2 KB 838 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61
Steeples v Derbyshire County Council [1981] JPL 582 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .218
Stoke on Trent City Council v B&Q (Retail) Ltd [1984] AC 754, [1984] 2 WLR 929,
[1984] 2 All ER 332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221
Stringer v Minister of Housing and Local Government [1970] 1 WLR 1281,
[1971] 1 All ER 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46, 196
Suruk Miah, Re (1976) Times, 4 February . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .143
Sydney Municipal Council v Campbell [1925] AC 338 . . . . . . . . . . . . . . . . . . . . . . . .198, 221
Tamlin v Hannaford [1950] KB 18, [1950] 65 TLR 422 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Taylor v Munrow [1960] 1 WLR 151, [1960] 1 All ER 455 . . . . . . . . . . . . . . . . . . . . . . . . . . .50
xxxiii
Taylor v National Union of Seamen [1967] 1 WLR 532, [1967] 1 All ER 767 . . . . . . . . . .160
Tesco Supermarkets Ltd v Nattrass [1972] AC 153, [1971] 2 WLR 1166,
[1971] 2 All ER 127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64
Thomas v University of Bradford (No 2) [1992] 1 All ER 964 . . . . . . . . . . . . . . . . . . . . . . .169
Thornton v Kirklees Metropolitan Borough Council [1979] QB 626,
[1979] 3 WLR 1, [1979] 2 All ER 349 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .238
Town Investments Ltd v Secretary of State for the Environment [1978] AC 359,
[1977] 2 WLR 450, [1977] 1 All ER 813 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Turner v Secretary of State for the Environment (1974) 72 LGR 380 . . . . . . . . . . . . .242, 243
Van Duyn v Home Office [1975] Ch 358, [1974] 1 WLR 1107, [1974] 3 All ER 178 . . . . .100
Vine v National Dock Labour Board [1957] AC 488, [1957] 2 WLR 106,
[1956] 3 All ER 939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .138
Von Colson v Land Nordrhein Westfalen [1984] ECR 1891 . . . . . . . . . . . . . . . . . . . . . . . .127
Wandsworth London Borough Council v Winder [1985] AC 461, [1984] 3 WLR 1254,
[1984] 3 All ER 976, (1985) 83 LGR 143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .239
Webb v Minister of Housing and Local Government [1965] 1 WLR 755,
[1965] 2 All ER 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .198
Wells v Minister of Housing and Local Government [1967] 1 WLR 1000,
[1967] 2 All ER 1041 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .143
Westdeutsche Landesbank Girozentrale v Islington London Borough Council (1993)
91 LGR 323 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
Western Fish Products Ltd v Penwith District Council (1979) 77 LGR 185 . . . . . . . . . . .146
Westminster Bank Ltd v Minister of Housing and Local Government [1971] AC 508,
[1970] 2 WLR 645, [1970] 1 All ER 734 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .200
Westminster Corporation v London and North Western Railway Co
[1905] AC 426 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .199
Wheeler v Leicester City Council [1985] AC 1054, [1985] 3 WLR 335,
[1985] 2 All ER 1106, (1985) 83 LGR 725 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .199, 203
Wilkinson v Barking Corporation [1948] 1 KB 721, [1948] 64 TLR 230,
[1948] 1 All ER 564 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .169
Williams v Home Office [1981] 1 All ER 1151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .256
Wiseman v Borneman [1971] AC 297, [1969] 3 WLR 706, [1969] 3 All ER 275
[1995] 3 All ER 353 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156
X (Minors) v Bedfordshire County Council [1995] 2 AC 633, [1995] 3 WLR 152 . . . . . . . .63
Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553, [1982] 3 All ER 833 . . . . . . . . . .108
York District Council v Poller [1975] 73 LGR 522 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64
xxxiv
Table of Statutes
UK Law
Abortion Act 1967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .110

Acquisition of Land Act 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27, 30, 61, 119
Agricultural Marketing Act 1958 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .94, 181, 232
s 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .181
Asylum and Immigration Appeals Act 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76
Atomic Energy Authority Act 1954 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
British Steel Act 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92

Broadcasting Act 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .91, 104
Cheques Estate Act 1917 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Children and Young Persons Act 1963 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195
s 1(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195
Civil Authorities (Special Powers) Acts (Northern Ireland) 1922–1943 . . . . . . . . . . . . . .123
Civil Aviation Act 1971 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 66, 147, 194
Civil Aviation Act 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66
s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .66
Clean Air Act 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .105
s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .105
Coast Protection Act 1949 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .130
Commissioner for Complaints Act (Northern Ireland) 1969 . . . . . . . . . . . . . . . . . . . . . . .261
Companies Act 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
Companies Act 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .140
Control of Pollution Act 1974 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .110
County Courts Act 1959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .186
s 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .186
County and Voluntary Schools (Notices) Regulations 1968 . . . . . . . . . . . . . . . . . . . . . . . .137
Criminal Justice Act 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .88, 155, 175
Criminal Justice and Public Order Act 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .88
Crown Proceedings Act 1947 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17, 19, 96, 248
s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248
xxxv
s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .250, 251
s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .252
s 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .253
s 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .252
s 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .253, 254
Crown Proceedings (Amendment) Act 1987 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .252
Dangerous Dogs Act 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .171

Defence of the Realm Act 1914 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .123
Deregulation and Contracting Out Act 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60
Disqualification of Directors Act 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .129
s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .129
s 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .129
Education Act 1944 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .109

s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .187, 188, 208
s 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .136
s 17(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .134
s 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 17, 22, 23, 54, 191
s 99 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .209
Education Act 1968 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .136
Education Act 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18, 51
s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18, 51
Education Reform Act 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41
Electoral Act 1927 (New Zealand) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .130
Electricity Act 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92, 93
Employment Act 1980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68
Employment Protection Act 1975 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .90, 95
s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .130
Employment Protection (Consolidation) Act 1978 . . . . . . . . . . . . . . . . . . . . . . . . .68, 214, 249
Environmental Protection Act 1990 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41, 95, 224
s 140 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .121, 122
Environmental Protection (Non-Refillable Refrigerant Containers)
Regulations 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .121
European Communities Act 1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7, 98, 126
s 2(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .126
European Communities (Amendment) Act 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98
European Communities (Amendment) Act 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98
xxxvi
TABLE OF STATUTES
Finance (No 2) Act 1940 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 189

s 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .189
Finance Act 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149
s 146 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149
Financial Services Act 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .228
Food Act 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115
s 95(2)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115
Foreign Compensation Act 1950 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9, 182
s 4(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .182
Gaming Act 1968 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .184

Goods Vehicles (Licensing of Operators) Act 1995 . . . . . . . . . . . . . . . . . . . . . . . . .66, 80, 132
Gulf Oil Refining Act 1965 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .112
Health Authorities Act 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Health and Safety at Work Act 1974 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21, 250
Health Service Commissioners Act 1993 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .261
Highways Act 1959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .200
Highways Act 1971 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64
Highways Act 1980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
Housing Act 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . .74, 109, 116, 119, 131, 189, 192, 211, 231
s 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47, 149
s 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .239
s 69 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .239
s 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115
s 164 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3, 53, 54
s 182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .113
s 189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .103, 231
s 264 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .160
s 268 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .160
s 275 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .160
s 290(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .192
s 510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149
Housing Act 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83
Housing Association Act 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
Housing (Homeless Persons) Act 1977 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180, 238
Housing Finance Act 1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50, 199
Housing and Planning Act 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .181
Immigration Act 1971 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23, 99

xxxvii
s 13(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .140
Immigration Act 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99
Industrial Development Act 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .102, 103, 109
Industrial Relations Act 1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .190
Industrial Training Act 1964 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135
Insolvency Act 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86
s 124A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .140
Interception of Communications Act 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .215
Interpretation Act 1978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .108
Justices of the Peace Act 1949 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170

s 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170
Landlord and Tenant Act 1987 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83

Leasehold Reform Act 1967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .181
Leicestershire County Council Act 1970 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .112
s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .112
Licensing Act 1964 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170
s 130 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170
s 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170
Local Authority Social Services Act 1970 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60
Local Government Act 1933 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180
s 163 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .180
Local Government Act 1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40, 41, 109, 113, 120
s 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .112
ss 94–97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55
s 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60, 139, 141
s 101(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .60
s 111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43, 44, 45, 46
s 112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57
s 117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57
s 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42, 43, 198
s 120(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .198
s 123 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42, 43
s 137 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45, 46
s 222 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .223, 224
s 228 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .55
s 235 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .117
s 239 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .113
xxxviii
TABLE OF STATUTES
s 250 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31, 35
s 262 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .113, 114
s 320 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
Sched 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
Local Government Act 1974 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .261, 265, 269, 271
Local Government Act 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40, 41
Local Government Act 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
Local Government Act 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45, 261
s 17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
Local Government Act 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40, 48
Local Government (Access to Information) Act 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
Local Government Finance Act 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48
Local Government and Housing Act 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48
s 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57
s 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57
s 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56
s 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
Part V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46
Sched 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .160
Local Government (Miscellaneous Provisions) Act 1982 . . . . . . . . . . . . . . . . . . . . . . . . . .114
Local Government Planning and Land Act 1980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46, 193
Local Government (Scotland) Act 1975 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .261
Local Government (Wales) Act 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41
London Government Act 1963 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41
Malaysian Industrial Relations Act 1967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .186

Malvern Hills Act 1924 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .207
Medical Act 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Mental Health Act 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .70
Merchant Shipping Acts 1894–1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25, 108
Metropolis Management Act 1855 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .196
s 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .196, 197
Military Lands Act 1892 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .119
Minister of Town and Country Planning Act 1943 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
National Health Service Act 1946 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .184

National Health Service Act 1977 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
National Health Service Reorganisation Act 1973 . . . . . . . . . . . . . . . . . . . . . . . . . . . .261, 270
New Ministers and Secretaries Act 1916 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .123
xxxix
New Towns Act 1946 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .161
Occupiers’ Liability Act 1957 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .251

Occupiers’ Liability Act 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .251
Official Secrets Acts 1911–1939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .267
Open Spaces Act 1906 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .198
Overseas Development and Co-operation Act 1980 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .217
Parliamentary Commissioner Act 1967 . . . . . . . . .231, 261, 262, 263, 264, 265, 267, 268, 270
Parliamentary Commissioner Act (Northern Ireland) 1969 . . . . . . . . . . . . . . . . . . . . . . . .261
Parliamentary and Health Service Commissioners Act 1987 . . . . . . . . . . . . . . . . . . . . . . .261
Planning and Compensation Act 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .132
s 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .132
Planning Inquiries (Attendance of Public) Act 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
Planning (Listed Buildings and Conservation Areas) Act 1990 . . . . . . . . . . . . . . . . . . . . .171
s 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .171
Police Act 1964 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
s 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Police (Discipline) Regulations 1965 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173
Police and Criminal Evidence Act 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Post Office Act 1953 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .219
Post Office Act 1969 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Poultry Meat (Water Content) Regulations 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115
Prevention of Corruption Acts 1906–1916 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57, 58
Prevention of Terrorism (Temporary Provisions) Act 1989 . . . . . . . . . . . . . . . . . . . . . . . .102
Public Bodies (Admission to Meetings) Act 1960 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .59
Public Bodies Corrupt Practices Act 1889 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57, 58
Public Health Act 1936 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Race Relations Act 1968 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72

Race Relations Act 1976 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45, 90
s 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
Regulation of Railways Act 1871 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
Rent Restriction Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
Road Traffic Act 1960 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .141
Sea Fish (Conservation) Act 1967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .124

Secure Tenancies (Notices) Regulations 1987 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .115,116
Sex Discrimination Act 1975 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .218
xl
TABLE OF STATUTES
Shops Act 1950 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .222

Social Security Act 1975 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .108
Social Security Act 1986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84, 136
s 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .108, 122, 123
s 89(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .122, 123
Social Security (Consequential Provisions) Act 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .108
Statutory Instruments Act 1946 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .116, 120
Statutory Orders (Special Procedure) Acts 1945–1965 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .114
Sunday Trading Act 1994 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .68
Supplementary Benefits Act 1976 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .108
s 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .108
Supreme Court Act 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .227, 234, 253
s 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .227, 234
Taxes Management Act 1970 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
s 20C(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .149
Television Act 1954 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221
s 3(1)(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .221
Town and Country Planning Act 1947 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .227
Town and Country Planning Act 1990 . . . .22, 27, 30, 35, 37, 52, 104, 105, 109, 153, 211, 241
s 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .208
s 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .195, 196
s 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .154
s 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
s 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54
s 176 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .171
s 215 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .74
s 226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
s 284 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241
s 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .241
s 320 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
Town and Country Planning (Appeals) (Written Representations Procedure)
Regulations 1987 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
Town and Country Planning (Amendment) Act 1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .109
Town and Country Planning (Determination by Inspectors) (Inquiries Procedure)
Rules 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
Town and Country Planning (General Development) Order 1995 . . . . . . .52, 132, 133, 154
xli
Town and Country Planning (Inquiries Procedure) Rules 1988 . . . . . . . . . . . . . . . . . . . . .150

r 17(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .150
Town and Country Planning (Inquiries Procedure) Rules 1992 . . . . . . . . . . . . . .29, 116, 149
Trade Descriptions Act 1968 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64
Trade Union and Labour Relations (Consolidation) Act 1992 . . . . . . . . . . . . . . . . . . . . . .248
s 245 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .248
Transport Act 1982 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72
Transport (London) Act 1969 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .197
Transport Act 1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81
Tribunals and Inquiries Act 1958 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
Tribunals and Inquiries Act 1971 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
Tribunals and Inquiries Act 1992 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28, 74, 97, 185
s 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75
s 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75
s 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75
s 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76
s 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76, 81, 82, 84, 148, 149
s 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .76, 81, 82, 84
Sched 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75, 76, 81, 148, 211, 212
Tribunals of Inquiry (Evidence) Act 1921 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
Vaccine Damage Payments Act 1979 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81

Vaccine Damage Payments Regulations 1979 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82
War Damage Act 1965 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 107

Water Act 1973
s 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .117
s 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91, 208
s 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .231
Water Act 1989 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86, 208
Water Industry Act 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41, 86, 91, 104, 208
West Coast Herring (Prohibition of Fishing) Order 1978 . . . . . . . . . . . . . . . . . . . . . . . . . .124
Wildlife and Countryside Act 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19195, 186
Wireless Telegraphy Act 1949 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .191, 265
s 1(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .191
s 1(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .191
xlii
TABLE OF STATUTES
EU Law
Treaty of Rome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98, 244
Article 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98
Article 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .127
Article 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100
Article 48 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7, 99, 100, 125, 126
Article 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .98
Article 119 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Article 138e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .273
Article 173 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .244, 245, 246
Article 175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125, 246
Article 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100, 126, 246
Article 184 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .246
Article 189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .127
Article 190 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .126, 245
Article 215 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .246
Treaty on European Union (Maastricht) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .218, 244
Article G(41) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .273
Article G(53) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .244
EU Council
Regulation 1612/68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125
Directive 64/221 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125
xliii
Glossary of Terms
administrative action – the acts of administrative agencies, cov-

ering any of their administrative, judicial or (limited) legislative
functions.
affidavit – a written statement made on oath.
alter ego – in the administrative law context, the other person (a
civil servant) through whom the minister acts.
appellant – one who undertakes an appeal.
Attorney General – the principal law officer of the Crown.
audi alteram partem – no man shall be condemned unheard.
common law – the unwritten law of England, developed by the

courts, and in many instances, reported in the law reports as
cases decided by the courts.
Conseil d’Etat – the superior French administrative court.
courts of record – superior and inferior courts possessing the
power to punish for contempt.
ex gratia payment/compensation – money paid as a matter of

favour.
hearsay evidence – evidence relating to a matter of fact which

was not witnessed by the person giving the evidence.
inferior courts – courts such as the county courts and magis-

trates’ courts whose jurisdiction is limited, geographically and
financially.
intra vires – within (statutory) powers.
Judicial Committee of the Privy Council – a court comprising

mainly members of the House of Lords sitting as a judicial
body, acting principally as a final appeal court for some
Commonwealth countries.
xlv
justiciable – some matter which is subject to adjudication by a

person or body, usually possessing legal authority for the pur-
pose.
locus standi – standing or status in law, giving a right to be

heard.
Lord Advocate – the principal law officer of the Crown in
Scotland.
Lord Chancellor – the head of the judiciary, Speaker of the
House of Lords and a member of the government.
nemo judex in causa sua – no man shall be judge in his own

cause.
null and void – of no effect in law, as with an ultra vires deci-
sion.
plaintiff – a person who seeks some remedy or relief against

another in legal proceedings.
prerogative – powers peculiar to the monarch which exist inde-
pendently of the law and which are frequently subject to con-
ventional exercise by ministers of the Crown.
prima facie – at first sight: consequently, prima facie evidence
will appear to be in favour of the person who presents it.
probative – something that is capable of providing proof.
respondent – a person or body required to answer an appeal.
Solicitor General – the second law officer of the Crown.

statute law – written law, legislated by or with the authority of
Parliament.
superior courts – courts whose jurisdiction is not limited: the
House of Lords (in its judicial capacity); the Court of Appeal;
the High Court (comprising the Queen’s Bench, Chancery and
Family Divisions); the Crown Court; the Judicial Committee of
the Privy Council; the Restrictive Practices Court; and the
Employment Appeal Tribunal.
Supreme Court of Judicature – the High Court and the Court
of Appeal whose procedures are governed by the Rules of the
Supreme Court.
xlvi
GLOSSARY OF TERMS
tort – a civil wrong comprising something other than a breach

of contract.
ultra vires – beyond or outside (statutory) powers.
vicarious liability – liability for the act of another arising from

the (legal) status of their relationship.
voidable – legally binding until quashed.
xlvii
Table of Abbreviations
AC }
Appeal Cases
App Cases }
Admin LR Administrative Law Reports
All ER All England Reports
Ch Chancery (Law Reports)
CLR Commonwealth Law Reports (Australia)
CMLR Common Market Law Reports
Crim LR Criminal Law Review
ECR European Court Reports
EG Estates Gazette
ER English Reports
ICR Industrial Court Reports
IRLR Industrial Relations Law Reports
JPL Journal of Planning and Environment Law
KB King’s Bench (Law Reports)
LGR Local Government Reports
Ll LR Lloyds Law Reports
LR HL House of Lords Law Reports
LR QB Queen’s Bench Law Reports
NZLR New Zealand Law Reports
P & CR Property and Compensation Reports
PD Law Reports Probate Divorce and Admiralty Division
QB Queen’s Bench (Law Reports)
QBD Queen’s Bench Division (Law Reports)
TLR Times Law Reports
WLR Weekly Law Reports
xlix
PART 1 ADMINISTRATIVE LAW AND THE ADMINISTRATIVE
AGENCIES
1 The Scope and Purpose of Administrative Law
1.1 Definition of Administrative Law

Administrative law deals with the legal control of government and related
administrative powers. This means that a significant emphasis of the subject is
the control exercised by the High Court over the use of statutory powers by a
wide range of administrative agencies.
In supervising the fulfilment of governmental and related administrative
functions by these agencies, the sole concern of the High Court is to ensure that
they exercise their functions within the limits of the statutory powers, that is,
intra vires. This is achieved by applying the rules developed by the common
law, described in Chapters 9–11 and collectively referred to as the doctrine of
ultra vires. Where it is found that an administrative agency has acted outside or
beyond its statutory powers, any resulting decision or other act may be recog-
nised as ultra vires, that is, null and void so that in law it has never existed.
Accordingly, the High Court will probably grant one of the remedies described
in Chapter 13, eg an order of certiorari to quash the ultra vires decision or action.
This supervision and control of the exercise of statutory powers by the High
Court is referred to as judicial review and is a vital part of the Rule of Law.
The legal control of government and other administrative powers also occurs
in other ways, eg through the vast array of general appeals to the courts and, in
particular, the inferior courts below the High Court. At the grass roots one finds
that many ‘informal’ rules are made and applied for the purpose of applying
government powers, often without any challenge before the courts.
Accordingly, the reference above to ‘legal control’ represents the lowest com-
mon denominator of administrative law. The network of governmental and
other administrative powers is necessarily complex, stretching now to include
the European Community (also referred to as the European Union). As a result
the dynamics of the controls available point to an important role for the courts.
However, internal checks and balances within the system of administration do
suggest that ‘control’ is manifested both through the law, be it statute or com-
mon law, and through extra-legal devices such as budgetary control. However,
the word ‘control’ may itself be too restrictive. Above all, administrative law
should be capable of operating positively in order to facilitate action both on the
1
part of administrative agencies such as local authorities and on the part of the
courts in granting remedies to those subject to irregular, unlawful administra-
tive action.
1.2 The Rule of Law

There have been a number of attempts to define the Rule of Law, from the con-
sidered academic definition to the popular newspaper headline telling us that
some powerful group of workers is threatening the Rule of Law with strike
action. One of the best-known definitions is that of Professor A V Dicey con-
tained in his famous book The Law of the Constitution, published in 1885. He con-
sidered that the Rule of Law requires the recognition of the predominance of the
regular law (as opposed to arbitrary or wide discretionary powers), equality
before the law and that the British constitution is the product of the ordinary
law. In essence, therefore, the Rule of Law requires that there should be govern-
ment according to law and an avoidance of arbitrary action. This prescription
may be seen to be rather negative, emphasising the need for a definition of the
Rule of Law that is more pro-active for the purpose of allowing more positive
political and other pressure in aid of the ever expanding dimensions of ‘govern-
ment according to law’.
Dicey’s Rule of Law depends on the capacity of the court to control abuses of
administrative power. That the courts are incapable of undertaking this control
function is seen in the fact that not all administrative action is contained in
statute amenable to judicial interpretation. Increasingly, administrative func-
tions are dissipated, particularly with the development of privatisation. In this
and many other governmental contexts some functions are carried out by means
of contracts governed, not by public, administrative law, but by the private law
of contract. Even if Dicey’s Rule of Law depended on the supremacy and sover-
eignty of Parliament, there would be an important question about Parliament’s
capacity to control the executive. For so many different purposes the reality is
that the executive government of the day influences and controls Parliament.
The first part of Dicey’s definition emphasises the central feature of adminis-
trative law as a means of limiting the scope of statutory powers through the
doctrine of ultra vires. Although we have a supreme, sovereign Parliament
which is capable of legislating very extensive laws which may appear to confer
arbitrary or very wide discretionary powers on an administrative agency, the
High Court, ever mindful of the Rule of Law, will be reluctant to see some pow-
ers as being without limit. A vivid example occurs in Customs and Excise
Commissioners v Cure and Deeley Ltd (1961) where the Commissioners were
empowered by the Finance (No 2) Act 1940 to ‘make regulations providing for
any matter for which provision appears to them to be necessary for the purpose
of giving effect to the provisions of this Part of this Act’. As will be seen in
2
THE SCOPE AND PURPOSE OF ADMINISTRATIVE LAW
Chapter 11 where this case is dealt with in more detail, Sachs J rejected the view
that these words ‘necessarily make [the] authority the sole judge of what are its
powers as well as the sole judge of the way in which it can exercise such powers
as it may have’. Although this case represents an important step in the develop-
ment of the doctrine of ultra vires as a means of controlling the statutory powers
of administrative agencies, Parliament continues to legislate a number of very
wide discretionary powers which pose a real threat to Dicey’s view of the Rule
of Law. Such is the width of some of these powers that their control may be
increasingly difficult for the court. This was certainly the case in Norwich City
Council v Secretary of State for the Environment (1982) where the Court of Appeal
was concerned with the powers conferred on the Secretary of State by s 164 of
the Housing Act 1985. This section empowers the Secretary of State to intervene
and take over the functions of a local authority in relation to the sale of council
houses where it appears to [him] that tenants ... have or may have difficulty in
exercising the right to buy effectively and expeditiously’. It was decided by the
Court that the determining factor in deciding whether to exercise these powers
was the view of the Secretary of State himself whether council tenants had or
might have difficulty in exercising the right to buy effectively and expedi-
tiously, for whatever reason. The Court contrasted the words of s 68 of the
Education Act 1944 whereby the Secretary of State for Education is empowered
to serve a direction against a local education authority if he is satisfied that the
authority ‘have acted or are proposing to act unreasonably with respect to the
exercise of any power conferred or the performance of any duty imposed by or
under this Act’. The contrast is based on the fact that the powers in s 164 of the
Housing Act are wider than those in s 68 of the Education Act because they do
not involve any objective standard of ‘reasonableness’ to be determined by the
court. As Kerr LJ observes: ‘ ... the determinative factor is the view of the
Secretary of State’. He also observes that the powers in s 164 are ‘Draconian’
and that, ‘short of seeking to exclude altogether any power of review by the
courts, the wording of section 164 has clearly been framed by Parliament in
such a way as to maximise the power of the Secretary of State and to minimise
any power of review by the court’, a position which can be explained by the
likelihood of political controversy between central government and some local
authorities showing reluctance to implement the council tenant’s right to buy
under the Housing Act.
The second part of Dicey’s definition of the Rule of Law concerns the neces-
sity for equality before the law. Compared with the first part of the definition,
there would appear to be fewer anxieties in this context. There are certain
groups in society, such as trade unionists, who require limited immunity from
legal liability in order to undertake strike and other industrial action. It will be
seen in Chapters 2 and 14 that the Crown as an entity in administration also has
a limited immunity in law, but, theoretically, the limits in law of much adminis-
trative action is supervised by the ordinary courts. The UK courts are indepen-
3
dent of the executive government and it is vitally important that administrative

agencies should not be judges in their own cause. In some countries, notably
France, there is a special system of administrative courts whose sole concern is
with administrative law. Dicey criticised this system which, in France, comprises
local administrative courts headed by a central Conseil d’Etat, on the ground that
it imported special rules of law and legal immunities for the administrative agen-
cies of government. In reality and although the judges involved in this system
are government employees, it is a truly impartial and objective aspect of the
French judiciary. Although a significant focus of English administrative law is
the power of the High Court to review the legality of action taken by administra-
tive agencies, it will be seen in Chapter 5 that various administrative tribunals
and inferior courts (ie courts such as the county courts which are beneath the
‘superior’ courts) the Supreme Court of Judicature (comprising the High Court
and Court of Appeal) and the House of Lords, have a part to play in the adjudi-
cation of administrative disputes. In particular, it will be seen that the tribunals
are, to an extent, independent of the government departments which create them
and that more generally, both tribunals and inferior courts are subject to the
supervision of the High Court along with other administrative agencies.
The third part of Dicey’s formulation of the Rule of Law is that the
Constitution is but part of the ordinary law. Whereas most countries have a
written constitution which expressly guarantees fundamental rights such as
freedom from arbitrary arrest, any constitutional rights in the UK are products
of the ordinary law. As a consequence, and despite the Police and Criminal
Evidence Act of 1984, it may appear more difficult to define the scope of police
powers of arrest, for example, although our unwritten constitution does mean
that the law may be changed rather more easily than a written constitution,
which may require, say, a two-thirds majority. It will be noted, however, that
membership of the European Union requires adherence to the Treaty of Rome
and other European Union legislation. Increasingly therefore analogies with a
written constitution are relevant to the enforcement of certain Community-wide
freedoms. Overall, this third part of Dicey’s formulation emphasises the impor-
tance of the courts’ role in protecting individual liberty through their ability to
interpret and apply the ordinary law. In other words, where the law is not being
changed by Parliament, the courts are the final arbiters of individual rights. In
this context such rights are usually referred to as civil rights and are very much
the concern of constitutional law whereas administrative law is concerned with
the matters referred to at the beginning of this chapter. There are overlaps
between these two areas of law, eg in the area of the Crown’s status in law,
bearing in mind the Crown’s position and importance in the constitutional
structure of the country and the fact that various statutory powers are exercised
by individuals and organisations acting as servants or agents of the Crown.
4
1.3 The Constitutional Background to

Administrative Law
Although the British constitution is unwritten and not therefore embodied in
any one document, it is usually possible to define some aspect of the British con-
stitutional framework from the existing law, difficult though that may be. In the
previous section on the Rule of Law reference was made to police powers of
arrest. Where it is necessary to ascertain the scope of police powers to enter and
question a person on his own property such an issue has probably arisen from
that person’s refusal to be questioned in such circumstances. If as a result he is
arrested for the obstruction of a police officer in the execution of his duty, con-
trary to s 51 of the Police Act 1964, his conviction will depend on whether there
was an obstruction and whether the officer was acting in the execution of his
duty. Because these terms are not defined by the Act, their definition has been
left to the courts; that is, they are terms of art developed through the common
law. Consequently, this area of the constitution regulating powers of the police
can be defined only by reference to statute and common law, that is, a combina-
tion of Act of Parliament and case law. Accordingly, it is likely that a court
would conclude that there could be no conviction for obstruction under s 51
where the police officer is told to leave the person’s property because, as a tres-
passer, he would not have been acting in the execution of his duty.
There can be no doubt that the Rule of Law requiring government according to
law is fundamental to the constitutional background of administrative law.
There are, however, other facets of the constitutional structure which must be
examined in order to appreciate the true significance of the law’s ability to con-
trol government powers. These other facets include the sovereignty and
supremacy of Parliament, the separation of powers, conventions and preroga-
tive powers.
1.3.1 The sovereignty and supremacy of Parliament

In many countries it is the written constitution which is supreme. Consequently,
where certain fundamental rights are guaranteed by such a constitution,
Parliament cannot legislate in order to remove or modify those rights. This,
therefore, indicates that Parliament is not the sovereign, supreme law-maker.
The Fifth Amendment of the United States constitution, for example, prohibits
the taking of property without just compensation. Accordingly, any legislation
attempting to authorise the compulsory acquisition of a person’s land with little
or no compensation entitlement would be struck down by a court in the United
States as being ultra vires the constitution, indicating that the court is the
guardian of such fundamental constitutional provisions. In the UK, with its
unwritten constitution, it is Parliament which is sovereign and supreme. In
other words, Parliament is the ultimate and, in theory, unlimited law-maker.
5
The ‘primacy’ of enacted legislation (subject to the status of the law of the
European Union) is well illustrated in three cases where it was argued that the
European Convention on Human Rights should be accepted as part of our
municipal law. In the first of these cases – R v General Medical Council ex p
Colman (1990), dealing with a restriction on the advertising of holistic medicine
– it was held by the Court of Appeal that the General Medical Council’s power
was not subject to the Convention because there was no ambiguity in the statute
concerned, the Medical Act 1983. Furthermore the relevant section of the statute
did not deal with the international obligations of the UK under the Convention.
The leading case for present purposes is undoubtedly R v Secretary of State for the
Home Department, ex p Brind and Others (1991) where it was held by the House of
Lords that the Convention does not form part of English law. On the facts of
this case, concerning certain statutory discretionary powers of the Home
Secretary in relation to broadcasting restrictions in Northern Ireland, it was con-
cluded that there is no presumption that that discretion should be exercised in
accordance with the Convention. Nevertheless if there is some uncertainty or
ambiguity in an English enactment, resort may be made to the Convention.
This, presumably, would extend to any similar international Convention. In R v
Secretary of State for the Environment and Secretary of State for Wales, ex p NALGO
(1992) the High Court affirmed the principle that there is no presumption that
formal, substantive legislation should conform to the Convention here in the
context of a dispute about restrictions on the political activities of local govern-
ment officers. More recently, in R v Secretary of State for the Home Department, ex
p McQuillan (1995), Sedley J in the High Court stressed that the jurisprudence of
the European Court of Justice showed that the principles of the Convention now
inform the law of the European Union. Accordingly, our own national law can
now take notice of the Convention in setting its own standards. Ignorance of the
Convention by the common law would therefore be unreal and potentially
unjust. Although the learned judge did not depart from Brind, he concluded that
the legal standards by which the decisions of public bodies are supervised
could, and should, differentiate between ‘fundamental’ rights and those not
enjoying such pre-eminence. At this point Sedley J considered that the standard
of justification of infringements of rights and freedoms by executive decision
must vary in proportion to the significance of the right in issue.
Because Parliament, ie the Queen, House of Commons and House of Lords,
has a theoretically unlimited power to make law by statute, it could legislate on
any matter, but in practice there are all sorts of constraints on its power, such as
political opinion. As a result it is usually accepted that Parliament will not enact
retrospective legislation in order, eg to penalise action which has taken place
previously in the absence of any legal sanctions. Nevertheless, there are occa-
sional exceptions, as in the case of the War Damage Act 1965. This Act was
passed as a result of the decision in Burmah Oil Co v Lord Advocate (1964) where
it was decided that compensation was payable by the government to the com-
6
pany where it had, during wartime, destroyed one of its oil refineries to prevent
it falling into the hands of the advancing Japanese army. In order to prevent
similar claims for compensation for such events which had occurred previously,
the Act of 1965 was framed to act retrospectively.
Such retrospective legislation might be necessary where (for example) money
is spent or action is taken in advance of legislation appearing on the statute book
if there are no statutory powers to justify such expenditure or other action. This
was the issue before the High Court in R v Secretary of State for Health and Others,
ex p Keen (1990) where it was held that pre-existing statutory powers in the
National Health Service Act 1977 were wide enough to justify various acts such
as the preparation of applications for National Health Service ‘trust’ status prior
to new legislation reaching the statute book. Had this not been the case so-called
‘paving’ legislation would have been necessary in order to justify these prepara-
tory acts. However, ‘paving’ powers are to be found in the Health Authorities
Act 1995 in anticipation of the replacement of existing health authorities. Section
3 of the Act stipulates that the functions of ‘existing’ authorities ‘shall include the
power to do anything which appears appropriate for facilitating the implementa-
tion of any provision made by or by virtue of the Act’.
One area of law-making by Parliament which has had profound constitu-
tional implications relates to the UK’s accession to membership of what was
known originally as the European Economic Community (EEC), and now
known as the European Union (EU). As a result of the European Communities
Act 1972 the UK became part of an economic union of Member States of the EU
through acceptance of the Treaty of Rome, which contains the fundamental
laws and constitution of the EU. Accordingly, where EU law governs a situation
then Parliament has disabled itself through the Act of 1972 from legislating in
that area. By way of an example, Article 48 of the Treaty stipulates that there
shall be no discrimination against the workers of Member States from moving
freely between those states. Any attempt by Parliament to legislate, eg to protect
the jobs of UK workers, would be contrary to Article 48 where the legislation
appeared to permit discrimination against workers from other Member States.
More generally, it appears that Parliament gave away some of its sovereignty
and supremacy in legislating the European Communities Act. In theory,
Parliament could repeal the Act to regain its sovereignty and supremacy in full,
although it is argued that the financial and economic implications for the coun-
try would make this very difficult.
In the meantime the European Court of Justice continues to limit the scope of
sovereignty. In Factortame Ltd and Others v Secretary of State for Transport (No 2)
(1990) it was held that where a national court has made a reference to the
European Court of Justice, an English court may grant an injunction against the
Crown or even suspend the operation of an Act of Parliament although there is
no power to do so under English law. It was held by the House of Lords in R v
Secretary of State for Employment, ex p Equal Opportunities Commission (1993) that a
7
Divisional Court of the High Court had power to make declarations that certain
aspects of employment law in the UK were incompatible with Article 119 of the
Treaty of Rome and accompanying Directives. The issue referred to the
European Court of Justice in Factortame concerned the need to set aside a rule of
national law considered to be the sole obstacle preventing the grant of interim
relief in a case before the court concerning the law of the European Union if,
otherwise the full effectiveness of a decision on the substantive issues of Union
law would be impaired. However, in R v Secretary of State for the Environment, ex
p RSPB (1995) the House of Lords has held that while a reference to the
European Court of Justice on questions relating to the conservation of wild
birds and protection of their habitats is extant, it is inappropriate for the
national court to make an interim declaration that it would be unlawful for the
Secretary of State to fail to act so as to avoid deterioration of habitats and the
disturbance of species in an area whose status as a special protection area is
under consideration. The reason for this limit is the uncertainty of the scope and
nature of any such obligation to act, an uncertainty that may be resolved only
following the response of the European Court of Justice.
Where Parliament has enacted statute law its legality cannot be challenged in
the High Court, as is the case in a country like the United States of America,
where laws cannot be made which contravene fundamental provisions of the
written constitution. In the leading case of Pickin v British Railways Board (1974)
Lord Reid said that ‘the function of the court is to construe and apply the enact-
ments of Parliament. The court has no concern with the manner in which
Parliament or its officers ... perform these functions’. There are two qualifica-
tions to this fundamental rule. First, and as seen previously in the reference to
the EU, any attempt by Parliament to legislate contrary to the terms of EU law
might be challenged directly or indirectly in the High Court or the European
Court of Justice. In the case of any clash then clearly EU law would have to pre-
vail. However, where such a challenge is made in the High Court it could be
argued that, because the judges have to interpret and apply the latest law, any
statute which is inconsistent with the requirements of the European
Communities Act should prevail. In other words, and particularly where
Parliament has legislated in full knowledge of the European Communities Act
and its full effect, any later Act which is inconsistent with EU law would have to
be applied by the High Court. The second qualification depends on the impor-
tant distinction between primary and delegated or secondary legislation which
is dealt with in Chapter 8. Where a statute confers a power to make rules, regu-
lations, bylaws and so on, the minister, local authority or other agency exercis-
ing such a power to make delegated legislation must remain within the terms of
the primary legislation. Failure to do so means that the delegated legislation is
ultra vires the primary, enabling legislation. In practice these problems tend to
arise where a person has been prosecuted for failure to comply with the dele-
gated legislation, in which case his argument will be that he cannot be convicted
for breach of, eg statutory regulations which themselves are ultra vires.
8
It has been seen that the High Court cannot question the validity in law of
primary legislation so that the Act of Parliament must be interpreted and
applied as it appears in the statute book. Although it is not the task of this book
to cover the refinements of statutory interpretation, it should be emphasised
that such interpretation can sometimes lead to a frustration of Parliament’s orig-
inal intention. There is no better example of this than in the House of Lords
decision in Anisminic v Foreign Compensation Commission (1969). The Foreign
Compensation Act 1950 stated that decisions of the Commission (an administra-
tive tribunal) should ‘not be called in question in any court of law’. Despite this
apparently clear statement of Parliament’s legislative intentions, it was decided
that the court could question the legality of a Commission decision if in law it
was no decision at all, that is, if it was an ultra vires decision.
1.3.2 The separation of powers

In very general terms it is possible to say that any constitutional structure
involves the deployment of legislative, executive and judicial powers.
Consequently there are facilities for law-making, the implementation and
enforcement of the laws so made, and for the adjudication of disputes arising
from one or both of these processes, according to the constitutional context. In
some constitutions there is a clear recognition of the need for a separation of
these three powers. In the United States, for example, the Federal constitution
gives Congress the legislative powers, the President executive powers and the
Supreme Court the judicial powers. In the UK the separation of powers is recog-
nised through the guaranteed independence of the judiciary, bearing in mind
that the executive government effectively controls the legislative functions of
Parliament, as long as it can maintain an effective parliamentary majority. In R v
HM Treasury, ex p Smedley (1985) the Court of Appeal refused to adjudicate the
validity of the government’s decision to seek authority for payment of a supple-
mentary EU budget by an Order in Council (an item of subordinate legislation)
rather than an Act of Parliament.
This decision is an example of the court’s reluctance to interfere with the
government’s legislative choice. This judicial reluctance to interfere will be seen
in greater detail later in the book, in Part 3. It will be seen there that the court is
concerned with the legality of administrative action through the process of judi-
cial review. In other words, administrative action may be challenged on the
basis that there is no authority under the law. This limitation means that there
can be no judicial interference with the merits of administrative action, suggest-
ing that Dicey’s reliance on judicial control as a cornerstone of the Rule of Law
is an over-emphasis on what the courts can achieve in examining administrative
action. Nevertheless the courts may be amenable to some creativity as self-
styled ‘guardians of the public interest’. For example, the Court of Appeal has
held that the prescription of a statutory duty may be subject to qualification in
the public interest. In R v Registrar General, ex p Smith (1991) the Court of Appeal
9
upheld the Registrar General’s refusal to produce a birth certificate on the

ground that it might be used to commit serious crime.
Where all three powers become vested in the executive government there is
clearly cause for anxiety, and many distinguished writers have pointed to the
loss of democratic freedom which is likely to flow from such an arrangement. A
particularly graphic example comes from a case in Ceylon (as it then was),
Liyanage v R (1967), where a potentially dangerous situation was saved by a
judicial insistence that the separation of powers was a feature of the constitution
of that country. In that case the court heard that, following a coup d’état, the gov-
ernment introduced retrospective legislation defining a new offence and pre-
scribing a sentence covering the conduct of the captured ring-leaders.
In practice, the separation of powers is a useful doctrine in order to measure
any undue shift of power toward the executive. Although it is very difficult to
define what is meant by the three powers, it is importance to recognise the scope
and extent of a government’s executive or administrative powers, and its judicial
powers. A Committee on Ministers’ Powers, which reported in 1932 and which
was also concerned with the growth in the use of delegated legislation, consid-
ered that an administrative decision is a matter for the minister’s discretion, pos-
sibly under the influence of policy, while a true judicial decision involves a
dispute between two or more parties where there is an objective application of
the law to the facts as found. It was recognised that within government certain
decisions arise from the adjudication of disputes, but in a policy atmosphere. In
this case the function would be labelled a ‘quasi-judicial’ function; eg where a
landowner’s rights are in issue following his objection to a compulsory purchase
order made in respect of his land. It is in these circumstances that the law has to
be vigilant in order to ensure adequate safeguards for those whose rights are
affected by such quasi-judicial decisions of the executive government, particu-
larly in areas where decisions are preceded by statutory inquiries, the subject of
Chapter 3. A great deal of administrative adjudication is undertaken by adminis-
trative tribunals where, again, it is a matter of importance that their judicial deci-
sions should be seen to be safeguarded from government interference and
influence. Consequently the law demands that tribunals and their functions
should be effectively separate from the government departments under which
they are constituted and with whose decisions they often deal on appeal.
Administrative tribunals are the subject of Chapter 5.
Where statute confers a decision-making function on a minister of the Crown
within a particular government department it is through an independent judi-
ciary that this function may be supervised to ensure that the decision is made
within the relevant statutory powers. Accordingly, through the High Court
there may be recognition of the fundamental constitutional requirement of
adherence to the Rule of Law and recognition of a limited separation of powers
in the existence of an independent judiciary.
10
The minister, therefore is subject to the law in the exercise of his statutory
powers. However, the minister is responsible to Parliament for the way in
which he exercises these functions, eg in matters of departmental policy.
Because the minister is the political head of his department he is ultimately
responsible for the actions of civil servants within that department. This means
that while the civil servant remains anonymous, the minister is publicly
accountable for his actions although this has not often led to his resignation. In
essence, therefore, ministerial responsibility may provide some opportunity for
parliamentary criticism of a government department’s operation even though a
very small proportion of the work carried out is actually referred to the minis-
ter. Just as the minister is politically accountable for the actions of his civil ser-
vants, so, too, he is legally responsible. In both cases the law considers that the
civil servant is the minister’s alter ego. This matter is explored further in Chapter
9 which deals with the issue of delegation of functions and decisions in govern-
ment departments and local authorities.
1.3.3 Conventions
Conventions are essentially rules of political practice which arise, and may dis-
appear, as a matter of expediency. Bearing in mind the previous reference to the
supremacy of EU law over the municipal law of the individual Member States,
it is probably the case that in the UK Parliament there is now a convention that
there will be no legislation which is contrary to EU law. There are many other
conventions, eg that the Queen invites the leader of the majority party in the
House of Commons to form a government. Generally, however, conventions are
of marginal interest only to administrative lawyers, primarily because they are
not likely to say very much about the scope of statutory powers and their con-
trol by the law. In Smedley the Court of Appeal recognised the ‘fundamental’
convention that the legislature and judiciary are independent of each other.
Insofar as constitutional conventions are of interest to lawyers they represent ill-
defined ‘markers’ of constitutionality. Where a government acts arbitrarily or
oppressively it may be subject to political criticism. Whether it would be subject
to challenge as to the legality of its actions here would necessarily depend on
the nature and context of the action. However, departure from a convention is
not per se an unlawful action.
1.3.4 Prerogative powers

Historically, the monarch was able to exercise a great many absolute powers but
with the development of democratic, constitutional government it is often the
case that these powers are conventionally exercised by ministers of the Crown.
There are very few prerogative powers which impinge on and affect individuals
and it is for this reason that prerogative powers are employed by the govern-
ment, through the Crown, principally in order to conclude treaties with foreign
11
governments, to declare war and to make contracts. It has been said that the
prerogative is part of the common law because prerogative powers are recog-
nised, but not enforced, by the courts, and that it is the sum total of powers
which are peculiar to the Crown because they are powers not possessed by any
individual.
The picture of prerogative powers being largely immune from judicial chal-
lenge has changed since the decision of the House of Lords in Council of Civil
Service Unions v Minister for the Civil Service (1985) (the ‘GCHQ’ case). A decision
to exclude union membership from GCHQ in Cheltenham was upheld on
grounds of national security. Nevertheless, but for such a justification and in the
absence of the usual consultation for changes proposed in working arrange-
ments these prerogative procedures may have been enforced in favour of the
unions.
Statutory powers which govern the functions and activities of most adminis-
trative agencies are both recognised and may be enforced by the courts.
Therefore, the courts will be able to decide where prerogative powers stop and
statutory powers begin. Where the Crown acted unlawfully in its dealings with
an individual, eg in relation to the grant or withdrawal of a passport, the court
had no power to intervene to protect him as long as the action was recognised
as an exercise of prerogative powers. Although the granting and withdrawal of
passports is generally regarded as being subject to the prerogative, there was
until recently some doubt as to whether these powers could be challenged suc-
cessfully before the courts. In R v Secretary of State for Foreign and Commonwealth
Affairs, ex p Everett (1988) the Court of Appeal decided that a refusal to renew or
reissue a passport was a prerogative discretion reviewable by the court. Because
the applicant had suffered no prejudice, even though he was given no reasons
for failure to renew, the court declined to quash the decision. Accordingly such
powers are recognised by the courts which have considerable influence here in
marking the boundary with statutory powers which, in many cases, have super-
seded prerogative powers. In Attorney General v De Keyser’s Royal Hotel Ltd
(1920), eg, it was argued unsuccessfully by the Crown that compensation for the
requisition of an hotel was entirely a matter for its discretion since it was acting
under prerogative powers in wartime. It was decided by the court that the req-
uisition and compensation were now governed by statutory provisions which
had superseded the prerogative regulation of such matters. No such overlap
was found in R v Secretary of State for the Home Department, ex p Northumbria
Police Authority (1988). The court found that the Home Secretary has an exclu-
sive prerogative power to issue plastic baton rounds or CS gas to a chief consta-
ble without the consent of the police authority in order to respond to actual or
apprehended breaches of the peace. From the foregoing it is clear that the court
has jurisdiction to review the exercise of the royal prerogative of mercy by the
Home Secretary. In R v Secretary of State for the Home Department, ex p Bentley
(1993) the court recognised that the royal prerogative is an important element in
12
the system of criminal justice. Any such prerogative decision ought not to be
immune from challenge before the court merely because action is prerogative
action. Accordingly, the High Court held that a decision not to recommend a
posthumous pardon to Derek Bentley was flawed and, therefore, the Home
Secretary was invited to reconsider his decision.
The second point referred to above is that the prerogative is the sum total of
powers which are peculiar to the Crown. If it is accepted that the Crown’s
power to make contracts is part of its prerogative powers, this picture of the
prerogative is inaccurate, bearing in mind that most individuals have the capac-
ity to make contracts. Nevertheless, in the case of those prerogative powers
which remain unaffected by statutory provisions, most of the prerogative is con-
cerned with matters which do not necessarily interfere with individuals’ rights
and interests, that is, matters where the executive should (arguably) have rela-
tive freedom of action. In practice, that freedom of action may be severely cir-
cumscribed by the need for political and financial support for various schemes
to be pursued through the use of prerogative powers. In theory, there is no
necessity for parliamentary sanction for an exercise of prerogative powers: in
practice, however, political and financial support will often be crucial.
While the prerogative can be described as the sum total of powers which are
peculiar to the Crown, there may be occasions when the courts find that these
powers are closely linked with and sometimes depend on statutory powers and
provisions.
In this situation it is also clear that prerogative powers are being subjected to
legal enforcement by the courts. A graphic example occurs in the case of Laker
Airways Ltd v Department of Trade (1977) where the company was granted a
licence by the Civil Aviation Authority to operate the Skytrain Service from
London to New York. Before the new air service could begin it was necessary
for the company to be ‘designated’ by the government for the purpose of a
treaty with the United States called the Bermuda Agreement. This treaty desig-
nation was subsequently withdrawn by the government and the Civil Aviation
Authority was required to withdraw the licence. It was decided by the Court of
Appeal that the Department of Trade was acting ultra vires in requiring the
withdrawal of a licence by the Authority: at that time the Civil Aviation Act
1971 permitted withdrawal of a licence only in a limited number of situations,
such as a wartime emergency. It was also decided that the government could
not withdraw its designation of Laker Airways since the company had already
obtained its statutory licence. In other words, the statutory powers relating to
air route licensing act as a legal restriction on the exercise of the government’s
prerogative powers. The general issue arose also in R v Secretary of State for the
Home Department, ex p Fire Brigades Union (1995) where the Secretary of State
attempted to perpetuate a prerogative-based, ex gratia scheme of compensation
for criminal injuries. At the time there was statutory provision for such a
scheme, albeit not in force. In these circumstances the Court of Appeal held that
13
while these statutory provisions remained unrepealed it was not possible for the
Secretary of State to initiate by prerogative a materially different scheme.
1.4 Administrative Law in Perspective

It has been seen that the essential task of administrative law is to provide a legal
control in relation to the exercise of administrative powers conferred on various
administrative agencies for all sorts of different purposes. Perhaps the most visi-
ble manifestation of this control is an independent judiciary in the shape of the
High Court exercising a supervisory role by which it reviews administrative
action to ensure that it is not ultra vires particular statutory powers or even in
excess of prerogative powers. This is the essential character of the subject, but it
does not convey the complete picture since administrative law and its rules
involve not only a rather negative form of control over the exercise of powers
but also a rather more positive aspect. Through its task of interpreting the scope
of statutory and other powers the High Court should be concerned to identify,
not only the express limits of the powers, but any realistic implied powers
which may not be spelt out quite so clearly. In this way it is possible to avoid a
situation where a statutory scheme in an Act of Parliament becomes unwork-
able. In addition, there will be occasions where the interpretation of the statu-
tory powers will expedite administration or where a mere technical
non-compliance with the statutory requirements will not lead to the action
being condemned as ultra vires.
As the rules of administrative law have been developed by the judiciary, so
they have influenced the course of administration. In Chapter 11 reference is
made to the decision of the Court of Appeal in Coleen Properties Ltd v Minister of
Housing and Local Government (1971) where the minister’s confirmation of a com-
pulsory purchase order was quashed as being ultra vires because he had no evi-
dence from the local authority making the Order that it was reasonably
necessary to acquire some of the land covered by the Order. In this instance the
local authority had not, for some reason, produced evidence for this purpose at
the public local inquiry into the Order. There can be little doubt that the lessons
to be learned from this case were not lost on local authorities. Of course, it is not
every administrative proposal or decision which gets as far as the High Court:
such litigation is very much the exception although the principles and rules
which emerge from it are often extended or modified to fit the requirements of
administration at the grass roots. On many occasions the body or person
entrusted with administrative decision-making will have no clear guidance on
the law to be applied in a particular case. On other occasions, eg where a minis-
ter of the Crown is part of the decision-making hierarchy, he will perhaps
develop a body of rules and principles from his own appeal decisions. These
rules and principles gain the status of ‘quasi-law’ unless they are overturned in
14
subsequent litigation. In time it is likely that these rules and principles will
shape attitudes to policy or provide a framework for decisions by other bodies
in the same decision-making hierarchy, in which case the minister may publish
these items, eg in circulars issued to local authorities.
The rules of administrative law governing judicial review and the remedies
for unlawful administrative action which are dealt with in Parts 3 and 4 relate to
the exercise of statutory powers governing all types of administrative function.
It is clearly impossible to know all there is to know about these functions, not
only because of the mass of primary and secondary legislation underpinning
these functions but also because of the often formidable amounts of non-statu-
tory details, such as policies, which provide their life-blood. Consequently, any
study of administrative law will be restricted to an examination of the broad
rules arising from the doctrine of ultra vires and other principles governing the
merits of administrative action, with a general appreciation of the consequences
in law of their application to the different statutory powers which govern these
many functions.
A study of administrative law cannot be restricted to an examination of judi-
cial review and the doctrine of ultra vires, crucially important though they are,
for the reasons outlined previously. At various points in this introduction to the
subject it will be seen that there are facilities beyond the courts by which admin-
istrative action may be challenged, not because it is ultra vires any statutory
powers, but because it is in some way ‘irregular’ action. For this reason, some
space is devoted to the work of the various ‘ombudsmen’ whose concern is with
maladministration, and some other institutions whose task it is to monitor and
deal with the complaints of the individual arising from his dealings with
bureaucracy. In this way a complete picture can be conveyed of the way in
which administration is accountable either (and perhaps most importantly) to
the law directly or to other institutions whose task may be seen in terms of
strengthening the traditional methods of dealing with grievances arising from
government and administration, through Parliament.
Accountability to the law is not necessarily a comprehensive protection for
the individual in his dealings with government and administration. Judicial
review in the High Court is concerned only with whether administrative action
is within the administrative agency’s powers. If it is outside the agency’s pow-
ers, the court may well quash the resulting decision or other action as ultra vires.
Beyond this and any general statutory appeals on the merits of some adminis-
trative action, the law does not provide many other constructive remedies for
the individual affected by unlawful or irregular administrative action. Although
the private law of negligence may provide damages for the person suffering
loss, eg as a result of negligent advice from a government official, there is no
public law remedy providing damages for the person adversely affected by
ultra vires action. This is clearly a serious gap in the law and one which is only
15
partially filled by the provision of ‘non-legal’ remedies like the ombudsmen

whose powers do not extend to the making of legally enforceable awards of
compensation against the agencies that they are required to investigate.
16
2 The Crown and Central Government
2.1 The Conduct of Government

On those occasions when the government of the country is being discussed it is
not unusual to hear references to ‘the Crown’. The impression, therefore, is that
it is the Crown which undertakes a great deal of the government of the country,
but it may not always be clear what is meant by this expression and what are its
legal and practical consequences.
In theory the Crown, epitomised by the monarch, exercises her various statu-
tory and prerogative powers personally. In practice, the constitutional conven-
tion is that she exercises virtually all such powers on the advice of and through
her ministers. Thus the expression ‘the Crown’ may have a number of distinct
meanings. For example, used in one context it may seek to denote the monarch,
that is the constitutional Head of State; whilst used in another context, it refers
to the sum total of powers exercised by that body of persons who are collec-
tively termed the executive. Those ministers who form part of the executive and
who advise the monarch in relation to her statutory powers are responsible to
Parliament for their exercise. However, the normal practice is for Parliament to
confer statutory powers on the individual minister who is specifically identified
in the legislation. In s 68 of the Education Act 1944, for example, it is provided
that:
If the Secretary of State [for Education] is satisfied ... that any local education
authority ... have acted or are proposing to act unreasonably with respect to
the exercise of any power conferred or the performance of any duty imposed
by or under this Act, he may...give such directions as to the exercise of the
power or performance of the duty as appear to him to be expedient.
The consequence of this normal practice is that the minister is again responsible
to Parliament in law to ensure that he acts within his statutory powers and not
ultra vires. Although the minister is acting as ‘a minister of the Crown’ here, the
statutory powers are conferred on him in his capacity as a named minister
whereas he acts as a ‘servant or agent of the Crown’ in his conventional exercise
of any powers actually conferred on the Crown. Although in this latter respect
the Crown is equally obliged to ensure that its exercise of statutory powers is
not ultra vires, it is the case that the Crown, including any servant or agent of the
Crown, has not been subject to some of the remedies normally granted in the
High Court to deal with ultra vires administrative action. It will be seen in
Chapter 14 that it is the Crown Proceedings Act 1947 which excludes such reme-
dies against the Crown. Consequently, the statutory powers of a minister when
17
he is not acting as a servant or agent of the Crown would appear to be more

amenable to judicial review by the High Court.
The normal practice whereby statutory powers are conferred on an individ-
ual minister is a clear reflection of the administrative convenience of having
responsibility for a particular function placed with the political head of the rele-
vant government department. Such an arrangement may be explained also as a
matter of political policy, or as a combination of administrative convenience and
political policy. The Education Act 1993 states, in s 1, that the Secretary of State
for Education ‘... shall promote the education of the people of England and
Wales’. This duty is matched by the duty of each local education authority
under s 8 (as amended) to secure that there should be available for their area
sufficient schools for providing full-time education suitable for the require-
ments of pupils of compulsory school age. This pattern of statutory provision is
clearly explained by the original political choice of strategy for education
whereby central government policies are implemented locally and subject to
some central control through the powers in s 68, referred to previously. By way
of contrast, some functions may involve more than one government depart-
ment. In this case there might well be practical difficulties in conferring a func-
tion on one named minister, in which case Parliament would undoubtedly
confer the powers on the Crown. One common example occurs in relation to the
making of delegated legislation by virtue of various statutory powers. Such a
power may be exercised by ‘Her Majesty by Order in Council’ where formal
assent to an Order, an item of delegated legislation referred to in Chapter 8, is
given at a meeting of the Privy Council. Again, any minister or ministers exer-
cising such powers in the name of Her Majesty would be acting as servants or
agents of the Crown, thereby attracting some legal immunity from certain of the
remedies normally available in respect of ultra vires administrative action.
A minister of the Crown may be at the head of a government department
which may or may not be an ‘incorporated’ department. If the statutory provi-
sions establishing a government department indicate that it is incorporated, it
can undertake its numerous transactions in its own name. Incorporation is
therefore of some practical importance, eg to the Department of the
Environment in view of its need to hold and dispose of a great deal of property.
While this department is incorporated, the Civil Service Department is not, and
this may be a reflection of the fact that such a status is not so crucial to such a
department. Where the department is incorporated the various functions and
powers of that department will be exercised, usually in the name of the desig-
nated minister at the political head of that department.
The conferment of statutory powers upon a minister is thus a well estab-
lished feature of the UK’s system of government. Countless Acts of Parliament
conform to this practice, whatever the precise formulation of words which they
chose to adopt, but, as a matter of convention, it is very rare to discover a statu-
tory provision which expressly confers powers on the Prime Minister. In some
18
THE CROWN AND CENTRAL GOVERNMENT
respects this may be viewed as an oddity, especially since it is the Prime

Minister who is, without doubt, the head of the government in that he effec-
tively has the power to appoint, promote and even dismiss ministerial col-
leagues. Nevertheless, the pre-eminent position of the Prime Minister in the
British system of cabinet government has not ensured that the post is commonly
referred to in statute. Indeed, it is widely acknowledged that the first occasion
on which the Prime Minister was mentioned in legislation was in the Chequers
Estate Act 1917. Thus when this wider statutory anonymity is borne in mind, it
is perhaps rather less surprising that statutory powers are rarely conferred upon
the primus inter pares.
2.2 Legal Immunities of the Crown

It has been seen earlier in this chapter that certain coercive remedies are not
available against the Crown, or a servant or agent of the Crown, by virtue of the
Crown Proceedings Act 1947. Another immunity under the same Act stipulates
that any rights or interests of the Crown shall not be prejudiced by statute
unless the statute refers to the Crown expressly or by necessary implication. It is
the case that this immunity usually means that the Crown is not liable to pay
rates and various types of taxes. Beyond these categories it is difficult to gener-
alise about the scope of the Crown’s statutory immunities. One important area
of such immunity relates to air pollution control legislation such as the Clean
Air Act. This was the issue in Nottingham No 1 Area Hospital Management
Committee v Owen (1957) where it was the Committee’s statutory obligation to
carry out its duties on behalf of the Minister of Health. He in turn was required
to hold all National Health Service hospitals on trust for ‘the Crown’. In these
circumstances the court decided that a hospital was Crown property and so
exempt from the penal provisions of a statute – the Public Health Act 1936 –
which sought to control smoke nuisances. It was in this and similar contexts
that the Fifth Report of the Royal Commission on Environmental Pollution
(1976) commented that: ‘Hospitals seem to take most advantage of Crown privi-
lege ... Nevertheless it is most important that hospitals should do their best to
control smoke, particularly when they are in residential areas where smoke con-
trol is proposed or operative.’
Whether the Crown is to be covered by and subject to any liabilities under a
statute may be a matter of some considerable importance. Unless there is some
vigilance on the part of those involved in the legislative process, there is always
a danger that an important new statute with perhaps far reaching implications
will contain no reference to the Crown. The only certainty in this area is where
the Crown is expressly mentioned somewhere in the statutory provisions. The
only other possibility whereby the Crown would be bound occurs where it is
possible to conclude that the Crown is bound by the statutory provisions ‘by
necessary implication’. In a case from India decided by the Judicial Committee
19
of the Privy Council, Province of Bombay v Municipal Corporation of Bombay (1947),

it was concluded that in the absence of any express words the Crown is bound
only where its exclusion would completely frustrate the working of the legisla-
tion. The case involved certain statutory powers allowing the laying of pipes
and mains in land within the city, a statutory scheme which did not require the
Crown to be bound by necessary implication in order to achieve such objects.
This decision was considered in the Scottish courts in Lord Advocate v Strathclyde
Regional Council (1988) where it was decided that enforcement notices served
under the Town and Country Planning Act on the Ministry of Defence were
binding on the Crown. In what appears to be a significant reconsideration of the
law here it was concluded that the special rules of statutory construction seen
above will apply only where the result will be to encroach on the Crown’s
rights, interests and privileges. In the instant case no such rights, interests or
privileges were in issue as the Ministry sought to encroach on the highway in
the process of repairing a perimeter fence.
2.3 Crown Servants and Agents

Bearing in mind that some statutory functions are performed not by a minister
in his own name (albeit as a minister of the Crown) but by or in the name of the
Crown, it is a matter of some importance to decide which individuals or organi-
sations come under its umbrella as ‘servants or agents of the Crown’. This status
is of considerable significance for the reasons already given.
Whether any individual or body can be regarded in law as being a Crown
servant or agent may be a matter of statutory interpretation. One of the leading
cases is Tamlin v Hannaford (1949). The issue for the court was whether the
British Transport Commission could be regarded as a servant or agent of the
Crown. The Commission was landlord of a house whose tenant was Tamlin. In
turn, Hannaford was Tamlin’s sub-tenant. Tamlin wanted possession of the
house from Hannaford. It was claimed by Hannaford that he was protected in
proceedings for possession in a county court by the Rent Restriction Acts which
were not expressly binding on the Crown. This claim was rejected by the county
court which decided that the house was held by the Commission as an agent of
the Crown. On appeal in the Court of Appeal it was decided that Hannaford
was protected by the Rent Restriction Acts which did apply to the Commission
since it was not a body connected with the Crown and its legal immunities in
this context. Giving the Court of Appeal’s judgment, Denning LJ also observed
that:
... the Commission’s servants are not civil servants, and its property is not
Crown property. It is as much bound by Acts of Parliament as any other sub-
ject ... It is, of course, a public authority and its purposes, no doubt, are pub-
lic purposes, but it is not a Government department nor do its powers fall
within the province of Government.
20
On those rare occasions when there is no clear indication in the statute whether
a body is a Crown servant or agent, the above words from the judgment in
Tamlin will provide some indication that where the function is within the gen-
eral category of industrial and commercial functions it is unlikely that the body
will enjoy any Crown status. Accordingly, in Mersey Docks and Harbour Board v
Gibbs (1866) the trustees of the Liverpool Docks were held to be liable to a
shipowner in respect of their negligence which caused damage to a ship
through stranding on mud. Although the trustees attempted to hide behind the
legal immunities then available to the Crown, the House of Lords considered
that this would not be possible, broadly because the trustees were concerned
with commercial functions, not governmental functions referable to the Crown.
By contrast, in Pfizer v Ministry of Health (1965) the House of Lords decided that
the treatment of National Health Service patients was a governmental function
so that the use of drugs was ‘for the services of the Crown’, bearing in mind that
the Hospital Board in question was found to be acting on behalf of the Minister
of Health. Broadcasting, on the other hand, was not considered a governmental
function in British Broadcasting Corporation v Johns (1965) so that the Corporation
could not claim Crown immunity from taxation. However, where premises are
let as business premises for use by various central governmental agencies, the
likelihood is that they are let to the Crown as tenant, whose business is govern-
ment. It was in these circumstances that the House of Lords decided in Town
Investments Ltd v Secretary of State for the Environment (1977) that it was not the
Secretary of State for the Environment who was the tenant, but the Crown.
Consequently, when the company contracted with the Secretary of State to let
the premises they were, in fact, contracting with the Crown, which is synony-
mous with the government.
It was seen previously that it is rare for there to be any doubt about Crown
status. Normally, a body will be a Crown servant or agent, or not. Nevertheless,
there may be some hybrid bodies. One of the better-known examples of the
exclusion of the Crown status affects the Post Office. The Post Office Act 1969
states that the Post Office ‘is not to be regarded as the servant or agent of the
Crown, or as enjoying any status, immunity or privilege of the Crown’. By con-
trast, the Health and Safety at Work Act 1974, referring to the Health and Safety
Commission and its Executive, states that: ‘The functions of the Commission
and of the Executive and of their officers and servants shall be performed on
behalf of the Crown’. Finally, an example of a hybrid body, the Atomic Energy
Authority, which shares the Crown’s immunity from the payment of rates but is
not otherwise associated with the Crown. For these purposes the Atomic
Energy Authority Act 1954 states that: ‘Any land occupied by the Authority
shall be deemed for the purposes of any rate on property to be property occu-
pied by or on behalf of the Crown for public purposes’. The same section of the
Act goes on to declare that: ‘ ... save as otherwise expressly provided in this Act,
the Authority is not to be treated for the purposes of the enactments and rules of
21
law relating to the privileges of the Crown as a body exercising functions on

behalf of the Crown’.
2.4 Central Government Functions

In general terms it is possible to distinguish between those administrative agen-
cies responsible for the initiation of governmental or other administrative action
and those which are adjudicative agencies in that they are responsible for the
adjudication or resolution of disputes arising from administrative action.
Central government departments, local authorities and some public corpora-
tions are prime examples of those agencies which initiate governmental or other
administrative action. Administrative tribunals and inferior courts are those
bodies most obviously responsible for the adjudication of administrative dis-
putes. However, there is no rigid division between these categories since some
central government departments in particular act as adjudicative agencies.
Where this is the case and a central government department is given the respon-
sibility for an adjudication, this is almost always an indication that there is a sig-
nificant policy element in the decision-making process. An important example
occurs in the Town and County Planning Act 1990 which empowers local
authorities and the Secretary of State for the Environment to control most uses
of land by the statutory requirement that if a person wishes to carry out ‘devel-
opment’ on land, he is normally required to apply to the local planning author-
ity for planning permission to enable (say) the building of houses or some
material change in the use of the land such as the storage of motor vehicles on
land hitherto used for agricultural purposes. Each local planning authority is
obliged to make a policy which provides an element of guidance for some of the
important decisions that have to be made on applications for planning permis-
sion. Some of these policies must be approved by the Secretary of State who is
able to impose his own policy preferences for which he is in turn responsible to
Parliament. While the Secretary of State can take the initiative in requiring a
planning policy to be made, he remains responsible for the adjudication of plan-
ning disputes where, in particular, the local planning authority refuses to grant
planning permission from which decision he has to decide any appeal under-
taken by the disappointed applicant.
From the foregoing it has been seen that it is the policy element which usu-
ally characterises the various administrative functions which are conferred on
central government departments. It is this policy element which often explains
the nature of the powers conferred by statute on government departments.
Whether a government department is required to initiate administrative action,
to control other administrative agencies in their performance of various statu-
tory functions or to act as an adjudicative agency from a decision of another
administrative agency, such functions are usually defined in terms of a discre-
tion, as illustrated in the earlier reference to s 68 of the Education Act 1944. The
22
essence of any such discretion is that the administrative agency has the oppor-
tunity to make a choice of action to take as long as that choice is made within
the limits of the statutory powers concerned. Therefore, the Secretary of State
for Education could not use his s 68 powers for a purpose unconnected with
education. The opportunity to choose a course of administrative action is clearly
important where the administrative agency is charged with the function of initi-
ating such action. Equally, it is a matter of importance that there should be some
guidance in the exercise of the discretion. Consequently, if the performance of
some statutory function depends on the availability of finance, a policy would
enable the definition of priorities where such finance is scarce.
Although it is the policy element which usually determines whether a func-
tion goes to a central government department or is subject to some control from
the same direction, there are other variables which go to make up the picture.
For example, there may be a measure of political sensitivity associated with
some administrative decisions, for example, in which case such decisions will
probably remain with a government department rather than being conferred on
an administrative tribunal or some other adjudicative body. A good illustration
arises from the context of immigration control under the Immigration Act 1971
where one crucial area of control remains exclusively with the Home Secretary,
namely, the question of whether a person’s presence in the UK is ‘conducive to
the public good’. In some cases a function clearly has some local dimensions in
which case the option may be between the function being conferred on the rele-
vant local authorities or a local regional division of a particular central govern-
ment department. Clearly, in these circumstances the option will be between
two democratically accountable bodies, that is, the council of a local authority
and the relevant minister of the Crown. Whichever option is chosen may
depend on factors such as the need to retain a strong central government policy
influence, eg in the case of the various localised statutory functions of the
Department of Health and Social Security, or the need to recognise local sensi-
tivity and expertise, eg in the case of town and country planning. Even with this
latter case and in similar areas such as education it is clear that central govern-
ment control is not lacking.
Where a statutory function has been conferred on a central government
department, it has been seen that there will almost certainly be a policy element
involved in that function. This will be true whether the function relates to a
decision on whether secondary education should be reorganised or a decision
on the question of whether a compulsory purchase order should be confirmed.
In both cases and in many others the decision of the responsible minister may
be dominated by the need to reconcile any matter of policy with the individual
rights and interests of those affected by any proposed action involving (say) the
confirmation of proposals for the introduction of comprehensive education or
the confirmation of a compulsory purchase order. Is the need for more housing
land locally and nationally outweighed by the fact that land contained in the
23
local authority’s compulsory purchase order is good quality agricultural land,

efficiently farmed by the principal objector to the order? It is this crucial ques-
tion which can receive close scrutiny, before the minister takes the final deci-
sion, through the medium of a public, statutory inquiry. Such an inquiry is
provided for by many statutes prescribing administrative action by a minister of
the Crown, whether based on local authority proposals or not. As such it is a
fundamentally important part of the bureaucratic process. Indeed, in the area of
town and country planning it is the case that many planning appeals are now
decided by the minister’s inspector who conducts the inquiry, so expediting
decision-making. These and other aspects of the system of statutory inquiries
are examined in the next chapter.
24
3 Statutory Inquiries
3.1 Categories
It has been seen already that statutory inquiries are provided for as a prerequi-
site for many decisions by central government departments. Such decisions may
arise principally from proposals initiated by local authorities, as seen in the
examples already given, or by the central government department itself as
where the Department of Transport seeks to provide a trunk road under the
Highways Act 1980. In addition to these inquiries there are various other cate-
gories of statutory inquiry which, although resorted to much less frequently,
need to be noted. These other inquiries fall into three categories: accident
inquiries, company inquiries and tribunals of inquiry.
3.1.1 Accident inquiries

Accident inquiries relate mainly to railway, aircraft, factory and shipping acci-
dents. Each category is governed by its own statutory provisions and there are
considerable variations although there is usually some measure of formality for
the majority of these inquiries. In the case of an inquiry into a railway accident
under the Regulation of Railways Act 1871 there are very few formalities and
the inquiry culminates with a report from the Department of Transport’s rail-
way inspectorate. Nevertheless, the Secretary of State can direct a formal inves-
tigation under the chairmanship of, eg a county court judge. In considering the
form of a statutory accident inquiry, much may depend on the powers which
are conferred. In the case of inquiries into shipping accidents convened by the
Department of Trade under the Merchant Shipping Acts 1894–1995 there is a
power to withdraw certificates of competence. This power probably explains
why such inquiries are very formal, with a number of judicial trappings and
right of appeal to the High Court in respect of any suspension or withdrawal of
certificates of competence. However, an enduring problem occurs where, as
seen in the inquiry into the sinking of The Herald of Free Enterprise in March 1987,
criticism is forthcoming in relation to the Department of Trade itself. Such criti-
cism might relate to departmental approval of ship design that is eventually
found to be defective as a result of an accident at sea.
3.1.2 Company inquiries

Although there are various facilities for inquiries in the general commercial con-
text, one of the best-known areas relates to the power of the Department of
25
Trade and Industry to appoint an inspector where it appears that fraud is being
or has been committed or that the members of a company have not been given
all the information they might reasonably expect. This power is found in the
Companies Act 1985 and where such an inquiry is convened it is usually the
case that any allegations are preceded by an investigation of the company and
its financial and other affairs. This two-stage procedure can attract problems. It
will be seen in Chapter 10 that natural justice requirements of fair procedure do
not apply at the first stage although any inspector from the Department is
legally obliged to act fairly so that there may be some occasions where an indi-
vidual should have some notification of the types of information being investi-
gated. Otherwise the inspectors’ powers are very widely drawn and this led
Lord Denning to observe in Re Pergamon Press Ltd (1971) that:
Their proceedings are not judicial proceedings. They are not even quasi-judi-
cial, for they decide nothing; they determine nothing. They investigate and
report. They sit in private and are not entitled to admit the public to their
meetings. They do not even decide whether there is a prima facie case.
3.1.3 Tribunals of inquiry

Beyond Parliament tribunals of inquiry have the widest powers of inquiry in
English law. They are set up by virtue of the Tribunals of Inquiry (Evidence) Act
1921 following resolutions of both Houses of Parliament and deal with matters
of urgent public importance. The chairman is normally a High Court judge and
other members may be appointed to the tribunal in addition. Normally, the
government requires no special powers to set up an inquiry. However, the pow-
ers in the Act of 1921 are necessary because they enable a tribunal of inquiry to
use powers of compulsion to require the attendance of witnesses and the pro-
duction of documents, among other things. The Act also gives all the powers of
the High Court for the purpose of dealing with contempts on those occasions
when there is a refusal to comply with any requirements of a tribunal of
inquiry. One of the most notable tribunals of inquiry investigated the Aberfan
disaster in 1966 and since then there has been some anxiety about the operation
of these tribunals. It is possible that various allegations may be made against
those who may or may not be participating in the inquiry’s deliberations and
which cannot be made the subject of civil or criminal proceedings in some cases.
Consequently, the absence of various safeguards, such as any right to legal rep-
resentation, rules of evidence or right of appeal, may mean that there is very lit-
tle protection for those who may be adversely affected by the operation of those
tribunals. Bearing in mind the areas which have been subject to this form of
inquiry over the years, such as the ‘Bloody Sunday’ shootings in Londonderry
in 1972, the collapse of the Vehicle and General Insurance Co in 1971 and the
aforementioned Aberfan disaster in 1966, these are safeguards of fundamental
importance.
26
STATUTORY INQUIRIES
3.2 Inquiries and the Public Control of Land

Although the statutory inquiry is provided for as a part of many decisions taken
by various ministers in central government departments, there is no doubt that
the more important and frequent inquiries occur in relation to decisions affect-
ing land. More particularly the Town and Country Planning Act 1990 governing
the need for planning permission for the development of land together with a
wide variety of other statutes authorising the compulsory purchase of land
under the procedures set out in the Acquisition of Land Act 1981 provide for
decisions to be made by the Secretary of State for the Environment. Such deci-
sions will in some cases be policy-based. In a previous example it was seen that
a proposal to acquire land compulsorily for the building of houses may be sup-
ported strongly by the ‘confirming authority’, the Secretary of State for the
Environment. Such support may be grounded in a policy to encourage more
house building in areas of pressing need and such a policy may even be used to
override strong objections based on the fact that the land in question is of good
agricultural quality.
3.2.1 The individual and policy-based decisions

Where statute provides for a policy-based decision there are clear dangers for
those affected by any proposal to purchase land for a public function such as the
provision of housing or a proposal submitted to a local planning authority to
develop land. In the first instance a compulsory purchase order will go to the
Secretary of State who will decide whether it should be confirmed while any
refusal or conditional grant of planning permission could lead to an appeal to,
and a decision by, the same Secretary of State. The dangers inherent in this sys-
tem of decision-making arise from the fact that in law, the Secretary of State can,
in effect, be biased in favour of any particular policy preference so that an indi-
vidual’s rights and interests may not receive adequate recognition. It was
against this background that the government appointed the Franks Committee
on Tribunals and Inquiries in 1955. Its terms of reference were:
... to consider and make recommendations on:
(a) the constitution and working of tribunals other than the ordinary courts
of law, constituted under any Act of Parliament by a minister of the
Crown or for the purposes of a minister’s functions;
(b) the working of such administrative procedures as include the holding of
an inquiry or hearing by or on behalf of a minister on an appeal or as a
result of objections or representations, and in particular the procedure for
the compulsory purchase of land.
27
3.3 The Franks Report on Tribunals and Inquiries

The Franks Committee reported in 1957 and its recommendations covered not
only inquiries but also administrative tribunals, the subject of Chapter 5.
Bearing in mind the Committee’s terms of reference set out above, the following
recommendations were made in relation to inquiries that:
(a) individuals affected by a decision preceded by an inquiry should have
adequate notice of any case to be met;
(b) details of relevant policy should be notified at the inquiry;
(c) inspectors conducting inquiries in this context should be under the con-
trol of the Lord Chancellor and not the minister responsible for the deci-
sion;
(d) the inspector’s report should be published, together with the minister’s
decision letter;
(e) the decision letter should contain a statement of reasons for the minister’s
conclusion; and
(f) the minister’s decision following the inquiry should be subject to review
in the High Court on matters of procedure and substance.
These recommendations were accepted by the government with the exception
of the recommendation that inspectors should be under the control of the Lord
Chancellor. Implementation has been through statute and administrative action.
The principal statute was the Tribunals and Inquiries Act 1958 which was modi-
fied and consolidated in the Tribunals and Inquiries Act 1971. In turn this legis-
lation was consolidated in the Tribunals and Inquiries Act 1992. One of the
major features of the first Act of 1958 was the establishment of the Council on
Tribunals which, despite its name, has equally important supervision of public
inquiries. According to the Act of 1971 its principal function in relation to
inquiries is:
... to consider and report on such matters as may be referred [to it under the
Act], or as the Council may determine to be of special importance, with
respect to administrative procedures involving, or which may involve, the
holding by or on behalf of a minister of a statutory inquiry, or any such pro-
cedure.
The term ‘statutory inquiry’ here means an inquiry or hearing held in
pursuance of a statutory duty, or a discretionary inquiry or hearing desig-
nated as being under the Council’s superintendence and held by virtue of a
statutory power. Hearings are private and although various Acts provide for
such hearings, most functions in this context are discharged through the
public local inquiry.
3.3.1 Implementation of the Franks Report: the Council on

Tribunals
There is little doubt that the most important development arising from the
Franks Report was the Council on Tribunals although the Report makes only
28
STATUTORY INQUIRIES
oblique references to such an idea. The Council comprises no more than 15 nor
less than 10 members appointed by the Lord Chancellor and the Lord Advocate.
There is also a Scottish committee. The Council reports to the Lord Chancellor
and the Lord Advocate. In its Annual Report for 1975–76 the Council reviewed
its functions in the following terms:
[O]ur role is entirely an advisory one ... Constituted as we are of part-time
members, with a small supporting staff, we cannot do more than exercise a
broad oversight over the working of tribunals ... We are not an inspectorial
body ... We perform a similar advisory role in overseeing the many and var-
ied procedures applicable to the large number of different kinds of minister-
ial hearings or inquiries held each year. We are not an appellate body with
powers to overturn or alter a tribunal’s decision or a decision of a minister
reached after an inquiry or hearing; and we cannot concern ourselves with
the merits of these decisions ... Our success in achieving changes and
improvements in the tribunal and inquiry systems – whether in structure
and organisation or in procedure – depends on our ability to persuade the
Government of the day to follow our advice ... ministers are under a statu-
tory duty to consult us before making rules of procedure for tribunals under
our general supervision. The Lord Chancellor is under a similar duty when
he makes procedural rules or regulations for statutory hearings or inquiries
... The Council’s powers to deal with complaints are not clearly defined ...
[W]e attached great importance to complaints since they help us in discharg-
ing our function of supervision, by enabling us to monitor the performance
of the tribunal and inquiry systems, to identify weaknesses and shortcom-
ings which might lead to unfairness, and to advise Departments on remedial
action ... Inquiry procedures, which in [the] early years gave rise to the most
complaints (and the major ones), formed a high proportion of our work. By
1962, new rules for planning appeal and compulsory purchase order
inquiries were in operation, and we had fewer complaints about inquiry pro-
cedures.
3.3.2 Rules of procedure for statutory inquiries

Apart from the establishment of the Council and its supervision of inquiries, the
other major facet of the Report to be implemented is the power of the Lord
Chancellor, contained in the Tribunals and Inquiries Act, to make rules of pro-
cedure for statutory inquiries. Reference has been made to the Council’s com-
ment about the first procedural rules made by the Lord Chancellor in this
context and it is important to note that he is required by the Act to ensure that
they are in compliance with the terms of the Act under which they are to be
used. It has been suggested, eg that when the Town and Country Planning
(Inquiries Procedure) Rules were made they unlawfully extended the categories
of person having the right to appear at a planning appeal inquiry beyond the
categories referred to in the Town and Country Planning Act itself. These and
other rules of procedure governing other areas contain the essence of most of
the Franks Report recommendations which are in turn characterised by the
29
need for ‘openness, fairness and impartiality’ in the system of tribunals and
inquiries. While this latter standard is perhaps easier to attain in the case of
administrative tribunals for reasons which will be seen in Chapter 5, there are
certain difficulties with its recognition in the case of inquiries. Of particular sig-
nificance here is the point emphasised earlier in the present chapter, that the
minister’s decision may be policy-based. Accordingly, the standard of ‘open-
ness, fairness and impartiality’ in inquiry procedure has to be seen as a relative
standard which provides an important safeguard for the individual’s rights and
interests as they are reconciled with the minister’s statutory responsibility for a
policy-based decision.
3.4 Inquiries Procedure and Organisation

In its Annual Report for 1980–81 the Council on Tribunals considered the desir-
ability of statutory rules for public inquiries:
... so that the public may have specified legal rights and not merely privi-
leges which can be taken away at the whim of an organising authority. Rules
let people know exactly what their rights are and give them a proper foun-
dation for an application to the court if those rights are infringed. Equally,
promoting authorities should have no doubt what their obligations are: what
notices and statements should be served, on whom and when. Because rules
say very little about the conduct of the inquiry itself, and leave the Inspector
with an overriding discretion to determine procedure during the inquiry, we
do not accept the popular belief that rules must lead to formality and inflexi-
bility of procedure.
These statutory rules are found in statutory instruments and, as such, are items
of delegated legislation, a subject which is covered in Chapter 8. It has been seen
previously that the rules are made by the Lord Chancellor under the authority
of the Tribunals and Inquiries Act for the purpose of inquiries under various
Acts. The two most important Acts are the Town and Country Planning Act
1990 (in the case of planning appeals and some other planning decisions by the
Secretary of State for the Environment) and the Acquisition of Land Act 1981 (in
the case of decisions relating to compulsory purchase orders submitted usually
by local authorities and made under a number of different statutory powers).
Since it is the case that there are thousands of planning appeals decided each
year, the detailed description of statutory inquiries will concentrate on planning
inquiries. However, the format and structure of other statutory inquiries is very
similar.
3.4.1 Planning appeals and statutory inquiries

The Town and Country Planning Act 1990 s 79 specifies that the Secretary of
State shall, before deciding an appeal against a local planning authority’s deci-
sion to refuse or grant a conditional planning permission, afford ‘an opportu-
30
STATUTORY INQUIRIES
nity of appearing before, and being heard by, a person appointed by the
Secretary of State for the purpose’. Although this provision suggests an alterna-
tive of a private hearing or a public inquiry, in practice it is the public local
inquiry which is usually convened in order to explore the circumstances of the
planning appeal. The ‘person appointed’ is, in fact, the inspector appointed by
the Secretary of State and the power he uses to convene the inquiry is in s 320.
Section 320 of the Act states that ‘the Secretary of State may cause a local inquiry
to be held for the purposes of the exercise of any of his functions under any of
the provisions of this Act.’ Because this is a discretionary inquiry provision it
does not have the status of the mandatory inquiry and is subject to the
Tribunals and Inquiries Act only because it was included in a statutory order
(an item of delegated legislation) to that effect, along with certain other discre-
tionary inquiries. Clearly, therefore, that status is of crucial importance given
the Lord Chancellor’s power to make procedural rules for these important
inquiries and the fact that such inquiries are superintended by the Council on
Tribunals. A further statutory provision which is of significance here is s 250 of
the Local Government Act 1972. The material part of this provision states that
‘[W]here the Secretary of State is authorised to hold an inquiry, either under this
Act or under any other enactment relating to the functions of a local authority,
he may cause a local inquiry to be held’. Although this provision could be seen
as an alternative to the inquiry powers in s 320, that provision may, in fact, bor-
row some of the inquiry powers specified by s 250 so that they may be used for
the purposes of planning inquiries. More particularly, the inspector is empow-
ered to summon persons to give evidence and to take evidence on oath. Failure
to adhere to a summons here is a criminal offence. In addition, the Secretary of
State is empowered to make orders as to costs in relation to such inquiries.
Guidance on the award of costs are usually set down in circulars from the
appropriate government department. The Department of the Environment
states, eg that successful statutory objectors to compulsory purchase orders can
expect an automatic award of costs after making and pursuing a formal objec-
tion at the inquiry. The law relating to evidence at planning inquiries has been
extended in the Planning Inquiries (Attendance of Public) Act 1982 which con-
tains a general requirement that oral evidence shall be heard in public and that
documentary evidence shall be available for public scrutiny. The exceptions
occur where the Secretary of State directs that such disclosure relates to national
security or the security of premises or property and that it would be contrary to
the national interest.
3.4.2 Planning appeal decisions by inspectors

Although it was the case that the Secretary of State decided each planning
appeal, there are now facilities by which many such appeals are, in fact, decided
by an inspector. As a result, the decision-making process is greatly expedited.
Regulations made under the Town and Country Planning Act indicate the pre-
31
scribed classes of decision transferred to the inspectors although it is always

open to the Secretary of State to regain his power to decide a particular appeal,
eg where it involves points of peculiar difficulty or controversy. Where an
inspector is to decide an appeal the parties may request that they are heard
before the inspector in which case a public local inquiry will be convened in
most cases and, again the provisions of s 250 of the Local Government Act may
be stated to apply. Rules of procedure – the Town and Country Planning
(Determination by Inspectors) (Inquiries Procedure) Rules 1992 – apply to the
inquiry and differ very little from the rules relating to the Secretary of State’s
inquiry-based decision. Areas of difference will be examined below. Where, fol-
lowing the inquiry, the parties so desire, they can have advance notice of the
inspector’s decision, although any formal decision cannot exist in law until the
decision letter is received. This is a non-statutory facility which is available only
with the consent of the parties. In a puzzling comment about the transfer of
appeal decisions to inspectors, the Council on Tribunals remarked in its Annual
Report for 1979–80 that:
... an inquiry into a planning application which has been transferred to an
Inspector for decision becomes in effect a tribunal hearing, which makes it
particularly important to emphasise the independent status of the Inspector
and the ‘openness’ of the proceedings.
It has been observed already that the Franks Report standards of ‘openness,
fairness and impartiality’ are more difficult to recognise in the case of inquiries,
bearing in mind the policy base for so many decisions in this and similar areas.
Because the Inspector has to take note of the policy element affecting decisions
here it is really rather difficult to say that he has the judicial characteristics of
independence and impartiality although it cannot be denied that the inquiry
process is essentially open and public.
3.5 Inquiries Procedure Rules

The Rules divide the inquiry process into three parts: the pre-inquiry process,
the procedure at the inquiry and the post-inquiry process. It has been seen that
there are some small differences in the Rules, according to whether the decision
is that of the Secretary of State or one of his inspectors operating under trans-
ferred powers. These differences will be outlined at the end of the following
summary of the Town and Country Planning (Inquiries Procedure) Rules 1992.
3.5.1 Inquiry preliminaries

Having accepted the appeal, this fact will be notified by the Secretary of State to
the local authority whose adverse planning decision has given rise to the
appeal. The authority is then obliged to notify the Secretary of State and appel-
lant of those who have made representations to the local authority in respect of
the original application. If he considers it desirable, the Secretary of State may
32
STATUTORY INQUIRIES
convene a pre-inquiry meeting chaired by the inspector. Thereafter the

Secretary of State fixes the time and venue for the inquiry and is obliged to give
notice of the inquiry to the various parties. The local authority is then obliged to
give a written statement of its submissions to be put at the inquiry. This state-
ment goes to the appellant and those who have made representations about the
application. The Rules provide now for a full exchange of information before
the opening of the inquiry, a more detailed timetable for the inquiry and regula-
tion of any pre-inquiry meetings between any of the parties involved.
3.5.2 Procedure at the inquiry

The appellant and the local authority are the main actors at the typical inquiry.
Together with those who have made representations about certain applications
for planning permission, these parties have a legal right to appear at the
inquiry: any other party will appear at the discretion of the inspector although
that discretion is usually exercised quite freely in favour of any person with a
genuine interest in the application for planning permission and the succeeding
appeal. At the beginning of the inquiry the inspector will explain the back-
ground to the proceedings before allowing the parties – usually through their
representatives – to enter their appearances by explaining their identity and
interest in the inquiry. Beyond the terms of the Rules and subject to natural jus-
tice, the procedure is at the discretion of the inspector. At the outset the appel-
lant opens his case. He produces his evidence, usually by means of witnesses
who may be examined either after or instead of reading a proof of evidence.
Such witnesses may be cross-examined by the local authority and other parties
before a similar process occurs in relation to evidence produced by the local
authority and the other parties. The local authority normally sums up its case
before the other parties are heard and it is the appellant who normally closes
with the final speech, summarising his case. During the inquiry the inspector
may ask questions of the parties and it is a matter for his discretion whether evi-
dence is admitted although the rules of evidence are more flexible than those
found in a court of law. Consequently, evidence can be admitted where it may
be capable of proving some matter of fact. Where any evidence at the inquiry is
considered by the inspector to be contrary to the public interest, he is empow-
ered to exclude it. In the same way he can exclude any evidence or questions
which appear to relate to the merits of government policy. Much depends on
what is defined as ‘government policy’, as will be seen in Chapter 10 on natural
justice which deals with the important decision in Bushell v Secretary of State for
the Environment (1981). Under normal circumstances an inspector’s exclusion of
questions or evidence at an inquiry would be in breach of natural justice, but in
the foregoing areas of evidence, contrary to the public interest or questions
relating to the merits of government policy, the exclusion is made lawful by the
Rules’ statutory authorisation.
It is normally the case that the inspector undertakes a site inspection once the
33
inquiry is over. It is now possible for the Secretary of State for the Environment
to appoint expert assessors to sit with inspectors. This facility will no doubt
apply where complicated, technical evidence is in issue at the inquiry.
3.5.3 Procedure following the inquiry

It is in the procedure following the close of the inquiry that there are a number
of important safeguards which have been incorporated very largely as a result
of the recommendations of the Franks Report. One of the causes for concern
before the advent of the Rules was the apparent freedom with which the minis-
ter could take into account new evidence or some new issue of fact following
the close of the inquiry without giving the parties an opportunity of making
representations. Before this area is covered, it should be noted that there is a
fundamental requirement whereby the inspector is obliged to make a written
report to the Secretary of State following the close of the inquiry. The report
must contain the inspector’s findings of fact and recommendations or his rea-
sons for refraining from making recommendations. Returning to the provision
of safeguards following the close of an inquiry, the Rules proceed on the basis of
two possible occurrences: either that (a) there is a difference on a material fact as
between the inspector and the Secretary of State, or (b) some new evidence or
new matter of fact is taken into consideration by the Secretary of State, as a
result of which in either case the Secretary of State is disposed to depart from
the inspector’s recommendation. In the case of occurrence (a) the Secretary of
State is obliged by the Rules to offer the parties an opportunity of making writ-
ten representations before coming to a decision. In the case of occurrence (b)
there is an obligation to offer a re-opening of the inquiry. These are clearly
important procedural obligations and whether they apply depends on the legal
definition of the key terms such as ‘fact’ and ‘evidence’. In Luke v Minister of
Housing and Local Government (1967) the difference between the inspector and
the minister concerned the question whether a proposed development of land
was ‘sporadic development’ vis-à-vis a neighbouring community. The minister
did not offer the parties an opportunity of making representations on this differ-
ence before coming to his decision. It was decided by the court that the Rules
did not oblige the minister to seek representations because the difference related
only to a matter of planning policy or opinion, and not a matter of ‘fact’. In the
case of Pyrford v Secretary of State for the Environment (1977) it was decided that
whether a firm was a ‘local firm’ for planning purposes was a question of fact so
that there could be no lawful decision until representations had been sought
from the parties in respect of this difference which formed the basis of the
Secretary of State’s decision. In French Kier Developments Ltd v Secretary of State
for the Environment (1977) it was decided that a policy document on land avail-
ability for housing could not be relied on by the Secretary of State without an
offer to reopen the inquiry where that document constituted new evidence
which had not been in issue at the inquiry. Finally, in Portsmouth Water plc v
34
STATUTORY INQUIRIES
Secretary of State for the Environment (1993) a disagreement on the question

whether development would be detrimental to the locality was characterised as
a matter of opinion, not fact.
3.5.4 Notification of a decision and reasons

When the Secretary of State arrives at his decision, the Rules oblige him to
notify that decision to the parties and to include a statement of reasons. A copy
of the inspector’s report will normally accompany the notified decision. Finally,
where the provisions of s 250 of the Local Government Act 1972 apply to the
inquiry, the Secretary of State may make orders as to costs although this power
is usually exercised sparingly.
3.5.5 Procedural differences for decisions by inspectors

Reference has been made to some small differences in the Rules according to
whether the decision lies with the Secretary of State or is transferred to one of
his inspectors. In the case of a decision by an inspector after an inquiry the dis-
cretion as to costs remains with the Secretary of State who is also obliged to
notify the parties of the name of the inspector. Following the close of the
inquiry, the inspector is not obliged to report to the Secretary of State, in which
case he is obliged only to notify his decision and the reasons to the parties.
3.6 Legal Enforcement of the Inquiries Procedure Rules

Reference has been made to the supervisory functions of the Council on
Tribunals in relation to statutory inquiries. In addition to this supervision, the
High Court undertakes the legal enforcement of the Rules governing the
inquiries. Again, the scope of legal enforcement is very similar in relation to
most of the decision-making functions of central government where a statutory
inquiry is involved. Accordingly, the Town and Country Planning Act 1990 is
fairly typical in its provisions which specify that any person aggrieved by the
decision of the Secretary of State in a planning appeal can apply to the High
Court to have that decision quashed on either or both of two grounds, within
six weeks of the decision. The first ground is that the decision is ultra vires the
Secretary of State’s planning powers under the Act, eg where the Secretary of
State allows an appeal and grants planning permission on the ground that the
applicant, that is, the appellant, proposes to finance his building programme on
the site from British, not foreign finance. This topic is pursued in more detail in
Chapter 11. The second ground is that the Secretary of State’s decision is in
breach of the procedural requirements of the Rules and that this breach has
caused ‘substantial prejudice’ to the applicant, ie that there is something more
than a mere technical breach of the Rules. Accordingly, in two of the cases pre-
viously mentioned, Pyrford and French Kier Developments, the High Court
35
quashed the Secretary of State’s appeal decision for a breach of the relevant
post-inquiry Rules. Another area where the High Court has had cause to look
critically at appeal decisions of the Secretary of State relates to the requirement
for reasons to accompany the decision. In the leading case, Save Britain’s Heritage
v Secretary of State for the Environment (1991), Lord Bridge in the House of Lords
stressed that adequacy of reasons cannot be assessed in vacuo: the question is
whether an applicant has been substantially prejudiced by any inadequacy.
Lord Bridge refers to three possible causes of inadequacy:
(a) where reasons are so inadequately or obscurely expressed as to raise a sub-
stantial doubt whether a decision has been taken within the powers of the
Act;
(b) where the planning considerations on which a decision is based are not
explained sufficiently clearly to enable a reasonable assessment of prospects
of success in relation to some alternative form of development; and
(c) where there is a failure to explain the planning considerations influencing
the decision sufficiently clearly so that there is no clear view of their impact
on future applications for planning permission.
The broader scope of the legal obligation to give reasons for administrative deci-
sions is explored further in Chapter 9. Finally, it should be noted that where an
inspector makes a decision under transferred powers this decision is, in law, the
decision of the Secretary of State so that the foregoing legal enforcement of the
Rules and other substantive powers will occur in the normal way.
3.7 Scope of the Statutory Inquiry System

Whether for reasons of efficiency, policy or political expediency, there are occa-
sions when it is necessary, usually from the government’s point of view, to
exclude, restrict or modify the system of statutory inquiries. Looking again at
the context of planning inquiries, there are important examples of exclusion,
restriction and modification and each is now examined in turn.
3.7.1 Exclusion of statutory inquiries

There are two situations where the system of statutory inquiries is excluded, in
relation to the determination of planning appeals by written representations
and by means of hearings. When an applicant for planning permission notifies
an appeal against an adverse decision of the local planning authority, he may be
invited to choose between a hearing or inquiry on the one hand, and written
representations on the other. This latter procedure is statutory, governed by the
Town and Country Planning (Appeals) (Written Representations Procedure)
Regulations 1987. This is achieved through an exchange of the parties’ written
statements where, eg the local authority will defend its decision refusing plan-
ning permission, while the appellant will, of course, argue that the planning
36
STATUTORY INQUIRIES
permission should be granted. Thereafter a decision is made in the normal way

on the basis of the parties’ arguments in the appeal, usually within six to eight
weeks. It is not a procedure which is often used where third parties are
involved in a planning appeal, usually as objectors to the applicant’s proposed
development: their participation in the process would tend to defeat the object
of more expeditious decision-making. If necessary, and even though the parties
have opted for written representations, it is possible for the Secretary of State to
insist that the appeal is conducted without written representations but with an
inquiry. The second area of exclusion relates to the provision of a hearing rather
than the public local inquiry. The hearing is essentially a private process which
is not often used in practice.
3.7.2 Restriction of statutory inquiries

In some cases there is a restriction on the coverage of the statutory inquiry. Before
examining two significant examples in the context of planning, it should be noted
that any objection to a compulsory purchase order which relates to the measure of
compensation payable cannot be accepted and, more particularly, cannot be dealt
with by a statutory inquiry into such an order. Any such objection is a matter for
the Lands Tribunal and so it seems clear that the reason for this restriction reflects
on the complexity of compensation questions, an area which is better dealt with
by the expert Lands Tribunal. Returning to the planning context, the first example
of a restriction on the facilities normally available through the statutory inquiry
occurs in the area of immunity given to the treatment of government policy. It has
been seen already that under one set of Inquiries Procedure Rules there is an
exclusion of questioning which in the inspector’s opinion is directed to the merits
of government policy. This precedent is also carried into other, similar Rules. The
second area of restriction relates to development plans known as structure plans.
These are broad, strategic plans for large areas such as counties. They are made by
the county planning authorities and submitted to the Secretary of State for the
Environment for approval. Before a decision is made, an inquiry must be con-
vened. However, the more conventional statutory public local inquiry is not used,
apparently because there was thought to be a danger that a large number of objec-
tors would be attracted and would be concerned only with detailed land use
issues, whereas the structure plan is concerned only with broad, strategic ques-
tions which are not usually site-specific. For this reason the Town and Country
Planning Act 1990 permits the Secretary of State (or the local planning authority)
to convene an ‘examination in public’ of the structure plan. This contrasts with
the adversarial statutory inquiry which is, in many respects, a court-like process.
The examination in public is, in essence, a round-table discussion of the issues
raised by the proposed structure plan. Accordingly, the Act gives an important
discretion to do two things: first, to draw up an agenda for the examination in
public, and secondly, to identify those persons or groups of persons who should
be allowed to appear.
37
3.7.3 Statutory inquiries and proposals for controversial

development
There may be a fine distinction between the foregoing section on the restriction
of the statutory inquiry and the present section dealing with its modification.
This section is concerned mainly with the extent to which the conventional
statutory inquiry process is adequate to deal with wider issues of national pol-
icy, eg in relation to the country’s energy requirements. The main focus of this
question was the Windscale Inquiry into a proposal by British Nuclear Fuels Ltd
to extend its nuclear reprocessing plant at Windscale. The Secretary of State
used his power in the Town and Country Planning Act to call in the company’s
application for planning permission made to the local planning authority for the
area. To examine the background to and implications of the application, a pub-
lic local inquiry was convened with a High Court judge, Parker J, as chairman,
together with two assessors. Parker J recognised the wide-ranging implications
of the inquiry: ‘the issues to be investigated may affect not only those already
alive and residing in the immediate neighbourhood but also those who live far
away and who will not be born for many years ahead’. The inquiry in common
with other similar inquiries such as that into the proposal to build a pressurised
water reactor at Sizewell, covered many wide-ranging issues, far beyond the
question of whether the site itself was inherently suitable for the proposed
expansion of the nuclear processing facility. Major questions covered included
the issue of whether there should be reliance on nuclear fuel as opposed to nat-
urally generated energy in the UK and the issue of safety in transporting fuel to
and from the site for reprocessing. All the evidence was taken on oath and there
was an exclusion of evidence that might prejudice national security or the
national interest, together with evidence questioning the merits of government
policy, although it appears that this latter exclusion was interpreted quite flexi-
bly during the inquiry. It was finally recommended that planning permission
should be granted, a conclusion which was upheld on a vote following a debate
in Parliament. For technical reasons the Secretary of State decided to refuse
planning permission and then made a Special Development Order (an item of
delegated legislation, a subject covered in Chapter 8) granting planning permis-
sion but incorporating all the safeguards which had emerged from the report of
the statutory inquiry. Despite the controversies surrounding these inquiries, one
emerging trend seen at the Sizewell Inquiry is a differing attitude of some gov-
ernment departments to debates about the merits of government energy policy.
Many campaigners would argue that these inquiries are the only forum where
such debate can occur in a real, detailed context.
3.7.4 The Windscale Inquiry

The major criticism emerging from the Windscale Inquiry was that it and the
planning system as a whole are not able to deal adequately with the wider and
38
STATUTORY INQUIRIES
more controversial questions which are likely to arise from proposals for large-
scale energy developments. Somewhat surprisingly, there are facilities in the
Town and Country Planning Act for what is known as a Planning Inquiry
Commission, which appears to have some, if not all, of the advantages which
may be lacking in the ordinary public local planning inquiry for the purpose of
dealing with large-scale energy development proposals. The Planning Inquiry
Commission, although it has not been used, is intended to operate in two stages.
Initially it considers the broad background to a proposal on the basis of evi-
dence provided by the promoters of the scheme, the local authority, objectors,
and so on. The second stage involves a local inquiry in conventional form and
permits an investigation into the scheme and objections to it. Such a
Commission, if it were ever employed in this context, would be comprised of
experts in the appropriate fields of activity whose conclusions and recommen-
dations would be very persuasive. Having established a reputation, such a
Commission would be seen as an increasingly popular instrument in the face of
proposals for large-scale energy development. However, there is one significant
precedent in this context, namely, the Roskill Commission, which investigated
proposals for a third London airport between 1969 and 1971. A number of sites
were subject to general investigation initially until just four sites were singled
out, at which point local inquiries were held at each site and, eventually, one
large inquiry was convened at which the arguments for and against each of the
sites were heard. The one site which was recommended as a result was rejected
following a debate in Parliament, the result of which was that Parliament rec-
ommended the site at Foulness which had been included in the final list of four
sites. The process took three years, which may be a significant argument against
the employment of such a Commission.
3.7.5 The statutory inquiry in future

There have been various proposals for a better modification of the system of
statutory inquiries for cases involving complex, controversial issues of national
and perhaps international dimensions. Nevertheless, the largely conventional
framework has continued to be used for inquiries into proposals to mine coal in
the Vale of Belvoir and to build a pressurised water reactor at Sizewell in
Suffolk. Given the political and policy controversy which frequently arises from
the large scale development proposal, particularly in the context of energy, it is
not surprising perhaps that the government should want to maintain a flexibil-
ity of response which it can do within the present system with the existing
framework of statutory inquiries. A radical modification of the statutory inquiry
system through the creation of an expert, investigative body could make it more
difficult for a government to resist proposals and recommendations which run
counter to its existing policies.
39
4 Local Authorities
4.1 Status and Functions

Local authorities are statutory corporations established in tiers for the perfor-
mance of a wide variety of local functions prescribed by statute. Local authori-
ties act through their respective councils comprising democratically elected
members. Most of the law relating to the status of local authorities is found in
the Local Government Act 1972 which introduced a reorganised system of local
government in 1974. That Act defined the main units of local government, the
county and district councils, the metropolitan county and district councils and
the parish councils (known as community councils in Wales). The metropolitan
county councils and the Greater London council were abolished (with effect
from 1 April 1986) by the Local Government Act 1985 and their functions trans-
ferred to other local authorities such as the metropolitan districts and London
boroughs. The Local Government Act 1992 created a Local Government
Commission for England. The Commission’s functions include the review of
local government areas for the purpose of recommending ‘structural changes’
such as the creation of unitary authorities in non-metropolitan areas by a fusion
of certain existing county and district councils.
4.1.1 County councils

County councils’ responsibilities include education, personal social services,
highways and transportation, town and country planning, the police and con-
sumer protection. Education and personal social services are responsibilities
undertaken by the metropolitan district councils.
4.1.2 District councils

District councils’ responsibilities include town and country planning, housing,
environmental health and the making of bylaws. These principal responsibilities
also relate to the metropolitan district councils although it has been seen that
these councils have responsibilities for education and personal social services,
among others. Although the county councils have responsibilities for planning
in addition to those of the district councils, it is the latter which are designated
as the principal planning authorities by statute in order to deal with most
aspects of this function. In some cases the function is exercised concurrently
between the two main tiers of local government, eg in the case of parks and
open spaces. On other occasions there is a clear ‘dovetailing’ of functions, eg in
40
LOCAL AUTHORITIES
the case of waste management under the Environmental Protection Act 1990,
where the county council is normally the waste regulation authority while the
constituent district councils are the waste collection authorities. The
Environmental Protection Act requires a county council, in connection with its
waste management functions, to operate also as a waste disposal authority. In
an effort to separate regulatory matters (involving the grant of waste manage-
ment licences for the deposit, disposal or treatment of ‘controlled’ waste) and
operational matters where, previously a county council would (along with the
private sector) provide disposal facilities, the Act imposes important obligations
on the waste disposal authority. Any such authority is obliged to ‘privatise’ its
operational waste disposal operations or place them with an ‘arm’s length com-
pany’ thereby effectively ‘neutralising’ local authority control. In a few
instances and particularly in the case of sewerage and related services a district
council often acts as agent for the sewerage undertaker plcs created under the
Water Industry Act 1991. Finally in this context, a number of statutory provi-
sions require that a district council is consulted by a county council before it
exercises a function, particularly on those occasions when development plan
schemes are being made in order to co-ordinate the making of planning policies
in a county.
4.1.3 Local government in Wales

The Local Government (Wales) Act 1994 is the first legislation to deal exclu-
sively with local government in Wales. After 1 April 1996 the eight county coun-
cils and 37 district councils established by the Local Government Act 1972 are to
be abolished, to be replaced by 22 ‘principal councils’: so-called ‘unitary author-
ities’.
4.1.4 London government

Since the Local Government Act 1985, virtually every function is undertaken by
the London borough councils. Before the Act came into force the provision of
education was the responsibility of the Inner London Education Authority
(ILEA), then a specially constituted committee of the Greater London Council
(GLC), in the case of the 12 inner London boroughs. When the Act abolished the
GLC the ILEA became a directly elected education authority. Each of the outer
London boroughs continues to act as an education authority. With effect from
April 1990 the ILEA was abolished under the terms of the Education Reform
Act 1988.
4.1.5 Parish councils

Well over 1,000 parish councils in England, and their equivalent community
councils in Wales, exercise numerous functions. These elected bodies, usually
serviced by a part-time clerk, have limited powers to make bylaws, powers to
41
deal with footpaths, to provide community centres, to acquire land for use as
open space, the right to be consulted by the local planning authority in respect
of relevant applications for planning permission, the right to issue precepts on
the relevant district council to fund its various functions, and so on.
4.2 The Local Authority as a Statutory Corporation

The focal point of a local authority is its council of elected members which is
declared by the Local Government Act to be a body corporate under the name
of the county or district council concerned. As a corporate entity the council
lasts for ever, even though its membership will change from time to time. As a
separate legal entity in law, the council can act as an individual in acquiring and
disposing of all types of property for the fulfilment of its various functions. In
the same way it has the capacity to enter into contracts, again for the fulfilment
of its various functions. Finally, and again as an individual corporate entity, the
council of a local authority can sue and be sued in its own name. All of this
makes for a more efficient discharge of business for the local authority.
4.2.1 The acquisition of property

In order to fulfil its functions a local authority will have to acquire all types of
property, from office furniture to land for the building of houses. A large num-
ber of statutory powers exist to facilitate these transactions. These powers may
be expressed in very broad terms or in very specific terms. As a rule of thumb,
the powers will be broadly defined where local authorities can conclude volun-
tary contracts or similar transactions while the powers will be closely defined
where the local authority has to use compulsion, primarily in the area of the
compulsory acquisition of land. By way of an illustration of this latter area, s 226
of the Town and Country Planning Act 1990 permits the compulsory acquisition
of land for planning purposes. More specifically, the section allows the local
planning authority to acquire land in its area which is suitable for and is
required in order to secure the carrying out of one or more of the following
activities, namely ‘development, redevelopment and improvement’ or ‘which is
required for a purpose which it is necessary to achieve in the interests of the
proper planning of an area in which the land is situated’. Any compulsory pur-
chase order made under this power has to be submitted to the Secretary of State
for the Environment for confirmation. His decision whether to confirm will be
taken after a public local inquiry into any objections to the order. By way of con-
trast, the Local Government Act contains a broadly defined power to acquire
land by agreement for the purpose of any function and for the ‘benefit,
improvement or development’ of a local authority’s area (s 120). In addition to
these statutory powers to acquire land compulsorily or by agreement, the local
authority, acting again in its own name, is empowered by s 123 of the Local
42
LOCAL AUTHORITIES
Government Act to dispose of land, subject to general consent of the Secretary

of State.
These statutory powers may be open to scrutiny by the court which may be
invited to decide that they are subject to restriction, usually by reference to what
Parliament is said to have intended.
Section 120 referred to above also contains a power whereby a local author-
ity will manage any land so acquired ‘for the benefit of their area’. In a case
where the local authority purported to use this power in order to ban stag hunt-
ing on its land – R v Somerset County Council, ex p Fewings (1995) – the Court of
Appeal held that the power was exercisable by reference to wider questions of
public benefit rather than narrower questions of ethics, animal welfare and
social considerations. On the other hand it has been held – in R v Barnet London
Borough Council, ex p Islam (1991) – that the power of disposal in s 123 must be
exercised in good faith, fairly, reasonably and for proper purposes after consid-
eration of all the issues involved.
4.2.2 Contracts
As statutory corporations with functions to fulfil, it is clearly necessary for local
authorities to have an effective power to enter into contracts, eg for the supply
of goods and services. It would be impossible to define precisely every purpose
for which a contract has to be made in the day-to-day discharge of functions
which explains the very broad power in s 111 of the Local Government Act. This
section empowers a local authority, subject to some limitations, to ‘do anything
(whether or not involving the expenditure, borrowing or lending of money or
the acquisition or disposal of any property or rights) which is calculated to facil-
itate, or is conducive or incidental to, the discharge of any of their functions’.
There are, in addition, a number of specific powers for the making of contracts
in some areas, eg where it may not be clear whether s 111 extends to cover the
particular transaction. Nevertheless, s 111 is very widely defined and does per-
mit virtually any contract which is in some way reasonably referable to a local
authority’s function or functions. The powers have not often been challenged in
the courts hitherto but in R v Greater London Council, ex p Burgess (1978) it was
decided that a closed shop agreement between a local authority and a trade
union was within the powers of the section. On the other hand, in R v Wirral
Metropolitan Borough Council, ex p Milstead (1989), the court found that a factor-
ing arrangement where the authority agreed to sell anticipated receipts from
council house sales to increase statutory limits on spending powers was not
covered by s 111. Such an agreement was not incidental to the sale of the council
houses. The House of Lords in R v Richmond-upon-Thames London Borough
Council, ex p McCarthy and Stone (Developments) Ltd (1991) had to deal with the
legality of a local authority practice of providing advice on planning matters
and the charging for such advice. It was held that, in the absence of any specific
43
power or duty to provide advice, s 111 gives an implied power for this purpose.
To provide advice in respect of planning matters is calculated to facilitate or is
conducive or incidental to the discharge of the local authority’s planning func-
tion. On the other hand, it was held that imposition of a charge could not be
seen in the same light and was therefore unlawful. The parties to this litigation
agreed that a fundamental assumption underpinning the case was the principle
in Attorney General v Wilts United Dairies Ltd (1921), a case dealt with in Chapter
8. Accordingly a charge may not be imposed unless authorised expressly or by
necessary implication in the statute concerned. Because the giving of advice was
characterised by the House of Lords as a ‘subsidiary’ power by virtue of s 111,
to charge for the exercise of that power is, at best, ‘incidental to the incidental’
and not incidental to the discharge of functions.
The useful powers in s 111 may be subject to other statutory requirements
which may restrict its coverage. In North Tyneside Metropolitan Borough Council v
Allsop (1991) it was held that a local authority has no power by statute to pay
compensation under a voluntary redundancy scheme in excess of amounts pre-
scribed by statute and subject to approval by the Secretary of State. Similarly, in
Morgan Grenfell and Co Ltd v Sutton London Borough Council (1995) a local author-
ity used s 111 in order to guarantee and indemnify a loan made to an unregis-
tered housing association. Because s 111 is subject to any ‘subsequent
enactment’ the local authority’s action was unlawful and ultra vires by virtue of
the later Act – the Housing Association Act 1985 – that prohibits the giving of
guarantees to unregistered housing associations. On the other hand, in Credit
Suisse v Waltham Forest London Borough Council (1994) it was held that a local
authority acts within its statutory powers when it guarantees the obligations of
a company which it had helped to set up and to which it lent money with a
view to fulfilling its obligations to house the homeless. However, in Credit Suisse
v Allerdale Borough Council (1994) it was stressed that although a local authority,
in order to execute a statutory function, may establish a company and guarantee
any borrowing, that guarantee is unlawful if it is given on the basis of irrelevant
and impermissible considerations. Furthermore, the guarantee is void and
unenforceable, regardless of the lender’s ignorance of the local authority’s posi-
tion here.
The power of a local authority to enter into speculative financial transactions
– so-called ‘rate swaps’ – again focuses attention on s 111 powers. The House of
Lords in Hazell v Hammersmith and Fulham London Borough Council (1991) has
held such transactions to be ultra vires in the absence of any express statutory
authority to enter into the transactions and the fact that s 111 does not extend to
such activity. Furthermore, and although rate swaps are ‘part’ of the local
authority borrowing process, the House of Lords held that Part I of Schedule 13
to the Local Government Act regulating the power of borrowing could not jus-
tify rate swaps as being calculated to facilitate or conducive or incidental to, the
44
LOCAL AUTHORITIES
discharge of the money borrowing function. Lord Templeman was content to

conclude that:
The authorities show that a power is not incidental merely because it is con-
venient or desirable or profitable. A swap transaction undertaken by a local
authority involves speculation in future interest trends with the object of
making a profit in order to increase the available resources of the local
authorities.
In the context of this important decision it has been held also that one of the
banks involved could recover the necessary funds advanced on the basis, inter
alia, of unjust enrichment as an aspect of quasi-contract and the fact that pay-
ments had been made by the bank under a purported contract that was ultra
vires and void: Westdeutsche Landesbank Girozentrale v Islington London Borough
Council (1993).
The Local Government Act 1988 introduces new restrictions on contractual
powers. Section 17, eg, requires a local authority to exercise its functions with-
out reference to ‘non-commercial considerations’. In R v Islington London
Borough Council, ex p Building Employers Confederation (1989), eg, standard con-
tract clauses requiring contractors to comply with statutory requirements on sex
discrimination and health and safety were found to infringe the section.
Nevertheless, contracts can promote race relations objectives in conformity with
s 71 of the Race Relations Act 1976. Note also that the Act of 1988 introduces
new requirements for competitive tendering by authorities.
4.2.3 Extended powers

Beyond the power in s 111, s 137 of the Local Government Act empowers a local
authority, again subject to some limitations, to ‘incur expenditure which in their
opinion is in the interests of and will bring direct benefit to their area or any
part of it or all or some of its inhabitants’. This power relates to any transaction
which is not already provided for by statute as a particular function and is lim-
ited to the product of a statutory formula. Section 137 was in issue in Manchester
City Council v Greater Manchester Council (1980) when it was decided that the
establishment of a trust fund to provide monies for the private education of
some children in the Greater Manchester area was within the s 137 powers, even
though the council in question was not an education authority. A number of
local authorities have used these powers in order to establish and found private
companies for the purposes of promoting industrial development in their
respective areas. The Local Government Act 1986 now restricts the scope of the
section where its powers are used for publicity. The powers can be used only
for the production of economic development in a local authority’s area where
that publicity is incidental to other activities undertaken for that type of promo-
tion. Over-reliance on s 137 in relation to economic development activities is
now alleviated by s 33 of the Local Government and Housing Act 1989. This
45
provision now provides a specific power to take ‘such steps as they [the local
authority] may from time to time consider appropriate for promoting the eco-
nomic development of their area’.
Because controls like those in s 111 apply to local authorities Parliament has
legislated to ensure that similar statutory controls apply to companies influ-
enced or controlled by them. However, the controls – contained in Part V of the
Local Government and Housing Act 1989 – focus essentially on the local author-
ities themselves. According to the type of influence or control a local authority
will be subject to differing controls in its conduct of business through a com-
pany. Each local authority concerned is subject to a duty to ensure, so far as is
practicable, that any company subject to influence or control complies with rele-
vant statutory regulations. Failure is sanctioned through the classification of any
expenditure as unlawful expenditure.
4.2.4 Local authorities’ contracts and the doctrine of ultra vires

Wherever a local authority strays beyond the statutory limits of the various
powers prescribing its right to acquire property, make contracts and to enter
other transactions, it will be acting ultra vires so that the acquisition, contract or
transaction will have no effect in law that is, it will be null and void. As an ultra
vires contract it cannot be enforced so that one of the parties could not seek pay-
ment, for example. There was one notable exception to this general rule in the
context of the Secretary of State for the Environment’s control of local authori-
ties’ capital expenditure under the Local Government Planning and Land Act
1980. Where the Secretary of State considered that a local authority had failed or
was likely to fail to comply with prescribed limits for capital expenditure he
could direct that contractual expenditure should not exceed the limit. If that
direction was not adhered to, any contract entered into for this purpose was
ultra vires, but it would not be null and void as between the local authority and
the other party. As a result it would appear that the members of a local author-
ity who sanctioned such contractual expenditure could be surcharged and face
other penalties which will be described in section 4.4.2. Finally, it is a funda-
mental rule of the law that a local authority cannot use a contract or, indeed,
any other means in order to fetter or prevent its exercise of functions prescribed
by statute (Stringer v Minister of Housing and Local Government (1971)).
4.2.5 Ultra vires in practice

Although ss 111 and 137 of the Local Government Act bring a useful measure of
flexibility to many areas of local government activity, there will be occasions
when the more specific statutory powers will be in use and when it will be nec-
essary to decide how far they extend. It is clearly impossible for Parliament to
legislate for every detail which is likely to arise from the exercise of such pow-
ers. It is equally unrealistic for the law to insist that a local authority should
46
LOCAL AUTHORITIES
operate strictly within the express limits of the statutory powers. Accordingly,
the courts have attempted to apply the doctrine of ultra vires so that local
authorities can do all those things which are implied from or are incidental to
the express statutory powers. In most instances, any other approach would frus-
trate the working of the legislation. This approach can be illustrated with the
case of Attorney General v Crayford Urban District Council (1962) where the local
authority proposed to introduce a scheme of compulsory insurance for the per-
sonal property of its residential tenants. The scheme was introduced under s 111
of the Housing Act 1957 (now s 21 Housing Act 1985) which states that the ‘gen-
eral management, regulation and control of houses provided by a local author-
ity ... shall be vested in and exercised by the authority’. It was decided by the
Court of Appeal that the scheme was not ultra vires because the statutory pow-
ers implied that the local authority could pursue the general social welfare of its
tenants.
4.2.6 Challenging local authorities’ ultra vires acts

There are three methods by which an ultra vires act may be challenged:
(a) by an application for judicial review in the Queen’s Bench Division or,
exceptionally, by an application for a declaration or an injunction in the
High Court, topics which are covered in Chapter 13;
(b) indirectly where an individual is prosecuted in a criminal court for an
alleged failure to comply with some order, notice or licence: the individual
may attempt to avoid conviction by establishing that the order, notice or
licence was ultra vires so that he could not be convicted for failure to comply
with something which does not exist in law;
(c) by means of audit, where the auditor finds that an item in the local authori-
ty’s accounts is ‘contrary to law’. If this finding is confirmed on application
to the High Court by the auditor the amounts involved may be surcharged
to the members responsible who may also find themselves excluded from
membership of the council.
4.3 Legal Control of Local Authorities

Control of local authorities by the court is clearly crucial but the bulk of control
occurs outside the courts. In practice, a great deal of control is exerted over local
authorities by central government, particularly, in the area of finance. This con-
trol is often discrete control where the lever which encourages local authorities
to keep within statutory and non-statutory limits is the knowledge that a lot of
financial support for their functions comes from central government. It will be
seen that central government has many other means of ensuring that local
authorities adhere to the law and preferred policies through various powers by
47
which central government can approve schemes, make decisions on appeals,

and so on. Each of these areas of control is examined in turn.
4.4 Local Government Finance and its Control

In very broad terms, local authority expenditure falls into two categories: cur-
rent (revenue) expenditure covering items such as wages, salaries and the cost
of running buildings, and capital expenditure, covering the acquisition of assets
like roads and buildings. Current expenditure has been financed from various
sources including the Council Tax introduced by the Local Government Act
1992, grants from central government as well as from other revenue such as
rents and charges.
Some services such as housing attracted specific grants from central govern-
ment. Much capital expenditure is financed by borrowing within limits set by
central government.
4.4.1 Central government control

The statutory control of local government finance by central government is a
very complex matter. Much of the statutory control of capital expenditure, eg, is
to be found in the Local Government and Housing Act 1989 as well as the Local
Government Finance Act 1982, as amended. The Act of 1982 is dealt with,
below. The Act of 1989 empowers the Secretary of State to prescribe what is to
be regarded as a ‘capital receipt’. The Act gives the Secretary of State wide pow-
ers to demand information from local authorities. Failure by a local authority to
comply further empowers the Secretary of State to make and impose certain
‘capital assumptions’ and estimates.
4.4.2 Audit
Local authority accounts are subject to audit by an auditor appointed by the
Audit Commission. The Commission was created by the Local Government
Finance Act 1982 and its membership of not less than 15 but no more than 20 is
appointed by the Secretary of State for the Environment in consultation with the
local authority associations and the professional accountancy bodies. The
Commission is a corporate body. It does not act as an agent of the Crown and its
members, officers and employees are not Crown servants. The Secretary of State
is empowered to give the Commission directions as to the discharge of its func-
tions whereupon it is the Commission’s duty to give effect to those directions.
An auditor appointed by the Commission may be an officer of that body or a
private accountant. It is the duty of an auditor in examining the accounts to sat-
isfy himself that statutory standards for accounts have been adhered to, that
proper practices have been observed in compiling accounts and that the body
whose accounts are being audited has made proper arrangements for securing
48
LOCAL AUTHORITIES
economy, efficiency and effectiveness in its use of resources. He is also required

to comply with a code of audit practice, compiled by the Commission, and to
consider whether, in the public interest, he should make a report on any matter
to the body subject to audit or that such a report should be brought to the atten-
tion of the public. In undertaking the audit, the auditor has a right of access to
documents and a right to information and explanation for the purpose of that
audit. Any person interested has a right to inspect the accounts to be audited
and other relevant items such as contracts and receipts. A local government
elector for the area has a right to question the auditor about the accounts and a
right to object to the audited accounts. A decision of the auditor on an objection
must be supported by reasons. Where such an objector is aggrieved by a deci-
sion of the auditor not to act in connection with an alleged illegality, any loss
due to wilful misconduct or a failure to bring a sum of money into the accounts,
he may appeal either to the county court (where the amount in issue is less than
the financial limits for this court) or the High Court. However, where the audi-
tor considers that any item of account is contrary to law he is empowered to
apply to the court for a declaration to that effect except where it is sanctioned by
the Secretary of State. Whoever applies, the court has a power to surcharge any
person responsible for incurring or authorising the unlawful expenditure and a
power (where the expenditure exceeds £2,000) to disqualify the person respon-
sible from membership of a local authority unless the court is satisfied that the
person acted reasonably or believed that the expenditure was authorised by
law. It should be noted that where a local government elector makes an applica-
tion or where the Commission considers it desirable in view of an auditor’s
report or other reason, the Commission can require that an extraordinary audit
of a local authority’s accounts is undertaken. The legislation provides a number
of other powers of enforcement. An auditor may issue a prohibition order in
anticipation of unlawful local authority expenditure. During the currency of the
order, the subject action of the local authority is suspended. However, a prohi-
bition may be appealed to the High Court. In addition, an auditor has related
powers to seek a judicial review of the legality of local authority action.
More generally, in deciding whether an item of account is contrary to law,
the tests to be applied are those in Giddens v Harlow District Auditor (1972) where
it was stated that the auditor can intervene where the council has:
(a) refused or neglected to take into account matters which it ought to have
taken into account; or
(b) taken into account matters which it ought not to have taken into account; or
(c) come to a conclusion so unreasonable that no reasonable authority could
ever have come to it.
In effect, the auditor can intervene where an item of account is ultra vires and
the three grounds for intervention just mentioned are among those which are
used in the High Court to review the legality of administrative action generally,
as to which, see Chapter 11. Each of the three grounds for intervention by the
49
auditor can be illustrated from cases which have been before the courts. Ground
(a) was in issue in Barnes v District Auditor for No 11 District (1976) where the
council paid excessive wages which were lawfully disallowed by the auditor.
The court agreed that the council ‘wrongly neglected to take into account the
provisions of the Pay Code, the advice of their officers and the National Joint
Council, and the interests of the rate payers’. By contrast, in Pickwell v Camden
London Borough Council (1982) the council settled a pay claim by their striking
manual workers at a rate in excess of the later national settlement. It was
decided by the court that the council had not incurred an item of account con-
trary to law, primarily because it had not failed to take into account the legally
relevant interests of the rate payers and had balanced the interests and welfare
of its workforce, another legally relevant factor. Ground (b) occurred in Taylor v
Munrow (1960) where expenditure incurred in failing to increase rents, as
required by law, was disallowed because the council was influenced by a
legally irrelevant consideration, namely, a desire to protect tenants from rent
increases under the Rent Act. Finally, ground (c) was in issue in Backhouse v
Lambeth London Borough Council (1972), another case concerned with a council’s
attempt to avoid rent increases for many tenants, this time under the Housing
Finance Act 1972. In order to avoid such increases, the council took one of its
houses and imposed an artificial rent of £18,000 per week, the amount which
would have been yielded had the tenants been subject to the increase. It was
decided by the court that this was totally unreasonable and so ultra vires. In
other words, Parliament could never have intended that the provisions of the
Housing Finance Act should be used in this way.
4.5 Central Government Control of Local

Authorities
It has been seen that there are very comprehensive controls imposed on local
authorities in relation to finance, with particular reference to limits on the
amounts which can be sought from central government and the purposes for
which money can be spent. Other forms of statutory control will be examined in
this part of the chapter, with particular reference to the relationship between
central and local government as seen in the Town and Country Planning Act.
Once again the relationship is defined by law in the Act and although it gives
some autonomy to the local planning authorities, central government in the
shape of the Secretary of State for the Environment and his department wield
great influence. Nevertheless, a good deal will depend on the policies being
operated in the name of the Secretary of State at any one time. In the crucially
important area of development control, where the local planning authorities are
required to determine applications for planning permission if a person intends
to undertake ‘development’ on land, central government policy may be in
favour of encouraging as much residential and industrial development as possi-
50
LOCAL AUTHORITIES
ble. Consequently, if applications for planning permission for such develop-

ment are ever refused by a local planning authority, an appeal by the disap-
pointed applicant to the Secretary of State is likely to be successful. Indeed, on
some occasions the Secretary of State may ‘call in’ an application for decision
before the local planning authority is able to deal with it.
Central government influence may also have been felt where the Secretary of
State has imposed his policy preferences in approving the local planning
authority’s own policies in its development plan, or where the Secretary of State
has issued a circular. Government circulars are intended to provide local
authorities with guidance on a variety of issues, as well as information. Some
local authorities may require guidance on the practical implications of some
new piece of legislation which has just come onto the statute book while central
government may be anxious to inform local authorities about policy prefer-
ences. Both these functions can be performed by circulars; non-statutory chan-
nels of communication which have considerable influence over the way that
local authorities perform many of their functions. Indeed, where a circular pre-
scribes a policy it is often the case that much time is taken up at a planning
inquiry arguing whether the instant case of (say) a refusal of planning permis-
sion falls within that policy as described by the words of the circular. This then
is the background to a number of statutory controls of local government activ-
ity. However, in looking at the important areas of control, some of which have
been outlined earlier, it should be remembered that although there are controls
available to central government they do not necessarily have to be used and
often are not used. It is clearly important that local authorities should be
allowed to use their local knowledge and expertise and maintain an effective
measure of autonomy. Ideally, therefore, the relationship between the two tiers
of government should be defined as a collaborative partnership with ultimate
control of many functions residing with central government, with its concern
for implementation and co-ordination of national policies. However, the finan-
cial arrangements outlined above do compromise very severely local authori-
ties’ autonomy.
4.5.1 Statutory control

Some of the more important statutory financial controls affecting local authori-
ties have already been outlined. In the case of the many functions performed by
local authorities there is always a need for a statutory framework, effectively
defining the terms on which central government will allocate a function. This
legislative task will often take place against a background of consultation with,
among other organisations, the local authority associations. The statutory
framework legislated by Parliament will indicate the nature and scope of any
powers given to the local authorities, an issue which will be taken up in Chapter
7, and will indicate the scope of any central government control in the exercise
of the function concerned. Section 1 of the Education Act 1993, for example,
51
states that ‘The Secretary of State shall promote the education of the people of
England and Wales’.
In the area of town and country planning, the Minister of Town and Country
Planning Act 1943 (now repealed) states that the minister now responsible for
planning, the Secretary of State the Environment, had a duty to secure ‘consis-
tency and continuity in the framing and execution of a national policy with
respect to the use and development of land throughout England and Wales’.
The detailed statutory framework is, of course, to be found in the principal Acts
of Parliament. These Acts often contain further powers permitting the Secretary
of State or other minister responsible for a function to make rules and regula-
tions and other items of delegated legislation governing the detailed conduct of
the local authorities. It has been seen in Chapter 3 that procedural rules have
been made for the conduct of public local inquiries into planning appeals, pre-
scribing the steps to be taken by local authorities and others involved in the
inquiry process. Another example occurs in the Town and Country Planning
(General Development) Order 1995, another item of delegated legislation made
by the Secretary of State under the powers conferred on him for this purpose by
the Town and Country Planning Act 1990. This order contains a vast amount of
detail about the operation of the planning system. Among other things it sets
out the procedures to be followed by local planning authorities in dealing with
applications for planning permission and those categories of ‘development’
which are defined as ‘permitted development’, that is, for which planning per-
mission is deemed to have been granted, eg the extension of a dwelling house
by up to 15% of its cubic capacity.
4.5.2 The administrative appeal process

Where a function is conferred on a local authority there may be various reasons
why it is deemed appropriate that there should be an appeal against the author-
ity’s decision and that the appeal should go to the Secretary of State as opposed
to an inferior court or an administrative tribunal. In one of the most frequently
used appeal processes, where a local planning authority refuses or grants a con-
ditional planning permission, it is the Secretary of State for the Environment’s
concern for national planning policy which indicates the need for him to be cen-
trally involved in the planning appeal process. Indeed, he is involved in other
planning appeal processes, the two most important of which are appeals against
a local planning authority’s decision on the question of whether a proposal
involves ‘development’ and requires planning permission, and appeals against
enforcement notices served by a local planning authority alleging unlawful
development, eg without planning permission. Where such an appeal is under-
taken the statutory powers of the Secretary of State are widely defined. In the
case of the appeal, eg against a refusal or conditional grant of planning permis-
sion, the Secretary of State is able to look afresh at the applicant’s proposal and
is required to decide at the outset whether a planning permission should be
52
LOCAL AUTHORITIES
granted or whether any condition or conditions should be deleted from a plan-

ning permission. Although many applications for planning permission involv-
ing proposals to build single houses, for example, do not involve any policy, it
has been seen that in other cases where policy is in issue the appeal decision
may permit the Secretary of State’s policy preference to be applied.
4.5.3 The approval process

Where a local authority initiates various proposals, which may be administra-
tive or legislative, there is usually a statutory requirement that the Secretary of
State approves or confirms them before they become effective or have the force
of law. Apart from particular schemes requiring financial sanction, the approval
process applies to three very important areas of local authority activity: bylaws,
compulsory purchase orders, and (in the area of town and country planning
again) development plans. Compulsory purchase orders and bylaws are dealt
with in Chapter 8. Suffice it to say in this context that the confirming authority
in the appropriate central government department is unlikely to give confirma-
tion where the order or bylaw is considered to be beyond the statutory powers
of the local authority. Development plans are the vehicles for local authorities’
planning policies under the Town and Country Planning Act. There are two
principal varieties of development plan: the structure plan (referred to in
Chapter 3) and the local or district plan. It has been seen that the structure plan
is prepared by the county planning authority and is essentially a written policy
strategy for the county area indicating, eg the likely demand for housing in the
next 10 years and the broad areas where that demand may be satisfied. The
completed structure plan is submitted to the Secretary of State for the
Environment of approval but before arriving at a decision whether to approve
the plan, he will convene and eventually consider the report of an Examination
in Public. By contrast, the local or district plan is usually made by the con-
stituent district councils within the county and fills out in detail (some of it
map-based) the broad policies of the structure plan. This type of development
plan can be approved and adopted by the local authority which made it, but the
Secretary of State does have a reserve power to call in such a plan for his own
and not the local authority’s approval. It could be the case that a local or district
plan would be ‘called in’ if it made no attempt to identify any land in its areas
for future housing provision where the structure plan has already insisted that
the district has the most suitable potential in broad, strategic terms. Once
approved, a local planning authority is required to have regard to a develop-
ment plan in deciding whether to grant planning permission.
4.5.4 Default powers

Reference was made in Chapter 1 to the default powers of the Secretary of State
for the Environment in s 164 of the Housing Act 1985 and the Secretary of State
53
for Education in s 68 of the Education Act 1944. It is difficult to generalise about

default powers except to say that they facilitate central government intervention
on those occasions, eg after a central government inspection, when it is consid-
ered that a local authority is not undertaking a proper discharge of its statutory
functions. While some default powers require some prerequisite such as an
unreasonable act before the Secretary of State can intervene, other default pow-
ers operate simply on the basis that the Secretary of State is of the belief that a
function will not be performed properly. The default power in s 100 of the
Town and Country Planning Act is somewhat different. It states that if it
appears to the Secretary of State, after consultation with a local planning author-
ity, that certain action should be taken, he may require that that action be taken,
eg that an enforcement notice should be served or that an order revoking plan-
ning permission should be submitted to him for confirmation. Default powers
in other areas of local authority activity may lead, as in the case of s 164 of the
Housing Act 1985, to the Secretary of State taking over the function himself. On
the other hand and perhaps more frequently, an exercise of default powers in a
statute like the Education Act 1944 requires the Secretary of State to serve a
direction. Such a direction might require a local education authority to provide
a certain type of educational facility which, hitherto, it had unreasonably failed
to provide. Non-compliance with the direction would permit the Secretary of
State to apply to the High Court for an order of mandamus against the education
authority. This remedy, which is dealt with more generally in Chapter 13, com-
prises an order of the court requiring the authority to comply with any lawful
direction. Under the Town and Country Planning Act directions are relatively
common and, as such, are not seen as default powers in quite the same way.
Some of the more common purposes for which directions are used include the
Secretary of State’s power to ‘call in’ an application for planning permission for
his own decision and a ‘standing’ requirement that any proposal to grant plan-
ning permission which would be a ‘substantial departure’ from development
plan policies should be advertised and (in some limited cases) referred to the
Secretary of State for decision.
4.6 The Council Member

Very little has been said about the membership of the council of a local author-
ity primarily because the law focuses its attention on the legal status of the
council as the instrument of administrative action. Consequently, any contract is
made by ‘the council’ and one central question for the law is whether it is within
the council’s statutory powers. Nevertheless, it has been seen that the individual
member is potentially responsible in his own right for any item of account
which is found to be contrary to law through the audit process. Other areas of
legal significance in relation to the individual member include his right of access
54
LOCAL AUTHORITIES
to and inspection of documents, the duty to disclose pecuniary interests and the
regulation of bribery and corruption.
4.6.1 Right of access to meetings and inspection of documents

Section 228 of the Local Government Act authorises a member’s inspection of
the local authority’s full accounts. As far as other documents are concerned, a
member’s rights are recognised by the common law which stipulates that he
may have access to those documents deemed reasonably necessary for the dis-
charge of his responsibilities as a councillor. This legal right was in issue before
the House of Lords in R v Birmingham City Council, ex p 0 (1983). A council mem-
ber who was not a member of the social services committee which was dealing
with a proposed adoption was entitled to access to documents prepared by the
social services department for the committee. The documents covered the pro-
posed adoption and the member was anxious to see them when, as a member of
another committee, she had indirect contact with the case which gave rise to
some genuine concern. The House of Lords had no hesitation in saying that
there is free access to documents for members of the appropriate committee
actually dealing with the matter in issue. However, where a member who is not
a member of that committee requires access, this is a matter for the council or
any person or group exercising powers in this respect delegated by the council.
In this particular case access was permitted by the deputy director of social ser-
vices and not the council and it was the House of Lords’ view that he was
impliedly authorised to allow access. The conclusion in this important case has
been applied in a number of subsequent cases. One of the most significant cases
is R.v Hackney London Borough Council, ex p Gamper (1985). The High Court con-
cluded that the councillor’s right of access to documents and his right of access
to meetings (referred to below) depend on whether there is a ‘need to know’ for
the proper discharge of duties as a councillor. The court also raised the question
whether the councillor must show a more urgent need to know in the case of
attendance at meetings than in the case of access to documents. If the council
sets up a working party which is not a committee of that council a councillor
who is not a working party member may find that his ‘right to know’ is out-
weighed by other considerations such as the need for candid debate: R v Eden
District Council, ex p Moffat (1988). However, a councillor’s exclusion from a
committee for party political purposes can never be legitimate: R v Sheffield City
Council, ex p Chadwick (1985).
4.6.2 Disclosure of pecuniary interests

Sections 94–97 of the Local Government Act state that where a member of a
local authority has any pecuniary interest, direct or indirect, in any contract,
proposed contract or other matter, and is present at a meeting of the authority
at which the contract or other matter is the subject of consideration, he is
55
required to disclose the fact at the meeting and so desist from discussion and
voting on that contract, proposed contract or other matter. Non-compliance
with this requirement is a criminal offence which can be prosecuted only by the
Director of Public Prosecutions or on his behalf. Some interests, such as
allowances paid to council chairmen as expenses, are not regarded as ‘pecu-
niary’ interests for present purposes. On the other hand, some interests are clas-
sified as ‘indirect’ pecuniary interests as where a member of a local authority is
also a member of a company about to make a contract with that authority. An
alternative to the method of disclosure mentioned at the beginning of this sec-
tion allows a member to register a general notice in writing with the proper offi-
cer of the authority. A register of such disclosures is maintained for inspection
by members. Members’ disability in this context can be removed by a district
council, in the case of the membership of a parish or (in Wales) a community
council, or by the Secretary of State for the Environment, in the case of any other
local authority, where it is considered that the number of members disabled by
the law is such that council business would be adversely affected or that it is in
the inhabitants’ interests that disability should be lifted. The member is not
affected by a legal disability where an interest in a contract or similar transac-
tion arises by virtue of his status as a Council Tax payer or as a member of the
community taking advantage of services normally available. A member’s inter-
est will not give rise to a legal disability where that interest is too remote and as
such is unlikely to influence his conduct in relation to council business.
Nevertheless, the member is regarded as having an indirect pecuniary interest
where his beneficial interest in a company or similar organisation does not
exceed £1,000 or one-thousandth of the total nominal value of the issued share
capital. However, in this situation the member is not disabled from participat-
ing in the transaction of relevant council business, but he is obliged to make a
disclosure of his interest. More recently, s 19 of the Local Government and
Housing Act 1989 has provided for the making of regulations to require a mem-
ber to give notice to a ‘proper officer’ of any direct or indirect pecuniary inter-
est, and to keep that information up to date. Failure to comply without
reasonable excuse is an offence. More generally, whether a member has a pecu-
niary advantage or disadvantage, he is subject to the legal disability (Brown v
Director of Public Prosecutions (1956) and Rands v Oldroyd (1959)). The law’s cov-
erage has been criticised on occasions, particularly because it does not extend
beyond pecuniary and similar interests to other interests which may be equally
persuasive, and because a member’s legal disability applies only to meetings of
a local authority and not private ‘party’ meetings, for example. Where a mem-
ber participates in the transaction of council business while subject to the legal
disability, any vote of his will be discounted (Nell v Longbottom (1894)). Where
this is the case the decision of the council may be set aside by the court for the
breach of the rule against bias in natural justice, which is dealt with in Chapter
10 (R v Hendon Rural District Council, ex p Chorley (1933)). Various recommenda-
tions have been made for changes in the law through reports such as the report
56
LOCAL AUTHORITIES
of the Prime Minister’s Committee on Local Government Rules of Conduct pub-

lished in 1974. These changes have not so far taken place although the
Department of the Environment has published recommended standards of con-
duct for councillors in this context.
4.7 The Council Officer

The officer is a professional employee of the council with day-to-day responsi-
bility for the conduct of council functions. Although there are specific statutory
provisions requiring the appointment of certain officers such as senior police
officers (eg the chief constable), most appointments are made under s 112 of the
Local Government Act. This empowers a local authority to appoint such officers
as it thinks necessary for the proper discharge of its functions. Such officers then
hold office on such reasonable terms and conditions, including conditions relat-
ing to remuneration, as the authority thinks fit. Clearly, any attempt to appoint
an officer outside the terms of s 112 would be ultra vires and any resulting
expenditure on salaries and other related items would be contrary to law and
subject to audit sanctions. Officers, like members, are required to disclose cer-
tain pecuniary interests, although the relevant provisions in s 117 of the Local
Government Act are somewhat different to those relating to members. An offi-
cer employed under the Local Government Act or any other Act is obliged to
give written notification of a direct or indirect pecuniary interest in a contract or
proposed contract with the authority. Unlike the law relating to members’ inter-
ests, s 117 refers only to contracts and, in addition, there is no requirement of
disclosure at a meeting. It was recommended by the Prime Minister’s
Committee on Local Government Rules of Conduct, referred to in the previous
section, that these inconsistencies should be reconciled with the law on mem-
bers’ interests and a register kept in each local authority of interests of chief and
deputy officers and such other officers as the authority may require.
The Local Government and Housing Act 1989 in ss 1 and 2, deals with the
prevention of those holding a politically restricted post – eg certain chief officers
– from standing for election as a local authority member. Furthermore, persons
holding a politically restricted post are disqualified from standing for
Parliament.
4.8 Bribery and Corruption

Bribery and corruption are criminal offences defined in the Public Bodies
Corrupt Practices Act 1889 and the Prevention of Corruption Acts 1906–1916.
The Act of 1889 makes it an offence for any person corruptly to give or receive
any gift or other advantage as an inducement to influence the conduct of any
member, officer or servant of any public body, that is, ‘local and public authori-
ties of all descriptions’. The Acts of 1906 and 1916 make it an offence corruptly
57
to provide an agent with or for that agent to receive any gift or consideration as
an inducement or reward for influencing the principal’s affairs or business.
4.8.1 Coverage of the Acts

The law covers most of the so-called public sector: in general terms, local
authorities, public corporations (dealt with in Chapter 6) and Crown servants
and agents. However, it is likely that a Crown servant or agent or any other per-
son deemed not to be an employee of a ‘local or public authority’ would be
prosecuted under the Act of 1906. The term ‘local authorities’ appears to be self-
explanatory although s 4 of the Act of 1916 now extends to companies under the
control of a local authority. The term ‘public authorities’ is not defined in the
Acts and, unfortunately, very little help is forthcoming from two of the leading
cases. In the first, R v Newbould (1962), it was decided that the National Coal
Board was not a public authority for the purposes of the Act of 1889, whereas in
R v Manners (1976) it was decided that the North Thames Gas Board was a ‘pub-
lic body’. Despite some uncertainty in this context it is possible that a conviction
could be obtained through a prosecution under the Act of 1906, at least on the
assumption that the defendant had been acting as an ‘agent’ on behalf of his
principal. All of the offences are punishable with imprisonment and/or a fine
while the Act of 1889 provides for subsidiary penalties:
(a) surrender of a corrupt gift to the employer of the recipient;
(b) forfeiture of entitlement to a pension;
(c) disqualification from voting; and
(d) disqualification from holding office as a member or employee of a public
body.
The penalties attaching to offences under the Acts of 1889 and 1906 in the case
of contracts with public bodies and government departments are more severe
than in other cases. Prosecution of offences requires the consent of the Attorney
General or Solicitor General.
The ancient common law offence of misconduct in a public office applies to
local government. In R v Bowden (1995) the Court of Appeal upheld a conviction
against an employee of a local authority who had dishonestly caused council
employees to carry out works which were not required under the authority’s
repairing policy. The works in question were executed on the house of the
defendant’s girlfriend.
4.9 Council Meetings

Meetings are governed by statute and the council’s own standing orders. The
Local Government Act obliges the principal councils, that is, all those local
authorities except parish and community councils, to hold annual meetings and
58
LOCAL AUTHORITIES
any other meetings as deemed to be necessary for the transaction of business

and the performance of functions. While the Act details the various formalities
relating to the calling and conduct of meetings, standing orders for each council
will detail matters of procedure at meetings where there is no other statutory
provision. Similar standing orders can be made by local authorities for the
transaction of business by their various committees. Decisions are by a majority
of the votes of the members present and in the event of no majority the chair-
man has a second or casting vote. A minute book must be maintained, copies of
which are generally available for public inspection. It is also provided by statute
that, as a general rule, meetings are open to the public. Private meetings may be
held in special circumstances, usually where it would be contrary to the public
interest to disclose the nature of certain confidential business. These rules relat-
ing to access to meetings are found in the Public Bodies (Admission to
Meetings) Act 1960, an Act which applies to various public bodies including
local authorities and which is extended to cover local authority committees. The
Local Government (Access to Information) Act 1985, amending the Local
Government Act 1972, now provides better legal rights of access to council
meetings, agendas, reports and background material but subject to certain
restrictions based on confidentiality. Although an individual has free access to
council meetings in general, he can be excluded if it is likely that ‘exempt’ infor-
mation will be uttered. Such information covers (for example) matters affecting
a particular employee of the council or the recipient of financial assistance from
the council, together with information about action taken or to be taken in con-
nection with the prevention, investigation or prosecution of crime. The Act also
gives additional rights of access to documents to council members. These rights
may go some way to meet the law’s requirements in R v Birmingham City
Council, ex p 0 (above). It should be noted that a council member may be liable
for defamation in respect of what is said, or even written, in the course of coun-
cil meetings. Defamation covers an oral statement (slander) and a written state-
ment (libel) and any such statement is defamatory where its publication is
calculated to injure the reputation of another through exposure to hatred, con-
tempt or ridicule. However, the member may be able to avoid liability if he can
establish that his statement was made without any malice. In the leading case of
Horrocks v Lowe (1974) it was emphasised that a statement is made without mal-
ice where it is made with a positive belief as to its truth, ie an honest belief. On
this basis, it was stated in Horrocks that where the dominant motive for a state-
ment is not a desire to perform the relevant duty or to protect the relevant inter-
est but to give vent to a member’s personal spite or ill-will towards the person
he defames, the member cannot rely on the defence of an absence of malice.
However, depending on the facts of the individual case, the member may be
able to rely on two other significant defences: justification and fair comment. As
far as the council itself is concerned, the law gives no right to maintain an action
for damages for defamation. The House of Lords in Derbyshire County Council v
Times Newspapers (1993) held that such a right would be contrary to the public
59
interest. It was considered to be a matter of the highest public importance that a

governmental body should be open to uninhibited criticism: a right to sue for
defamation would place an undesirable fetter on freedom of speech.
4.10 Council Decisions

It is the council of a local authority which is empowered to take decisions for
the discharge of functions as prescribed by statute. However, the Local
Government Act does empower a local authority to delegate some of its func-
tions. Section 101 in particular states that a local authority may ‘arrange for the
discharge of any of their functions (a) by a committee, a sub-committee or an
officer of the authority or (b) by any other local authority’. It should be noted
that there is no reference to the council member. Consequently any attempted
delegation to a committee chairman, eg for ‘chairman’s action’ will be unlawful:
R v Secretary of State for the Environment, ex p Hillingdon London Borough Council
(1986). The legal implications of delegation are taken up in Chapter 9. The
Deregulation and Contracting Out Act 1994 empowers the minister to make a
statutory order to provide for powers delegated to an officer under s 101, to be
exercised by an employee or employees of any local authority. However, such a
facility is restricted in certain instances, eg if the exercise of such a delegated
function would usurp the judicial power of any tribunal or court. More gener-
ally, it should be noted that s 101 is an attempt to recognise the need for efficient
local government so that every decision need not be taken by the full council
itself. The extent of delegation is very much a matter for each council although a
comprehensive committee structure is a feature of most local authorities.
However, it is not every local authority which allows wide delegated powers to
its officers. While the terms of s 101 are drawn quite widely to allow some flexi-
bility to local authorities, there are some statutory provisions which require that
particular committees are established, eg social services committees under the
Local Authority Social Services Act 1970, and that certain decisions are taken
only by the full council, eg s 101(6) of the Local Government Act, which states
that a local authority’s functions with respect to the levying of a ‘rate’ shall be
discharged only by the full council.
4.11 Legal Liability of Local Authorities

Reference has been made earlier in this chapter to the powers of a local author-
ity to enter a contract. Where the local authority acts in breach of a lawful con-
tract it is generally liable for damages or any other appropriate remedy in the
same way as any other individual. The same would be true of public corpora-
tions, the subject of Chapter 6. However, where the contract is entered into by
or on behalf of the Crown, special rules of law apply and these are outlined in
Chapter 14. Apart from contractual liability, it should be remembered that an
60
LOCAL AUTHORITIES
individual or other corporate body may be liable in tort or criminally liable for
its acts or omissions. Criminal liability is a well recognised part of the law.
Tortious liability, on the other hand, deserves some explanation. In very general
terms, a tort is a civil wrong. Consequently, where an individual or other corpo-
rate body can persuade a court that his rights guaranteed by the law of tort have
been infringed, he should be able to claim the appropriate remedy which may
be damages as compensation for any loss or injury, or (perhaps) an injunction to
prevent any repetition of the unlawful conduct in question. Prominent exam-
ples of torts, as they are known, include negligence, nuisance, strict liability,
trespass, defamation and breach of statutory duty. This final section of the chap-
ter will concentrate on the tortious and criminal liability of local authorities and
most of the law here is equally applicable to the public corporations which are
dealt with in Chapter 6.
4.11.1 Tortious liability

Although the general rule is that a local authority is liable for its tortious acts or
omissions, there are notable exceptions, particularly on those occasions when
there is statutory authorisation. By way of an example, the Acquisition of Land
Act 1981 empowers a local authority to effect entry to land which is being com-
pulsorily purchased. Consequently, where the requirements of the Act are met
the local authority in this case would have the best defence to a civil action for
trespass by the landowner, that is, statutory authorisation. One crucial area of
tortious liability is that relating to the vicarious liability of an employer for the
acts or omissions of his employee. However, where the employee of a local
authority also operates in another capacity unrelated to his status as a local
authority employee, his employer may not be vicariously liable. This proposi-
tion can be illustrated by the case of Stanbury v Exeter Corporation (1905) where
sheep, allegedly suffering from an infection, were seized negligently by an
inspector who, although he was employed by the local authority, was operating
as an inspector under the independent statutory authority of the Diseases of
Animals Act. By way of contrast, in Ministry of Housing and Local Government v
Sharp (1970) a local authority was found to be vicariously liable even though the
negligent employee had the statutory status of local land charges registrar.
4.11.2 Statutory authority

There has been a reference to statutory authority in the previous section but the
area where it has considerable significance is nuisance. A nuisance is some act
which interferes with a person’s use and enjoyment of his land although the law
will not protect a person of peculiar sensitivity. Where Parliament legislates to
authorise the construction of large and perhaps controversial undertakings like
oil refineries, it will usually authorise all aspects of the construction and use. In
so doing the statute takes away the possibility of establishing liability in nui-
61
sance against the agency responsible in respect of physical interference arising

from construction and use of the undertaking. The courts reinforce this position
by saying that the statutory agency in question has authority in respect of any-
thing arising from construction and use which is the inevitable consequence of
these activities. In Allen v Gulf Oil Refining Ltd (1981), for example, it was
decided that noise, smell and vibration were the inevitable consequences of the
establishment of an oil refinery. However, where the statutory agency has a dis-
cretion, that is, a choice, in deciding where to establish an undertaking, that dis-
cretion must be exercised so that a nuisance is avoided (Metropolitan Asylum
Board v Hill (1881)). In other words, Parliament has not presumed that a particu-
lar site is the only one suitable for the purpose so that the statutory agency has
to be as vigilant as anybody else in exercising its powers in order to avoid nui-
sances. In the same way, there is no defence available to the statutory agency
that a function is being performed reasonably in the interests of the public (Pride
of Derby and Derbyshire Angling Association v British Celanese Ltd (1953)). Where
there is statutory authority for the establishment of some public or other under-
taking such as an oil refinery, motorway or airport, the statutory provisions,
having taken away the right to sue for nuisance, usually allow any individual
whose land is affected to claim compensation according to criteria set down in
those or other statutory provisions.
4.11.3 Negligence
In general terms, negligence indicates a failure to take reasonable care in under-
taking some activity. In order to succeed in an action for damages for negli-
gence it is necessary to establish:
(a) that there is a duty on the defendant to take reasonable care, usually because
the defendant should have had his victim’s interests and welfare in mind;
(b) that there is a breach of the duty; and
(c) as a result the victim has suffered some reasonably foreseeable injury, loss or
other damage.
In the case of a local authority performing a statutory duty, the law imposes lia-
bility for any negligent exercise of that duty. Consequently, Parliament pre-
sumes that every statutory duty will not be performed negligently. Where the
authority has a discretion as to the ways and means to be used for the perfor-
mance of a statutory function there will be liability where the authority chooses
to perform it and performs it negligently (Dutton v Bognor Regis Urban District
Council (1972)). On the other hand, where it is decided not to perform the func-
tion or to perform it only partially, liability in negligence arises only where that
(policy) decision is ultra vires and it is possible to establish the three require-
ments for negligence mentioned above (Anns v Merton London Borough Council
(1977)). This approach, however, may now be severely limited by the decision of
the House of Lords in Murphy v Brentwood District Council (1990). The critical
62
LOCAL AUTHORITIES
issue in this case was whether the avoidance of economic loss – as opposed to
physical damage or injury – fell within the scope of the duty of care owed to the
plaintiff by the local authority in its enforcement of the building regulations
relating to the health and safety of those using and occupying buildings.
Recovery of economic loss must be by reference to remedies in the law of con-
tract. However, if a person suffers physical injury as a result of a breach by the
local authority of its duty of care, damages in negligence may well be available.
A local authority may also be liable in respect of a negligent misstatement, in
which case a crucial requirement is that the individual concerned, eg an officer
of a local authority, holds himself out as having the requisite expertise (Hedley,
Byrne & Co Ltd v Heller & Partners (1963)). However, the House of Lords in
Murphy added a further requirement: that there should be evidence of some
reliance by the building owner on the local authority. Despite this view the
House of Lords did not consider that the ‘normal’ relationship here would show
evidence of any ‘reliance’, at least in the normal run of tasks involving the
approval of plans and the inspection of buildings. Even where there is no negli-
gence the law may impose so called ‘strict’ liability where a person, for his own
purposes, brings onto his land and collects and keeps there anything likely to
do mischief if its escapes (Rylands v Fletcher (1868)). Where the defendant local
authority has brought onto its land some dangerous substance, any damage,
loss or injury caused by its escape will bring liability, even though the authority
took reasonable care. Nevertheless, there must be reasonable foreseeability of
the loss or harm occurring; even in these circumstances there must be control
over the offending ‘substance’ as a pre-requisite for liability Cambridge Water Co
v Eastern Counties Leather plc (1993). The decision in the Cambridge Water case
also suggests, obiter, that the other pre-requisite for strict liability – a non-nat-
ural user of land – may occur in respect of a great many industrial land uses.
However, any public authority which functions for the ‘public benefit’ is not
taken to be acting ‘for its own purposes’ in this context (Dunne v North Western
Gas Board (1963)). In Dunne gas escaped from a main and injured persons and
property as a result of a leak from a water main which had removed soil sup-
porting the gas main.
4.11.4 Breach of statutory duty

The House of Lords in a group of cases (X (Minors) v Bedfordshire County Council;
M (a Minor) and Another v Newham London Borough Council and Others; E (a
Minor) v Dorset County Council; and Keating v Bromley London Borough Council
(1995)) has held that, normally, a breach of statutory duty does not give rise to a
private law cause of action in tort. However, such an action might arise if it
could be shown that the statutory duty was imposed for the protection of a lim-
ited class of the public and that Parliament intended to confer on members of
that class a private right of action for breach of duty. It was suggested that there
are various indicators to show the possible existence of such a right of action: in
63
particular the absence of any other statutory remedy in the absence also of any
other protection for the limited class in question.
The House of Lords showed great reluctance to allow statutory duties to be
subject to a duty of care. In the case of local authority responsibility for the wel-
fare of children in particular it was seen as cutting across an inter-disciplinary
system established by statute for the protection of children. If a negligent exer-
cise of a statutory duty is alleged, the plaintiff must be able to show a duty of
care as opposed to a mere assertion of carelessness. In drawing a distinction
between a duty of care in the exercise of a statutory discretion and a duty of
care affecting the manner in which a statutory duty is implemented, the House
of Lords stressed that the law cannot interfere with a discretion properly given
to the administrative agency. Similarly, there could be no interference where
implementation of decisions involves matters of policy. Overall, any common
law duty of care that is consistent with or has a tendency to discourage the due
performance of statutory duty will not be imposed by the court.
4.11.5 Criminal liability

It is possible for a local authority to be convicted of a criminal offence although
there are clear limitations in that an authority cannot be convicted of an offence
punishable with imprisonment. Similarly a local authority is subject only to
those offences which can be committed vicariously. In York District Council v
Poller (1975) a builder’s skip was hired by the council’s housing department. An
official intimated to the owner of the skip that there was a ‘blanket permission’
to leave skips on the highway. The local authority was later (and correctly)con-
victed of an offence under the Highways Act 1971 since the offence had been
committed ‘owing to the act or default of some other person’, in this case the
local authority. In practice, whether the local authority is criminally liable often
depends on the extent to which the officer or employee is seen as acting for the
authority in the performance of its functions. The legal principle is found in a
case involving a company which was acquitted of an offence against the Trade
Descriptions Act, Tesco Supermarkets Ltd v Nattrass (1971) where Lord Reid in the
House of Lords said that:
[T]he board of directors may delegate some part of their functions of man-
agement giving to their delegate full discretion to act independently of
instructions from them. I see no difficulty in holding that they have thereby
put such a delegate in their place so that within the scope of the delegation
he can act as the Company.
As far as local government is concerned, it is clear from this relevant statement
of principle that wherever there is in issue a criminal offence which a local
authority is capable of committing, the local authority will avoid conviction
only where any delegate of that body is clearly acting beyond any express or
implied limits of delegated powers, eg as a committee or officer.
64
5 Administrative Tribunals
5.1 Status
Administrative tribunals might well be referred to as ‘administrative courts’
since usually their task is to adjudicate disputes which arise from the statutory
regulation of a wide variety of situations, some of which will involve decisions
or other action by administrative agencies, or the relationship between private
individuals. It will be seen later in this chapter that tribunals have been estab-
lished for many purposes, including the adjudication of disputes between land-
lord and tenant about the payment of rent and between an individual and a
local authority about the payment of compensation for the compulsory acquisi-
tion of land. They have been established also in order to decide appeals from
decisions of other tribunals and administrative agencies on issues such as statu-
tory entitlement to certain welfare benefits. The Council on Tribunals, described
below, has defined a tribunal (in the absence of any statutory definition) as ‘any
person or body (other than a court of law) exercising judicial or quasi-judicial
functions which are provided by or under statute’ (Annual Report, 1993–94).
Annually tribunals deal with more than a quarter of a million cases.
5.1.1 Tribunals and inquiries distinguished

The tribunals differ from the statutory inquiries which operate in the context of
ministers’ decision-making responsibilities in central government. This differ-
ence was described by the Council on Tribunals in its Annual Report for 1960
where it was observed that:
Tribunals, generally speaking, exercise an independent jurisdiction: they
decide particular cases by applying rules and regulations and sometimes by
using their own discretion. Inquiries, on the other hand, form part of the
process by which a minister exercises his discretion – discretion for which he
is answerable to Parliament.
Because tribunals are not generally concerned with policy-oriented decisions,
normally associated with ministers in central government departments, it is of
greater relevance to compare tribunals with courts of law. In simple terms, tri-
bunals and courts of law are concerned with the application of the relevant law
to the facts of a particular case in a judicial spirit. However, the court is a truly
independent entity whereas the tribunal is created by the relevant government
department to adjudicate disputes arising under a statutory provision.
Although it is the objective of the law to see that the independence of the tri-
65
bunals is effectively safeguarded, there is responsibility in many cases for expert

adjudications arising from disputes relating to the department’s legislation.
Indeed, the Franks Report considered it a matter of principle ‘that a decision
should be entrusted to a court rather than to a tribunal in the absence of special
considerations which make a tribunal more suitable’. Apart from the fact that
judges in courts of law are generalists whereas tribunal members are specialists
in the relevant field of activity, there are various other reasons why the adminis-
trative tribunal has advantages over the court of law, and these are examined
below.
5.1.2 Tribunals as ‘court substitutes’

The Franks Report emphasised that tribunals:
... are not ordinary courts, but neither are they appendages of Government
Departments ... tribunals should properly be regarded as machinery pro-
vided by Parliament for adjudication rather than as part of the machinery of
administration. The essential point is that in all these cases Parliament has
deliberately provided for a decision outside and independent of the
Department concerned ... and the intention of Parliament to provide for the
independence of tribunals is clear and unmistakable.
In most cases, this accurately reflects the status of the tribunal and it is now
referred to frequently as the ‘court substitute’ tribunal. However, there are a
few odd exceptions where the tribunal is more closely associated with the rele-
vant government department. Because these few tribunals are more closely
associated with particular government departments and their policies, they are
referred to frequently as ‘policy-oriented’ tribunals. The latter category of tri-
bunal will be dealt with in the following section.
5.1.3 Policy-oriented tribunals

The policy-oriented tribunal cuts across the sentiments about the independence
of tribunals expressed in the Franks Report because, in one way or another, it is
obliged to take notice of and perhaps implement the policy pronouncements of
the relevant government department. One prominent example concerns the
Civil Aviation Authority which, as a tribunal, is responsible for the licensing of
civil air transport. By virtue of the Civil Aviation Act 1971, the Secretary of State
for Trade was empowered to give policy guidance to the Authority whose
responsibility was then to perform its licensing functions in such manner as it
considered to be in accordance with that guidance. In this way, the Department
of Trade is able to maintain an influence in policy terms over what is an area of
importance for government. Rather more detailed directions are permitted
under the later Civil Aviation Act 1982 in s 6. A similar example occurs in the
Goods Vehicles (Licensing of Operators) Act 1995 where the minister is empow-
ered to give policy directions to the traffic commissioners dealing with licence
applications from goods vehicle operators. Such guidance is in turn carried for-
66
ADMINISTRATIVE TRIBUNALS
ward to the Transport Tribunal which deals with appeals arising from the deci-
sions of traffic commissioners.
5.2 Characteristics
The fact that most tribunals come within the category of ‘court substitutes’, pro-
vides one characteristic, but there are, of course, reasons why the comparison
with ordinary courts of law cannot be carried too far. Such reasons emerge from
an examination of the advantages of tribunals compared with courts of law. The
Franks Report concluded that:
[T]ribunals have certain characteristics which often give them advantages
over the courts. These are cheapness, accessibility, freedom from technical-
ity, and expedition and expert knowledge of their particular subject. It is no
doubt because of these advantages that Parliament, once it has decided that
certain decisions ought not to be made by normal executive or departmental
processes, often entrusts them to tribunals rather than to the ordinary courts.
The advantages of tribunals will be seen in more detail later in this chapter. In
more general terms, however, one of the outstanding advantages must be the
first one, cheapness. The main emphasis of this advantage depends chiefly on
the comparison of costs for the litigant who has to use the ordinary courts of
law. For him there is the greater likelihood of considerable costs incurred
through the need to engage a solicitor and possibly a barrister as well. The sec-
ond characteristic mentioned above, accessibility, refers to the fact that in the
case of the more popular tribunals there is a greater likelihood that they are
organised with relative informality on a regional or local basis so that it can be
said that the particular tribunal, such as an Industrial or a Social Security
Appeal Tribunal, does operate within easy reach of most people. This, however,
is not always the case. The Council on Tribunals, in a discussion about the
proper forum for the resolution of disputes about rights of access to neighbour-
ing land, pointed to the importance of local fora for the handling of such dis-
putes. Its preference here was for the county court, rather than the Lands
Tribunal, which has no formal, local organisation. Freedom from technicality
means that in the case of most tribunals there are no technical rules of proce-
dure or evidence to be observed as in an ordinary court of law. Such freedom
from technicality means that hearings are shorter than in the case of a full trial
before a court of law with a resultant saving of time and money. This character-
istic shades in to the next advantage relating to expedition and expert knowl-
edge. The tribunal system permits an efficient disposal of many cases by a body
which has the relevant expertise in the area of the dispute or matter being dealt
with. Accordingly, one of the most convincing arguments in favour of the sys-
tem of tribunals is that it enables a large body of cases to be disposed of effi-
ciently in a way which, given the present judicial system, is not possible as far
as the ordinary courts of law are concerned. A graphic example occurs in the
67
case of the Industrial Tribunals which deal with a large number of matters, the
most frequent cases relating to unfair dismissal and redundancy payments. The
dramatic increase in industrial tribunal activity is seen in the number of applica-
tions received. The figure stood at 39,000 in 1990–91. Thereafter applications
have risen to 62,000 in 1991–92, 67,000 in 1992–93, reaching 72,000 in 1993–94.
Nevertheless, an expanding jurisdiction continues to add to the workload.
Recent additions to jurisdiction include employment agencies, employee rights
under the Sunday Trading Act 1994 and disputes about refusal of employment
on grounds of union membership, a recent addition to the Employment Act
1980. In one annual report, the Council on Tribunals comments that:
The organisation of the Industrial Tribunals could be described as one classic
pattern for tribunals: a strong presidential and regional organisation, a tri-
bunal composed of a legally qualified chairman with two lay members
expert in industrial practice and representative of (but not representing)
employers and employees respectively, and comprehensive modern rules of
procedure designed to provide a firm structure but encouraging informality
and expedition in the proceedings.
The further development of this profile is to be seen in revisions to and consoli-
dation of rules of procedure. In its Annual Report for 1993–94, the Council on
Tribunals points to the prospect for a more inquisitorial approach in Industrial
Tribunal procedure. One example of such a trend is seen in the ability of the tri-
bunal to summon witnesses at its own initiative. Furthermore, a recent addition
to the Employment Protection (Consolidation) Act 1978 permits the chairman of
an Industrial Tribunal to sit alone (without two additional members representa-
tive of both sides of industry) in certain circumstances, for example where the
parties consent. Another addition to the same Act provides for pre-hearing
reviews as a means of settling cases without those cases necessarily reaching the
tribunal.
5.3 Varieties of Tribunal and their Functions

Tribunals fall into four categories according to their various functions, which
are:
(1) to decide appeals from decisions taken by government departments;
(2) to determine various claims at first instance;
(3) to decide disputes arising as between individuals; and
(4) to undertake various other functions.
Each of these categories will be examined in turn.
5.3.1 Tribunals and appeals from departmental decisions

Some of the best-known tribunals dealing with appeals from decisions of gov-
ernment departments are the so-called Social Security Appeal Tribunals. These
68
tribunals (which are described in more detail later) deal with a wide variety of
social security disputes, eg about benefit. Another area where appeals go to a
tribunal from a governmental decision is income tax. Decisions on liability to
tax go to either the General Commissioners of Income Tax or the Special
Commissioners of Income Tax, according to the technical nature of the dispute.
General Commissioners are required to have some knowledge of income tax
legislation and are usually appointed from the ranks of magistrates, solicitors
and accountants. The Special Commissioners constitute a tribunal of two or
three members. They are appointed by the Treasury from among barristers and
solicitors in the Inland Revenue and once appointed, sever any links with that
department. Nevertheless, these adjudicators have attracted considerable criti-
cism, eg by reference to their close links with the Inland Revenue, which under-
takes organisation of appeals. A similar criticism was voiced by the Council on
Tribunals in its Annual Report for 1993–94, in relation to Valuation Tribunals
which deal with appeals about liability and valuation in relation to the Council
Tax and non-domestic rating. In this case the criticism is aimed at the prepon-
derance of representatives of county councils (as the ‘billing’ authorities) on the
tribunals. A third example in this first category are the six Vaccine Damage
Tribunals which deal with disputes arising from claims to the Secretary of State
for Health for compensation arising from severe disablement caused by vaccina-
tion. These tribunals are covered in more detail later in this chapter. Another tri-
bunal which is covered in detail is the Transport Tribunal. Although it does not
deal with decisions of a central government department, it has been seen that
the local licensing body is susceptible to policy guidance from the Secretary of
State for Transport.
5.3.2 Tribunals and ‘first instance’ claims

Some tribunals deal with claims at first instance. Reference has been made
already to the Civil Aviation Authority and its responsibility for the licensing of
civil air transport. The Authority deals with the licence applications initially and
its decision may be appealed to the Secretary of State for Trade. Consequently,
this opportunity and any earlier opportunities which may have been taken
through policy guidance enable the Secretary of State to influence the direction
of decisions. Another tribunal in this limited category is the Foreign
Compensation Commission which adjudicates claims for compensation from
British subjects, usually where their property has been requisitioned or dam-
aged in another country. Where the government of that country agrees with the
British government that compensation is payable, the sum agreed will be dis-
tributed to claimants according to the decisions of the Commission.
69
5.3.3 Tribunals and disputes between individuals

The main feature of the tribunals whose task is to decide disputes between indi-
viduals is that their decision relates to some statutory right or entitlement.
Perhaps the best-known tribunals in this context are the Industrial Tribunals,
referred to previously in this chapter. Most of their work arises from disputes
about unfair dismissal and redundancy payments as between employer and
employee. Such disputes arise primarily by reference to the relevant employ-
ment legislation which prescribes a general right not to be dismissed unfairly
and a general right to compensation where an employee is dismissed by reason
of redundancy. It is the tribunal’s task to decide whether or not a claimant
comes within the terms of the statutory scheme or is excluded from protection
and entitlement. Where the claimant is found to be within the terms of the statu-
tory scheme it is the tribunal’s task to decide on the amount of redundancy pay-
ment or compensation for unfair dismissal or, exceptionally, whether an
unfairly dismissed employee should be reinstated. Other important tribunals in
this category are the Rent Assessment Committees and Rent Tribunals whose
tasks include the resolution of rent disputes between landlord and tenant or the
parties to a restricted tenancy contract.
5.3.4 Additional functions of tribunals

The final category of tribunals includes those which have various other func-
tions over and above their other, normal functions. This does raise the question:
what are those ‘normal’ functions? Is it possible to characterise tribunals as
undertaking judicial functions similar to those of an ordinary court of law, or
are they essentially investigatory bodies? Reference back to the definition at the
opening of this chapter may be useful. Some tribunals, notably the Lands
Tribunal and the Transport Tribunal, function like ordinary courts of law. Even
where the formality of tribunal procedures does not permit this comparison, it
is possible to conclude that most of such bodies are judicial and not investiga-
tory so that they act as impartial adjudicators of evidence presented to them by
the respective parties. Beyond such a normal judicial function, some tribunals
do undertake additional functions. The Mental Health Review Tribunal, com-
prising a number of separate tribunals throughout England and Wales, has
operated as part of the scheme of the Mental Health Acts in order to review
decisions whereby compulsory powers have been used to detain people for the
treatment of mental disorder. Another facet of this tribunal has been its function
in giving the Home Secretary advice on the recall to hospital of restricted
patients who have been conditionally discharged or given leave of absence. A
second example here is the Civil Aviation Authority, a regulatory authority
which is responsible for air transport licensing, together with the maintenance
and enforcement of safety standards. Beyond its judicial, tribunal function, the
70
Authority also exercises important rule-making functions and this legislative

function in the interest of air safety involves enforcement functions as well.
5.4 Allocation of Functions to Tribunals

Reference has been made earlier in this chapter to the advantages of using a tri-
bunal as opposed to an ordinary court of law for the adjudication of disputes
and it has been said that most tribunals can be regarded as ‘court substitutes’.
However, it is still necessary to determine why the various adjudicatory func-
tions have been given to tribunals in the first place. Apart from the supposed
advantages of tribunals previously listed, what is it about the adjudicatory func-
tions which make them appropriate subjects to be dealt with by tribunals?
5.4.1 The policy element in administrative decisions

As a general rule, it appears that any function involving an element of policy
will not be conferred on a tribunal and is most likely to be conferred on a minis-
ter in central government who will be democratically accountable for any such
policy to Parliament. This is well illustrated in the context of a licensing system
which was aimed at encouraging industry to develop in the depressed areas of
the UK. Although the system has now been suspended and is unlikely to be res-
urrected, the Town and Country Planning Act specifies that any application for
planning permission for industrial development within certain categories and
areas shall be of no effect without an industrial development certificate granted
by the Secretary of State for Industry. In deciding whether to grant such a cer-
tificate, the Secretary of State is obliged to satisfy himself that the development
can be carried out consistently with the proper distribution of industry. Such a
decision is bound to involve the weighing of the applicant’s case, not against
some fixed or measurable criteria against the background of which tribunals
normally operate, but against a judgment of the national distribution of indus-
try and employment. Apart from the fact that such a matter is likely to be a sen-
sitive issue of a government’s economic policy, it is unlikely that any
government would be willing to give away an important decision like this to a
tribunal which is unlikely to be able to respond to shifts in economic conditions
and economic policy. When the Hunt Committee investigated some of the
issues in this area in 1969, it was suggested that there should be an appeal
against the Secretary of State’s refusal of an industrial development certificate.
The committee’s report observed that:
[T]he flexibility and sensitivity with which the policy is operated ... means
that there is a lack of permanent and readily applicable criteria which would
guide an independent appeal tribunal.
Accordingly, the Secretary of State’s decision remains final.
71
5.4.2 The Civil Aviation Authority and the Transport Tribunal

It has been seen that some significant policy-based decisions may occur away
from central government in these tribunals. It must be remembered in these
cases that the responsible minister is not without influence in view of the statu-
tory powers conferred on him to give so-called policy ‘guidance’. Furthermore,
the licensing function of the Civil Aviation Authority was undertaken by a cen-
tral government department until the early 1970s and with a transfer of the
responsible staff to the Authority there was little adverse effect on the govern-
ment’s influence over policy. In addition, where there is an adverse decision of
the Authority the appeal lies to the Secretary of State, so providing the best
opportunity for emphasising any policy. In the case of the Transport Tribunal
there was, before privatisation of road and passenger transport undertakings, a
considerable reduction in the significance of goods vehicle licensing given the
influence of the nationalised transport undertakings. Indeed, in 1981 the
Transport Tribunal dealt with 29 cases only in this context. Subsequently legis-
lation like the Transport Act 1982 has resulted in greater interest in licensing.
For example statutory objectors (but not other objectors) have a right of appeal
to the Transport Tribunal on environmental grounds, among others.
5.4.3 Objective decisions: tribunals or courts?

A further factor in favour of allocating a decision-making function to a tribunal
is the likelihood that a person’s rights, interests or even his very livelihood may
be affected. Where this is the case and there is a need for objective decision-
making with clear safeguards there is likely to be an option: either to allocate
the function to an ordinary court or to a tribunal. If it is likely that many cases
will be generated by the statutory scheme in question then it is unlikely that the
ordinary courts could cope. However, where the issue or dispute to be adjudi-
cated is, for example, a matter of some sensitivity or importance in a wide con-
text, a court may be the more appropriate forum. Indeed, when the Race
Relations Act 1968 was being legislated it was the county court system which
was chosen to deal with race relations disputes where conciliation between the
parties had failed. In one of the Parliamentary debates on the Race Relations Bill
it was observed that tribunals might not be regarded as instruments of law in
quite the same way as the courts and might come to be regarded as conferring
special rights on minority groups.
5.4.4 Immigration appeals

The need for some clearly objective decision-making occurs in the field of immi-
gration. This was an important theme of the Wilson Committee Report on
Immigration Appeals in 1967 where it was said that:
However well administered the present law may be, it is fundamentally
wrong and inconsistent with the rule of law that power to take decisions
72
affecting a man’s whole future should be vested in officers of the executive,

from whose findings there is no appeal.
It was also emphasised that a system of appeals to tribunals from immigration
decisions is necessary in order ‘to check any possible abuse of executive power
but also to give a private individual a sense of protection against oppression
and injustice and of confidence in dealings with the administration’. In 1985 the
Home Office undertook a review of immigration control procedures and con-
firmed its view that effective procedures here depended on the finality and
expedition of appeals provisions. Since 1969 there has been a two-tier system of
appeals involving in the first tier adjudicators appointed by the Home
Secretary, and the Immigration Appeal Tribunal. Again to illustrate a recent
baseline for an expanding jurisdiction a chief adjudicator, 15 adjudicators and
61 part-time adjudicators disposed of nearly 12,000 cases in 1981 while the
Tribunal disposed of nearly 450 appeals from the adjudicators who themselves
deal with appeals from the decisions of the immigration authorities, for exam-
ple, refusing entry to the UK. In some instances there is no appeal from a deci-
sion of the immigration authorities, in particular where the Home Secretary has
himself directed that a person should not be permitted to enter on the ground
that his presence in the UK is not conducive to the public good. This is an
important illustration of the fact that there are some decisions which are more
sensitive than others from a political point of view and so are reserved for cen-
tral government whose view it would be, no doubt, that tribunals should not be
arbiters of matters such as national security and the public interest.
5.4.5 Tribunals and local authority decisions

While there are broad guidelines to indicate the likely circumstances in which
an adjudicatory function will be conferred either on a tribunal or a central gov-
ernment department, can the same be said as between tribunals and local
authorities? Local authorities, like central government, are democratically
accountable bodies and it has been seen in Chapter 4 that they are also responsi-
ble for many policy-based decisions. Once again, the presumption is that any
policy-based decision of a local authority will be subject to appeal to or be reap-
praised by the appropriate central government department. The exercise of
powers of compulsory purchase is subject to confirmation of the necessary com-
pulsory purchase order by the relevant government minister, usually the
Secretary of State for the Environment. A similar situation exists in the case of
local authority decisions on applications for planning permission, where any
adverse decision affecting the applicant can be appealed by him to the Secretary
of State for the Environment. There are, however, two notable areas of local
authority action which involve recourse to tribunals. The first area of recourse
arises from a dispute between a local authority and an individual on the
amount of compensation payable for the compulsory acquisition of land. This is
one of the more important matters dealt with by the Lands Tribunal. The second
73
area relates to Council Tax valuations and assessments in respect of which there
is an appeal to a local valuation tribunal.
5.4.6 Tribunals and inferior courts

Where there is no significant policy element in administrative action taken by
local authorities there may be facilities for an appeal to a court rather than a tri-
bunal. Where an appeal is permitted in these circumstances the choice of a court
may be explained in historical terms by the fact that the statutory scheme in
question was created some years ago before the advent of tribunals on a large
scale. The choice might also be explained by the fact that, even if a tribunal was
an option, a local court might still provide convenient, local expertise, so avoid-
ing the need to create an entirely new system of tribunals.
The county courts and the magistrates’ courts provide good examples in the
present context of inferior courts, that is, courts below the Supreme Court of
Judicature. Among the tasks of the magistrates’ courts is that of deciding
appeals against notices served under s 215 of the Town and Country Planning
Act 1990 by local authorities where it is considered that the condition of open
land is seriously injurious to the amenity of an area. One of the appeals dealt
with by the county courts relates to repair notices served under the Housing Act
1985. One of the housing repairs notices which can be served by a local author-
ity requires the person having control of the dwelling to undertake necessary
repairs where the authority is satisfied that it is unfit for human habitation and
that repair is the most satisfactory course of action. In the case of these and
many similar appeals to such inferior courts the courts in question usually have
wide powers to deal with the matters in issue and may be able to substitute
their own conclusions, eg by confirming a notice and substituting certain terms
of any notice or order served.
5.5 Tribunals and Inquiries Act 1992

It has been seen in Chapter 3 that the Tribunals and Inquiries Act is an impor-
tant element in the control of many of the more important inquiry-based deci-
sions taken under statutory powers by various ministers in central government.
The Act is also of great significance in organising and controlling the many
administrative tribunals which function as an important element in dispensing
administrative justice. Most of the recommendations from the Franks Report
were implemented and it will be seen that these recommendations have found
their way into the Tribunals and Inquiries Act where they seek to uphold the
important idea that procedures and processes in this context should once again
manifest ‘openness, fairness and impartiality’. Reference has been made to the
Council on Tribunals in Chapter 3. Having been established by the Tribunals
and Inquiries Act, its principal function in relation to tribunals is to:
74
... keep under review the construction and working of the tribunals specified
in Schedule 1 to the Act and, from time to time, to report on their constitu-
tion and working; [and] to consider and report on such particular matters as
may be referred to the Council under the Act with respect to tribunals other
than the ordinary courts of law, whether or not specified in Schedule 1 to the
Act ...
Most of the tribunals are listed in Schedule 1 to the Act and this, of course,
means that they are under the scrutiny of the Council. According to the Annual
Report of the Council on Tribunals for 1993–94, 70 tribunals were at that time
subject to the Council’s supervision. Their inclusion here also means that they
are subject to the various safeguards built into the provisions of the Tribunals
and Inquiries Act, which will be examined below. All of the tribunals so far
mentioned are ‘Schedule 1’ tribunals. Bodies excluded from Schedule 1 include
the Parole Board, the Gaming Board and local legal aid committees.
5.6 Tribunals and Inquiries Act Safeguards

Whether a tribunal falls within the Act and its provision of safeguards, includ-
ing supervision by the Council on Tribunals, depends on whether a statutory
order (an item of delegated legislation) has been made and approved.
Consequently, when a new tribunal or system of tribunals is created there will
be some interest in the question of whether they are to be ‘Schedule 1’ tribunals.
However, a particular tribunal may not be subject to all the provisions and safe-
guards in the Act so that the relevant statutory order may specify which parts of
the Tribunals and Inquiries Act apply. The safeguards in the Act are concerned
primarily with tribunal membership and procedure, and they are now dealt
with in turn.
5.6.1 Tribunal membership

On matters of membership in relation to tribunals, the Act in s 5 empowers the
Council to make general recommendations to the appropriate minister on the
subject of appointments to Schedule 1 tribunals and panels from which tribunal
membership is drawn. However, the minister is obliged only ‘to have regard to’
any such recommendations. Where s 6 applies, the minister is required to select
tribunal chairmen from a panel maintained for this purpose by the Lord
Chancellor. Although this provision applies to Social Security Appeal Tribunals,
chairmen are selected instead by the President of these tribunals. Where s 7
applies, a minister is unable to terminate a person’s membership of a tribunal
without the consent of the Lord Chancellor.
The power to make general recommendations about membership has been
used on several occasions by the Council. In recent years the Council’s concern
about membership has focused on a number of issues including a policy of the
Department of Social Security prior to the creation of the Social Security Appeal
75
Tribunals not to allow chairmen of National Insurance Local Tribunals and

Supplementary Benefit Appeal Tribunals to serve on the panels of both tri-
bunals at the same time. Other issues have included the need for more legally
qualified chairmen of the former Supplementary Benefit Appeal Tribunals and
(in Scotland) the need for more women to serve as members of these tribunals.
5.6.2 Rules of procedure for tribunals

In relation to procedure, the Council exercises a very important consultative
function since under s 8, no power of a minister to make, approve, confirm or
concur in procedural rules is exercisable without consultation with the Council
in the case of Schedule 1 tribunals. Section 10 deals with the giving of reasons
for tribunal decisions and stipulates that where any Schedule 1 tribunal gives a
decision there is a duty to furnish a written or oral statement of reasons on
request. The section goes on to say that a statement of reasons may be refused
or restricted on grounds of national security and that a tribunal may refuse to
furnish the statement to a person not primarily concerned with the decision if of
the opinion that to furnish it would be contrary to the interests of any person
primarily concerned. In practice rules of procedure for tribunals will normally
stipulate an obligation to provide reasons for a decision.
Although not strictly a matter of procedure, it should be noted that in the
case of some of the Schedule 1 tribunals there is an appeal on a point of law to
the High Court from their decisions. This is provided for by s 11 which contains
an alternative whereby the tribunal can be requested to state and sign a case for
the opinion of the High Court. It is difficult to generalise about this facility in s
11. On some occasions, as with decisions of the Immigration Appeal Tribunal, s
11 did not formerly apply so that any challenge to the legality of a decision had
to be by means of judicial review in the High Court as described in Chapter 13.
The Asylum and Immigration Appeals Act 1993 now provides for an appeal
directly to the Court of Appeal. On the other hand, s 11 does apply to decisions
of Rent Tribunals and Rent Assessment Committees. Finally, in the case of a few
tribunals, such as the Lands Tribunal, the Immigration Appeal Tribunal and the
Transport Tribunal, any appeal on a point of law will go directly to the Court of
Appeal, leap-frogging the High Court. This facility for an appeal directly to the
Court of Appeal is undoubtedly a reflection of the tribunals’ high legal reputa-
tion and specialist expertise. Where s 11 applies to a tribunal this will not
exclude recourse to other remedies in the High Court where it is alleged that a
decision is ultra vires and should be quashed. This matter is dealt with in
Chapter 13.
76
5.7 Aspects of Tribunal Procedure and Organisation

Whether a tribunal operates effectively will necessarily depend on its member-
ship and their ability to deal with the powers and procedures in question. The
tribunal system permits the appointment of members by the relevant minister in
the government department concerned. It has been seen previously that, with
the exception of Social Security Appeal Tribunals, in some instances the relevant
minister is required to appoint tribunal chairmen from a panel maintained by
the Lord Chancellor, which is usually an indication that such chairmen are to be
legally qualified. Legal qualifications are regarded as being particularly relevant
for the chairmen of appellate tribunals. As far as general tribunal membership is
concerned, the relevant statute constituting the tribunal will usually specify
desirable qualifications. In practice, most tribunals comprise a chairman and
two other lay members with assistance from a clerk.
5.7.1 The presidential system in tribunals

The position of the tribunal clerk is often a matter of concern. In its Annual
Report for 1981–82, the Council on Tribunals reported on a complaint concern-
ing the independence of the former National Insurance Local Tribunals. The
complainant thought it wrong that anyone wishing to raise a matter with the tri-
bunal by telephone had to speak to the department as the tribunal appeared to
have no independent staff working in independent premises directly approach-
able by a claimant or representative. Although recognising the need for an
employee of the department to act as tribunal clerk in some instances, eg where
the volume of work did not justify the tribunal employing its own full-time
staff, the Council ‘entirely accepted that it would be desirable for tribunals to be
administered completely independently from Government departments’.
Although departmental administrative arrangements for tribunals are closely
monitored by the Council to ensure that their independence is not compro-
mised, there is one measure which is probably more effective than most: the
‘presidential’ system. This system exists in some areas, notably the Industrial,
Social Security Appeal and Immigration Tribunals, and depends on a president
who is responsible for the operation of the tribunals in question and stands
between the tribunal and the responsible department. Because it is the president
to whom reference is made for most purposes of tribunal operation, the system,
according to the Council on Tribunals, ‘fosters a desirable spirit of indepen-
dence and properly emphasises a feeling of separation between the tribunals
and the administration of the responsible Government department’.
5.7.2 Openness in tribunal procedure

The requirement of ‘openness’ emphasised by the Franks Report provides the
basis for the general rule that tribunal proceedings are in public. There are
77
notable exceptions, eg in the case of the Mental Health Review Tribunal,

although it is general practice in most tribunals to read the evidence prior to the
hearing so that there is not always the same public airing of evidence as in a
court of law. Furthermore, it is generally the case that tribunals do not follow
strict rules of evidence observed by the courts, eg so that ‘hearsay’ evidence
may be admitted. Although there are differences in the rules of procedure for
the various tribunals, one fairly typical example of procedural flexibility
enjoyed by tribunals comes from the Industrial Tribunals: the tribunal conducts
the hearing in such manner as it considers most suitable to the clarification of
the issues before it and generally to the just handling of the proceedings. It
seeks to avoid formality in its proceedings and is not bound by an enactment or
rule of law relating to the admissibility of evidence in proceedings before the
courts of law.
Very largely, therefore, the procedure before the tribunal will be at the dis-
cretion of the chairman although, as will be seen in Chapter 10, this does not
absolve him from observing the rules of natural justice. These common law
rules would, for example, require a tribunal chairman to disclose most docu-
ments submitted by one of the parties to the proceedings, to the other party.
Failure to observe this and the other requirements of natural justice would
probably lead to a quashing of the tribunal’s decision.
5.7.3 Tribunal representation

Parties to most tribunal proceedings are able to rely on representation whether
in the form of legal or lay representation. Many welfare tribunals such as the
Social Security Appeal Tribunals see a great deal of representation by the vari-
ous voluntary agencies whose expertise before these tribunals is considerable.
Indeed, there are those who would argue that lawyers are out of place in tri-
bunals and tend to introduce a measure of formality and technicality which is
alien to administrative tribunals.
5.7.4 Legal aid, advice and assistance

In order to prepare a case for presentation to a tribunal it may be possible to rely
on the free services of one of the voluntary agencies. In practice, many cases
before the Industrial Tribunals are prepared and presented by officers of work-
ers’ trade unions as a service to the membership. In other cases where such
assistance is not available to parties to tribunal proceedings legal advice and
assistance is available from solicitors in the preparation of a case. However,
legal aid to cover further expenses in pursuing or defending a case before a tri-
bunal is not available except before the Lands Tribunal, the Employment
Appeal Tribunal and the Commons Commissioners. This latter tribunal deals
with disputes about the designation of land as common land. Assistance by way
of representation may also be available before the Mental Health Review
78
Tribunals. This matter of legal aid was dealt with by the Lord Chancellor’s
Advisory Committee on Legal Aid in 1974. Although it was recognised that dif-
ferent persons have different needs before different tribunals, the Committee
concluded that financial help should be extended to those voluntary agencies
already operating in the tribunal system. Nevertheless, it was also recognised
that legal aid before tribunals would lead to too much formality in their pro-
ceedings and the possibility that the proceedings would become too lengthy.
The Council on Tribunals has also added its weight to the controversy in calling
for legal aid to be made available before those tribunals under its supervision
where legal representation is available.
5.7.5 Legal immunity for tribunal proceedings

Where judicial proceedings are being conducted in a court of law the judges
enjoy an immunity from legal liability in tort. In other words, they cannot be
liable for civil wrongs such as libel and slander, a matter which is dealt with
again in Chapter 14. One of the big problems in the present context is whether
this immunity extends to and protects the members of tribunals. In one of the
leading cases, Royal Aquarium and Summer and Winter Garden Society Ltd v
Parkinson (1892), the court was concerned with a case of slander in respect of
words spoken at a meeting of London County Council while it was acting as a
licensing body for music and dancing licences. The defendant, Parkinson,
claimed that his allegedly slanderous statements were protected by absolute
privilege of the sort accorded to judges in judicial proceedings. However, it was
decided that absolute privilege did not apply because the licensing body did not
have the characteristics of a court even though it was obliged sometimes to act
judicially. As a result Parkinson, it was decided, could rely only on ‘qualified’
privilege so that he could claim immunity from tortious liability for slander if he
could prove that the offending words were spoken without malice.
While tribunals are obliged to act judicially, there must be some doubt about
the legal immunity of their membership. This doubt is emphasised in relation to
proceedings for contempt of court where there is a failure to comply with some
order or some interference with the functioning of a court. One important
aspect of the law relating to contempt permits an order for committal for con-
tempt to be made by a Divisional Court of the Queen’s Bench Division (part of
the High Court) where the contempt is committed in connection with proceed-
ings in an ‘inferior’ court. It was decided in Attorney General v British
Broadcasting Corporation (1981) that a local valuation court did not come within
this description. As a result, it may now be the case that only those tribunals
which are described as ‘courts’ in their statutory definition will be regarded as
deserving immunity in certain areas of tortious liability and as being within the
care of the Queen’s Bench Division for the punishment of contempt.
79
5.7.6 Precedent in tribunals

One final area of interest in this context of procedure and organisation concerns
precedent. By means of judicial precedent the common law has been developed
through a system which requires a court to follow a decision of a court above it
where the facts are similar. In theory there is no similar requirement for tri-
bunals although in practice a system of precedent has developed in most cases.
In particular, where there is an hierarchy of tribunals culminating with an
appeal tribunal as with the Social Security Commissioners and the Immigration
Appeal Tribunal, the lower tribunals will follow similar decisions of the appeal
tribunals. However, this system does depend on an effective publication of sig-
nificant previous decisions.
5.8 Specific Tribunals

In order to show the tribunal system in action and some of the foregoing princi-
ples in practice, the remaining section of this chapter is devoted to a description
of the nature and purpose of some particular tribunals. The tribunals which are
covered are the Transport Tribunal, the Vaccine Damage Tribunals, Rent
Assessment Committees and Rent Tribunals, the Social Security Appeal
Tribunals and the Social Security Commissioners.
5.9 The Transport Tribunal

The Goods Vehicles (Licensing of Operators) Act 1995 states that: ‘... no person
... shall use a goods vehicle on a road for the carriage of goods (a) for hire or
reward; or (b) for or in connection with any trade or business carried on by him,
except under a licence.’ Applications for such licences are made to the local
licensing authority. Before granting a licence, such a traffic commissioner has to
be satisfied about a number of matters, eg that the applicant is a fit and proper
person to hold an operator’s licence and that there will be satisfactory facilities
and arrangements for maintaining the authorised vehicles in a fit and service-
able condition. The disappointed applicant is entitled to appeal against an
adverse decision to the Transport Tribunal. The Tribunal has High Court status
which means that it has the power to compel the attendance and examination of
witnesses, to secure the production and inspection of documents, to enforce
orders and to enter and inspect property.
5.9.1 Composition
The Tribunal comprises a president who is an experienced lawyer and four
other members, of which two are required to be persons of experience in the
transport business, one a person of experience in commercial affairs and one a
80
person of experience in financial matters or economics. The membership is

appointed by Her Majesty on the joint recommendation of the Lord Chancellor
and the Minister of Transport. When the Tribunal is dealing with a licensing
appeal of the type previously described, it comes before the Road Haulage
Appeals Division which comprises at least two members of the Tribunal.
Decisions of the Tribunal are by a majority and there is an appeal on a point of
law, not to the High Court, but to the Court of Appeal, whose decision is stated
to be final.
5.9.2 Procedure
Procedural requirements are governed by the Transport Act 1985 which indi-
cate the considerable status of this body. Bearing in mind that the Tribunal has
High Court status for various purposes and is designated as a statutory court of
record, the Act stipulates that: ‘Where not inconsistent with these Rules the gen-
eral principles of practice or any particular practice of the superior court may be
adopted and applied as the Tribunal may think fit.’ Two other requirements
stipulate that a party may be heard in person or by counsel or a solicitor and
that reasons shall be given for a decision.
5.9.3 Status
The Tribunal is a ‘Schedule 1’ tribunal under the Tribunals and Inquiries Act
but the foregoing requirement for reasons in the Transport Act supersedes the
requirement of reasons on request under s 10 of the Act of 1992. In the same
way, the facility for an appeal on a point of law to the High Court in s 11 is
superseded by a specific provision for a similar appeal to the Court of Appeal.
As a tribunal under the supervision of the Council on Tribunals, the Transport
Tribunal is subject to the Council’s general recommendations about member-
ship and the Council’s concurrence is required for the removal of any member
of the Tribunal. Finally, the Council has to be consulted in respect of any
changes to rules of procedure.
5.10 The Vaccine Damage Tribunals

The Vaccine Damage Payments Act 1979 provides for a lump-sum payment to
be made to any person whom the Secretary of State for Health is satisfied has
suffered severe disablement as a result of vaccination. Certain conditions have
to be satisfied, for example, in general the vaccination must have been before
the age of 18 and the person concerned must have suffered 80% or greater dis-
ability as a result. Where it is decided that there is no entitlement, the written
notification must state the grounds for the decision. Where the written notifica-
tion states that the Secretary of State is not satisfied that the claimant is severely
disabled as a result of vaccination, it must specify arrangements for the matter
81
to be referred to an independent medical tribunal, that is, one of the Vaccine

Damage Tribunals. Decisions of any such tribunals are conclusive and binding
on the Secretary of State. In some circumstances, for example, where there is a
material change of circumstances, the Secretary of State is empowered to recon-
sider a decision within six years of that decision.
5.10.1 Procedure
The Vaccine Damage Payments Regulations 1979 contain the procedural and
other details governing the operation of the tribunals. The tribunals each com-
prise a chairman and two medical practitioners, each chairman being nomi-
nated by the President of the Social Security Appeals Tribunals. In common
with most other tribunals, hearings are in public ‘except in so far as the chair-
man may for special reasons otherwise direct’. Apart from the specific statutory
procedural requirements, the procedure is at the discretion of a tribunal. The
Secretary of State and the claimant have a right to be heard before a tribunal so
that they can call witnesses, question any witnesses and address the tribunal.
For this purpose, any person having a right to be heard can be represented at
the hearing by another person whether or not that person has professional qual-
ifications. Where in the opinion of the chairman it would be undesirable in the
interests of the claimant or the disabled person to disclose to them medical
advice or medical evidence which is before a tribunal, such advice or evidence
need not be disclosed but may be taken into account in making a decision.
5.10.2 Status
The tribunals came under the supervision of the Council on Tribunals in 1979.
Apart from the Council’s power to make recommendations about the tribunal’s
membership and the need for chairmen to be selected from a panel maintained
by the Lord Chancellor, the Council has to be consulted in respect of procedural
rules and the tribunals are bound to give reasons for decisions by virtue of s 10
of the Tribunals and Inquiries Act. However, s 11 of the Act does not apply so
there is no appeal on a point of law to the High Court from decisions of the
Vaccine Damage Tribunals. Consequently, tribunal decisions are subject only to
judicial review in the High Court, (the implications of this will be examined in
Chapter 13). Six tribunals have been established and they disposed of 230 cases
in 1981.
5.11 Rent Assessment Committee and Rent Tribunals

These tribunals, organised locally throughout the country, are concerned with
disputes arising under the Rent Acts, that is, disputes relating to private resi-
dential tenancies and similar arrangements. Rent Assessment Committees are
responsible for fixing rents under ‘assured and other types of tenancy on an
82
appeal from a decision of a rent officer. Rent Tribunals are responsible for the
fixing of rents in respect of ‘restricted contracts’, eg where rented accommoda-
tion is situated in property which is also being occupied by the landlord or the
rent includes an amount for the provision of furniture or services, and for
awarding ‘security of tenure’ whereby a person may be able to stay on in the
accommodation. The statutory provisions in question stipulate that a Rent
Assessment Committee, when constituted to carry out these latter functions,
shall be known as a Rent Tribunal! Considerable changes confronted the juris-
diction of these tribunals under the Housing Act 1988, eg through the restric-
tions on the creation of new restricted contracts. The fact that there is a close
relationship between these tribunals is reflected in their membership arrange-
ments. The Secretary of State for the Environment maintains a panel of persons
to act as chairmen and members of the Rent Assessment Committees estab-
lished in various areas of the country. Each area has a panel containing a list of
persons appointed by the Lord Chancellor who are capable of acting as chair-
men, and a list of persons appointed by the Secretary of State in consultation
with the Council on Tribunals who can sit as members. Rent Tribunals are con-
stituted from the same source. Each Rent Tribunal comprises a chairman and
two members while each Rent Assessment Committee comprises a chairman
and one or two members.
5.11.1 Rent Assessment Committees

Hearings are in public unless, for special reasons, it is decided to meet in camera.
The conduct of the hearing is at the discretion of the Committee and any of the
parties has a full right to be heard. The Committee may inspect a dwelling sub-
ject to the proceedings and must inspect it if requested to do so by one of the
parties. Most Rent Assessment Committee work is concerned with the task of
resolving disputes about the fixing of ‘fair’ rents: in 1981 they disposed of over
13,000 cases. A rent assessment committee may now act as a Leasehold
Valuation Tribunal for the purposes of the Landlord and Tenant Act 1987. This
Act gives tenants of blocks of flats ‘first refusal’ where a landlord is disposing of
his interest. Disputes here may be resolved by the Leasehold Valuation
Tribunal.
5.11.2 Rent Tribunals

Reference of restricted contracts for a tribunal’s consideration is in writing.
After a consideration of the reference, any such inquiry as the tribunal may
think fit and any oral or written representations from the parties, the tribunal
will fix a ‘reasonable’ rent. Any party may appear in person, be legally repre-
sented or be accompanied by any person. Hearings are usually in public but
again, as is often the case with many tribunals, ‘special reasons’ may justify a
hearing in camera. In 1981 the tribunals disposed of nearly 3,000 cases.
83
5.11.3 Status
It was seen previously that the membership of the tribunals is regulated by the
Act to the extent that the Secretary of State is obliged to involve the Lord
Chancellor and the Council on Tribunals. In addition, the Lord Chancellor’s
consent is required for the termination of a person’s membership of one of the
tribunals. Beyond the membership provisions of the Act, the tribunals are sub-
ject to s 10 (reasons for a decision to be given on request) and s 11 (appeal on a
point of law to the High Court), as well as being under the supervision of the
Council of Tribunals.
5.12 Social Security Appeal Tribunals

In 1983 the National Insurance Local Tribunals were merged with the
Supplementary Benefit Appeal Tribunals to form the unified Social Security
Appeal Tribunals. The starting point is a claim for benefit or entitlement which
is made to an adjudication officer. Decisions on many such claims are subject to
an appeal to a Social Security Appeal Tribunal. An exception worthy of note
occurs under the Social Security Act 1986. Many supplementary benefit pay-
ments are replaced by discretionary loans and grants from the Social Fund,
decisions on which are not subject to appeal to a tribunal but only a review by
another departmental official.
The social security tribunals are headed by a president. Membership (includ-
ing the chairmen) of the tribunals is no longer appointed by the Department of
Social Security: appointments are now made by the president. The presidential
system has the following merits: (a) it reinforces the independence of the tri-
bunals from government; (b) the president can be pro-active in training and is
able to maintain consistency in decision-making approaches; (c) the president is
able to improve communications within the tribunal network.
The chairman of one of these tribunals will be a barrister or solicitor of at
least five years’ standing. Two additional members of the tribunal are drawn
(by the president) from a panel of persons appearing to have knowledge or
experience of conditions in the area and who are representative of persons liv-
ing or working there.
Public, oral hearings are required although the chairman has the discretion
to require a private hearing, eg where delicate financial evidence may be in
issue. The members of the tribunal have an investigatory function so that issues
can be determined without strict adherence to the parties’ contentions. The tri-
bunal is empowered to refer questions for examination and report by an expert.
This facility is used particularly in relation to specialist medical matters. Prior to
presentation of the appeal the case is referred back to the adjudication officer for
reconsideration. If there is no movement as a result, the appeal proceeds. On
84
completion of the appeal, reasons are required for the decision. A further
appeal, on matters of law, goes to a Social Security Commissioner.
5.13 Social Security Commissioners

There are 13 Social Security Commissioners who are barristers or solicitors of at
least 10 years’ standing. Before an appeal can be accepted, leave (or consent) of
the chairman of the tribunal or the commissioner must be obtained. This filter is
aimed at eliminating unmeritorious appeals. Hearings are normally in public
and reasons have to be given for decisions. An appeal on a point of law from a
Commissioner’s decision goes to the Court of Appeal.
85
6 Public Corporations, Executive and
Privatised Agencies
6.1 Status
Public corporations are bodies with their own legal entity created by statute in
most instances, normally without the status of Crown servant or agent, to
undertake functions of concern to and subject to some control by government.
While a good deal of what follows relates to public corporations some reference
is made to the process of privatisation and the development of so-called ‘Next
Step’ executive agencies. A well-known example of privatised industry is
included in the reference to the privatised British Steel. While this example
relates to what may be described as ‘total’ privatisation through the flotation of
a conventional company, some examples may be referred to as ‘qualified’ pri-
vatisations. The privatisation of the water industry through the Water Act 1989
(now provided for through the Water Industry Act 1991) is notable on two
counts. First, those companies that are chosen as the new water and sewerage
undertakers have to comply with fairly extensive statutory requirements relat-
ing (for example) to prices and quality of service. Secondly, the law on insol-
vency in the Insolvency Act 1986 is modified in order to provide a rather more
generous safety net for the companies that may find themselves in financial dif-
ficulty in providing this fundamental commodity. The same insistence on a
strict statutory framework is seen in the coverage of the privatised electricity
industry, described below.
The case of the ‘Next Step’ executive agencies is rather different. In this case
government policy since the end of the 1980s has sought to separate out the ‘ser-
vice delivery’ element of central government and to place it in the hands of
‘quasi-independent’, ‘quasi-corporate’ agencies. Nevertheless, each of the fore-
going categories involves corporate status of some sort, against a well-defined
statutory framework.
6.1.1 Statutory corporations

Like local authorities, most public corporations are created by statute, in which
case the corporation is referred to as a ‘body corporate’. As an artificial individ-
ual in law, the public corporation may be able to undertake transactions in its
own name, acquire, hold and dispose of property in its own name, and sue and
be sued in its own name. The one notable exception to the general rule that pub-
lic corporations are statutory corporations is the British Broadcasting
Corporation, which was created by charter under prerogative powers. In British
86
PUBLIC CORPORATIONS, EXECUTIVE AND PRIVATISED AGENCIES
Broadcasting Corporation v Johns (1965) (referred to in Chapter 2), it was decided

that the Corporation was not a Crown servant or agent so that there could be no
Crown immunity from the payment of taxes. In the case of most public corpora-
tions, the relevant statute will define any Crown status. The usual practice is to
include a statement that the corporation is not a Crown servant or agent.
However, in some cases it may have been decided that a corporation should
have Crown status for a particular purpose, eg in relation to the payment of
rates on land in its ownership.
6.1.2 Public corporations and functions of concern to

government
There may be many reasons why government decides to create a public corpo-
ration. These reasons are best reflected in the categories of corporation which
will be examined in the next three sections. It has been noted that public corpo-
rations are not totally independent of government. Why, then, should govern-
ment decide not to incorporate a particular function in a government
department? The answer is not a simple one. From a political point of view,
government may not want to be identified too directly with sensitive or poten-
tially embarrassing areas of social regulation, for example. On the other hand, it
may be considered that there is insufficient expertise in a government depart-
ment for the purpose of some area of regulation or that the nature and scale of a
commercial operation is such that it cannot be undertaken by a government
department. In this context it has been seen that government policy has been
very much in favour of a separation out of ‘service’ functions from central gov-
ernment departments under the ‘Next Steps’ initiative, outlined below. As to
the types of function undertaken by public corporations, there seem to be three
broad categories, although there is always the possibility of an overlap between
the categories in some cases. In the first category, one finds the commercial and
industrial organisations many of which have been or are in the process of being
privatised. The second category covers the organisations concerned with eco-
nomic, social and welfare regulation, while the third category covers those
organisations whose concern is with social standardisation. Each of the three
categories is now examined after a description of the ‘Next Steps’ initiative.
6.1.3 ‘Next Steps’

The intention of this initiative, launched in the late 1980s by the government, is
to rationalise the Civil Service and reorganise government departments by ref-
erence to a separation (in broad terms) of service provision and policy-making.
Gradually since then there has been an emergence of semi-autonomous, ‘quasi-
corporate’ agencies employing civil servants enjoying some freedom particu-
larly in relation to day-to-day departmental supervision. The agencies are
characterised as executive bodies. Within approximately two years of the launch
87
of the initiative, over 30 executive agencies had been created including the
Driver and Vehicle Licensing Agency, the Land Registry and the Vehicle
Inspectorate. More recent creations include the Contributions Agency and the
Parole Board. The Criminal Justice and Public Order Act 1994 incorporated the
Parole Board with full, non-departmental public body status. Prior to 1991 the
Board was empowered only to make recommendations to the Home Secretary.
The Board now has executive powers, eg to review and finally decide on the
release of life prisoners serving discretionary life sentences. Accordingly, the
Criminal Justice Act 1991 is amended by the Act of 1994, indicating that the
Board shall not be regarded as the servant or agent of the Crown, or as enjoying
any status, immunity or privilege of the Crown, and that the Board’s property
shall not be regarded as property of, or held on behalf of, the Crown. The chair-
man and membership of the Board continue to be appointed by the Home
Secretary.
6.1.4 Industry, commerce and public utilities

Where there was a need for governmental intervention in economic activity, eg
because of a perceived need for monopolistic supply of a particular commodity
or because of the importance of effective price control, a public corporation
could be created either for the purpose of taking over an enterprise or group of
enterprises or for the purpose of starting some undertaking right from the start.
It is in this context that one finds the better-known public corporations like
British Coal. However, it must be recognised that government policy over quite
a substantial period has stressed a need for competition in the context of privati-
sation. This theme underpins much of the remainder of this chapter.
Privatisation of the major public utilities supplying water, gas and electricity in
particular is a major theme for present purposes. Electricity privatisation is
described more fully, below.
6.1.5 Economic, social and welfare regulation

Public corporations in this category may be seen as agents of government in the
fulfilment of some area of public policy, although this observation in no way
suggests that such corporations are ‘Crown’ agents. As regulatory corporations,
the bodies in this category are concerned to ensure that particular policies of the
government are implemented. Health authorities, for example, are concerned
with implementing the policies of successive governments which have provided
the National Health Service. Among other tasks, the health authorities act as
providers as well as regulators of health care in each area of the country. When
it comes to economic regulation, public corporations in this category should be
contrasted with those in the first category. Corporations in this second category
are regulatory agencies: they are not usually the initiators of the economic activ-
ity itself. A prominent example in this area of economic regulation is any one of
88
the agricultural marketing boards which facilitate the marketing of commodities

provided by the various producers. In the case of social regulation, again the
task of any public corporation is to implement government policies. One strik-
ing example here is the Housing Corporation which is organised regionally for
the purpose, among other purposes, of regulating and financing the activities of
housing associations. Consequently, housing rehabilitation can be effected by a
fusion of these important elements in one body which for many financial pur-
poses acts as an agent of government.
6.1.6 Social standardisation

This category, like the one above, is almost always the product of some area of
public policy and, again, there are probably many comparisons with the public
corporations in the second category. However, in this third category it often
appears that the public corporations are concerned particularly with the
enforcement of standards of social behaviour. Prominent examples are the
Commission for Racial Equality, the Equal Opportunities Commission, the
Nature Conservancy Council for England and the Advisory, Conciliation and
Arbitration Service (ACAS). Social standardisation by these public corporations
may involve a variety of techniques, eg licensing, criminal prosecution or con-
ciliation.
6.1.7 Government control

A clear point of distinction between the public corporation and the private com-
pany lies in the statutory facility for control of the public corporation by the
minister, who is, in turn, responsible to Parliament. Examples of this control
and its scope will be examined below where specific types of public corporation
are dealt with. Apart from this area of control there are four other areas of con-
trol: Parliamentary control, control by means of the Companies Act, ‘consumer’
control and judicial control by the courts. Parliamentary control is achieved
through debates, questions and scrutiny by Select Committees either in general
terms or on those occasions when some specific financial item is questioned, as
a result of auditing, for example. Control by means of the Companies Act may
be available through government investment in what is referred to as a ‘golden’
or ‘master’ share. Provision for such a share in a newly privatised corporation’s
articles of association allows the government to enforce certain defined (govern-
ment) shareholder’s rights restricting (for example) sale of the company to for-
eign interests without its consent. Of course the government may be free to
renounce its rights at a point that is considered to be politically or economically
appropriate. So-called ‘consumer control’ is available in some cases, usually
where consumer or consultative councils are established in relation to the com-
mercial activities of some of the nationalised industries. Finally, there is judicial
control, which is outlined in the next section.
89
6.1.8 Judicial control

In the case of most public corporations, and the nationalised industries in par-
ticular, there appear to be few opportunities to challenge their acts as being ultra
vires. It is difficult to identify precisely why this should be the case but there are
some broad indications. In the first place, the statutory powers and responsibili-
ties of many public corporations are quite widely drawn so that proof of an ultra
vires act could be quite difficult. Secondly, government control, eg in the context
of financial sanction for various projects, programmes or schemes, may provide
a filter to guard against anything which might be ultra vires. Finally, where the
functions of a public corporation are undertaken mainly through contracts, it is
that contractual forum which is the focus of attention so that the main concern is
with the law of contract and whether the terms of any contract have been ful-
filled. These three observations relate mainly to the small number of so-called
nationalised industries in industry and commerce. However, in the case of
many other of the public corporations with statutory powers of regulation and
social standardisation, there have been greater opportunities for challenge by
reference to ultra vires. Individuals or organisations subject to administrative
action by these public corporations have not always been slow to challenge that
action as being ultra vires action. Whether it has been a case of the Commission
for Racial Equality taking action to require a person to desist from allegedly
unlawful discrimination contrary to the Race Relations Act or a case of ACAS
acting to require a company to recognise a trade union in collective bargaining
(prior to the statutory restriction on formal recognition machinery), the fact that
an individual or organisation has considered that legal rights are affected by
administrative action has been sufficient to give rise to a challenge in the High
Court. One of the responsibilities of ACAS under a now repealed provision of
the Employment Protection Act 1975 was to facilitate union recognition. ACAS
was under a statutory duty to ‘ascertain the opinions of workers to whom the
issue relates by any means it thinks fit’. It will be seen in Chapter 9 that action
by ACAS was challenged successfully by one employer in this context on the
ground of procedural ultra vires. A number of other challenges to the exercise of
these powers were mounted, but not always with similar success.
6.1.9 Legal liability of public corporations

Many of the legal principles mentioned in relation to the legal liability of local
authorities in Chapter 4 are relevant to public corporations. The one crucial dif-
ference occurs where a public corporation is, in law, a Crown servant or agent,
in which case the Crown’s legal privileges referred to in Chapter 14 may apply.
However, because most public corporations do not enjoy this status, this matter
is of little significance here. Nevertheless, it was seen in Chapter 2 that some
public corporations are closer to government than others, in which case they are
likely to have the status of Crown servant or agent, eg the health authorities.
90
Apart from this issue of Crown status, the legal liability of the public corpora-
tion will depend in many cases on whether there is sufficient statutory authority
to protect the corporation, eg in respect of action which is alleged to be a tor-
tious nuisance. The public corporation’s legal liability may depend also on the
scope of any statutory duty which prescribes the functions it is expected to per-
form. In many instances, particularly in relation to the public utilities like the
former regional water authorities, the statutory duty was defined very broadly.
The Water Act 1973 s 11 indicated, for example, that it was the duty of a water
authority to supply or secure the supply of water for its area. Very similar,
broadly defined duties are to be found in the Water Industry Act 1991, defining
the duties of the water and sewerage undertaker companies. It is the case that
such widely drawn statutory duties cannot be enforced in law directly by a per-
son who complains that he has no water supply, a point which is taken up in
Chapters 11, 12 and 13. Because the fulfilment of these important duties
depended on all sorts of financial and policy issues affecting water companies,
the law requires any complaint to be taken directly to the administrative frame-
work established by statute, in this case the Water Industry Act 1991. Only as a
last resort would the matter be subject to enforcement by the courts and, even
here, only at the instance of the Secretary of State. In this latter context of statu-
tory duties therefore, it may be possible to generalise by saying that such duties
are not usually intended to be legally enforceable in the courts but they do
underline the scope of government control of many public corporations and pri-
vatised companies. The remainder of the chapter contains a brief description of
some of the different public corporations which fall within the foregoing cate-
gories together with one example of a privatised corporation: British Steel.
6.2 The Independent Television Commission

A White Paper published in 1988, entitled ‘Broadcasting in the 90s’, stressed the
importance of competition, choice and quality. The White Paper emphasised
further a greater diversity of services in a market context, involving less super-
vision and regulation but more ‘consumer choice’. The Broadcasting Act 1990
sought to implement the ideas behind the White Paper. The essence of the Act is
the regulation of the electronic media within the independent broadcasting sec-
tor: the private rather than the public sector. Two major agencies are created by
the Act of 1990, the Independent Television Commission and the Radio
Authority. The Commission is an independent agency subject to certain areas of
accountability to the Secretary of State. Otherwise, the Commission is to achieve
financial independence through fees to be charged for its services.
6.2.1 Membership and status

The Commission comprises a chairman and deputy chairman together with not
less than eight but no more than 10 members, appointed by the Secretary of
91
State. The Commission is a body corporate but is not a body exercising func-
tions on behalf of the Crown for the purpose of enactments relating to privileges
of the Crown.
6.2.2 Powers, duties and functions

The essential function of the Commission is regulation of television services in
the independent sector, regardless of technology. Licences may be granted only
to ‘fit and proper persons’. A wide power to impose conditions is available and
may include requirements about good taste and decency as well as the fulfil-
ment of promises made in any bid for a licence. There are statutory restrictions
on licence-holding, eg by certain foreign interests and anti-competitive organi-
sations. It is a fundamental duty of the Commission to determine whether pro-
grammes meet the standards set out in the Act: eg that news is accurate and
impartial.
6.3 British Steel

The British Steel Act 1988 provided the vehicle for privatisation of the former
British Steel Corporation. The Act transferred the assets and liabilities of the old
corporation to a new public limited company nominated by the Secretary of
State and provided for dissolution of the British Steel Corporation. Initially the
statutory requirement was for shares to be issued to the Crown in a nominated
company so that the company was wholly owned by the Crown. Thereafter a
Stock Exchange flotation enabled private investors to purchase the shares. For
all purposes the company is a conventional corporate entity registered under
the Companies Act in the normal way.
6.4 The Electricity Generating and Supply

Companies
The privatisation of the electricity industry was foreshadowed by the White
Paper ‘Privatising Electricity’ published in 1988. Ultimately the government’s
proposals were incorporated in the Electricity Act 1989. The assets of the elec-
tricity industry were transferred to ‘successor companies’ in the context of a reg-
ulatory system designed to encourage competition.
6.4.1 The regulatory regime

The two main actors in the regulatory regime of the Act of 1989 are the
Secretary of State and the Director General of Electricity Supply. The issuing
and monitoring of licences to generators, transmitters and suppliers of electric-
ity is undertaken by the Secretary of State. A central feature of the Electricity
92
Act, therefore, is the requirement for a licence to authorise key supply and
related functions. The unlicensed supply of electricity is a criminal offence.
Where a licence is issued subject to conditions, those conditions are enforceable
either by the Secretary of State or, (more usually) by the Director General. Once
issued, a licence empowers the recovery of charges as well as the acquisition of
land, according to the requirements of the Act. Additionally, the Secretary of
State’s consent is required for the construction, extension and operation of gen-
erating stations. The Act also empowers the Secretary of State to require public
electricity suppliers to make arrangements to secure that a specified proportion
of supply is obtained from non-fossil fuel generating stations.
6.4.2 General duties

There are certain general statutory duties defined by the Electricity Act that are
binding on the Secretary of State and the Director General. The duties are three
fold: first, to secure all reasonable demands for electricity; secondly, to secure
that licence-holders are able to finance their activities and, thirdly, to provide
competition in the generation and supply of electricity.
6.4.3 The Director General’s powers

The Electricity Act empowers the Director General to secure compliance with
licence requirements. In addition the Act facilitates the use of provisional and
final orders for enforcement purposes against licence-holders. A licence may be
modified, with the consent of the licence-holder. There is a discretion to refer
relevant matters to the Monopolies and Mergers Commission under the Fair
Trading Act. Thereafter the Commission is subject to certain duties in reporting
on a reference in this context and the Director General is subject to a duty to
modify a licence following any adverse report from the Monopolies and
Mergers Commission. Two other powers are worthy of inclusion: the power to
publish information and advice considered to be ‘expedient’ for the benefit of
customers or potential customers, and the power to set standards for overall
performance.
6.4.4 Powers of direction

The Secretary of State is empowered to give general directions to the Director
General on two issues. The first issue relates to priorities for any review by the
Director General of the performance of his duties while the second relates to
those considerations to be taken account of in the exercise of his functions.
93
6.5 The Housing Corporation

The Corporation has various functions, the more important of which are promo-
tion and assistance in the development of registered housing associations, the
registration of housing associations, supervision and control of the associations
and the processing of applications for housing development funds from such
bodies. In order to achieve these objectives the Corporation has the capacity to
do such things and enter into such transactions as are incidental to the exercise
or performance of the above functions. The Corporation is not a Crown servant
or agent for any purpose.
6.5.1 Government control and membership

The Corporation is subject to general directions from the Secretary of State, a
particularly important element of control in the case of this and other public
corporations with statutory responsibilities for the distribution of public money.
The Secretary of State again has the responsibility for appointing members of
the Corporation, in this case 15 members.
6.6 The British Wool Marketing Board

This Board is one of a number of agricultural marketing boards which are now
governed by the Agricultural Marketing Act 1958. Schemes for the market regu-
lation of an agricultural product may be submitted to the minister by persons
who are substantially representative of the producers of that product. The min-
ister is required to publicise a scheme, indicating that there are facilities for
objections. Any objections which are made are examined at a public inquiry and
the minister is obliged to consider the inspector’s report before deciding
whether the scheme should be implemented. If a scheme is to be implemented,
a board is appointed to administer that scheme. The minister has a power to
give directions where it appears to him that any act of a board will be contrary
to the public interest. However, the board must receive notice of any such direc-
tion and can require that the matter be referred to a committee of investigation.
The Wool Marketing Board comprises 10 regional members, two ‘special’ mem-
bers and three persons appointed by the minister. Each regional member is
elected by the registered producers in his area. The Board maintains a register of
producers. Any producer who is neither registered nor exempt from registra-
tion is prohibited from selling wool, although the Board can grant exemptions.
No registered producer can sell wool except through the agency of the Board
which has wide powers in connection with matters such as the condition of
wool to be sold. Valuation decisions are conclusive unless a valuation appeal
tribunal is set up under the scheme. Contravention of the scheme by a regis-
tered producer attracts financial penalties levied by a disciplinary committee
94
under the scheme. It should be noted finally in this context that this and other
agricultural marketing boards now operate against a broader background of EC
law and the Common Agricultural Policy. As a result, there is always a possibil-
ity that an agricultural marketing scheme will be contrary to certain EC legal
rights and safeguards such as the provision in the Treaty of Rome which
requires the free movement of goods between the Member States. The status of
EC law in relation to administrative law is outlined in Chapter 8.
6.7 The Nature Conservancy Council for England

The Environmental Protection Act created three nature conservancy councils,
albeit with difference names, for England, Scotland and Wales. The Nature
Conservancy Council for England, often referred to as ‘English Nature’ has a
variety of functions. In the first place it has an advisory function in indicating,
for example, the categories of plants and animals to be protected under the
Wildlife and Countryside Act 1981. Secondly, there are licensing functions, eg in
permitting the taking of animals for scientific purposes, an act otherwise unlaw-
ful under the Act of 1981. Thirdly, the Council has executive functions, includ-
ing the identification of land considered to be of special interest by virtue of its
flora, fauna or other similar characteristics. After notifying the land-owner, local
planning authority and the Secretary of State, the Council can enforce any
restrictions on the use of the land and pay compensation therefor. Fourthly, the
Council has a loan and grant-giving function for nature conservation, and
fifthly, there is a legislative function in making bylaws for marine nature
reserves.
6.7.1 Membership and status

The Council is a body corporate, subject to directions from the Secretary of
State. There are not less than 10 members of the Council and not more than 14,
all appointed by the Secretary of State. The Council is not a servant or agent of
the Crown and enjoys no status, immunity or privilege of the Crown. The
Council’s property is not regarded as the property or property held on behalf of
the Crown.
6.8 The Advisory, Conciliation and Arbitration

Service
The Service, usually referred to as ACAS, is governed by the Employment
Protection Act 1975 and has a general duty of promoting the improvement of
industrial relations, and providing conciliation and arbitration in trade disputes.
ACAS has six functions:
95
(1) the provision of conciliation in industrial disputes;

(2) the provision of conciliation officers to promote the settlement of complaints
made to industrial tribunals;
(3) the reference of matters in dispute to arbitration;
(4) the presentation of advice to the parties to industrial relations problems;
(5) inquiries into industrial relations problems; and
(6) the preparation and publication of codes of practice for the promotion of
good industrial relations.
Because ACAS has to be seen to be a truly independent body in the often sensi-
tive area of industrial relations, the Act of 1975 states that ‘the Service shall not
be subject to directions of any kind from any minister of the Crown as to the
manner in which it is to exercise any of its functions’. The Act also designates
ACAS as a body performing its functions on behalf of the Crown and goes on to
emphasise that it enjoys the Crown’s special legal position in civil proceedings
as defined in the Crown Proceedings Act 1947, a subject dealt with in Chapter
14. ACAS is governed by a council whose membership is appointed by the
Secretary of State from both sides of industry, with the addition of a minority of
‘independent’ members.
96
PART 2 ADMINISTRATIVE POWERS
7 The Nature and Characteristics of

Administrative Powers
7.1 Statutory Powers

The principal characteristic of most administrative powers is that they arise
from and can be used by virtue of legislation. It will be seen in Chapter 8 that
there are different varieties of legislation and that they each relate to different
areas of administrative powers. However, the most important variety of legisla-
tion is the so-called public general Act which affects the law across the country
as a whole. It was seen in Chapters 3 and 5 that the Tribunals and Inquiries Act
1992 governs some of the important requirements to be observed by most
administrative tribunals and statutory inquiries. In addition to defining the gen-
eral legal standards to be observed in this context, the Act also permits the mak-
ing of statutory orders to bring a tribunal under the Act and statutory rules to
set down rules of procedure for some statutory inquiries. It will be seen in
Chapter 8 that such orders and rules are items of subordinate, or delegated, leg-
islation since they are made under the authority of a principal Act of Parliament
by a delegate, in this case, a minister of the Crown. In some instances, the
Crown relies on prerogative powers, as described in Chapter 1. It was seen that
these are recognised by and may be enforced by the courts. The rarity of such
decisions indicates the predominance of legal powers in the present context
and, in particular, statutory powers.
Reference must be made finally to the common law, that is, the case law
developed by the courts. The common law has been developed where the courts
have had to make the law for a situation which is not governed by statute and
where it is necessary to interpret Parliament’s words in a statute. It is this sec-
ond situation which has characterised the development of so much administra-
tive law. Most administrative powers are statutory, so that it has been the case
on frequent occasions that the High Court in particular has been called upon to
interpret the statutory words of an Act of Parliament or some other item of leg-
islation, primarily by reference to the doctrine of ultra vires as described in
Chapter 1 and Part 3. As a result of judicial decisions in the courts, it has been
possible for all sorts of administrative agencies to appreciate the scope of their
various statutory powers. In matters of substance and procedure the courts’
decisions have had a very persuasive influence on the way in which many
97
administrative powers are used as well as the purposes for which they are used.
Such matters are addressed more fully in Part 3.
7.2 The Law of the European Union

Chapter 8, which deals with the sources of administrative powers, includes a
reference to the law of the European Union, the EU. When the UK became a
member of the EC (the pre-Maastricht name for the collection of Member States
which recognised the Treaty of Rome), it was agreed that the Treaty of Rome
would apply to and be observed in the UK. It will be seen in Chapter 8 that the
Treaty of Rome provides the basis for the constitutional and legal framework of
the EU. This is now recognised by the European Communities Act 1972 by
which Parliament accepts that EU law is superior to UK law and will apply to
the exclusion of the latter whenever there is an overlap. The European
Communities (Amendment) Act 1986 now extends the scope of the Community
following the signing of the Single European Act in February 1986, creating a
new single market. Moreover, the European Communities (Amendment) Act
1993 has incorporated the Treaty on European Union (the so-called ‘Maastricht
Treaty’), into UK national law and has hence arguably made it a little more
likely that the original Treaty of Rome’s goal of an ‘ever closer union among the
peoples of Europe’ will be achieved. Consequently, it is necessary to identify
three things:
(1) the object of the EU for the purpose of indicating the areas of law where the
UK Parliament has accepted the superiority of EU law;
(2) the nature of EU law; and
(3) the characteristics of administrative law and administrative powers as they
are affected by EU law.
7.2.1 The object of the EU

Article 2 of the Treaty of Rome specifies that the EU is an economic and mone-
tary union of Member States. In general terms, this means that EU law must
relate in some way to the economic relationship between Member States.
Accordingly, the more important areas of EU law relate to economic competi-
tion, the free movement of goods and the free movement of workers. An exam-
ple of EU law in operation is seen in its environmental protection policy and
various items of law which have been legislated since 1973 by reference to
Articles 2 and 100 of the Treaty, among others. Environmental protection is now
recognised explicitly as an area of competence in the Union. Article 100 pro-
vides for the harmonisation of such legislation among Member States as affects
the establishment or functioning of the Union. The apparent intention behind
the EU law in this area is the harmonisation or reconciliation of the pollution
laws in the Member States in order to reduce or eliminate disparity between
98
THE NATURE AND CHARACTERISTICS OF ADMINISTRATIVE POWERS
their respective laws in this field. In this way, it is less likely that there will be
great disparity in the costs of industrial production in Member States according
to the relative laxity of their respective pollution laws. EU law deals with the
pollution problem both specifically, in relation to particular problems, and gen-
erally. In this latter context of general EU laws, the UK has promoted much leg-
islation in recognition of the numerous directives from the Union on the subject
of environmental protection. For example, the Directive on Assessment of the
Environmental Effects of Major Developments was legislated as regulations
under the Town and Country Planning Act.
7.2.2 The nature of EU law

The outstanding characteristic of EU law is that it sets legal standards which are
to be observed by and, sometimes, enforced against, governments of Member
States, individuals and organisations. In some instances, EU law gives legally
enforceable rights and it is often the case that such rights can be enforced in the
UK courts, whether the matter is civil or criminal. In pursuing their duty to
recognise and implement EU law, the UK courts may find problems in inter-
preting that law. The Treaty of Rome states that in these circumstances any such
court may, or, in circumstances where there is no judicial remedy under
national law against the decision of the court, shall refer the problem of inter-
pretation to the European Court of Justice. EU law as interpreted by the Court
of Justice will be applied to the facts of the case by the court dealing with the
case in the UK. By way of an illustration of the essential nature of much of EU
law, one can turn to Article 48 of the Treaty of Rome. Among other things,
Article 48 stipulates that there shall be freedom of movement for workers as
between the Member States and that there shall be no discrimination for this
purpose in relation to employment, remuneration and conditions of employ-
ment. This important area of EU law would be infringed where an organisation
in one of the Member States has a requirement that its employees shall be
nationals of that Member State, for example. Any national of a Member State
excluded from employment by such an organisation could well claim a legal
right to challenge the legality of the organisation’s employment restriction as
being contrary to Article 48 of the Treaty of Rome. There are exceptions to
Article 48, and one EU Directive states that it does not apply in various situa-
tions, eg where a person is expelled from a Member State and the expulsion is
referable to his personal conduct in relation to matters of public policy, public
security or public health. Consequently, a deportation order served by the
Home Secretary against a national of a Member State under his powers in the
Immigration Act 1971 will be perfectly lawful as long as it can be justified under
any of the exceptions to Article 48. If the order was challenged in the High
Court, it would be found to be ultra vires as contrary to Article 48 if one or more
of the exceptions could not be established. The Immigration Act 1988 now
ensures that domestic immigration law is fully consistent with EU law. This is
99
achieved through a statement in the Act that a person shall not require consent
to enter or remain in the UK where he has an entitlement to do so by virtue of
an enforceable Union right.
7.2.3 Administrative law, administrative powers and EU law

From the previous section it can be seen that an exercise of statutory administra-
tive powers may be subject to the limitations of EU law. Where statutory admin-
istrative powers are conferred on any administrative agency and are exercisable
for purposes which overlap with EU law then those powers must be exercised
consistently with EU law. An example from the Immigration Act and Article 48
was given in the previous section and in one of the leading cases, van Duyn v
Home Office (1977), the issue related to those immigration powers which permit
an immigration officer to refuse entry to the UK. Miss van Duyn was a member
of the Church of Scientology which was regarded by the UK government as
being an undesirable organisation, for a number of reasons. The government’s
attitude to the Church had been made known publicly as had its intention to
take steps to curb its activities. As a Dutch national, ie a national of a Member
State of the EU, Miss van Duyn sought to enter the UK in order to take up
employment at the Church’s college in Sussex. Entry was refused, whereupon
Miss van Duyn applied to the High Court for a declaration that she was law-
fully entitled to enter the UK to take up employment with the Church.
Following a referral on a matter of interpretation to the European Court of
Justice by virtue of Article 177 which was alluded to in the previous section, the
basis of the domestic court’s decision to refuse to grant the declaration was that
Miss van Duyn’s exclusion came within the ‘public policy’ exception to the legal
rights conferred by Article 48. As a result, a government of any Member State
can lawfully discriminate against the nationals of another Member State in rela-
tion to Article 48, even though the same action might not be taken lawfully
against one of its own nationals. Another example goes back to what was said
in Chapter 6 about public corporations and, in particular, the agricultural mar-
keting boards. It was seen in Chapter 6 that the various agricultural marketing
schemes are approved by the Minister of Agriculture and operated by the
boards concerned. It was suggested in Potato Marketing Board v Robertsons (1983)
that the potato marketing scheme was contrary to certain provisions of EU law.
The issue arose when the Board sued Robertsons, a registered potato producer,
for payment of a levy which was due under the scheme. In answer to
Robertsons’ claim it was decided by the court that, among other provisions of
the Treaty of Rome, the scheme (which provided for quantitative marketing
restrictions) did not contravene Article 34 which provides that quantitative
restrictions on exports, and all measures having equivalent effect, shall be pro-
hibited between Member States. One of the technical reasons for this part of the
decision was that the relevant parts of the scheme did not have as their specific
object the restriction of patterns of exports.
100
A final, more recent example of a case in which it was argued that the exer-
cise of statutory administrative powers was subject to the limitations of EU law
was the decision in R v London Boroughs Transport Committee, ex p Freight
Transport Association Ltd (1991). In this particular case, the applicants, transport
associations and operators, sought judicial review of a condition contained in
delegated legislation which required the holder of a permit to drive goods vehi-
cles in excess of 16.5 tonnes in restricted areas to minimise the noise emitted by
the vehicle’s air brake system by the fitting of a noise level suppresser where
such a device was capable of being fitted. It was contended on behalf of the
applicants that the condition was unlawful since it was, inter alia, incompatible
with the requirements of two EU directives on vehicle brake devices and sound
levels with which their vehicles complied. However, it was held by the House
of Lords that the condition was not unlawful since it did not conflict with either
of the Directives which were in fact concerned with matters other than the regu-
lation of traffic. Moreover, the condition was lawful under EU law since it
reflected the EU’s wider policy of seeking to ensure the protection of the envi-
ronment.
7.3 The Nature of Statutory Administrative Powers

In Part 1 the various administrative agencies were examined together with their
various functions. In the remainder of this chapter it will be seen that some gen-
eralisations can be made about the nature and characteristics of the powers con-
ferred on these agencies to enable them to perform their various functions. As to
the nature of administrative powers, there is a simple distinction between dis-
cretionary and non-discretionary powers. This distinction is one which relates
to whether an administrative agency has an opportunity to make choices in per-
forming its statutory functions. In general, this opportunity to make discre-
tionary choices is one which goes to ministers of the Crown and local
authorities. Both of these are democratically accountable, to Parliament and
councils respectively, for a large number of policy-based decisions in relation to
functions which require a flexibility or response. Some public corporations, and
the so-called nationalised industries in particular, also enjoy a large measure of
discretion for the purpose of being able to fulfil an effective commercial or
industrial role. However these bodies are only indirectly accountable to
Parliament through the minister responsible and the system of Parliamentary
Select Committees. Administrative tribunals, on the other hand, are charac-
terised by non-discretionary powers conferred by statute. As was seen in
Chapter 5, the ‘court-substitute’ tribunals usually operate in order to adjudicate
some statutory entitlement. In general terms, therefore, as long as any claim,
dispute or similar matter can be isolated within the statutory formula by refer-
ence to which the tribunal operates, there is no discretion for the tribunal to do
anything but deal with it within the terms of the statutory scheme concerned.
101
7.3.1 The nature of discretionary powers

It often appears that any discretionary powers conferred on a minister of the
Crown are wider than those conferred on any other administrative agency.
There may well be some substance in this observation, particularly in areas such
as national security and economic regulation. As to national security, the
Prevention of Terrorism (Temporary Provisions) Act 1989 states that:
The Secretary of State may exercise the powers conferred on him ... in such
way as appears to him expedient to prevent acts of terrorism ...
The Act goes on to confer wide powers on the Home Secretary to make exclu-
sion orders under the Act. As to economic regulation, s 7 of the Industrial
Development Act 1982 states that for various purposes such as the promotion of
the development or modernisation of an industry:
[T]he Secretary of State may ... provide financial assistance where, in his
opinion –
(a) the financial assistance is likely to provide, maintain or safeguard
employment in any part of the assisted areas ...
Each of these examples of discretionary powers indicates that within the broad
limits of the statutory powers the Secretary of State responsible enjoys an
important flexibility in his choice of action. As long as the particular Secretary of
State has some grounds for an opinion under the Act of 1982 and is able to jus-
tify the expediency of his use of the powers under the Act of 1989, the law con-
siders that he is acting intra vires, that is, within his statutory powers, and will
not interfere on the basis that the task being performed is his task, conferred by
Parliament. More particularly, the law is concerned only with the question of
whether the Secretary of State has strayed beyond the limits of his powers, eg
where, in an unlikely event, the powers in the Act of 1989 were to be used to
prevent non-violent political acts in the UK. Clearly, it would be difficult and
often controversial for the High Court to deal with questions as to whether it
was ‘expedient’ for a Secretary of State to act in order to prevent acts of terror-
ism or whether the economy of the UK would be benefited by financial assis-
tance to industry. The limits of the doctrine of ultra vires in areas like this are
dealt with more fully in Chapter 11.
7.4 Characteristics of Administrative Powers

Administrative powers are characterised by many different forms, according to
a variety of different requirements, such as the need to allocate scarce financial
resources for the fulfilment of important national needs and the need to control
some potentially dangerous activity. Although it is not an easy task to charac-
terise and categorise the various forms of administrative powers, six categories
seem to provide an effective picture of the way in which statute confers these
powers:
102
(1) the initiation of administrative action;

(2) licensing;
(3) financial regulation;
(4) contractual regulation;
(5) regulation by the criminal law; and
(6) disciplinary regulation.
While it is recognised that there may be overlaps between these categories, each
one will be examined in turn.
7.4.1 The initiation of administrative action

The initiation of administrative action is usually the responsibility of democrati-
cally accountable administrative agencies acting under the umbrella of statutory
discretionary powers. The initiation of administrative action is most clearly
associated with central government departments, as where the Home Secretary
decides to exclude a person from the UK under the Immigration Act on the
ground that his presence is not conducive to the public good. While this exam-
ple relates to a single, individual case, there are many instances where all sorts
of large, important schemes can be initiated under various statutory powers
such as the Industrial Development Act 1982, s 7 of which was mentioned ear-
lier in the present chapter. The initiation of administrative action often occurs
against a background of policy for which a minister is responsible to
Parliament.
In the case of local government, the initiation of administrative action can be
illustrated by reference to the various statutory powers which permit the com-
pulsory purchase of land for all sorts of different purposes. Although some local
authorities may be reluctant, as a matter of policy, to allow a use of these pow-
ers, where they are used, any order made will be subject to confirmation by the
appropriate minister, usually the Secretary of State for the Environment. Such a
power to make a compulsory purchase order is strictly a legislative function,
not an administrative function, but there are many other examples of purely
administrative action being initiated by local authorities, eg where a local
authority serves a repair notice in respect of a dwelling house which is unfit for
human habitation but repairable at reasonable expense, under the power con-
ferred by s 189 of the Housing Act 1985.
7.4.2 Licensing
Licences are required for a wide variety of different purposes. Licensing there-
fore represents one of the most important types of administrative action. The
various licensing agencies usually operate under discretionary powers which
should permit effective control of the activities concerned. Many such activities
are prohibited by statute which goes on to provide that they may be permitted
103
where a licence or consent is granted by the particular licensing agency. Liquor

licensing by magistrates is one of the better-known examples. One of the more
important licensing functions relates to town and country planning where the
Town and Country Planning Act 1990 states that the development of land
requires planning permission, that is, a ‘land use licence’. Local authorities have
many other licensing functions in addition, covering activities such as the opera-
tion of pleasure boats and lotteries, and the use of firearms. Bodies such as the
Civil Aviation Authority may undertake relatively limited licensing functions
compared with central government. Central government is usually concerned
with licensing in so far as any proscribed activity has some broad, national signifi-
cance, as in the case of industrial development certificates mentioned in Part 1.
7.4.3 Financial regulation

Administrative powers conferred in this area are usually related to central gov-
ernment statutory control of local authorities’ finances and to other grant-mak-
ing activities undertaken by all types of administrative agency. The Housing
Corporation, for example, distributes grants to housing associations. In the
same general area, local authorities are responsible for the payment of housing
renovation grants for the repair and improvement of substandard housing. A
third example comes from the Water Industry Act 1991 and its mechanisms for
controlling the prices that can be charged for water supply by the privatised
water companies.
7.4.4 Contractual regulation

This area of administrative action provides what is often effective regulation
from the point of view of the administrative agency although it is a fundamen-
tal legal restriction that any such agency cannot extend its statutory powers by
the use of contractual powers. It was seen in Chapter 6 that the Independent
Television Commission undertakes its statutory functions primarily by refer-
ence to the contracts made with companies providing programmes by virtue of
the Broadcasting Act 1990. One of the most far-reaching statutory powers per-
mitting the making of contracts appears in the Town and Country Planning Act
1990 and some related statutory provisions. These powers permit local planning
authorities to make planning agreements with developers, usually in conjunc-
tion with grants of planning permission. These contractual agreements allow a
far more effective, detailed control of development than is normally available
through the conventional ‘land use licence’ comprising a planning permission
and any conditions attached to it.
7.4.5 Regulation by the criminal law

The criminal law tends to be used as a means of regulation where an activity has
potentially serious consequences. Some of the best examples occur in the general
104
context of pollution. Section 1 of the Clean Air Act 1993, for example, stipulates
that it is a criminal offence to emit dark smoke from the chimney of any building.
The law operates against the occupier of the building, the categories of which
include dwelling houses in addition to the more obvious industrial buildings.
There are some exceptions to the coverage of the criminal law in this area, as well
as certain defences, eg that the failure of a furnace was not reasonably foresee-
able. The law is enforced by local authorities in the districts and the Clean Air
Act prescribes a maximum fine in respect of dark smoke emitted from a private
dwelling house and a maximum fine in respect of any other building. Local
authorities tend to use the criminal law in this and similar areas as a last resort,
preferring to persuade occupiers to comply with the law voluntarily.
In other areas, the criminal law may be used as a means of regulation but
less immediately than in the case of the Clean Air Act and similar statutes. The
Town and Country Planning Act, for example, empowers a local planning
authority to serve an enforcement notice requiring development without or in
breach of planning permission to be discontinued. Only where the requirements
of the notice are not complied with is there an opportunity for the authority to
prosecute the offender in the magistrates’ court.
7.4.6 Disciplinary regulation

This variety of regulation usually occurs within non-statutory domestic organi-
sations such as trade unions, clubs, societies and professional organisations.
Such organisations are of interest in administrative law particularly where the
rules of natural justice are concerned. As far as statutory administrative agen-
cies are concerned, disciplinary regulation is a matter of interest in two particu-
lar areas: the police and the agricultural marketing boards. In both areas there is
some statutory regulation of discipline according to the respective requirements
of these organisations which are therefore amenable to the doctrine of ultra vires.
105
8 The Sources of Administrative Powers
8.1 The Range of Administrative Powers

It was seen at the beginning of Chapter 7 that most administrative powers have
their source in legislation, ie they are statutory powers. As a general rule it can
be said that such powers must have the force of law because they affect, or may
affect, the rights of individuals or organisations. The impact of this general rule
is seen in another dimension in the fundamental rule of law that where an
administrative agency acts beyond or outside its statutory powers, the resulting
action is regarded as being ultra vires, that is, no action at all in law. The general
nature of this fundamental source of administrative powers will be outlined
later in this chapter.
Reference has been made to the common law in Chapter 7. The common law
is clearly a secondary though important source of administrative powers. As
was seen in Chapter 7, the courts’ interpretation of the statutory powers provide
valuable guidance for many administrative agencies. Many of the rules of law
developed by the courts in the context of the doctrine of ultra vires occur in Part
3 where it will be seen that it is the task of the courts to interpret and apply
Parliament’s intentions in relation to the statutory powers governing the func-
tions of the administrative agencies. As these rules are developed under the
umbrella of the doctrine of ultra vires, so they become an important influence in
relation to much administrative action.
While Part 3 deals with the common law and the doctrine of ultra vires, the
present chapter deals also with EU law, not so much as a source of administra-
tive powers but rather as a source of law and legal restrictions in relation to the
functions and activities of administrative agencies as they fall within the objec-
tives of the Union.
Finally, reference should be made to the prerogative as a source of adminis-
trative powers. It was seen in Chapter 1 that it is the government of the day
which exercises the Crown’s remaining prerogative powers. In many (though
not all) instances, prerogative powers do not impinge directly on the individu-
al’s rights, eg in the broader regulation of government monetary and economic
policy. Consequently, in the absence of any statutory regulation, there appears
to be some considerable flexibility of action available to the government within
what is an ill-defined source of administrative powers. It is only on the rare
occasion that a use of powers said to have their source in the prerogative may
come under the scrutiny of the courts. In these circumstances the court may
106
THE SOURCES OF ADMINISTRATIVE POWERS
wield considerable influence in terms of being able to dictate where prerogative

regulation ends and legal regulation begins and in being able to determine
whether an exercise of such powers is justiciable.
It was said at the outset of this chapter that most administrative powers have
their source in legislation as statutory powers. Accordingly, the remainder of
this chapter is taken up with an examination of such powers and the other
major source – EU law.
8.2 Legislation
Any government will use its (albeit temporary) control of Parliament to legislate
measures in fulfilment of its various policies. Such legislation may, for example,
set out a statutory scheme, its substantive and procedural requirements and the
nature of any relationship between the administrative agency dealing with the
scheme and the minister responsible.
8.2.1 The advantages and disadvantages of legislation

In a modern, complex society there is often a need for a precise definition of the
law as it governs administrative powers and their implementation. It is often
said that the common law has developed from ‘accidents of litigation’ between
individuals and organisations, so that this area of the law is clearly unsuited for
the provision of precisely defined, complex schemes governing areas like the
social security system. However, even the major legislation like the Social
Security and Housing Acts are subject to some limit on the amount of detail that
can be incorporated. It is for this reason that many such Acts contain a power
conferred on the minister responsible to make delegated, or subordinate, legis-
lation specifying details for the operation of the statutory scheme. Most legisla-
tion operates in advance: exceptionally, a statute may be retrospective and
operate against events in the past, eg creating or removing legal liability. One of
the most widely recognised examples of a piece of retrospective legislation is
the War Damage Act 1965 which was passed in order to abolish rights to com-
pensation arising under the common law where the property of an individual
or company had been damaged or destroyed on the authority of the Crown dur-
ing or in the contemplation of the outbreak of war. This very brief Act was
passed solely for the purpose of overruling the decision of the Privy Council in
Burmah Oil Co v Lord Advocate (1965) where such a right to compensation had
been held to exist. Thus this episode neatly demonstrates the ultimate authority
that Parliament is capable of asserting over the courts. However, the question-
able constitutional propriety of legislating retrospectively ensures that a ‘court
will not ascribe retrospective effect to new laws affecting rights unless by
express words or necessary implication it appears that such was the intention of
the legislature’ (per Willes J in Phillips v Eyre (1870)).
107
The recent decision of the House of Lords in Plewa v Chief Adjudication Officer
(1994) involved a consideration of s 53 of the Social Security Act 1986 and
whether the provision in question had retrospective effect. Section 53, prior to
its repeal by the Social Security (Consequential Provisions) Act 1992, enabled
the Secretary of State to recover overpayment of both means tested and non-
means tested benefits from either the recipients or from third parties. As such, it
replaced s 119 of the Social Security Act 1975, which applied to non-means
tested benefits, and s 20 of the Supplementary Benefits Act 1976 which applied
to means tested benefits. The question for the House of Lords was thus whether
overpayment of benefit made prior to the date on which s 53 came into force
could be recovered under the 1986 Act, or alternatively, whether recovery
would have to be in accordance with the earlier statutory provisions. During the
course of the leading judgment, Lord Woolf stated with approval the words of
Lord Brightman in the Privy Council decision in Yew Bon Tew v Kenderaan Bas
Mara (1982) where his Lordship observed that:
... there is at common law a prima facie rule of construction that a statute
should not be interpreted retrospectively so as to impair an existing right or
obligation unless that result is unavoidable on the language used. A statute
is retrospective if it takes away or impairs a vested right acquired under
existing laws, or creates a new obligation, or imposes a new duty, or attaches
a new disability, in regard to events already past.
Examining the relevant statutory provisions in the light of the Interpretation Act
1978, a unanimous House of Lords held that since s 53 created a new obligation
to make repayment where overpayment had occurred due to the recipient’s
misrepresentation or failure to disclose relevant information, it therefore fol-
lowed that the presumption against retrospectively applied in this case. It
would be unfair to hold otherwise especially since s 53 imposed potential liabil-
ity on a third party for making a misrepresentation or failing to disclose infor-
mation where such liability had not been capable of arising under the old
statutory machinery relating to non-means tested benefits. The effect of this
House of Lords decision is to overrule the earlier decision in Secretary of State for
Social Services v Tunnicliffe (1991) where the Court of Appeal held that the new
regime under s 53 rather than the old statutory regime applied in relation to the
recovery of overpayment of benefits. In addition, Plewa emphasises the general
reluctance on the part of the judiciary to accord statutory provisions retrospec-
tive effect unless it is clear that that was what Parliament intended at the time of
enactment.
Most legislation is complex and not easily understood (even by lawyers on
some occasions!). This difficulty is eased on those occasions when various items
of legislation are consolidated in one Act. The Merchant Shipping Act 1995, for
example, consolidated a great many enactments relating to Merchant Shipping
including the Merchant Shipping Act 1894. However, it is not always the case
that a consolidating enactment is able to tidy up the statute book quite as thor-
oughly as was originally intended. This was certainly the case with regard to
108
the predecessor of the Town and Country Planning Act 1990, the 1971 Town
and Country Planning Act which consolidated the Town and Country Planning
Acts of 1962 and 1968. Unfortunately, it was not long before the legislation was
being amended once again in the Town and Country Planning (Amendment)
Act 1972, the Local Government Act 1972 and various other Acts. Although it is
true to say that the central scheme of the law may well remain the same in such
an event, there are considerable difficulties in having to look at other Acts to
find answers to detailed questions where the law has been modified and
amended or even repealed in some respects. In some other countries this prob-
lem is solved by amending the principal Act as soon as changes are legislated,
so that there is no need to go beyond that Act.
8.2.2 The Renton Committee on the Preparation of Legislation

This Committee reported in 1974 and made four broad criticisms of legislation.
First, it was said that the language of legislation was obscure and complex, its
meaning elusive and its effect uncertain. Secondly, legislation is subject to over-
elaboration, often in order to avoid uncertainty. Thirdly, the internal structure
of legislation is illogical. Finally, and returning to the point canvassed at the end
of the previous section, existing legislation is not amended by reference to new
legislative provision.
8.2.3 The categories of legislation

Before a Bill can become an Act of Parliament, it requires the approval of
Parliament and the Royal Assent. Bills fall into four categories:
(1) Public Bills;
(2) Private Bills;
(3) Hybrid Bills; and
(4) Private Members’ Bills.
Most administrative powers conferred on the administrative agencies originate
in Public Bills which become Public Acts of Parliament, such as the Education
Act 1944, the Industrial Development Act 1982 and the Housing Act 1985, to
name but three. As Public Acts, each of these statutes has effected a change in
the general law in pursuance of a government’s public policy. Private Bills, on
the other hand, deal with the position of some individual, organisation or group
of individuals on a matter of their private, personal or local interest. Hybrid
Bills fall between Public and Private Bills because, as Public Bills, they neverthe-
less deal with some private interest, for which reason they are subject to special
legislative procedures. As to the procedural differences between the Public and
the Private Bill, Erskine May, the authoritative source on Parliamentary proce-
dure states that:
109
[T]he essential difference in procedure ... is that, whereas a public bill is

either presented direct to the House or introduced on motion by a Member
of Parliament, a private bill is solicited by parties who are interested in pro-
moting it ...
The Private Members’ Bills, as their name suggests, are introduced by private
members and can deal with any matter except the authorisation of expenditure.
The Abortion Act of 1967, for example, was the result of a Private Members’ Bill
since it was felt at the time, and indeed it remains the case today, that abortion
is so sensitive a matter of conscience for an individual MP that it would be inap-
propriate for the issue to form part of a government’s legislative programme.
8.2.4 The legislative procedure for Public Bills

When a Bill has been drafted, it is presented to Parliament for a first reading.
Thereafter, the second reading sees a discussion of the broad principles and
structure of the proposed legislation. Some Bills will be regarded as non-contro-
versial Bills while others will be unopposed. In the case of these Bills, where
time on the floor of the House is short, they will be referred to a Second Reading
Committee of the House. Following the second reading, the Bill is referred to a
Standing Committee for what is appropriately described as the ‘committee
stage’. This is followed by the report stage where there is a report to the House
on the Bill and any amendments to it. The third reading is usually a formality
after the report stage and precedes reference of the Bill to the House of Lords
where procedures are broadly similar to those in the House of Commons. Any
amendments made in the House of Lords will be returned to the House of
Commons. Subject to some restrictions, Bills can be and occasionally are intro-
duced in the House of Lords. Whatever the sequence, following a Bill’s
approval by both Houses, it goes for the Royal Assent whereupon it has the
force of law, although the new Act or parts of it may not come into force until
an order (an item of delegated legislation) is made by the minister responsible
and approved by Parliament.
An example of this procedure in action is the legislation of the Control of
Pollution Act 1974 which was foreshadowed in the Queen’s Speech on 12 March
1974 anticipating measures for ‘the protection and improvement of the environ-
ment’. The Control of Pollution Bill started its passage in the House of Lords
with the first reading on 30 April 1974 and a second reading on 7 May.
Thereafter, the Bill went to a Committee of the whole House, an alternative to a
Standing Committee and usually an indication of a Bill’s importance, bearing in
mind that all members can participate in the deliberations. The committee stage
took place on 14 and 16 May, followed by the report stage and third reading on
21 May. The Bill went to the House of Commons on 17 June for a second read-
ing and reference to a Standing Committee. The report stage and third reading
were dealt with on 19 July. The Bill went back to the House of Lords subject to
amendments made by the House of Commons. The amendments were dealt
110
with on 25 July whereupon the Bill was agreed and received Royal Assent on 31
July. The Bill was introduced in the House of Lords as ‘a development of exist-
ing legislation in the waste disposal, water pollution, noise and air pollution
fields’. As such, it received considerable support from the Opposition which
undoubtedly speeded its progress through Parliament. The Act comprised 109
sections in six parts and contained four schedules. Many provisions in the Act
operate only when a commencement order is made by the Secretary of State for
the Environment. In large part this seems to be explained by the cost of imple-
menting the statutory provisions for monitoring and enforcing the requirements
for solid waste disposal, among others. Part 2 of the Act, for example, was intro-
duced in phases over a period of many years.
8.2.5 The legislative procedure for Private Bills

The initial stages of the procedure require the promoter to give public notice of
the Bill. A petition is then presented for permission to introduce the Bill, copies
of which have to be deposited by 27 November in each Parliamentary session.
The Bill is scrutinised for compliance with various Parliamentary formalities,
after which it is decided whether the Bill should proceed. This initial stage is fol-
lowed by a second reading when the broad principles of the Bill are examined.
Thereafter, one of the most important stages occurs when the Bill is subject to
the committee stage where much depends on whether the Bill is opposed or
unopposed. Where there is no opposition or objection to the Bill the promoter is
normally obliged to demonstrate formally that the Bill is an expedient measure
in the circumstances. An opposed Bill is examined by an ad hoc committee
before which the promoter and objectors are represented by lawyers in most
cases. Although opponents may register their various objections, the promoter
may challenge their locus standi, that is, their status or standing to raise objec-
tions, eg because of remoteness of their interest in a project to be authorised if
the Bill is approved. The atmosphere at this committee stage is essentially judi-
cial with the committee having to make decisions on preliminary points like
locus standi, and having to hear the evidence and witnesses presented by both
sides to the argument and the necessary examination and cross-examination.
This committee stage procedure will apply also to a Bill which, although
regarded initially as unopposed, is to be treated as an opposed Bill by virtue of
its importance or controversial nature. Following this committee stage in the
House of Lords, a Private Bill goes for a third reading whereas in the House of
Commons there is a report stage unless there have been no amendments at the
committee stage. Thereafter, a Bill will go for Royal Assent.
8.2.6 The status of Private Bills

Although a Bill is introduced as a Private Bill, there may be factors which indi-
cate that it should be dealt with as a Public Bill. These factors are set out in
Erskine May and are concerned with whether:
111
(1) public policy is affected;

(2) the proposal is to repeal or amend Public Acts of Parliament;
(3) public matters are at the heart of the Bill;
(4) the Bill’s provisions apply to a large area and affect a multiplicity of inter-
ests; and
(5) safeguards exist to deal with these foregoing matters.
At the outset it is the Department of the Environment which undertakes the
examination of most Private Bills, usually by reference to a strong presumption
that private, local powers are not necessary. This element of control prior to pre-
sentation is reinforced by Standing Orders in Parliament, one of which calls on a
committee dealing with a local authority Private Bill to consider, among other
things, ‘whether the Bill gives powers relating to police, sanitary or other local
government matters in conflict with, deviation from, or excess of, the provisions
or powers of the general law’. Further control appears in the Local Government
Act 1972, s 70 of which prevents the promotion of a Private Bill for the purpose
of changing a local government area, its status or electoral arrangements.
8.2.7 The scope of Private Acts

Even though the promoters have succeeded in persuading Parliament that addi-
tional statutory provision is required through a Private Act, the courts still insist
that the statutory provisions are strictly interpreted against those promoters. In
order words, any ambiguity will not be interpreted in the promoter’s favour.
The promotion of such legislation is not restricted to local authorities: various
other public corporations and private organisations seek powers by means of
Private Acts. Indeed, it appears that this method of acquiring powers is less
popular than it used to be in the case of local authorities: in recent years, local
authorities have promoted no more than about 30–40% of all Private Bills. This
matter will be taken up again in the next section of the chapter. It is of more
immediate interest to give some examples of the Private Acts which have found
their way to the statute book. First, a Private Act obtained by a private com-
pany, Gulf Oil Refining Ltd. The Act – the Gulf Oil Refining Act 1965 – autho-
rised the construction and operation of an oil refinery at Milford Haven, in
Dyfed. The second example comes from one of the many Private Local Acts pro-
moted by local authorities over the years. The Act – the Leicestershire County
Council Act 1970 – contains a number of provisions of local interest. One such
provision, in s 6, empowers the county council to enter into legally binding
agreements with developers of land for a variety of purposes such as the phas-
ing of any development of the land and the maintenance of open spaces. As
such, this provision adds to broader powers in Public Acts, but it has been the
case that local authorities have obtained Private Local Act powers to undertake
functions normally outside their competence or to enlarge the scope of existing
functions, or even to provide powers to deal with some matter or characteristic
112
which is peculiar to their areas, eg in the area of support for industrial develop-
ment. The county authorities have usually promoted Private Local Bills under
the statutory powers given for this purpose by s 239 of the Local Government
Act 1972, at the same time accommodating the requirements of constituent dis-
trict authorities.
One final point concerns those occasions when some inconsistency may arise
as between a Private and Public Act provision. Section 182 of the Housing Act
1985, for example, states that the Secretary of State may by order repeal or
amend any provision of a Local Act passed before the Act where it appears to
him that the provision is inconsistent with any provision of the Act.
8.2.8 Private Local Acts and reorganisation of local govern-

ment
There was a reorganisation of local government in 1974 by virtue of the Local
Government Act 1972. One of the most obvious alterations related to the bound-
aries of the local authority areas so that for present purposes the crucial ques-
tion was whether Private Local Acts should continue to apply in the redrawn
areas or whether the area of their application should be amended. Section 262 of
the Local Government Act appears to adopt the former solution, providing as it
does that Private Local Acts in force on 1 April 1974 shall remain in force unless
subject to an order made by the Secretary of State extending the Act to the
whole of a new, redrawn local authority area. The Local Government Act also
required that Local Acts in the non-metropolitan areas cease to be operative at
the end of 1986. Local authorities are now obliged to consider the status and
importance of their Local Acts and, where necessary, prepare new legislation
for four purposes, covering:
(1) matters of general concern where the general law may not be sufficiently
extensive;
(2) local matters;
(3) the updating of legislation governing the functions of local undertakings
such as transport; and
(4) any further requirements requiring statutory authorisation.
With the advent of these important transitional provisions, local authorities may
be seen to rely less and less on the Private Local Acts for the acquisition of their
powers. Instead, there may be an increasing reliance on the regular Local
Government (Miscellaneous Provisions) Acts which pass through Parliament,
and the various adoptive Acts by which some areas of law apply in a local
authority area only after a council’s formal adoption of provisions from such
Acts.
113
8.2.9 Miscellaneous Provisions Acts and Adoptive Acts

In one of the most recent Local Government (Miscellaneous Provisions) Acts
one finds a considerable range of topics, including facilities for the control of the
sale of food by hawkers, take-away food shops and the control of acupuncture,
tattooing, ear-piercing and electrolysis. This Act of 1982 deals also with the con-
trol of ‘sex establishments’, defined to include sex cinemas and sex shops. In
this context the Act of 1982 is an adoptive Act since a local authority is at liberty
to decide whether the statutory provisions are to apply in its area. If this part of
the Act is to apply to the area of a local authority then it is a requirement that
any person wishing to use premises as a sex establishment should have a licence
for that purpose from the local authority. The local licensing authority is
empowered to refuse applications on certain fixed grounds and any adverse
decision is subject to an appeal to a magistrates’ court. Failure to comply with
the licensing provisions is a criminal offence.
8.2.10 Provisional Orders

These orders are a means of avoiding the sometimes long-winded procedures
for Private Bills. In practice, these orders tend to be used for the removal of
Private Local Acts from the statute book by virtue of s 262 of the Local
Government Act, dealt with previously. A local authority is required to apply to
the appropriate minister for a Provisional Order, giving public notice of the
application. If any objections to the proposed Order arise, they will be heard at a
public inquiry convened by the minister, after which a decision is made
whether to make an order. If it is decided to make an Order, a Provisional Order
Confirmation Bill is presented to Parliament by the minister. Where the Bill is
opposed in Parliament it will be dealt with as though it was a Private Bill.
8.2.11 Special Procedure Orders

These orders are governed by the Statutory Orders (Special Procedure) Act 1945
to 1965 and are subject to a special Parliamentary procedure. Once again, as
with Provisional Orders, a local authority makes an application to the minister
for the order. With the minister’s agreement, the proposal is publicised and any
objections are dealt with by a public inquiry. Where the minister decides to
make the order it is laid before Parliament. Thereafter, objectors may petition
Parliament and a joint committee of both Houses will deal with objections so
made by persons with sufficient locus standi. Where the order is not approved
by Parliament its contents can acquire the force of law only through an Act of
Parliament. In practice there are very few objections so that the procedures are
not as cumbersome as they might at first appear.
114
8.3 Delegated Legislation

Much of what has been said in this chapter so far has related to what is often
referred to as ‘primary’ legislation, that is, Acts of Parliament. However, from
time to time reference has been made to ‘delegated legislation’ which is a
process by which different types of law are made under the authority and
within the terms of an Act of Parliament. Accordingly, the Act delegates this
law-making function to the administrative agency such as the appropriate min-
ister or a local authority, usually in those cases where the Act itself cannot con-
tain a large amount of detail or where some flexibility of response is required in
order to deal with unforeseen contingencies. From what has been said, then, it
can be appreciated that delegated legislation is sometimes referred to as ‘subor-
dinate’ or ‘secondary’ legislation, although for the purpose of this chapter refer-
ences will be to delegated legislation.
8.3.1 Primary and delegated legislation in action

Section 83 of the Housing Act 1985 states that the county court shall not enter-
tain proceedings by a local authority for possession of a council house unless
the authority has served a notice on the tenant. The section goes on to state that
a notice must be in a form prescribed by regulations made by the Secretary of
State and must specify the ground, eg non-payment of rent, on which the court
will be asked to make a possession order as well as giving particulars of that
ground. Elsewhere the Act states that: ‘Any power of the Secretary of State to
make an order or regulations under this Act shall be exercisable by statutory
instrument’. The regulations actually made are called the Secure Tenancies
(Notices) Regulations 1987.
The relationship between primary and delegated legislation was neatly
demonstrated in Kent County Council v Peter Thompson Poultry (1989) where the
respondent company was charged with marketing poultry that had an excess
water content contrary to regs 11(1) and (2)(a) of the Poultry Meat (Water
Content) Regulations 1984. At first instance, the respondents had been acquitted
on account of the fact that the information was out of time since the statutory
time limit of two months from the date on which the sample was taken, as spec-
ified by s 95(2)(b) of the Food Act 1984, had in fact expired. It was argued on
appeal by the prosecutor that the regulations amounted to a self-contained code
independent from the provisions of the 1984 Act and that accordingly, the time
limit specified in the statute was irrelevant to a prosecution under the regula-
tions. However, this argument was rejected by the High Court. The regulations
were not a self-contained code. It was necessary for the Act and the regulations
to be read in conjunction with one another. Therefore, the magistrates had been
right to apply the provisions of s 95 of the 1984 Act to the present case with the
consequence that the information failed since it had been laid out of time.
115
8.3.2 Statutory instruments

In any description of delegated legislation there has to be a reference to statu-
tory instructions. In the example above, the wording of the 1985 Housing Act
suggests that there is some importance attached to the term ‘statutory instru-
ment’. The status and importance of the statutory instrument emerges from the
Statutory Instruments Act 1946. Where, after the passing of this Act, any Act
empowers Her Majesty in Council (by Order in Council) or a minister of the
Crown (by statutory instrument) to make, confirm or approve orders, rules, reg-
ulations or other delegated legislation, any resulting document is referred to as
a ‘statutory instrument’ to which the provisions of the Act of 1946 applies. The
Act itself contains provisions for the numbering, printing, publishing and laying
before Parliament of statutory instruments: particularly important safeguards,
bearing in mind the amount and complexity of delegated legislation which is
generated each year.
8.3.3 The classification of delegated legislation

There are three items of delegated legislation which are of particular interest to
local authorities, namely, bylaws, compulsory purchase orders and standing
orders. These items will be described in the following sections of this chapter.
Most other delegated legislation comes within the Statutory Instruments Act
under the following categories: (a) regulations, (b) rules, and (c) orders.
Regulations are concerned with the substantive detail of the law, as in the case
of the Secure Tenancies (Notices) Regulations mentioned previously. The regu-
lations require any notice served on a secure council tenant to state that the
council is required to obtain a court order before a tenant can be evicted, and
that he can obtain advice from a Citizen’s Advice Bureau, Housing Aid Centre,
Law Centre, or solicitor. Rules are concerned with procedural requirements, as
was seen in Chapter 3 where reference was made to the Town and Country
Planning (Inquiries Procedure) Rules 1992. Orders are divided into two cate-
gories: prerogative orders and statutory orders. Prerogative orders are not
statutory instruments and can be used only to the limits of the Crown’s preroga-
tive powers. Statutory orders are used for a variety of purposes but particularly
for the purpose of bringing new statutory and certain EU legal provisions into
force. Where just one department of government is affected, it is usually the
minister responsible who is empowered to make the order. On the other hand,
where a number of departments or governmental functions are affected, it is
usually the practice that the power to make the order will be conferred on Her
Majesty in Council.
One further category should be mentioned here: directions. It has been seen
previously that there are various statutory powers which allow a minister to
give directions to various administrative agencies which are directly or indi-
rectly within his responsibilities. In some instances a direction must be given by
116
means of a statutory instrument as was the case in s 4 of the Water Act 1973 by
which the Secretary of State for the Environment was empowered to give direc-
tions to the National Water Council requiring that Council to discontinue any of
its activities. On the other hand, any direction to the Council concerning
national water policy was not subject to the same requirement.
8.3.4 Bylaws
Although various administrative agencies are empowered by statute to make
bylaws, these items of delegated legislation are more often associated with local
authorities. Their outstanding characteristic is that they apply in a specific area.
Section 235 of the Local Government Act 1972 (as amended) sets out the general
power which permits the making of most bylaws: ‘The council of a district the
council of a principal area in Wales and the council of a London borough may
make bylaws for the good rule and government of the whole or any part of the
district principal area or borough ... and for the prevention and suppression of
nuisances therein’. The section goes on to say that the confirming authority for a
bylaw is the Secretary of State for the Environment, representing an important
measure of control in this process of creating delegated legislation. In practice
model bylaws are maintained and it is highly unlikely that a local authority
bylaw would be confirmed where it did not adhere to any such model. Bylaws
are essentially local laws which regulate some unique local situation not already
covered by some other form of statutory provision and may be enforced
through the imposition of a fine by a court as a result of criminal prosecution.
The Local Government Act stipulates the procedures to be observed in the mak-
ing of a bylaw, eg the need to make a copy of the proposed bylaw available for
public inspection for at least one month before seeking confirmation. Because
bylaws are subject to confirmation and usually adhere to model bylaws, it is
very unusual to find that a bylaw has been struck down by a court as being
legally invalid. Nevertheless, the validity of a bylaw can be challenged in two
ways, either:
(1) directly, eg through an application for a declaration in the High Court that a
bylaw is ultra vires the empowering provision in the primary legislation, ie
the Act of Parliament allegedly authorising the bylaw; or
(2) indirectly, usually where a person is prosecuted for a breach of a bylaw
whereupon he argues that there can be no conviction for breach of a bylaw
which is legally invalid: R v Crown Court at Reading, ex p Hutchinson (1988).
Whatever the form of challenge, there are various grounds on which the legal
validity of a bylaw may be challenged:
(1) ultra vires, as previously indicated;
(2) uncertainty;
(3) inconsistency with the general law; and
(4) unreasonableness.
117
As to a challenge based on ultra vires, the Act in R v Wood (1855) required occu-
piers of premises to remove dust, ashes, rubbish, filth, manure, dung and soil.
The bylaw in this case was found to be ultra vires in requiring occupiers to move
any snow from the footpaths adjacent to their premises. The Divisional Court
has prescribed an interesting but controversial approach to situations where
bylaws are found to be ultra vires. If a court is modifying or severing the affected
part of a bylaw it is altering or severing a measure created under statutory pow-
ers. The court suggested that this should be done only where it is clear that this
approach is the one that would have been taken had the bylaw maker known of
the limitation. In the present case – DPP v Hutchinson (1988) – it was found that,
had the bylaws been drafted within the powers of the enabling Act, a conviction
would still have resulted. Arguably, this approach provides a dangerous blur-
ring of the fundamental distinction between the functions of the courts and
those of the law-makers. On appeal (DPP v Hutchinson (1990)) the House of
Lords reversed the earlier decision of the Divisional Court by holding that parts
of the relevant bylaws were ultra vires and that it was not possible to sever the
remainder therefrom. Their Lordships were anxious to stress that as a basic
principle, an ultra vires enactment such as a bylaw is void ab initio and thus of no
legal effect whatsoever. However, the so-called ‘blue pencil test’ as severing is
sometimes known, represents a concession to practicality and is therefore
acceptable provided that the courts do not in effect legislate by altering the orig-
inal meaning of the enactment. The second ground of challenge – uncertainty –
occurred in Staden v Tarjanyi (1980) where the bylaw prohibited any person
using a park to ‘take off, fly or land any glider’. The defendant in criminal pro-
ceedings for an alleged breach of the bylaw was a hang-gliding enthusiast who
had twice flown over the park in his hang-glider. It was decided by the court
that he should not be convicted because the bylaw was uncertain in failing to
explain how and in what respect a hang-glider could act in breach of the bylaw
and in failing to set a lower limit below which a hang-glider should not fly.
Inconsistency with the general law, the third ground for challenge, occurred in
Powell v May (1946) where the bylaw prohibited betting ‘in a public place’ when
two other Public General Acts permitted such activities. In connection with a
challenge based on unreasonableness, in the leading case of Kruse v Johnson
(1898) the bylaw in question was found not to be unreasonable in prohibiting
any person ‘playing music or singing in any place within fifty yards of any
dwelling house after being requested to desist’. The court set down four tests
for the unreasonableness of a bylaw where it is:
(1) partial and unequal in its operation as between different classes, eg where
controls are imposed on members of sporting clubs for a purpose totally
unconnected with their social and sporting activities;
(2) manifestly unjust, eg in imposing a heavier obligation on a person than is
reasonably justified;
118
(3) made in bad faith, eg where the motive is clearly contrary to the need for ‘the
good rule and government’ of an area; and
(4) oppressive or involves gratuitous interference with the rights of a person
subject to the bylaw, eg where the privacy of the individual is subject to
unjustified interference.
In the recent case Bugg v DPP (1993), which, like DPP v Hutchinson concerned
bylaws made under the Military Lands Act 1892, the High Court addressed the
issue as to the legal grounds on which bylaws may be the subject of challenge
before a court during the course of criminal proceedings. The court drew a dis-
tinction between bylaws which were substantively invalid, that is to say those
which were ultra vires or patently unreasonable, and, those bylaws which are
procedurally invalid because of non-compliance with a procedural requirement
in the actual making of the bylaw, eg where there has been a failure to consult.
The distinction is an important one since in criminal proceedings for the alleged
contravention of a bylaw, it would seem possible to raise the substantive inva-
lidity of the bylaw as a defence whereas it would not be possible to do likewise
in relation to the procedural invalidity of the bylaw. The reason for this relates
to the jurisdiction of the court. Whilst a court in criminal proceedings would be
able to determine the vires of a bylaw simply by reference to the terms of the
primary and delegated legislation, to suggest that a bylaw is procedurally
invalid would require examination of evidence from the body responsible for
making the bylaw. This is not possible where that body is not party to the crimi-
nal proceedings. Thus it would seem that so far as procedural invalidity is con-
cerned, the correct approach is to regard bylaws as legally valid until they have
been set aside by a court with the jurisdiction to do so.
8.3.5 Compulsory purchase orders

Although they serve distinctly different purposes, as another item of delegated
legislation, the compulsory purchase order is very similar to the bylaw with
regard to the process by which an order attains the force of law. Many Acts of
Parliament contain statutory powers which permit local authorities and, to a
lesser extent, other administrative agencies to make compulsory purchase
orders for the acquisition of land. Once made an order only becomes operative
when it has been confirmed by the Secretary of State. The legal validity of an
order can be challenged in the High Court on a limited basis, eg that it is ultra
vires the enabling Act, as will be seen in Chapter 13. The process of compulsory
purchase is now very much more streamlined than it used to be, particularly in
the 19th century when it was normal practice to seek an Act of Parliament as a
means of acquiring land compulsorily. The modern procedures are to be found
mainly in the Acquisition of Land Act 1981 whereas the specific powers are in
the appropriate Acts such as the Housing Act 1985 authorising the acquisition
of land for the provision of housing accommodation by local authorities.
119
8.3.6 Standing orders

The Local Government Act 1972 authorises a local authority to make standing
orders for the regulation of its proceedings and business. Standing orders are
concerned with the internal workings of local authorities and will regulate mat-
ters like the making of contracts, the operation of the committee structure
within the council and the procedure for disclosure of members’ pecuniary
interests. Standing orders are extremely flexible and can be changed very easily
so that any non-compliance would be difficult to enforce in law.
8.3.7 The publication of statutory instruments

Publication of statutory instruments is one of the most important safeguards in
a system which permits the making of delegated legislation. Once it is made, the
statutory instrument is sent to the Queen’s Printer or the Controller of the
Stationery Office where it is numbered and printed and arrangements are made
for its sale. Some statutory instruments are not subject to the requirement of
printing and sale:
(1) ‘local’ statutory instruments;
(2) statutory instruments of limited application where measures are taken for
their publicity;
(3) statutory instruments whose size or nature make it unnecessary or undesir-
able they should be published, a matter which has to be certified by the
appropriate minister; and
(4) statutory instruments whose publication would be contrary to the public
interest, as certified by the appropriate minister.
Each year about 2,000 statutory instruments are issued, two-thirds of which are
published. The Act of 1946 requires Her Majesty’s Stationery Office to publish
lists indicating the date of issue of statutory instruments which have been
printed and sold: such lists serve as conclusive evidence of the date on which an
instrument was first issued. This is a matter of great importance because the Act
of 1946 provides a defence for the person prosecuted for non-compliance with
the terms of a statutory instrument, to the effect that although made at the date
of the offence, the instrument had not been issued. Nevertheless, such a defen-
dant could be convicted of the offence where it is proved that reasonable steps
had been taken at the date of the offence to bring the instrument to the attention
of the public, anyone likely to be affected or the person charged with the partic-
ular offence. The courts have insisted that any statutory instrument should have
been adequately publicised to those affected by it. In Simmonds v Newell (1953),
for example, the court quashed a conviction, even though steps had been taken
to publicise the substance of a schedule to a statutory instrument, because there
was no evidence before the court of such publicity. By way of contrast, in R v
Sheer Metalcraft Ltd (1954) the Crown was able to prove to the court’s satisfaction
120
that reasonable steps had been taken to notify those affected so that on this
occasion the conviction stood.
8.3.8 Parliamentary control of delegated legislation

Delegated legislation normally requires the direct approval of Parliament except
in some cases, as with bylaws and compulsory purchase orders previously dis-
cussed. On those occasions when such approval is required it is usually the case
that delegated legislation is subject either to an affirmative resolution or a nega-
tive procedure. In either case, an item of delegated legislation will be laid before
Parliament for 40 days. In the case of the affirmative procedure, a resolution is
required within 40 days to bring the item of delegated legislation into force,
whereas the negative procedure sees the delegated legislation in force after 40
days when no challenge has been made in that time. The more popular proce-
dure is the negative procedure. Parliamentary control also occurs through the
facilities for scrutinising delegated legislation for the purpose of making
Parliament aware of any areas of concern. In general terms, there is usually
some concern about delegated legislation which is not clearly defined and
which may give administrative agencies unduly wide powers. There is similar
concern where delegated legislation attempts to give a power to levy taxation,
to alter or amend statutory provisions, or to preclude the judicial control of any
statutory powers and their use. The scrutiny is undertaken principally by the
Joint Select Committee on Statutory Instruments, drawn from the House of
Commons and the House of Lords, the House of Commons’ Select Committee
on Statutory Instruments, the House of Commons’ Select Committee on
European Secondary Legislation and the House of Lords’ Select Committee on
the European Communities. These committees do on occasions examine draft
statutory instruments where drafts are required to be submitted.
One example of the scrutiny process comes from the Eleventh Report of the
Joint Committee on Statutory Instruments in the Parliamentary Session 1993 to
1994. The Committee drew attention to the Environmental Protection (Non-
Refillable Refrigerant Containers) Regulations 1994. The Committee noted that
in one place the Regulations required elucidation and in another, they were
defectively drafted giving rise to doubt as to whether they were intra vires.
Regulation 8(2) creates a number of offences. It appeared to the Committee that
reg 8(2) was made under s 140(9) of the Environmental Protection Act 1990
which stipulates that:
Regulations under this section may provide that a person who contravenes
or fails to comply with a specified provision of the regulations or causes or
permits another person to contravene or fail to comply with a specified pro-
vision of the regulations commits an offence and may prescribe the maxi-
mum penalty for the offence.
In the opinion of the Committee, if reg 8(2) was made under this provision cer-
tain of the sub-paragraphs of the regulation would appear to be ultra vires since
121
the actions described in the sub-paragraphs did not contravene specified provi-
sions of the Regulations. The Department of the Environment contended that
the relevant sub-paragraphs were made under a different provision of the
Environmental Protection Act, s 140(3)(d), which provides that regulations
made under s 140 may:
... include such other incidental and supplemental, and such transitional pro-
vision, as the Secretary of State considers appropriate.
In the opinion of the Committee, there was ‘grave doubt’ whether the power to
include incidental and supplemental provision could be construed as authoris-
ing the creation of criminal offences. This argument was reinforced by the fact
that there was already express power to create criminal offences in the same sec-
tion of the 1990 Act. The appropriate course of action would have been for the
Regulations to have contained substantive provisions prohibiting the actions
covered by the relevant sub-paragraphs. Accordingly, the Committee reported
the instrument for defective drafting giving rise to doubt as to whether the sub-
paragraphs were intra vires.
8.3.9 Delegated legislation and the courts

While the courts have a crucial role to play in ensuring that delegated legisla-
tion is within the limits of the enabling Act, they are in no way able to challenge
the validity of primary legislation, that is, Acts of Parliament (Pickin v British
Railways Board (1974)). So, in the case of delegated legislation, the courts have to
ensure that the doctrine of ultra vires is adhered to. It is unusual for there to be a
direct challenge to the legal validity of delegated legislation, eg through an
application to the High Court for a declaration that a regulation is ultra vires its
enabling Act. However, this is precisely what did happen in R v Secretary of State
for Social Security, ex p Britnell (1991) where the applicant sought to challenge the
vires of a regulation made pursuant to s 89(1) of the Social Security Act 1986
which entitled the Secretary of State to make deductions from the applicant’s
supplementary benefit in order to recover the balance of an overpayment which
had been made in respect of unemployment benefit. As in the case of Plewa v
Chief Adjudication Officer (1994) discussed earlier in this chapter, the House of
Lords was required in the present case to examine s 53 of the 1986 Act which
provides for the recovery of overpaid benefits. In particular, it was necessary to
consider the nature and scope of the regulation which made transitional provi-
sions for the recovery of overpaid benefits in accordance with s 53. A unani-
mous House of Lords in dismissing the applicant’s appeal concluded that the
regulation was a transitional provision, that it is to say a legal instrument whose
function it is ‘to make special provision for the application of legislation to the
circumstances which exist at the time when that legislation comes into force.’
Such a finding was in part based on the fact that the regulation was expected to
be of temporary effect even though it was considered that it may be some time
before it would no longer be required. Furthermore, the House of Lords were of
122
the opinion that the power contained in s 89(1) of the 1986 Act to make regula-
tions which modified ‘any enactment contained in this or any other Act’ was
such that the modification made by the regulation in question to s 53 of the
same Act was ‘not so radical as to be an excess of power’. Accordingly, the regu-
lation was not ultra vires.
More usually the issue of the legal validity of delegated legislation will arise
indirectly, eg in criminal proceedings for an alleged breach of a regulation. In
Chester v Bateson (1920) the Defence of the Realm Act 1914 empowered the mak-
ing of regulations ‘for securing the public safety and defence of the realm’. A
regulation made under this power enabled the Minister of Munitions to declare
an area in which munitions were manufactured a ‘special area’. The intended
effect was to prevent any person, without the minister’s consent, taking pro-
ceedings to recover possession of any dwelling house in the area if a munitions
worker was living in it and paying rent. It was decided that Parliament had not
deliberately deprived the individual of access to the courts but that the regula-
tion was ultra vires because it could not be shown to be a necessary or even a
reasonable manner of securing the public safety or defence of the realm. In
Attorney General v Wilts United Dairies Ltd (1921) the New Ministers and
Secretaries Act 1916 imposed a duty on the Food Controller to ‘regulate the sup-
ply and consumption of food in such manner as he thinks best for encouraging
the production of food’. The Controller attempted to impose a charge of 2 pence
per gallon as a condition of issuing licences for the supply of milk. It was
decided by the court that the charges were ultra vires. It was stated by one of the
judges that the charges were not justified by the express powers in the enabling
Act: ‘all the powers given appear capable of performance without any power to
levy money’. Another case is Customs and Excise Commissioners v Cure and Deeley
Ltd (1962), which is dealt with in Chapter 11. In deciding that the regulation in
this case was ultra vires, the court took the view that it sought to prevent the tax-
payer proving in a court of law the amount of tax actually due and substituted
for the tax authorised by Parliament some other amount to be calculated arbi-
trarily by the Commissioners. Another example is the case of McEldowney v
Forde (1971), involving the Special Powers Act in Northern Ireland, an Act
which is now repealed. By virtue of the Act the government of the Province was
empowered to make regulations ‘for preserving the peace and maintaining pub-
lic order’. One of the regulations made created a criminal offence to be a mem-
ber of an organisation describing itself as a ‘republican club’ or of ‘any like
organisation howsoever described’. Relying very heavily on the feeling that the
regulation was not made in bad faith, the House of Lords, by a slim majority of
three to two, decided that the regulation was not ultra vires the Act. Lord
Hodson, for example, stated that:
... the word ‘republican’ is capable of fitting the description of a club which
in the opinion of the minister should be prescribed as a subversive organisa-
tion of a type akin to those previously named in [a] list of admittedly unlaw-
123
ful organisations ... On this matter, in my opinion, the court should not sub-
stitute its judgment for that of the minister ...
As to the words ‘any like organisation howsoever described’, the same member
of the court considered that the minister’s regulation, although vague, did not
affect the legal validity of the whole and emphasised that these words were not
in contention in this case. A similar issue arose in Dunkley v Evans (1981) where
the court was concerned with a statutory order covering an area, part of which
it could not cover under the terms of the enabling Act. The West Coast Herring
(Prohibition of Fishing) Order 1978 was made under the Sea Fish (Conservation)
Act 1967, which Act did not apply to certain waters adjacent to the coast of
Northern Ireland which were nevertheless included in the Order. The master of
a trawler and its owner were prosecuted under the Order for illegal fishing in
an area to which it lawfully applied. It was decided by the court that there
should be a conviction since the invalid part of the Order could be severed from
the remainder since it was not inextricably connected to the remainder of the
Order.
8.4 EU Law
It was said at the outset of this chapter that EU law was to be dealt with, not so
much as a source of administrative powers but rather as a source of law and
legal restrictions in relation to the functions and activities of the administrative
agencies in the UK, as they fall within the objectives of the Union. This frame-
work of EU law and its impact on administrative law in the UK was illustrated
in the previous chapter. In the remainder of the present chapter it is proposed to
outline the institutions of the Union, including the European Court of Justice,
and the sources of EU law and their effect. In this latter area reference back to
the relevant sections of the previous chapter will be helpful. Before these items
are examined it is as well to appreciate that EU law provides the administrative
powers necessary for various agencies of the Union such as the Commission to
implement and enforce their functions in Member States.
8.4.1 The EU institutions

The Commission is responsible for the co-ordination of national policies, and
the formulation of EU policies and their administration. Governments of the
Member States appoint the Commissioners. The Council consists of delegates
from the governments of the Member States and is responsible for decisions on
policy and various other legal acts. The European Parliament represents the
Union’s population and acts mainly as a consultative body in relation to acts
and proposals generated by the Council and the Commission, although it does
have significant powers in relation to the Union’s budget and in its power to
force the resignation of the Commission. The important decision of the
European Court of Justice in European Parliament v Council of the European
124
Communities (1987) shows that the Parliament may have important influence
over the Council in relation to some aspects of policy creation. On this occasion
the Parliament was successful in proceedings for failure to act under Article 175
of the Treaty when the Council failed to formulate a Common Transport Policy.
The broad framework for decision-making in the EU involves a proposal for
action from the Commission being notified to the Parliament for consultation
with a final decision being taken by the Council.
8.4.2 European Court of Justice

The functions of the Union’s Court can be divided into four:
(1) to enforce and interpret EU law;
(2) to adjudicate disputes between Member States and the EU;
(3) to adjudicate disputes between the Union’s institutions; and
(4) to protect individual legal rights and interests against infringement by the
institutions, particularly through the power of annulment which is exam-
ined in Chapter 13.
8.4.3 Sources of EU law

The principal source of EU law is the Treaty of Rome itself. Beyond this princi-
pal source, there are various other sources, often referred to as EU secondary
legislation:
(1) regulations;
(2) directives; and
(3) decisions.
Regulations set down general rules which are binding within the Union and its
Member States. In the previous chapter reference was made to Article 48 of the
Treaty of Rome and the free movement of workers. One aspect of this area of
EU law is that there shall be no discrimination based on nationality as between
the workers of Member States. Equality of treatment for workers is defined in
detail in Regulation 1612/68 which covers a worker’s eligibility for employ-
ment, equality of treatment in employment and his right to bring his family to a
Member State for these purposes. Directives do not have a general binding
effect but are binding only on the Member States to which they are directed and
in relation to the objective to be realised so that it is up to the Member State to
decide the means and methods by which that objective may be achieved. A con-
venient example can again be taken from Chapter 7 where Article 48 was
described. The directive in question – 64/221 – contains exceptions to the cover-
age of the law in Article 48 by reference to matters of public policy, public secu-
rity or public health. Decisions also do not have a general binding effect but
bind only the individual or Member State to whom they are addressed, eg a
decision of the Commission that a company had been acting in breach of the
125
law on competition in the Union. In the case of regulations, directives and deci-
sions it is a requirement of Article 190 of the Treaty of Rome that in undertaking
such acts the Council and the Commission ‘shall state the reasons on which they
are based’. Two other possible sources should be mentioned: recommendations
and opinions. However, because these are usually concerned with hypothetical
situations in many cases they are not legal acts and are not therefore binding.
More generally, it was seen previously that the European Court of Justice has as
one of its functions the interpretation of EU law. Article 177 of the Treaty of
Rome permits any court in the UK and other Member States to make a prelimi-
nary reference to the European Court of Justice for a conclusive interpretation of
EU law as it affects a case before that court. Whether a reference is made
depends on the criteria set out by the High Court in Customs and Excise
Commissioners v ApS Samex (1983). The starting point is the question whether a
decision on the meaning of a provision of EU law is necessary. In deciding that
question the court has to consider the advantages enjoyed by the Court of
Justice in having a detailed knowledge of the workings of the Union. A refer-
ence is not required on every occasion that a litigant raises a serious point of EU
Law: the court has to consider whether the point is conclusive and determina-
tive of the litigation. Has the Court of Justice considered the point previously? Is
the point clear and free from doubt? If the point has been considered previously
by the Court of Justice, that decision should be followed. However, the national
court also has to consider the length of time that may elapse before a decision,
the undesirability of overloading the court, the need to formulate points clearly,
the difficulty and importance of the point, the wishes of the parties and whether
the point is raised bona fide or as a means of obstruction.
8.4.4 The direct applicability and direct effect of EU law in

Member States
It has been seen previously that the European Communities Act 1972 permits
the introduction of EU law to the UK where it is superior to the UK’s national
law in areas of overlap. A provision of EU law which is said to be directly
applicable is incorporated automatically into the national law of a Member
State. This is the case with EU regulations and all regulations are accepted into
the law of this country by virtue of s 2(1) of the European Communities Act
either by Order in Council or by departmental regulations as described previ-
ously in this chapter. EU laws which are not directly applicable are given effect
to in this country by the same means but subject to various restrictions by which
the orders or regulations proposed cannot increase taxation or operate retro-
spectively, for example. These items of delegated legislation are scrutinised by
the specialised scrutiny committees of the two Houses of Parliament referred to
previously in this chapter.
A provision of EU law said to have direct effect gives individuals in the
Member States enforceable legal rights in national courts: for example Article 48
126
on the free movement of workers. The concept of direct effect is essentially the
product of the jurisprudence of the European Court of Justice since it is not
mentioned in the Treaty of Rome. Whilst it is relatively uncontroversial that
both Treaty articles and regulations should be capable of giving rise to legal
rights enforceable before national courts, controversy has surrounded the issue
of direct effect as it applies to directives. Consequently a distinction has devel-
oped, partly in order to appease some of the Member States, between the notion
of vertical direct effect, whereby an individual seeks to enforce rights against a
public body or ‘emanation of the state’, and horizontal direct effect whereby an
individual seeks to enforce rights against another individual. Treaty articles and
regulations may be both vertically and horizontally directly effective; directives
can only be vertically directly effective (Marshall v Southampton and Southwest
Hampshire Area Health Authority (No 1) (1986)). In part the reason for this
approach is based on the belief that a Member State should not be able to plead
its own failure to implement a directive as a defence in proceedings where an
individual seeks to rely on a right enshrined in EU law. Furthermore, it would
be inequitable for an individual to suffer adversely at the suit of another indi-
vidual where a Member State has failed to implement a directive which was
addressed to it since the individual is not at fault; the responsibility for the
implementation of a directive is, by virtue of Article 189 of the Treaty of Rome,
vested in the Member State, not the individual.
The concept of direct effect is arguably now of less significance in the light of
the decisions in Von Colson v Land Nordrhein Westfalen (1984) and Marleasing v La
Commercial Internacional De Alimentacion SA (1990). In Von Colson, the European
Court of Justice stressed that a Member State has an obligation under a directive
to achieve the result envisaged by the directive. Moreover, the general duty
under Article 5 of the Treaty of Rome to take all appropriate measures to ensure
the fulfilment of that obligation was binding on all the authorities within the
Member State, including the courts. Accordingly, in applying the provisions of
national law which have been introduced in order to implement the terms of a
directive, it is incumbent on the national court to interpret their national law in
the light of the wording and purpose of the directive. In Marleasing, this duty of
interpretation was extended still further by the European Court of Justice so
that it is now necessary to interpret national law in the light of a directive irre-
spective of whether the national law was made before or after the directive.
In the recent case of Francovich v Italian Republic (1992), the European Court
of Justice established that a Member State may be liable to compensate those
who have been adversely affected by its failure to implement a directive pro-
vided that: the right prescribed by the directive entails the grant of rights to
individuals; the content of those rights can be identified from the directive; and,
a caused link exists between the breach of the State’s obligation and the loss suf-
fered by the plaintiff.
127
PART 3: JUDICIAL REVIEW, ULTRA VIRES AND NATURAL
JUSTICE
9 Procedural Ultra Vires
9.1 Statutory Procedures

In conferring various powers on administrative agencies by statute, Parliament
will usually find it necessary to prescribe various procedures which should be
observed in the exercise of those powers. Procedural requirements will be found
either in the statute itself or perhaps in statutory rules or regulations made
under the authority of the statute or some other related statutory provision. On
some occasions the court may prescribe that where the statute is silent on mat-
ters of procedure or where there is an inadequate procedure, common law rules
of natural justice will be implied. These are essentially rules of fair procedure
which, if broken, may render the resulting administrative action ultra vires. The
rules of natural justice have also been applied to the non-statutory procedures
of purely domestic organisations like trade union disciplinary committees.
In general, statutory procedures fall into two categories, those prescribed for
the guidance of the administrative agency concerned and those prescribed for
the benefit and guidance of the individual in his dealings with that administra-
tive agency. The latter procedures provide an important measure of the extent
to which the system of administrative justice provides any facilities for public
participation in the process of bureaucracy. However, there is usually very little
if any guidance in the statute concerned on the legal consequences if any of a
failure to comply with the procedural requirements; does non-compliance ren-
der the administrative action ultra vires in a particular case?
9.1.1 Mandatory and directory procedures

Guidance on the legal effect of a failure to comply with procedures comes from
Howard v Bodington (1877) where Lord Penzance said that ‘In each case you
must look to the subject-matter; consider the importance of the provision that
has been disregarded, and the relation of that provision to the general object
intended to be secured by the Act ...’. In applying this test the court will be seek-
ing to ascertain whether a statutory procedural requirement is either mandatory
or merely directory. If the requirement is mandatory, non-compliance renders
the administrative action ultra vires, while non-compliance with a directory
requirement generally has no effect except, perhaps, where there is a need for
‘substantial compliance’ with a particular requirement, eg a requirement that an
128
PROCEDURAL ULTRA VIRES
administrative agency provides some description of a prescribed activity in

using statutory powers to regulate that activity. Whether a procedural require-
ment is mandatory or directory depends partly on the court’s interpretation of
the relevant words of the statutory provision, although consideration is often
given to the consequences of that interpretation both by reference to the sup-
posed requirements of the ‘public interest’ as well as the individual interests of
the person affected by the administrative action. There is a considerable spec-
trum of possibilities here. It has been said that:
... what the courts have to decide ... is the legal consequence of non-compli-
ance on the rights of the subject viewed in the light of a concrete statement of
facts and a continuing chain of events. It may be that what the courts are
faced with is not so much a stark choice of alternatives but a spectrum of
possibilities in which one compartment or description fades gradually into
another ... (T)hough language like ‘’mandatory’’, ‘’directory’’, ‘’void’’, ‘’void-
able’’ ... may be helpful in argument, it may be misleading in effect if relied
on to show that the courts, in deciding the consequences of a defect in the
exercise of power, are necessarily bound to fit the facts of a particular case
and a developing chain of events into rigid legal categories ...
These words were spoken by Lord Hailsham in a case before the House of Lords,
London and Clydeside Estates Ltd v Aberdeen District Council (1979), where a local
authority’s decision, contained in a certificate delivered to the applicant, omitted
any reference to the applicant’s statutory right of appeal. This was held to be a
breach of a mandatory requirement, meaning that the certificate had to be set aside.
In Secretary of State for Trade and Industry v Langridge (1991), the Court of Appeal
was required to consider a procedural irregularity that occurred in relation to s
16(1) of the Disqualification of Directors Act 1986. By virtue of s 6 of the same
Act, an application to the High Court for a disqualification order in respect of a
company director cannot be made, without leave of the High Court, in excess of
two years from the date on which the company became insolvent. The effect of s
16 of the 1986 Act is to require that the individual in respect of whom the appli-
cation is made is given at least 10 clear days’ notice of the intention to make the
application. In the present case, the Secretary of State for Trade and Industry
gave the respondent nine days’ notice of his intention to apply for a disqualifi-
cation order in respect of the respondent. Thus the issue for the Court of Appeal
to determine was whether the application should be struck out on account of
the procedural irregularity. Put another way, was the giving of nine rather than
the statutorily prescribed 10 days’ notice such as to render the application void
or voidable? In order that this question could be answered, it was necessary for
the Court of Appeal to consider whether the 10 days time limit was a manda-
tory or a directory requirement. Whilst the court was anxious to stress that there
should, in the normal course of events, be a strict compliance with the require-
ment of s 16 of the 1986 Act, it was nevertheless felt that the notice was only of
limited importance on account of the deficiencies in the protection that it
afforded to a person against whom a disqualification order was sought. For
129
example, there were circumstances where no notice was required, there was no
need to stipulate the grounds on which the application was made in the notice,
and, the 10-day period was considered by Balcombe LJ to be ‘too short for the
recipient to be able to do much’ other than produce evidence of mistaken iden-
tity or seek to challenge the decision to apply for a disqualification order by way
of judicial review. These factors coupled with the general object of the 1986 Act,
which was to ensure the protection of the public, lead the majority in the Court
of Appeal to conclude that the 10-day limit was directory rather than manda-
tory. Accordingly, the failure to satisfy this directory procedural requirement
did not render the Secretary of State’s application either void or voidable.
9.1.2 Public functions

In practice the court is reluctant to categorise a procedural requirement as
mandatory, even though it is stipulated that the agency ‘shall’ undertake certain
action, where this would severely prejudice the performance of public func-
tions. In the New Zealand case of Simpson v Attorney General (1955) the
Governor General failed to authorise the issue of writs required by legislation as
a pre-requisite to a general election as a result of which it was unsuccessfully
alleged that the result of the election was nullified so that any legislation by the
newly elected Parliament was of no effect. It was recognised that there was
neglect of a public duty.
... but the case is clearly such that to hold null and void the acts which were
done would work serious general inconvenience, and at the same time
would not promote the main object of the Electoral Act 1927. The main object
of that Act I conceive to be to sustain; not to destroy the House of
Representatives; and I am satisfied that those provisions ... which relate to
the times when the warrant and the writs shall be issued are directory and
not mandatory; and that neglect ... cannot invalidate the election.
9.1.3 Individual rights and interests

Where the public interest in preserving public functions is not paramount and
the statutory requirement is sufficiently clear, the individual’s rights and inter-
ests can be recognised. For example, the Coast Protection Act 1949 stipulates
that a local authority is required to communicate to relevant property owners
the charges due for coast protection work not later than six months from com-
pletion of the work. In Cullimore v Lyme Regis Corporation (1962) details of the
charges were communicated nearly two years after completion of the work: this,
it was decided, was in breach of a mandatory time limit of six months so that
the notification was ultra vires and had no effect. Again, s 14 of the Employment
Protection Act 1975 stated that: ‘In the course of its inquiries into a recognition
issue ... the [Advisory, Conciliation and Arbitration] Service shall ascertain the
opinions of workers to whom the issue relates by any means it thinks fit ... ‘. The
issue for the court in Grunwick Processing Laboratories Ltd v Advisory, Conciliation
130
and Arbitration Service (1978) was whether the Service was subject to a manda-
tory duty to consult those involved in a trade union recognition dispute or
whether the Act prescribed a mere discretion, as though the words of the above
provision were merely directory. In finding that there was a mandatory duty,
the court’s decision was summarised in the following observation, that:
If ACAS makes a recommendation and the employer fails to comply with it,
that may mean ... that terms and conditions may be written into an employ-
ee’s contract of employment without further reference to the employee him-
self, whether or not the employee is a member of the union in question or of
a union at all and whether or not the employee desires to have his interests
represented by the particular or any union ... these powers given to ACAS
are very large and ... the court should ensure that the obligation and safe-
guards are strictly observed. [There is] no doubt that the requirement in s
14(1) [is] mandatory ... In the context of this part of the Act it is unthinkable
that Parliament should have left it to the discretion of ACAS whether they
should or should not consult those to whom the issue relates before coming
to their conclusion.
It is usually quite clear that a procedural requirement is incorporated in a statu-
tory provision for the benefit of the individual. To that extent it is also clear that
the provision confers a legally enforceable right, eg where the administrative
agency is obliged to notify a person of proceedings affecting his interests or of
his right of appeal against a decision of that administrative agency. Failure to
comply with such mandatory requirements would render any subsequent
administrative action ultra vires. However, there may be occasions when the
court feels that the individual’s interests require protection in the present con-
text but where the words of the statutory provision provide no options to
enable such protection. In the Housing Act 1985, for example, it is stipulated
that once a demolition order has been served on a house the local authority
shall forthwith serve a notice on the occupants of the house requiring them to
vacate the premises. Even though a local authority delays serving a vacation
notice for the best motive of enabling the occupants to find alternative accom-
modation, the duty to serve the notice has been found to be mandatory and, as
such, enforceable by the freehold owner of the house in question through an
order of mandamus which compels the administrative agency (in this case, the
local authority) to undertake its (mandatory) duty according to law (R v Epsom
and Ewell Corporation, ex p RB Property Investments (1964)).
9.1.4 Individuals’ procedure obligations

It is not uncommon to find that procedural requirements have to be observed by
individuals as well as by administrative agencies. For example, applications for
grants and licences may have to conform to certain requirements as to form and
content, appeals from certain decisions may have to be notified within a certain
time limit and in a certain form, and objections to various proposals for admin-
istrative action may have to comply with certain requirements as to form and
131
content. Again the court has to determine whether a procedural requirement is

mandatory or directory and in general there is an attempt to interpret the vari-
ous requirements as liberally as possible in favour of the individual.
9.1.5 Application requirements

Statutory provisions will often make it abundantly clear what is the require-
ment in relation to an application, for example. By way of illustration, the
Goods Vehicles (Licensing of Operators) Act 1995 states quite explicitly that:
A separate application for the grant of an operator’s licence shall be made in
respect of each traffic area in which the applicant has an operating centre but
no operator’s licence ... An applicant shall not include in any application –
(a) a vehicle specified in a current operator’s licence ...
Every application shall be signed –
(a) if made by a body corporate, by a person duly authorised in that behalf
by such a body corporate ...
Nevertheless, there is a tendency for the court to regard such application
requirements as being directory, at least to the extent that an application may be
accepted as such as long as there is substantial compliance with the statutory
requirements so that the necessary details of the application are made known.
The practice of many administrative agencies is to use standard forms for all
types of application so that the defective application may be a rarity. On those
occasions when the administrative agency deems an application to be deficient,
statutory provisions may enable ‘such further information as may be specified
... to be given ... in respect of an application’. This is a provision from the Town
and Country Planning legislation relating to applications for planning permis-
sion. This legislation also requires an applicant for planning permission in
respect of another person’s land to inform that other person of his application
and to certify to the local planning authority that this has been done when the
application is submitted. In order to reinforce this protection for the landowner,
the Act also stipulates that in the absence of a certificate for present purposes,
the authority ‘shall not entertain’ an application for planning permission (s 65 of
the Town and Country Planning Act 1990 as substituted by s 16 of the Planning
and Compensation Act 1991; s 65 should be read in conjunction with art 8 of the
Town and Country Planning (General Development Procedure) Order 1995, SI
1995/419). Although these words would seem to import a clear mandatory
requirement, the court will (as was seen previously) take account of a number of
variables. In Main v Swansea City Council (1984) a third party sought to quash a
decision granting an outline planning permission where a s 27 certificate (a pre-
decessor of s 65 of the 1990 Act) was defective in that the unknown owner of a
small part of the subject site had not been notified, as required by the section.
Although the Court of Appeal considered that the defects were sufficient to
strike down the planning permission, the circumstances suggested that this
should not happen. In particular the court was influenced by the fact that the
132
third party had not previously objected to a grant of outline planning permis-
sion, that development would not occur on the land owned by the unknown
person and that (in any event) the application was too late. Presumably a
prompt challenge by the land owner affected would have sufficed.
9.1.6 Appeal requirements

Statutory provisions frequently provide for appeals from many decisions of
administrative agencies. For example, as seen in Chapter 4, adverse local
authority decisions on applications for planning permission are subject to
appeal to the Secretary of State for the Environment (s 78 Town and Country
Planning Act 1990). It is usually necessary to stipulate with some certainty the
time limit within which any such appeal should be lodged. Accordingly, it is
generally the case that notice of any such appeal must be notified, usually to the
appeal body concerned, before the expiration of the appropriate time limit
which means that in law the time limit is mandatory (Howard v Secretary of State
for the Environment (1974)). As a mandatory requirement, any failure to observe
the time limit means that the appeal body is legally entitled to reject any pur-
ported notice and to refuse to determine the appeal. However, it is generally the
case that the need to communicate the facts and grounds for an appeal is a mere
directory procedural requirement (Button v Jenkins (1975)). Consequently, the
facts and grounds do not generally need to be communicated within any time
limit for appeals although there will be a mandatory requirement for their sub-
mission if eventually the appeal body requires them to be given. Again, failure
to comply with this later requirement would be a breach of a mandatory
requirement and entitle the appeal body to proceed to determine the appeal in
the absence of the facts and grounds.
9.1.7 Objections
Some statutory administrative schemes provide a facility for objection to pro-
posals for administrative action, particularly where such proposals, eg to grant
various liquor and gaming licences, might affect members of the public. Such
objections will arise from the advertisement of the proposals, for example, to
grant a licence, although in many cases the advertisement will simply relate to
details of a particular application for a licence. Where this advertising obligation
is prescribed by statute it is usually regarded as a mandatory requirement
although in some areas of licensing there is no clear indication of the legal con-
sequences of a failure to comply (R v Pontypool Gaming Licensing Committee, ex p
Risca Cinemas Ltd (1970)). In other areas there is a clear indication of the possible
consequences of a failure to comply: s 65 of the Town and Country Planning Act
1990 (as substituted by s 16 of the Planning and Compensation Act 1991; s 65
should be read in conjunction with the Town and Country Planning (General
Development Procedure) Order 1995, SI 1995/419), for example, stipulates that
133
a local planning authority ‘shall not entertain’ an application for planning per-
mission for ‘undesirable development’ (which might include the establishment
of, among other things, casinos and cemeteries) without proof of publicity for
the application. Following the advertisement of licence applications and other
administrative proposals, the submission of any objection or (perhaps) other
representations is seen as a directory requirement. This is a reference to the fact
that the law does not generally stipulate that an objection or representation
should accord strictly with any mandatory requirement as to form and content.
Consequently, in Re L (AC) (An infant) (1971) an official of a local authority had
led a party to child care proceedings to assume that an objection to a resolution
of that authority need not be put in writing. In fact, the statute concerned
required objections to be in writing but nevertheless the local authority was pre-
vented from alleging that no written objection had been issued within the pre-
scribed time limit.
9.1.8 Specific areas of procedure

In the remaining sections of this chapter the legal status of some more impor-
tant areas of procedure will be examined. These areas of procedure relate to
consultation, delegation of decision-making and other administrative action, the
communication of decisions and obligation to give reasons for decisions and
other administrative action.
9.2 Consultation
Consultation is one means by which public participation can be achieved in
administrative action whether in relation to the making of policy, or in the mak-
ing of actual decisions. It is not the only method of involving the public in
administrative policy and decision-making: the public inquiry is an important
example of the wider involvement of the public in many areas of decision-mak-
ing. Consultation is usually required either where a person or a group may be
affected by some administrative action or where they have some expert contri-
bution to make to proposed administrative action. The statutory machinery for
consultation tends to be less formal than that relating to the public inquiry and
it is often the case that the administrative agency has a discretion as to who is
consulted. In Lee v Department of Education and Science (1967), for example, the
court was concerned with s 17(5) of the Education Act 1944 which required that
the Secretary of State for Education, before varying the articles of government of
a school, should afford ‘to the local education authority and to any other per-
sons appearing to him to be concerned with the management or government of
the school’ an opportunity to make representations. The court decided that a
governor and a teacher had a legal right to be consulted under this provision,
but not a parent. The court was also willing to define the limits of the discretion
in Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury
134
Mushrooms Ltd (1972) where, under the Industrial Training Act 1964, the minis-
ter was obliged to consult any ‘organization or association or organizations
appearing to him to be representative of substantial numbers of employers
engaged in the activities concerned’. Because the minister had failed to consult
the Mushroom Growers’ Association, the court declared that part of the Board’s
order relating to the Association was ultra vires. Where, on the other hand, the
authority has a very broad discretion as to whom should be consulted and exer-
cises that discretion fairly and reasonably, the court may be reluctant to specify
who should be consulted (R v Post Office, ex p ASTMS (1981)). Even where there
is no express statutory provision for consultation the court may be able to pre-
scribe a limited common law obligation to consult, as in R v Liverpool
Corporation, ex p Liverpool Taxi Fleet Operators’ Association (1972). In this case the
Corporation undertook not to increase the number of taxi licences until a
Private Act was legislated controlling the operations of mini-cabs in the city.
The Corporation sought to act in breach of this undertaking, as a result of which
the court decided that although the undertaking was not binding, there was an
obligation on the Corporation to act fairly and to consult the Association to hear
its views before increasing the number of licences, even though the Private Act
controlling mini-cabs was not yet on the statute book.
The court’s prescription of a limited common law obligation to consult is
often characterised as a legitimate expectation from the point of view of the ben-
eficiary of that duty. This was very much the emphasis of events in the GCHQ
case examined previously. It seems that although ‘high’ prerogative decisions
on national security will not be interfered with by the court mere procedural
matters may be open to judicial scrutiny. This was the case in R v Director of
GCHQ, ex p Hodges (1988) where security clearance for an employee at the gov-
ernment establishment was withdrawn when he admitted his homosexuality. A
summary of the interview with his employers was provided but not a full note.
The employee was unsuccessful in claiming a breach of natural justice because
the summary was regarded as sufficient. Nevertheless there may have been cir-
cumstances in which the court might have found this decision procedurally
unfair.
In pursuing a requirement to consult, the authority must ensure that the pur-
pose of that consultation is reflected in the issues put forward for consultation.
In Legg v Inner London Education Authority (1972) an injunction was granted by
the court in order to prevent the implementation of a scheme for comprehensive
education because the proposals sent by the education authority to the Secretary
of State differed from the proposals in the statutory notice which invited objec-
tions. Not only must the issues for consultation relate to the purposes of that
exercise, the authority must supply sufficient information to the other party or
parties to enable any advice to be tendered and must allow a reasonable amount
of time for the consultation process. In R v Secretary of State for Social Services, ex
p Association of Metropolitan Authorities (1993), one of the issues to be determined
135
by the court was whether regulations were valid where the Secretary of State
had failed to comply with a statutory duty under the Social Security Act 1986 to
consult the Association of Metropolitan Authorities before making amendments
to certain housing benefit regulations. The duty to consult contained the proviso
that consultation was not necessary where the urgency of the matter made it
inexpedient to do so. However, in the opinion of Tucker J, the Secretary of State
could not be allowed to take advantage of the proviso where it ought to have
been apparent at an early stage that consultation was necessary before amend-
ing the relevant regulations. Accordingly, the applicants succeeded in their con-
tention that there had been a failure to consult and a declaration was made to
this effect. Finally, it has been said in one of the leading cases (Rollo v Minister of
Town and Country Planning (1948)) that the authority ‘with a receptive mind,
must by such consultation seek and welcome the aid and advice which those
with local knowledge may be in a position to proffer in regard to a plan which
[the authority] has tentatively evolved’. However, it appears that the existence
of a policy in favour of a particular course of action does not necessarily mean
that any consultation will not be undertaken without a receptive mind.
9.2.1 Legal effect of a failure to consult

In general, consultation is mandatory although the court may prescribe a direc-
tory obligation if the statutory provision seems to indicate a sufficient discre-
tion, particularly in relation to those who are to be consulted, or where a
person’s interests are not prejudiced by a failure to consult in some respect. Two
cases relating to statutory requirements for consultation in relation to the intro-
duction of comprehensive education illustrate the contrast between the effects
of mandatory and directory requirements in the present context. In Bradbury v
Enfield London Borough Council (1967) the court was concerned with various pro-
visions of the Education Act 1944, one of which, s 13, stipulated that after pro-
posals for comprehensive reorganisation (involving an intention to ‘cease to
maintain’ schools and to establish new schools’) had been submitted to the
Minister of Education:
... the authority ... shall forthwith give public notice of the proposals in the
prescribed manner, and the managers or governors of any voluntary school
affected by the proposals or any ten or more local government electors ...
may within three months after the first publication of the notice submit to
the minister objections to the proposals ...
This was a major prerequisite before any approval could be given by the minis-
ter to a scheme for comprehensive reorganisation, hence the court’s decision
that the requirement was mandatory. Failure to comply rendered the relevant
resolutions of the education authority ultra vires. Following this decision the
Education Act 1968 was passed whereby the ‘s 13’ procedure would now apply
to a ‘significant change in the character, or significant enlargement of the
premises’ of a school: whether a particular change is ‘significant’ was to be
136
determined by the Secretary of State for Education, not the court. The second,
contrasting case is Coney v Choyce (1975) where the notice requirements of s 13
were regarded by the judge as being merely directory because the relevant reg-
ulations – the County and Voluntary Schools (Notices) Regulations 1968 –
intended ‘that notice should be published in a manner designed to show a rep-
resentative number of people what their rights are’. The Regulations required
notice to be given in a local newspaper, in some conspicuous place or places, at
or near any main entrance to the school in question, and in such other manner
as appeared to be desirable for giving publicity to the notice. In the case of two
schools no notice was posted at or near the main entrance although notices were
well publicised elsewhere and no person had suffered any substantial prejudice.
Overall, therefore, non-compliance with the requirements did not affect the
legality of the authority’s action.
Whether the court intervenes to quash or declare administrative action a nul-
lity may be uncertain. The High Court – in R v Gwent County Council, ex p Bryant
(1988) – considered that any failure by the local authority in that case was reme-
died by the Secretary of State’s consideration of the case. Perhaps more contro-
versially, the High Court has also refused to quash new social security
regulations even though the Secretary of State had failed to consult properly
when very little time was given for a response from the Association of
Metropolitan Authorities. In this case – R v Secretary of State for Social Services, ex
p Association of Metropolitan Authorities (1986) – the court was clearly influenced
by the fact that the regulations were already in force and being administered by
the local authorities. In a later case involving the same applicants referred to in
the previous section, Tucker J was also not prepared to quash the regulations in
question where the Secretary of State had failed to comply with a mandatory
requirement to consult by not consulting with anyone. As a general proposition,
it was not in the public interest to upset regulations in the absence of a good
reason for doing so since to do otherwise would be disruptive in that it would
give rise to uncertainty and delay. In the present case, the fact that the regula-
tions had only been in force for a short time and that by quashing them the
court ‘would not be opening the flood gates to great rebate or payment’ did not
amount to a sufficiently good reason for granting an order of certiorari.
9.3 Delegation
An important element in many types of administrative action is the need to
expedite the procedures and the need to recognise that many of the administra-
tive and judicial functions cannot be undertaken ‘personally’ by the minister at
the head of a government department, the council of a local authority or the
nominated board of a public corporation. A number of administrative and judi-
cial functions may be and often are delegated by these agencies, at least to the
extent that the law permits such delegation.
137
Whether the law permits delegation of functions depends on the maxim dele-
gatus non potest delegare: an administrative agency with statutory responsibility
for an exercise of powers cannot delegate them without statutory authorisation.
However, the maxim delegatus non potest delegare applies strictly to judicial func-
tions. But it is different with a body which is exercising administrative functions
or which is making an investigation or conducting preliminary inquiries, espe-
cially when it is a numerous body (per Lord Denning in Selvarajan v Race
Relations Board (1976)). Even where the function is administrative its delegation
may be expressly prevented by an appropriate statutory provision (per Lord
Somervell in Vine v National Dock Labour Board (1957)). Whether delegation is
permitted, therefore, depends on the terms of any statutory powers and, in gen-
eral, on whether a particular function is ‘administrative’ or ‘judicial’. A judicial
function arises where ‘any body of persons [have] legal authority to determine
questions affecting the rights of subjects’: R v Electricity Commissioners, ex p
London Electricity Joint Committee (1924)). Only where there is clear statutory
authorisation can this type of function be delegated.
One of the clearest examples of a judicial function relates to disciplinary
functions which were in issue in Barnard v National Dock Labour Board (1953)
where Lord Denning observed, no facts which showed that Barnard had been
suspended from his employment as the result of a decision taken by a tribunal
which had no power to take such action, that:
[t]he Board are put in a judicial position between the men and the employ-
ers; they are to receive reports from the employers and investigate them;
they have to inquire whether the man has been guilty of misconduct ... and if
they find against him they can suspend him without pay, or can even dis-
miss him summarily. In those circumstances they are exercising a judicial
function ... No judicial tribunal can delegate its functions unless it is enabled
to do so expressly or by necessary implication.
Similarly, consideration of an information laid before a magistrate or a magis-
trates’ clerk alleging a criminal offence is a judicial rather than an administrative
function. Consequently, if such an information is considered by anyone else
who is not authorised by statute for this purpose, any subsequent conviction
would be quashed (R v Gateshead Justices, ex p Tesco Stores Ltd (1981)).
Administrative functions are less easily defined although by their very
nature they tend to cover ministerial tasks such as the collection of information
and the preparation of that information and other material for submission to a
deciding body whose task would normally be seen as a judicial function. Where
such a task of collecting information is lawfully delegated it is usually necessary
for the delegate to submit all the information to the deciding body, failing
which it might be said that there was a breach of the rules of natural justice inas-
much as any person submitting information or evidence might allege that a
mere summary thereof could amount to a denial of a legal right to a reasonable
138
opportunity for his case to be heard by the deciding body (Jeffs v New Zealand
Dairy Production and Marketing Board (1967)).
9.3.1 Government departments and local authorities

Special attention needs to be given to the position of central government depart-
ments and local authorities. In the case of central government departments, a
fundamental concept involves the idea that the civil servant is the minister’s
alter ego so that in law anything done by the civil servant is done in the name of
and is binding on the minister. It was seen in Chapter 4 that local authorities
enjoy a special position because the Local Government Act 1972 states in s 101
that:
Subject to the express provisions contained in this Act or any Act passed
after this Act, a local authority may arrange for the discharge of any of their
functions –
(a) by a committee, a sub-committee or an officer of the authority; or ... by an
other local authority.
Normally, any decision or other similar administrative action taken by the local
authority only becomes a legally effective decision when passed in a resolution
of the whole council. If the power to delegate in s 101 is used, the decision of the
delegate committee, officer or other authority is legally the decision of the coun-
cil. If this power to delegate is used, it is usually for the purpose of expediting
the decision-making processes of the council. In practice the council will usually
require a report from the delegate indicating details of delegated decisions actu-
ally taken. Those councils who make very little use of this facility tend to the
view that the full, democratic process should apply to every decision or other
administrative action of the council. It has been seen previously in Chapter 4
that s 101 does not permit delegation to a number, thereby eliminating the facil-
ity for chairman’s action!
In the case of central government departments, it is generally recognised that
the minister at the head of the department is not legally obliged to direct his
mind to each case. In the leading case of Carltona Ltd v Commissioners of Works
(1943) it was observed that:
In the administration of government in this country the functions which are given to minis-
ters (and constitutionally properly given to ministers because they are constitutionally
responsible) are functions so multifarious that no minister could ever personally attend to
them ... the duties imposed upon ministers and the powers given to ministers are normally
exercised under the authority of the ministers by responsible officials of the department ...
Constitutionally, the decision of such an official is, of course, the decision of the minister.
The minister is responsible. It is he who must answer before Parliament for anything that
his officials have done under his authority.
Applying this principle in R v Skinner (1968), the court was concerned with a
statutory prerequisite that the Home Secretary should approve for use any
139
breathalyser device before any person could be convicted of a drinking/driving

offence under the Road Traffic Act. It was decided by the court that approval
could quite lawfully come from an Assistant Secretary in the Home Office
Police Department. Again, in Re Golden Chemical Products Ltd (1976) the court
was concerned with the Secretary of State for Trade’s statutory power to present
a winding-up petition to the High Court where it appears to him to be necessary
in the public interest as provided for by s 35 of the Companies Act 1967 (now s
124A of the Insolvency Act 1986 as substituted by s 60 of the Companies Act
1989). Such a requirement, it was decided, did not have to be undertaken per-
sonally by the Secretary of State.
An exception to the ‘alter ego’ principle occurs where statute expressly or,
perhaps impliedly, prohibits anybody but the minister making a particular deci-
sion. Section 13(5) of the Immigration Act 1971, for example, states that:
A person shall not be entitled to appeal against a refusal of leave to enter, or
against a refusal of an entry clearance, if the Secretary of State certifies that
directions have been given by the Secretary of State (and not by a person act-
ing under his authority) for the appellant not to be given entry on the
ground that his exclusion is conducive to the public good ...
The above statutory limitation on delegation was considered in R v Secretary of
State for the Home Department, ex p Oladehinde (1991) where the principal issue for
the consideration of the House of Lords was whether an immigration inspector,
acting on behalf of the Secretary of State, was entitled to decide that the appel-
lants should be deported where they had, in the first case, contravened a condi-
tion restricting the taking of employment whilst residing in the UK as a student,
and in the other, overstayed the period for which leave to enter the UK had
been granted. A unanimous House of Lords decided that the initial decision to
deport could indeed be taken by an immigration inspector. The Carltona princi-
ple, referred to earlier in this section, was a recognition of the fact that the devo-
lution of responsibility amounted to a practical necessity in the administration
of government. Moreover, whilst the 1971 Immigration Act contained a number
of instances where the power to delegate was restricted, such as s 13(5), there
was no such limitation in respect of the decision to deport and the court would
be ‘very slow to read into the statute a further implicit limitation’. Lord
Griffiths, who gave the leading judgment in the case, succinctly stated the posi-
tion thus:
The immigration service is comprised of Home Office civil servants for
whom the Secretary of State is responsible and I can for myself see no reason
why he should not authorise members of that service to take decisions under
the Carltona principle providing they do not conflict with or embarrass them
in the discharge of their specific statutory duties under the Act and that the
decisions are suitable to their grading and experience.
140
9.3.2 Implied authority

In local government it appears that the effect of s 101 of the Local Government
Act is that any delegation of powers must be express, leaving no room for any
implied delegated authority. As far as central government is concerned, again
there appears to be no room for the concept of implied delegated authority sim-
ply because administrative action is not regarded as being legally delegated: all
action is taken theoretically by and in the name of the appropriate minister. In
the case of any other administrative agency, including local government before
the advent of express powers of delegation in the Act of 1972, implied delegated
authority is sometimes recognised and provides a means by which administra-
tive action taken without express statutory powers may be saved from being
declared ultra vires. In Nelms v Roe (1969), for example, the issue related to the
Road Traffic Act 1960 and the fact that under the Act information could be
sought in relation to an alleged traffic offence ‘by or on behalf of a chief officer of
police’. The court found that there was no written authority from the
Commissioner of Metropolitan Police either to the inspector concerned with the
case of his superintendent. It was decided that the ‘alter ego’ principle did not
extend to the case but there was implied authority delegated to the superinten-
dent with the power further sub-delegated to the inspector dealing with the case.
In practice, implied authority may be used by the court in order to save what
would otherwise be seen to be an ultra vires delegation of powers. To that extent
the court may be using a rather tenuous legal concept in order to fill a gap left in
the relevant statutory powers in order to avoid a conclusion that the ultimate
decision or other administrative action is ultra vires and that therefore the
administrative agency is not bound by that action. Inevitably the court has to be
able to conclude that Parliament must have intended that the particular statu-
tory powers should be capable of being impliedly extended. In this task the
court must be aware of the need to interpret the statutory powers, so far as is
possible, as a workable entity. Consequently, it might be possible in some cases
for the court to find that an administrative agency is legally able to establish a
general policy and overall guidelines for the exercise of particular statutory
responsibility, leaving an officer of that agency with implied authority to
process the administrative details relating to individual cases. Nevertheless,
there can be no substitute for a comprehensive definition of statutory powers
which avoids any recourse to implied powers, thereby putting beyond doubt
the scope of an administrative agency’s powers.
9.3.3 Legal effects of delegation

If there is lawful delegation, the agency retains concurrent powers (Huth v
Clarke (1890)). Consequently, a delegate’s decision may have no effect in law
where it is taken after a decision on the same issue by the delegating authority.
Furthermore, the delegating authority is able to revoke the delegated powers at
141
any time (Manton v Brighton Corporation (1951)). However, where the powers
have not been revoked the delegating authority is bound by the delegate’s deci-
sion, as long as that decision is made within the terms of the delegated author-
ity, that is, as long as the decision is not ultra vires the delegate’s powers. The
best illustration of this proposition comes from the local government context
where the council of a local authority resolves to delegate certain powers to one
of its chief officers, for example. Any decision of that officer within his dele-
gated powers which is not revoked will be binding on that authority (Lever
(Finance) Ltd v Westminster London Borough Council (1970)).
9.4 Estoppel
Closely related to the foregoing principles relating to delegation is the doctrine
of common law estoppel. The doctrine applies where an officer or other repre-
sentative of an administrative agency:
(1) makes an adequate statement of fact or fact and law which is
(2) within his delegated or other lawful authority where
(3) the person dealing with that officer or representative relies on the statement
to his detriment.
Where all these requirements are satisfied the administrative agency will be
bound by and cannot deny the validity of the officer’s statement. However, the
doctrine applies to statements and representations as opposed to decisions. The
law was fully developed through some fairly bold pronouncements, from the
Court of Appeal in particular. Since the high point – in Lever (Finance) – was
reached, the courts have spent a lot of time seeking to limit this form of estop-
pel, as will be seen later. Where a decision is made by a delegate officer acting
within his express authority in local government, for example, that decision is
legally the council’s. Where the officer makes a statement or representation
short of a decision, for example to the effect that no licence is required for a par-
ticular activity or that a person is entitled to a grant for a particular purpose,
these are the circumstances in which common law estoppel may apply.
A striking example of common law estoppel in action occurs in Lever
(Finance) where a planning officer working for the local planning authority indi-
cated to an architect in a telephone conversation that the resiting of a house
shown on plans for which planning permission had been granted was an
‘immaterial variation’ not requiring a fresh planning permission. After the
building work was commenced the planning authority threatened to serve an
enforcement notice requiring the allegedly unlawful development to be discon-
tinued because there was no planning permission. The company applied suc-
cessfully to the court for a declaration that they were entitled to complete the
house on the amended site, and for an injunction to prevent service of the
enforcement notice. In the Court of Appeal Lord Denning observed that:
142
If the planning officer tells the developer that a proposed variation is not
material, and the developer acts on it, then the planning authority cannot go
back on it ... If an officer, acting within the scope of his ostensible authority,
makes a representation on which another acts, then a public authority may
be bound by it ...
Subsequently it was suggested that when a developer ‘acts’ on the representa-
tion he should be acting to his detriment. This suggestion was made in the High
Court in Norfolk County Council v Secretary of State for the Environment (1973)
where the council resolved to refuse planning permission for a factory exten-
sion. In error the officer sent a notification to the developer indicating that plan-
ning permission had been granted. It was decided that the notification was not
binding on the council since the officer had no authority to send the wrong noti-
fication with the consequence that the council was not bound, that is, estopped
or prevented from denying the validity of the notification, so that in law no
planning permission had been granted.
9.4.1 Requirements for common law estoppel

To be bound by a representation or statement of an officer then the three
requirements for common law estoppel previously listed must be satisfied. The
first of these requirements is that there should be an adequate statement of fact
or of fact and law. In the most likely situation where a person seeks a determi-
nation of the question of whether he requires a licence for a particular activity or
whether he is entitled to a grant for a certain purpose, the authority’s statement
or representation will relate the legal position concerning licences or grants to
the facts of the inquirer’s situation. Whether there is an adequate statement may
depend on the court’s satisfaction that adequate information was given to the
authority’s officer in the first place. In Re Suruk Miah (1976) it was decided that a
letter from the Department of Employment indicating that a work permit would
be granted to a person wishing to come to the UK to work was not an adequate
representation: the law required that person to present a work permit on arrival
if he was to be allowed to enter the country. In other words, the letter was not
binding on the Department. Similarly, in Wells v Minister of Housing and Local
Government (1967) deletion of words (on a form indicating the local authority’s
approval of plans under the Building Regulations) indicating that planning per-
mission might also be required for the proposed development covered by the
plans was not an adequate representation by the authority that planning per-
mission was not required. Consequently and because the authority was not
estopped or prevented from denying the validity of the representation, it could
serve a legally effective enforcement notice on the developer requiring him to
remove the building on the ground that it required but did not have planning
permission. The court also decided that any such enforcement notice would not
have been legally effective where the local authority responded to an applica-
tion for planning permission by saying that in the circumstances no planning
143
permission was, in fact, required. Even though such a determination can nor-
mally be made only on a formal basis following a specific application for such a
determination, the informal response in this case would have been regarded as
an adequate representation. It was argued in the case that the authority could
only have been bound, that is, estopped, by a formal determination that plan-
ning permission was not required. This argument was rejected by the court and
Lord Denning said that, ‘ ... a public authority cannot be estopped from doing
its duty, but I do not think it can be estopped from relying on technicalities’.
The second of the requirements for common law estoppel is that the relevant
statement or representation should be made within the delegated or other law-
ful authority of the officer. This is a fundamental requirement, bearing in mind
that no statutory authority can be bound by an ultra vires act or representation.
In Princes Investments Ltd v Frimley and Camberley Urban District Council (1962)
planning permission was granted for the building of houses, subject to a condi-
tion that the council should approve the sewerage arrangements. In fact, the
council’s engineer approved the arrangements but it was decided that his state-
ment of approval was not binding on the council which could only fulfil its
statutory responsibilities by formal resolution of the whole council at a time
when local authorities had no facilities for the formal delegation of functions.
The same conclusion occurred in Southend-on-Sea Corporation v Hodgson
(Wickford) Ltd (1962) where an officer represented that no planning permission
was necessary for a proposed development of land as a builder’s yard. The
council disagreed and it was decided by the court that it was not bound by the
officer’s representation, which was made without any delegated authority, so
that the council was free to exercise its statutory discretion to serve an enforce-
ment notice to prevent the land’s use as a builder’s yard. Equally, if the author-
ity in question is obliged to exercise a statutory duty, it cannot be estopped or
prevented from so doing by a representation or statement of an officer acting
without or outside any delegated powers (Maritime Electric Co. Ltd v General
Dairies Ltd (1937)). This conclusion clearly upholds the essential requirements of
the doctrine of ultra vires but this requirement is seemingly ignored in the case
of Robertson v Minister of Pensions (1949). Colonel Robertson, an army officer,
received a determination from the War Office that a disability was attributable
to military service. The injury in question occurred in December 1939 but War
Office responsibility for making these determinations only extended to claims
for injuries incurred up to 2 September 1939: thereafter responsibility was trans-
ferred to the Ministry of Pensions. The Ministry subsequently determined that
the colonel’s disability was not attributable to military service. This decision
was upheld by the Pensions Appeal Tribunal but the High Court decided that
the Ministry was bound by the War Office determination. Denning J (as he then
was) stated that:
... if a Government department in its dealings with a subject takes it upon
itself to assume authority upon a matter with which it is concerned, he is
144
entitled to rely upon it having the authority which it assumes. He does not
know, and cannot be expected to know, the limits of that authority.
Although the just result was undoubtedly achieved in this case, it does indicate
that the Ministry of Pensions was being bound by an ultra vires determination of
the other ministry, the War Office. Subsequently it was stated in the House of
Lords, in a reference to the Robertson decision, that there was no such principle
in the law: ‘The illegality of an act is the same whether or not the actor has been
misled by an assumption of authority on the part of a government officer, how-
ever high or low in the hierarchy’ (Howell v Falmouth Boat Construction Co
(1951)).
The third requirement in the present context relates to the need for detrimen-
tal reliance on the officer’s statement or representation. In Robertson the detri-
mental reliance occurred when, having received a determination from the War
Office, the colonel took no further steps to obtain an independent medical opin-
ion in relation to his injury and disability. In the Norfolk County Council case pre-
viously referred to, the court decided that there was no detrimental reliance in
so far as the developer was able to cancel contracts for the purchase of machin-
ery for the factory extension without incurring any contractual penalties. In the
course of his judgment in this case, Lord Widgery observed that ‘What one
hopes to achieve in a situation like this, where there is an honest mistake, is that
everybody shall end up in the position in which they would have been if no
mistake had been made’. It could be argued that this perceived need to restore
the status quo was a significant influence in the court’s finding that the ‘detri-
ment requirement’ for common law estoppel was not satisfied.
9.4.2 Restriction of estoppel

That there is a reluctance to find an estoppel against an administrative agency is
seen in another judgment of Lord Widgery in Brooks and Burton Ltd v Secretary of
State for the Environment (1977). Here he observes that:
Any attempt to expand the doctrine of estoppel expressed in Lever ... is to be
deprecated, because it is extremely important that planning authority offi-
cers should feel free to help applicants without having the shadow of estop-
pel hanging over their heads and the possibility of immobilising the
authority by some careless remark.
The court certainly has a great deal of room for manoeuvre in this respect in
determining whether, for example, any representation was ‘adequate’ or any
reliance ‘detrimental’. However, there is always the possibility that a person
quite innocently relies on a statement or representation by an officer of an
administration agency only to find that in law there is no estoppel against that
authority: it is bound by the officer’s statement. That person, having suffered
some loss, will find that, legally, there is no remedy: a considerable gap in the
law which would be well filled if the law recognised that damages were avail-
145
able for an ultra vires act or statement. In Chapter 15 it will be seen that the giv-
ing of misleading advice could well amount to ‘maladministration’ enabling an
investigation by one of the ombudsmen according to whether the complaint
relates to a central government department or a local authority and assuming
that the alleged ‘maladministration’ has caused injustice. A successful com-
plaint in this context could in some cases secure an ex gratia compensation pay-
ment to cover any loss which is suffered.
The court’s attempt to cut down the application of estoppel, in local govern-
ment at least, is seen in suggestions made by Megaw LJ in delivering the Court
of Appeal’s judgment in Western Fish Products Ltd v Penwith District Council
(1978). He first re-emphasised that: ‘An estoppel cannot be raised to prevent the
exercise of a statutory discretion or to prevent or excuse the performance of a
statutory duty.’ He then indicated that there are two kinds of exception:
If a planning authority, acting as such, delegate to its officers powers to
determine specific questions ... any decisions they make cannot be revoked ...
Lever (Finance) ... is an application of this exception ... In the court’s opinion
[the] principle laid down by Lord Denning was not authority for the propo-
sition that every representation made by a planning officer within his osten-
sible authority binds the planning authority ... For an estoppel to arise there
has to be some evidence justifying the person dealing with the planning offi-
cer for thinking that what the officer said would bind the planning authority
... The second exception is that if a planning authority waives a procedural
requirement relating to any applications made to it for the exercise of its
statutory powers, it might be estopped from relying on lack of formality.
This is supported by Wells ... There is other than these two exceptions no jus-
tification in extending the concept of estoppel ...
In re-emphasising the fact that any determination made under lawfully dele-
gated powers is binding on the authority, Megaw LJ is also suggesting that an
estoppel is available only where there is ‘some evidence’ justifying the person
dealing with the officer in thinking that the officer had the requisite delegated
powers. If this is eventually accepted as part of the law, estoppel would effec-
tively become a dead letter since no individual dealing with an officer of an
administrative agency could be expected to realise that he should ascertain the
scope of any of that officer’s delegated powers. As to the second ‘exception’
referred to by Megaw LJ this relates to any situation in which an officer of an
administrative agency represents that there is no requirement for compliance
with an inconsequential procedural requirement, as in the case of Re L (AC) (An
infant), dealt with previously. Where, on the other hand, the officer indicates
that a mandatory requirement may be waived, that ultra vires statement could
not be binding on the administrative agency in question, eg a statutory provi-
sion which stipulates that a licence application ‘shall be of no effect’ or ‘shall not
be determined’ in the absence of a certain certificate. Clearly, any statement
indicating that a certificate need not accompany the application could not create
an estoppel against the authority in question.
146
It may be significant that the courts appear to be developing a far more flexi-
ble approach to problems in this area. This is seen most clearly in the decision of
the House of Lords in R v Inland Revenue Commissioners, ex p Preston (1985)
where it was said that an abuse of statutory powers could include an unfair
exercise of powers where an agency’s decision or act is equivalent to a breach of
contract or breach of a representation giving rise to an estoppel. On the facts,
however, it was found that the commissioners had not agreed or represented
that they would desist from raising tax assessments against the taxpayer. This
more flexible approach does again suggest that the courts have a good deal of
leeway in deciding what amounts to an agreement or representation.
9.4.3 Estoppel and government policy

It was decided in Laker Airways Ltd v Department of Trade (1977) that an estoppel
could not operate against the government in view of the government’s previous
conduct, albeit the conduct of a predecessor government. The issue arose fol-
lowing the government’s attempt to withdraw the designation of Laker
Airways as one of the airlines recognised as an operator on an air route between
the UK and the United States, despite encouragement from a predecessor gov-
ernment as a result of which designation had been obtained, albeit subject to
final confirmation. Although the members of the Court of Appeal had slightly
different grounds for their conclusion, the main emphasis of this area of the
decision (which, as will be seen later in Chapter 11 also related to other matters
concerning statutory powers for air traffic licensing under the Civil Aviation
Act 1971) was that an estoppel against a government would effectively hinder
its ability to act for the public good. Lawton LJ for example, suggested that:
‘Estoppel cannot be allowed to hinder the formation of Government policy.’
9.5 Communication of Decisions

Wherever there is a statutory responsibility requiring an administrative agency
to make a decision or take similar administrative action, a time limit will nor-
mally be imposed within which any such action shall be taken. In general such a
time limit – a period of two months is a fairly common stipulation – is regarded
in law as being merely directory (James v Minister of Housing and Local
Government (1966)). This is in contrast to the time limits for appeals within an
administrative system, eg an appeal against the decision of a local authority to
the Secretary of State for the Environment, where (as have been seen previ-
ously) the time limit for the notice of appeal is regarded as being mandatory. In
the case of the typical decision on an application for a licence or grant, the status
of the time limit as a directory requirement may be explained by the fact that
many decisions would be ultra vires even as the result of the shortest delay
beyond the prescribed time limit. If the time limit was normally mandatory, this
could also provide an opportunity for the individual to escape his obligations
147
under any conditions, eg by alleging at the later time for compliance with those
conditions, that the original decision was out of time and therefore ultra vires.
In practice, the individual does often have a legal right to press against any
administrative agency which is at all dilatory in notifying a decision. That right
will be prescribed by the appropriate statutory provision indicating (for exam-
ple), that, ‘Every decision shall be notified in writing to the applicant’. Such a
provision tends to suggest that the decision is contained in the relevant resolu-
tion of the authority so that the above provision is in the nature of a ministerial
requirement ensuring that the decision is promptly communicated to the appli-
cant. This conclusion is certainly suggested by the decision in the Norfolk County
Council case where it was decided that the council had resolved to refuse a plan-
ning permission and that a notification to the contrary could not override that
original refusal. More recently the High Court has said that, as long as propos-
als remained confidential, they were revocable: R v Secretary of State for
Education and Science, ex p Hardy (1988). The proposals (to close a school under
the powers conferred for that purpose by the education legislation) did not
become irrevocable merely because they were disclosed, mistakenly, to an out-
side organisation. All of this, though, had to be seen in the context of the
Education legislation which requires a formal, precise, published decision. This
may suggest that the law requires a clear, statutory indication that a decision
has full, legal status in the absence of which (outside central government
departments) the internal resolution carries the decision’s final legal status. This
approach would confirm the view that final, written communication is a mere
ministerial requirement which is at odds with the House of Lords decision in
Epping Forest District Council v Essex Rendering Ltd (1983) which indicates that
the requirement of consent in writing for the purpose of the Public Health Act is
mandatory. Consequently, the local authority’s alleged connivance in the opera-
tion of a plant without formal permission was no defence to an operation with-
out consent.
9.6 Reasons
English law provides no universal obligation for reasons to be given for admin-
istrative action. The most comprehensive requirement for reasons appears in s
10(1) of the Tribunals and Inquiries Act 1992 which covers decisions of adminis-
trative tribunals listed in Schedule 1 to the Act and decisions of any minister of
the Crown either following a statutory inquiry or where a person concerned
could have required the holding of a statutory inquiry. In this context ‘... it shall
be the duty of the tribunal or minister to furnish a statement, either written or
oral, of the reasons for the decision if requested, on or before the giving of noti-
fication of the decision’. Tribunals and inquiries were dealt with previously in
Chapters 3 and 5.
148
Under the same Act it has been seen that the Lord Chancellor is empowered
to make procedural rules for certain types of inquiry. Such rules related mainly
to inquiries into compulsory purchase orders and planning appeals and contain
a stipulation requiring reasons to be given, not merely on request, but as a mat-
ter of course. Accordingly, the Town and Country Planning (Inquiries
Procedure) Rules 1992 indicate that ‘The Secretary of State shall notify his deci-
sion on an application or appeal, and his reasons for it, in writing ...’. Apart
from the two foregoing categories, the existence of any legal obligation to give
reasons for administrative action can only be discovered by a perusal of particu-
lar Acts of Parliament or regulations made under such Acts. By way of an exam-
ple, s 510 of the Housing Act 1985 requires a local authority to state the reasons
for any refusal of an improvement grant.
In view of the foregoing situations where there is an obligation in law to give
reasons, it is a matter of the first importance to ascertain those areas of adminis-
trative action where there is no legal obligation to give reasons. Until recently, a
local authority was subject to no obligation to give reasons for evicting a tenant
from council housing accommodation (s 21 Housing Act 1985). A statutory
inquiry into a compulsory purchase order made for slum clearance under Part 3
of the Housing Act 1957 is not covered by the procedural rules for inquiries into
compulsory purchase orders and the rules’ requirement of reasons for the min-
ister’s eventual decision. Finally, s 20C(3) of the Taxes Management Act 1970 (as
amended by s 146 of the Finance Act 1989) does not oblige an Inland Revenue
officer to give reasons for a seizure of documents from an individual. The
Tribunals and Inquiries Act also contains exemptions from the general obliga-
tion to give reasons imposed on tribunals and ministers. Reasons may be
refused on grounds of national security and refused to any person not primarily
concerned with the decision where such reasons, if furnished, would be con-
trary to the interests of any person primarily concerned (Tribunals and Inquiries
Act 1992 s 10(3)). Reasons need not be given in connection with any decision of
a minister relating to any matter of a legislative character (Act of 1992 s 10(5)).
Reasons need not be given where some other statutory provision governs the
giving of reasons. Where it appears expedient to the Lord Chancellor and the
Lord Advocate, following consultation with the Council on Tribunals, that the
giving of reasons for certain decisions taken by tribunals and ministers is
‘unnecessary and impracticable’, an order may be made excluding the duty to
give reasons in these cases (Act of 1992 s 10(7)).
9.6.1 The purpose of reasons

What purpose is served by the requirement that reasons should be given for
decisions and other administrative action? Perhaps the most important purpose
of giving reasons is to enable the individual concerned to know the basis of a
decision so that he can effectively challenge that decision either by way of
appeal or review, as the case may be. Consequently, reasons will be of interest
149
for a variety of purposes in order to show how the facts and evidence were
treated, together with the relevant law in relation to its application to the issues
in the case. One of the leading statements of principle occurs in Re Poyser and
Mills’ Arbitration (1964) where Megaw J states that:
Parliament having provided that reasons shall be given ... [means] that
proper, adequate reasons must be given; the reasons that are set out,
whether they are right or wrong, must be reasons which not only will be
intelligible, but also can reasonably be said to deal with the substantial
points that have been raised ... I do not want it to be thought for a moment
that I am saying that any minor or trivial error, or failure to give reasons in
relation to every particular point that has been raised at the hearing would
be sufficient to invoke the jurisdiction of this court.
In the leading case Save Britain’s Heritage v Secretary of State for the Environment
(1991) which was referred to in Chapter 3, it was necessary for the House of
Lords to consider whether the Secretary of State had given adequate reasons for
his conclusion, in agreement with a planning inspector, that the appellant’s pro-
posals to demolish a number of listed and unlisted buildings in a conservation
area to make way for a new modern building should be approved. In allowing
the appeal, the House of Lords held that the requirement in r 17(1) of the Town
and Country Planning (Inquiries Procedure) Rules 1988 that the Secretary of
State should give notification of the reasons for his decision had been satisfied
where his singling out of the landmark points in the inspector’s reasoning
process in his own decision letter demonstrated his acceptance of the substance
of the inspector’s judgment. Lord Bridge, who delivered the leading judgment,
remarked that the statutory requirement to give reasons for their decisions
imposed on both inspectors and the Secretary of State alike by the planning leg-
islation:
... is a statutory safeguard to enable interested parties to know that the deci-
sion has been taken on relevant and rational grounds and that any applicable
statutory criteria have been observed. It is the analogue in administrative
law of the common law’s requirement that justice should not only be done,
but also be seen to be done.
In some cases it may be all too easy to expect too much of a statement of rea-
sons, particularly where there are two conflicting opinions arising from the evi-
dence before the tribunal or other administrative agency. In these
circumstances, it may not be possible to explain why one opinion is preferable
to the other: ‘Such explanations are not possible. They are matters of judgment,
impression and sometimes even instinct, and it is quite impossible to give
detailed reasons to explain how the system of decision has worked.’ (per Lord
Widgery CJ in Guppys (Bridport) Ltd v Sandhoe (1975)). Accordingly, it is neces-
sary that decision letters ‘should not be construed as statutes and should be
read as a whole’ in order to avoid the possibility of ‘excessive legalism’ turning
the requirement to give reasons ‘into a hazard for decision-makers in which it is
150
their skill in draftmanship rather than the substance of their reasoning which is
put to the test’ (per Lord Bridge in the Save Britain’s Heritage case).
Although the court is often reluctant to define the major issue in a particular
administrative decision, there are various instances where that reluctance is for-
gotten in a conclusion that there are no adequate reasons. Consequently, in
Mountview Court Properties Ltd v Devlin (1970) it was found by the court that a
Rent Assessment Panel had failed to deal with ‘substantial’ arguments and
facets relating to one of the flats referred. Again, in French Kier Developments Ltd.
v Secretary of State for the Environment (1977), Willis J concluded that the reasons
given were:
... so vague, inadequate and unintelligible as to leave anyone reading the let-
ter of decision from the Secretary of State quite unable to understand why,
when so much of the factual conclusions were accepted by the Secretary of
State, the inspector’s recommendation was rejected.
Finally, in Kent Messenger Ltd v Secretary of State for the Environment (1977)
Phillips J considered that the reasons in issue were not proper and adequate ‘ ...
simply because they omit any reference whatever to what was an important
material argument ... and one indeed which had played a substantial and influ-
ential part in the mind of the inspector in leading him to the recommendation
which he made’.
9.6.2 Legal effect of a failure to give reasons or adequate

intelligible reasons
Any failure to fulfil these important procedural requirements where they apply
has to be examined against the background of the remedy which is available to
the person challenging the decision in question. Generally, a failure to give rea-
sons does not render any administrative action ultra vires (Brayhead (Ascot) Ltd v
Berkshire County Council (1964), so that an order of mandamus might be available
from the High Court to compel reasons, or adequate, proper reasons to be
given. However, where the legislation by which a minister takes a decision
specifies the terms on which the High Court may review the legality of that
decision, eg a decision on a planning appeal, the court may be empowered to
quash a decision for failure to comply with the legal obligation relating to rea-
sons (Givaudan v Minister of Housing and Local Government (1967)). Where the leg-
islation prescribes only an appeal on a point of law, usually from a tribunal’s
decision, failure to give adequate, proper reasons, might indicate an error of law
so justifying the court in referring the case back to the tribunal for reconsidera-
tion in this respect (Mountview Court Properties Ltd v Devlin (1970)).
Where there is no legal obligation to give reasons, any failure in that respect
cannot be remedied in law. However, it was suggested by the House of Lords in
Padfield v Minister of Agriculture (1968) that this might not always be the case. In
this case the minister gave reasons voluntarily but Lord Upjohn thought that if
151
no reasons had been given, ‘ ... it may be, if circumstances warrant it, that a
court may be at liberty to come to the conclusion that he [the minister] had no
good reason for reaching [his] conclusion’. Lord Reid equally did not consider
that a decision of the minister could be immune from challenge in the court if no
reasons are given in the absence of any legal obligation to give reasons if this
refusal to give reasons appeared to frustrate the policy and objects of the Act. A
good example of this approach in practice appears from the New Zealand case
of Fiordland Venison Ltd v Minister of Agriculture and Fisheries (1978) where the
company applied to the minister for a game packing licence. Under the appro-
priate legislation there was a duty on the minister to grant a licence if he was
satisfied on five matters. The minister refused the application, ‘having regard to
the criteria for new licences’ set out in the legislation: no other reasons were
given. The court examined the available evidence and concluded that the minis-
ter must have rejected the application on a ground which was not authorised by
the legislation. He had not submitted an affidavit to the court indicating his rea-
sons for the decision and a declaration was granted to the effect that the com-
pany was entitled to a licence. This approach by the court seems to be possible
only where the statutory powers prescribe well-defined pre-requisites to be sat-
isfied before a licence can be granted or any other similar decision made. If the
administrative agency has a very discretionary decision to make involving a
large measure of policy, for example, it would be difficult for the court to specu-
late about the real reasons for the decision as they did in Fiordland Venison.
152
10 Natural Justice
10.1 Background to Natural Justice

Whereas Chapter 9 was concerned with the scope and legal implications of pro-
cedures defined by statute, the present chapter is concerned with common law
rules of fair procedure. These rules are developed by the courts and applied to
certain functions of statutory administrative agencies and non-statutory domes-
tic organisations. In broad terms, the rules of natural justice require that no per-
son should be judge in his own cause (the rule against bias) and that a person
whose rights may be affected shall have a reasonable opportunity of being
heard.
10.2 Exclusion or Limitation of Natural Justice

At the outset it must be emphasised that the rules of natural justice do not nec-
essarily apply to all exercises of powers. It will be seen subsequently that the
court has previously drawn a distinction between ‘administrative’ and ‘judicial’
functions, applying the rules of natural justice to the latter. This distinction is
now less frequently drawn so that even where a function might have been
defined as ‘administrative’ there may now be a limited duty to observe some
aspect of natural justice, ie a duty to act fairly. It has been seen that the rules are
in two categories: the rule against bias and the rule that no person shall be con-
demned without being given reasonable opportunity for his case to be heard.
Before these two rules are examined, it is necessary to determine the broad cir-
cumstances in which the law may exclude natural justice, to define the legal dis-
tinction between ‘administrative’ and ‘judicial’ functions, and to examine the
meaning of the rather nebulous duty to act ‘fairly’.
In Gaiman v National Association for Mental Health (1971) Megarry J observed
that ‘... there is no simple test, but there is a tendency for the court to apply the
principles [of natural justice] to all powers of decision unless the circumstances
suffice to exclude them’. On those occasions when the court has excluded nat-
ural justice the circumstances have usually involved (1) express or implied
statutory limitations, or (2) the absence of any rights meriting protection.
10.2.1 Statutory provisions

Expressly or impliedly, some statutory procedures may seek to exclude or limit
the rules of natural justice. The Town and Country Planning Act 1990 contains
153
many examples. In convening an Examination in Public of a structure plan, the

Secretary of State for the Environment is empowered to nominate those objec-
tors who are to be permitted a hearing at the Examination and to define the
issues to be examined by the participants (Town and Country Planning Act 1990
(as amended)). In determining an application for planning permission the Act
indicates a limited category of applications which must be publicised (s 65,
which ought to be read in conjunction with the Town and Country Planning
(General Development) Order 1995). Any person making objections in response
to such a publicised application is legally entitled to have his written objections
taken into account by the local planning authority (Act of 1990 s 71). This clearly
excludes any right to an oral hearing before the authority prior to a decision
being taken and also excludes any legal right to make representations for any
person in respect of applications which fall outside a category requiring public-
ity. In practice, many authorities advertise most, if not all, applications and vol-
untarily take account of the written representations made. Finally, the statutory
rules of procedure governing public local inquiries into planning appeals (and
compulsory purchase and highway proposals) expressly exclude any questions
being raised as to the merits of government policy. This exclusion of discussion
about the merits of government policy was in contention at an inquiry into
highway proposals in Bushell v Secretary of State for the Environment (1980).
Somewhat surprisingly the House of Lords decided that the inspector’s refusal
to permit cross examination on traffic flow forecasts was justifiable since these
forecasts are facets of government policy relating to criteria for motorway con-
struction. The courts may be increasingly sympathetic to the idea that, in so far
as inquiries are involved in the consideration of objections or recommendations
and reporting to the relevant minister, any refusal of cross-examination of wit-
nesses does not amount to a breach of natural justice. This conclusion is based
on the observation that such inquiries are concerned with non-justiciable issues:
R v London Regional Passenger Committee, ex p London Borough of Brent (1985).
10.2.2 Absence of rights

An absence of rights has usually given rise to a presumption that the rules of
natural justice do not apply. A good illustration of the court’s attitude comes in
McInnes v Onslow-Fane (1978). McInnes applied to the British Boxing Board of
Control for a boxing manager’s licence, demanding an oral hearing of his case
together with notice of any case against him so that he could disabuse the Board
of any allegations which might appear in such a case. His application was
refused without reasons being given, whereupon McInnes applied to the court
for a declaration that the Board had acted unfairly and in breach of the rules of
natural justice. The court refused to grant the declaration on the basis that the
Board had discharged its necessarily limited obligations in relation to natural
justice by reaching an honest conclusion, without bias, without reference to any
capricious policy. It was suggested by the court that all the facets of natural
154
NATURAL JUSTICE
justice would apply where a licence or other right was being forfeited or
renewed whereas a ‘first time’ applicant for a licence would not have any legiti-
mate expectation of a licence being granted so that in law he would have no
right to notice of any case against him and no opportunity to be heard. Where
the licensing body is not a ‘domestic’ organisation like the British Boxing Board
of Control but a statutory body, the relevant statutory provisions governing its
licensing responsibilities will (as in the example of the local planning authority)
tend to indicate that the rules of natural justice are either excluded or limited.
The present case is one of a long line of decisions where the court has drawn a
distinction between ‘rights’ and mere ‘privileges’ although even in this latter
instance where no rights are at issue the court will usually insist that, as in
McInnes, there is a measure of fairness in the procedures. That limited measure
of fairness may involve the need to recognise either the rule against bias, as in
McInnes, or the rule that no person shall be condemned without a reasonable
opportunity for his case to be heard, as in R v Liverpool Corporation, ex p Liverpool
Taxi Fleet Operators’ Association (1972). By way of contrast, in R v Secretary of
State for the Home Department, ex p Gunnell (1983), the granting of parole was
characterised as a privilege, not a right. Furthermore, the fact that the Parole
Board was performing an administrative judicial function meant that the appli-
cant could not claim that material on the case should be disclosed to him or that
he should have an oral hearing. The position in relation to procedures before
the Parole Board has now altered somewhat since Ex p Gunnell was decided due
to a change in Home Office policy which has been reflected both in case law and
statutory developments. In R v Parole Board, ex p Wilson (1992), the Court of
Appeal upheld the applicant’s appeal against an earlier High Court refusal to
disclose to him adverse information relating to his request for release from
prison. It was felt that in order for the applicant, a discretionary life sentencer,
to be in a position to make effective representations to the Parole Board so as to
disabuse them of the view that he was unacceptably dangerous to the public, it
was necessary that he should be made aware of what had been said against him.
The Court of Appeal considered that a further justification for their finding was
afforded by the fact that provisions of the Criminal Justice Act 1991, which were
shortly to come into force at the time of the decision, would give the applicant a
statutory entitlement to disclosure subject to any public interest immunity that
could be established (see also Doody v Secretary of State for the Home Department
(1993) discussed below).
10.2.3 Preliminary processes

There has been resistance to the application of natural justice where the process
in question has not led immediately to a final decision, prejudicing any rights.
In other words, where there is something in the nature of a two-stage process,
the first stage involving a preliminary investigation may not affect the individu-
al’s rights. This is frequently the case where a suspension takes place pending
155
the outcome of a disciplinary investigation. In Lewis v Heffer (1978) the National

Executive of the Labour Party suspended the local committees and officers of a
constituency Labour Party, pending the result of an inquiry by the Executive. A
local officer sought an injunction to prevent the suspension on the ground that
the Executive had acted unlawfully and in breach of natural justice. Similar
grounds were used subsequently by the plaintiff and another officer when they
found that the Executive had it in mind to suspend them from Labour Party
membership pending the result of the same inquiry. In refusing injunctions in
both cases, the court considered that suspension as a temporary measure may
be a matter of ‘good administration’ pending investigation so that natural jus-
tice ought not to apply. A further example of a finding that the rules of natural
justice had not been breached occurred in Herring v Templeman (1973), where it
was held that there was no implied obligation for an academic board to accord a
hearing to a student who was facing the prospect of being expelled from a
teacher-training college since the board only had power to make recommenda-
tions. It was the governing body which was charged with the responsibility of
making a final decision, and hence it was they who owed the student a duty to
act fairly by affording him an adequate opportunity to explain before them why
the recommendations of the academic board should not be accepted.
Nevertheless, the House of Lords has taken the view that even in the course of
preliminary proceedings, any provisional finding in the establishment of a prima
facie case could significantly prejudice a person’s rights and interest to the extent
that a hearing ought to be given to that person (Wiseman v Borneman (1971)). In
Re Pergamon Press (1970) Board of Trade inspectors appointed under the
Companies Act to investigate and report on the affairs of a company were
under a duty to act fairly and to give anyone whom they proposed to condemn
or criticise a fair opportunity to answer what was alleged against them. It was
claimed by the company’s directors that they had a legal right to see transcripts
of witnesses’ evidence against them and to cross-examine those witnesses. This
claim was rejected by the court where Lord Denning indicated that there was no
need to quote chapter and verse so that a mere outline of the charge will usually
suffice. Further proceedings in the case led to the court’s conclusion that there
was no legal obligation requiring the inspectors to indicate their tentative con-
clusions for comment by the parties prior to publication of their report (Maxwell
v Department of Trade and Industry (1974)).
10.2.4 Absence of contractual or similar relationships

The absence of any contractual of similar relationship with a non-statutory
domestic organisation such as a trade union or professional association may
indicate that natural justice does not apply to its transactions with individuals
(Byrne v Kinematograph Renters Society (1958)). The main justification for this
proposition is that the absence of a contractual or similar relationship means
that the individual has not associated himself with the organisation and any
156
NATURAL JUSTICE
express or implied obligation on its part to comply with natural justice.

Nevertheless, the cases are unpredictable in this context. For example, in Nagle v
Feilden (1966) the stewards of the Jockey Club failed to persuade the court to
strike out Nagle’s claim for a declaration that the Club’s policy of refusing train-
ers’ licences to women was contrary to public policy on the ground that the
plaintiff’s right to work was in issue. It is difficult to reconcile this decision,
indicating the relevance of natural justice to a licence application, with the state-
ment of principle in McInnes to the effect that the rules do not apply to an initial
licence application but would apply to a revocation or renewal.
10.2.5 Professional advice

The rules do not apply to professional advice although there is an exception
where a person’s rights may be affected. This is seen clearly in R v Kent Police
Authority, ex p Godden (1971). A police doctor and a consultant concluded that
Godden, a police officer, was mentally ill but the court required that their
reports be produced to Godden’s own consultant when the police authority
sought to employ the same police doctor in order to certify Godden as perma-
nently disabled for the purpose of the police pensions regulations. Had the
authority chosen a different police doctor for this latter purpose then no doubt
natural justice would not have applied in this doctor-patient relationship on the
ground that Godden’s rights might not have been prejudiced. The general
absence of natural justice from the professional relationship can also be seen in
Hounslow London Borough Council v Twickenham Garden Developments Ltd (1970).
Under a contract of the Royal Institute of British Architects an architect gave
appropriate notice that a contractor had failed to proceed ‘regularly and dili-
gently’. It was decided that the notice was not void for want of natural justice
since although an architect must retain his independence when exercising his
skilled professional judgment, there was nothing in the nature of a ‘judicial’
determination requiring application of the rules.
10.2.6 Disciplinary proceedings

In some cases, disciplinary proceedings can occur without reference to natural
justice, usually where no rights of the individual are liable to be prejudiced.
Whether the rights of the individual are in issue seems sometimes to depend on
the severity of any punishment which may result from the disciplinary proceed-
ings: a rather uncertain basis for the law. Accordingly, in Ex p Fry (1954) a fire-
man was punished for disobeying an order. He alleged that the hearing was
unfair but at first instance the court decided that the law could not interfere
with the exercise of a disciplinary power in a service such as the fire service.
Such cases would suggest that natural justice should be excluded from discipli-
nary proceedings in institutions and organisations where discipline is perhaps
the sole responsibility of the person in charge, such as a headmaster. In refer-
157
ring for present purposes to the governor of a prison, Lord Denning stated in
Becker v Home Office (1972) that a governor’s life would be intolerable if the
courts were to entertain actions for breaches of natural justice from disgruntled
prisoners. The Court of Appeal in R v Deputy Governor of Camphill Prison, ex p
King (1985) repeated these sentiments, referring to the possible weakening of a
governor’s authority. The prisoner’s remedy lay in a complaint to the board of
visitors and then (if necessary) a petition to the Home Secretary. Only thereafter
might there be a legitimate challenge before the court. By way of contrast, it has
been held that in R v Hull Prison Board of Visitors, ex p St Germain (1979) that nat-
ural justice did apply to disciplinary functions in prisons carried out by boards
of visitors. Megaw LJ emphasised a difference between the disciplinary func-
tions of the governor and those of the board, acting as a ‘judicial’ tribunal:
While the governor hears charges and makes awards his position in doing so
corresponds to that of a commanding officer or a school master. Both good
sense and the practical requirements of public policy make it undesirable
that his exercise of this part of his administrative duties should be made sub-
ject to certiorari. The same, however, does not apply to the adjudications and
awards of boards of visitors who are enjoined to mete out punishment only
after a formalised inquiry and/or hearing.
There are difficulties in defining material differences between the disciplinary
functions of the board and the governor, eg outlined in the same case by Shaw
LJ in relation to the levels of punishment to be administered, so that the law
really seems to rest on judicial policy. The House of Lords acknowledged the
reality of this position in their important decision in Leech v Parkhurst Prison
Deputy Governor (1988) which served to clarify the law by removing the distinc-
tion between prison governors and boards of visitors so that the adjudications
of both became subject to judicial review. In Leech, the appellants had been
found guilty of offences contrary to the Prison Rules 1964 and accordingly they
had been punished by having awards of a number of days’ loss of remission
made against them. Following a careful examination of the authorities, the
House of Lords came to the conclusion that the reasoning underpinning the
decision in Ex p King could no longer be supported and hence the decision
should be overruled. Lord Bridge considered that the views expressed in Ex p
King as to why judicial review should be refused were ‘based on subjective judi-
cial impression’ and whilst he acknowledged that his own views were ‘no less
speculative’, he was nevertheless of the opinion that:
... if the social consequences of the availability of judicial review to supervise
governors’ disciplinary awards are so detrimental to the proper functioning
of the prison system as King’s case predicts, it lies in the province of the legis-
lature not of the judiciary to exclude the court’s jurisdiction.
It is worth noting that since the decision in Leech, boards of prison visitors have
in fact lost their disciplinary functions following a recommendation of the
Woolf Report, Prison Disturbances, April 1990, Cm 1456 (1994). Finally, in the
context of an employment relationship, the court may be prepared to imply nat-
158
NATURAL JUSTICE
ural justice, eg for the purpose of defining a procedure for dismissals, but only
where the employee enjoys a statutory status or office in public employment or
service (Malloch v Aberdeen Corporation (1971)). Consequently, a private
employer is able to dismiss an employee without a hearing at common law (Hill
v CA Parsons & Co (1972)).
10.3 Judicial and Administrative Functions

The distinction between ‘judicial’ and ‘administrative’ functions has been of
fundamental importance in determining whether natural justice applies in any
particular case. However, in restricting the rules to ‘judicial’ or ‘quasi-judicial’
functions, the common law has perhaps failed to do justice in cases where an
individual’s rights and interests may be affected, albeit incidentally, in the con-
text of what seems to be an administrative function. The possibility that such a
situation could arise is in itself an indictment of this rather nebulous distinction
between judicial and administrative functions. Nevertheless, it will be seen sub-
sequently that it is a distinction which is still used by the court from time to
time, in which case there will probably be reliance on the leading statement of
principle from the House of Lords in Ridge v Baldwin (1963). In this case Ridge,
the Chief Constable of Brighton, had been acquitted of a conspiracy to obstruct
the course of justice but two officers from the Brighton police force had been
convicted. The judge, in passing sentence, referred to an absence of professional
and moral leadership on the part of their Chief Constable. Following Ridge’s
acquittal, the Brighton Watch Committee (as the police authority) dismissed
him from office without notice and without hearing any case he may have
wanted to present. Subsequently, Ridge’s solicitor was allowed to appear before
the Committee but the dismissal was confirmed. The Home Secretary later dis-
missed an appeal by Ridge against the decision of the Watch Committee.
Thereafter, Ridge, being anxious to protect his pension rights in the police ser-
vice, sought a declaration from the court that he had been wrongfully dis-
missed. The House of Lords granted the declaration on the basis that natural
justice applied to the Watch Committee’s function and that Ridge had no ade-
quate opportunity of knowing the case against him so that he had no reasonable
opportunity to put his case against dismissal. The important statement of princi-
ple is that a ‘judicial’ function arises wherever action is taken by any body or
persons having legal authority to determine questions affecting the rights of
subjects (per Atkin LJ in R v Electricity Commissioners (1924)). Such a function
presupposes a dispute between the parties where they present their respective
cases, perhaps by adducing evidence on disputed facts and/or by advancing
legal argument on disputed points of law, as a result of which a decision finally
disposes of the case. By contrast, the quasi-judicial function involves a decision
on the parties’ cases but also covers other matters such as policy and the public
interest.
159
10.3.1 The duty to act judicially

The duty to act judicially applies to trade union disciplinary committees (Taylor
v National Union of Seamen (1967)), academic institutions exercising disciplinary
functions (Glynn v Keele University (1971)), and various other domestic organisa-
tions (John v Rees (1969)), among others. Prior to these modern cases it had been
decided in Cooper v Wandsworth Board of Works (1863) that the Board of Works, a
statutory body, was not empowered to demolish property without affording the
owner an opportunity of putting his case against such action. In contemporary
times, many statutes empowering action to be taken by an administration
agency like a local authority will prescribe the terms on which any representa-
tions may be made. For example, the Housing Act 1985 ss 264 (as substituted by
Schedule 9 of the Local Government and Housing Act 1989), 268 and 275 (as
amended), require a local authority to provide an opportunity for an owner to
discuss the condition of a house before a demolition order is executed so that
the authority can then be satisfied that the premises are unfit for human habita-
tion and incapable of repair at reasonable expense. Because there is a statutory
prescription expressly applying a relevant aspect of natural justice in these cir-
cumstances, it may be argued that no common law right to a hearing can be
implied into a statutory power enabling a local authority to take emergency
action to demolish any structure which is regarded as being dangerous.
Accordingly, the need to identify judicial functions may now often be overrid-
den by the express or implied terms of specific statutory provisions either limit-
ing or excluding natural justice. Nevertheless, in some areas the definition of
judicial and administrative functions may still be important in determining
whether there has been a breach of natural justice, for example, in cases like
Gunnell (above) and on the part of a minister in the statutory context of deciding
whether a compulsory purchase order submitted by a local authority should be
confirmed. This area of activity has produced some of the leading cases on the
identification of judicial and administrative functions where a minister is often
charged with making a policy decision. Such a ‘policy’ decision frequently
requires the minister to consider all manner of questions relating to the public
interest and in law, he cannot be prevented from attaching more importance to
the fulfilment of his policy than to the fate of individual objectors.
Against this background it was stated by Greer LJ in Errington v Minister of
Health (1934) that a minister, in dealing with objections to a compulsory pur-
chase order, was ‘exercising quasi-judicial functions’ because ‘the decision of
the minister is a decision relating to the rights of the objecting parties’. In
another of the leading cases, B Johnson & Co (Builders) Ltd v Minister of Health
(1947), it was found that natural justice did not apply to require a minister, in
considering whether to confirm a compulsory purchase order, to divulge infor-
mation put before him before he considered objections, that is, before he
assumed a quasi-judicial role. Lord Greene MR observed that the ‘administra-
tive’ process in the present context:
160
NATURAL JUSTICE
... may begin in all sorts of manners – the collection of information, the ascer-
tainment of facts, and the consideration of representations from all sorts of
quarters ... long before any question of objections can arise under the proce-
dure laid down by the Act ... The administrative character in which [the min-
ister] acts reappears at a later stage because, after considering the objections,
which may be regarded as the culminating point of his quasi-judicial func-
tions, there follows something which again ... is purely administrative, viz
the decision whether or not to confirm the order. That decision must be an
administrative decision, because it is not based purely on the view that he
forms of the objections vis-à-vis the desires of the local authority, but is to be
guided by his view as to the policy which in the circumstances he ought to
pursue ...
10.3.2 Reliance on the distinction between functions

The distinction has been relied on in a number of important cases but not with-
out considerable criticism in some instances. In Franklin v Minister of Town and
Country Planning (1947) the minister was responsible for making orders desig-
nating sites for new towns. At a public meeting preceding a proposal to desig-
nate Stevenage as a new town, the minister insisted that he would discharge his
statutory duty in this context despite any obstructive behaviour by the public.
When an order was subsequently made under the New Towns Act 1946, an
attempt was made to quash it on the ground that the minister had been acting
unlawfully in breach of natural justice as a judge in his own cause. The House of
Lords decided that there was no breach of the rule against bias: the minister’s
responsibilities were administrative: to appoint a person to hold a public
inquiry and to consider that person’s report. In Nakkuda Ali v Jayaratna (1951)
the Controller of Textiles in Ceylon was empowered by statute to cancel textile
licences where he had reasonable grounds to believe that any dealer was unfit
to be allowed to continue as a dealer. The Controller dealt with some objections
to a proposed licence cancellation by correspondence but it was decided that the
Controller’s function here were administrative, not judicial, so that he was not
obliged to afford a hearing prior to revoking the licence. The facts of the third
case, R v Metropolitan Police Commissioner, ex p Parker (1953) are similar to those
of Nakkuda Ali, and involved the Commissioner’s statutory power to revoke taxi
licences. It was decided that Parker, whose licence was subject to revocation,
was not entitled to produce witnesses to make representations on his behalf
before the Commissioner prior to the decision being made. Finally, in Essex
County Council v Minister of Housing and Local Government (1968) it was decided
there was no right to be heard before the minister in respect of the making of a
statutory Special Development Order designating Stansted Airport as the third
London airport on the ground that a legislative function was involved.
The decision in Franklin emphasises the nebulous basis for the distinction
between administrative and judicial functions. However, the decision together
with those in Nakkuda Ali and Parker may be explained by the courts’ post-War
161
reluctance to question the legality of many exercises of executive power. A more

satisfactory basis for the decision in Franklin would have been the statutory
‘authorisation’ for the minister’s actions, recognising that by the very scheme of
things he would be ‘judge in his own cause’. Nevertheless it was suggested in
the Report of the Committee on Ministers’ Powers (1932) that a strong and per-
haps sincere conviction as to public policy of the sort that seems to have per-
vaded the situation in Franklin may operate as a more serious disqualification
than some pecuniary interest in a decision. More recently, in R v Secretary of the
Environment, ex p Brent London Borough Council & Others (1981) it was held that a
policy formulated by the Secretary of State by which he would reduce the rate
support grant payable to councils which had overspent was unlawful, not on
the ground of bias, but because he refused to hear representations from councils
whose financial rights would be affected by a reduction in grant. Finally, the
facts and decision in Nakkuda Ali and Parker would no doubt be seen in a differ-
ent light if they had occurred more recently. In view of the legal recognition of
rights in relation to the renewal and revocation of licences from cases like
McInnes v Onslow-Fane, there can be little doubt that in both cases the court
would have decided that there was a judicial function being exercised, attract-
ing at least the right for the licensee to be heard.
Although reliance on the definition of administrative and judicial functions
has declined for the purposes of natural justice, it can be seen that it has not
been abandoned entirely. In Hibernian Property Co Ltd v Secretary of State for the
Environment (1974) the court expressed its approval of the decision in Errington
in quashing the Secretary of State’s decision to confirm a compulsory purchase
order on the ground of a breach of natural justice. The breach occurred when an
inspector conducted a site visit following the close of the inquiry in the absence
of any representative of one of the chief objectors to the order and when the res-
idents of certain houses expressed their views about whether their houses
should be demolished or improved. The court was willing to quash the decision
because there was a risk that the transaction might have prejudiced the chief
objector’s interests. In R v Barnsley Metropolitan Borough Council, ex p Hook (1976)
the court was concerned with the revocation of a market trader’s licence origi-
nally granted by the local authority. An allegation of misconduct and a breach
of market rules was made by the market manager who was also present while
Hook was excluded on the two occasions when the case was adjudicated by
committees of the local authority. This was found to be a breach of both rules of
natural justice by virtue of the fact that the trader’s legal rights to use the market
were subject to adjudication, a clear case of a judicial function, even though the
local authority’s control of the licensing of market stalls was essentially in other
respects an administrative function. More recently, the House of Lords was con-
cerned with the legality of the Secretary of State’s order approving a motorway
scheme in Bushell v Secretary of State for the Environment (1980). It was decided
that objectors could not make representations on new traffic flow criteria
adopted by the Department of the Environment following the close of the
162
NATURAL JUSTICE
inquiry when the Secretary of State’s function was essentially administrative.

Not long before it had been decided that the Secretary of State was obliged to
act fairly to the extent that he should have allowed representations from objec-
tors in relation to evidence obtained by an inspector following the close of an
inquiry into a compulsory purchase order for slum clearance (Fairmount
Investments Ltd v Secretary of State for the Environment (1976)). In this latter case
there was no reference to the distinction between administrative and judicial
functions.
It is very difficult if not impossible to reconcile the foregoing decisions
although a great deal does seem to depend on the judicial policy of the court in
relation to the facts of each case. Consequently, the court’s reluctance to admit
the rules of natural justice into the final stages of a minister’s decision, particu-
larly where it seems to involve significant areas of government policy, may
explain the decision in Bushell. The facts in Fairmount, on the other hand, could
have confronted the court with a dilemma if the definition of administrative and
judicial functions from the other leading cases on compulsory purchase orders
had been adopted. Had the definition of functions from Errington and Johnson
been adopted, the ‘post-inquiry’ stage might have been seen as the administra-
tive function which excludes natural justice in a case where the rights of the
landowner were clearly still in issue. The decision in Hibernian Property may be
reconciled with the function definition of the earlier cases by saying that the site
visit following the inquiry is still very much the focus of the objectors’ rights, as
is the inquiry itself. From the foregoing discussion it can be appreciated how
rigid the definition of functions can be in many cases, eg in failing to recognise
that even in what may have been seen to be an administrative function rights
may be at issue. Such difficulties may now be largely avoided through the
adoption of the more flexible duty to act ‘fairly’ which is examined in the next
section. It may be argued, therefore, that the definition of functions as the basis
for natural justice tends to be used wherever the court is anxious to exclude nat-
ural justice, perhaps as a matter of ‘judicial policy’, as in Bushell or Gunnell,
where the court is confronted by a clearly defined judicial or quasi-judicial func-
tion as in Hook, or where the case in hand involves the rule against bias which
can only arise in the context of a judicial function.
10.4 The Duty to Act Fairly

The adoption of a flexible duty to act fairly has enabled a very much more sensi-
tive reconciliation of the common law requirements of fair procedure with the
many different bureaucratic functions and their requirements. One of the most
significant cases in this area of the common law is Re H K (An Infant) (1967)
where an immigration officer refused entry to a boy on the ground that he was
over 16. The boy said that he was only 15, in which case he would have had a
right of entry to the UK. Lord Parker CJ doubted whether the officer was:
163
... acting in a judicial or quasi-judicial capacity... But at the same time, I

myself think that even if an immigration officer is not in a judicial or quasi-
judicial capacity, he must at least give the immigrant an opportunity of satis-
fying him of the matters in the subsection, and for that purpose let the
immigrant know what his immediate impression is so that the immigrant
can disabuse him. That is not, as I see it, a question of acting or being
required to act judicially, but of being required to act fairly. Good adminis-
tration and an honest or bona fide decision must, as it seems to me, require
not merely impartiality, nor merely bringing one’s mind to bear on the prob-
lem, but acting fairly; and to the limited extent that the circumstances of any
particular case allow, and within the legislative framework under which the
administration is working, only to that limited extent do the so-called rules
of natural justice apply, which in a case such as this is merely a duty to act
fairly.
The duty to act fairly seems to connote an obligation to observe some aspect of
the rules of natural justice, according to the circumstances and background of
the particular case. Accordingly, there may be an obligation to make a decision
impartially even though there is no legal obligation to provide a person con-
cerned with that decision a reasonable opportunity of being heard. This variety
of the duty to act fairly is illustrated by Megarry J in Leary v National Union of
Vehicle Builders (1971) where he refers to a situation in which a student has no
right to be heard by examiners dealing with his work although he is entitled to
have his case ‘... duly considered by whatever bodies have the power of deci-
sion’. Disciplinary proceedings, on the other hand, might well attract both rules
of natural justice, in other words the right to be heard and the rule against bias
(Glynn v Keele University (1971)). The duty to act fairly may well require obser-
vance of the requirement that a person is given a reasonable opportunity for his
case to be heard, albeit on a limited basis. This was seen in Chapter 9 in R v
Liverpool Corporation, ex p Liverpool Taxi Fleet Operators’ Association (1971) where
the Corporation had a statutory power to license taxis. Discussions took place
between the Corporation and the Association during which an undertaking was
given by the Corporation that no further taxi licences would be granted until
private legislation was enacted to regulate mini-cabs. Subsequently and without
consulting the Association, the Corporation proposed to increase the number of
licences before the legislation concerning mini-cabs was enacted. An order of
prohibition was granted by the court to the Association requiring the
Corporation to grant a hearing before deciding whether to depart from the
undertaking. Although the Association’s rights were not in issue, the taxi own-
ers were clearly affected by the Corporation’s proposal to grant further licences
which seems to account for the court’s willingness to require limited consulta-
tion. The courts now rely considerably on so-called ‘legitimate expectations’ in
this context. In Attorney General of Hong Kong v Ng Yuen Shin (1983) an immigra-
tion officer had publicly announced that each case of illegal immigration into
the colony would be considered on its merits. The court granted the applicant a
remedy requiring compliance with a duty to act fairly by adhering to the
164
NATURAL JUSTICE
promised procedure, in the interests of good administration. However, the lim-

ited, procedural enforcement of this legitimate expectation had to be consistent
with the exercise of the authority’s statutory duty.
By way of contrast, in Re H K the immigrant’s rights were in issue and this
was sufficient for the court to suggest that the immigration officer should deter-
mine the case impartially, having given notice of possible disqualification from
entry and having provided a reasonable opportunity for that person to reply. In
Schmidt v Home Secretary (1969), on the other hand, an alien applied unsuccess-
fully to remain in the UK beyond the period stipulated in his permit. He was
not given a hearing and the court decided that the Home Secretary had not
acted unfairly because Schmidt had no right to remain and no legitimate expec-
tation of remaining. Had there been an attempt to exclude him before the expi-
ration of his permit then, it was suggested, the duty to act fairly would have
prescribed a hearing in defence of the legitimate expectation that he would be
permitted to remain in the country for the duration of his permit. The decision
in a case like Schmidt does raise a comparison with R v Liverpool Corporation. It
seems that a very limited duty to act fairly may occur where, short of the cir-
cumstances creating a legally binding estoppel against a statutory authority,
some promise or undertaking is made on which another person or organisation
relies. Such a promise or undertaking may not be broken except where a reason-
able opportunity is given for any objections or other representations, beyond
which that promise or undertaking may be broken. Where, for example, a
licence has expired, an undertaking may be given to the licensee by the licensor
that the activity covered by the licence may continue informally for a certain
period of time. Although that undertaking is not strictly binding in law, the
court might be prepared to restrain any sanctions against the licensee’s continu-
ation of the activity until he is given a reasonable opportunity of making repre-
sentations to the licensor, eg in favour of a continuation of the ‘informal’
permission.
10.5 The Rule Against Bias

The first of the rules of natural justice – nemo judex in causa sua – stipulates that
no man can be a judge in his own cause. This rule against bias is clearly consis-
tent with the characteristics and requirements of a judicial function as seen pre-
viously in R v Barnsley Metropolitan Borough Council, ex p Hook. Many cases
concern magistrates, as in R v Altrincham Justices, ex p Pennington (1975), where a
magistrate was also a member of the county education committee.
Consequently, she had an active connection with the ‘victims’ of an offence
committed against the county council when short supplies of vegetables were
delivered to two of its schools. The farmer in question had also supplied vegeta-
bles to a school of which the magistrate was a governor. Overall, therefore, the
magistrate’s interests were sufficient to disqualify her from hearing the criminal
165
charges. The rule against bias applies also to statutory authorities (R v Hendon
Rural District Council, ex p Chorley (1933)) and to domestic organisations (Roebuck
v NUM (Yorkshire Area) (No 2) (1978)).
10.5.1 Application of the rule against bias

The rule applies:
(1) where there is some direct interest in the matter to be adjudicated and
(2) where, short of a direct interest, there is some reasonable suspicion, appear-
ance or likelihood of bias.
In the first case there are few problems, eg where there is some direct financial
interest in proceedings as in R v Hendon Rural District Council where the local
planning authority’s decision granting planning permission was quashed by the
court because a member of the authority was an estate agent appointed to deal
with that land. This separate category was alluded to in the judgment in R v
Camborne Justices, ex p Pearce (1955), where it was observed that:
... any direct pecuniary or proprietary interest in the subject matter of a pro-
ceeding, however small, operates as an automatic disqualification. In such a
case the law assumes bias.
A further example of a case in which a person sitting in an adjudicative capacity
had a pecuniary interest in the outcome of the proceedings is the well known
case of Dimes v Proprietors of Grand Junction Canal (1852). In this case, decrees
were affirmed by Lord Cottenham LC in favour of a canal company in which he
had a considerable shareholding. In setting aside the decrees, the House of
Lords were not concerned whether there was in fact bias, or, whether there was
some reasonable suspicion, appearance or likelihood of bias. It was enough that
the nature of Lord Cottenham’s interest was such that public confidence in the
administration of justice demanded that his decision be set aside. Lord
Campbell summarised the position thus:
No one can suppose that Lord Cottenham could be, in the remotest degree,
influenced by the interest that he had in this concern; but, my Lords, it is of
the last importance that the maxim that no man is to be a judge in his own
cause should be held sacred.
In the case of the more indirect type of bias, (2), the generally accepted rule was
that:
... in considering whether there was a real likelihood of bias, the court does
not look at the mind of the justice himself or at the mind of the chairman of
the tribunal or whoever it may be, who sits in a judicial capacity. It does not
look to see if there was a real likelihood that he would, or did in fact favour
one side at the expense of the other. The court looks at the impression which
would be given to other people. Even if he was as impartial as could be, nev-
ertheless if right-minded persons would think that, in the circumstances,
there was a real likelihood of bias on his part, then he should not sit. And if
he does sit, his decision cannot stand. Nevertheless there must appear to be a
166
NATURAL JUSTICE
real likelihood of bias. Surmise or conjecture is not enough. There must be

circumstances from which a reasonable man would think it likely to proba-
ble that the justice, or chairman, as the case may be, would, or did, favour
one side unfairly at the expense of the other. The court will not inquire
whether he did, in fact, favour one side unfairly. Suffice if that reasonable
people might think he did (per Lord Denning in Metropolitan Properties Co
(FGC) Ltd v Lannon (1969)
In this case the court quashed the decision of a Rent Assessment Committee by
which the rent of certain flats was reduced. The solicitor chairman of the
Committee lived with his father and had dealt with disputes between the father
and his landlord, a company which was a member of the group of companies to
which Metropolitan Properties belonged.
Although there is a strong presumption that the rule against bias applies in
the context of a judicial function, there are occasions when the court has
regarded it as inappropriate to apply the law concerning a suspicion of bias. For
example, the membership of an expert tribunal will not be disqualified by refer-
ence to their pre-existing knowledge and impressions. Any suggestion that a tri-
bunal is affected by an unlawfully biased predetermination in a particular case
is dealt with in the leading statement of principle by Lord du Parcq in R v
Westminster Assessment Committee (1940) where he stated that:
... the experience of an expert tribunal ... is part of its equipment for deter-
mining the case. Litigants must take that experience as they find it, and
because the tribunal is assumed to be impartial they have no grievance if
they cannot test it by cross-examination.
Nevertheless, even in these circumstances, evidence of some overtly prejudicial
views of a particular case by a member of the tribunal would amount to a rea-
sonable suspicion of bias. Similarly, previously expressed views in respect of a
particular case may suggest prejudgment sufficient to amount to unlawful bias
(R v Kent Police Authority, ex p Godden (1971)). However, where any administra-
tive agency appears to be unlawfully prejudging a case by reference to a policy
the court may well conclude that at that stage there is an administrative function
in which case the rule against bias cannot apply (Franklin v Minister of Town and
Country Planning (1947)). Whenever a policy affects a decision it is a factor which
may prevent a wholly impartial adjudication of the competing rights and inter-
ests, hence the law’s acceptance of the proposition that the rule against bias can
only operate in relation to a truly judicial function. The policy of a government
department, for example, may be to encourage local authorities in a time of
chronic housing shortage to buy land for house building even though some of
the land is not wholly suitable for that purpose. Accordingly, any compulsory
purchase order submitted to the Secretary of State by a local authority would
probably be confirmed even though in normal circumstances any strong, well-
founded objections based on the suitability of the land would normally lead to
an adjudication in favour of the landowner and against the local authority.
167
10.5.2 The test for bias

The test has recently been the subject of consideration by the House of Lords in
R v Gough (1993), a case which involved an appeal against conviction for con-
spiracy to rob on the ground that a member of the jury was the next door neigh-
bour of the appellant’s brother. Originally, it had been the intention of the
prosecution to also proceed against the brother, but the case against him had
been dropped at the committal stage on the grounds of insufficient evidence. In
order for the House of Lords to determine the matter before them, it was neces-
sary to conduct a review of the authorities which were, in the opinion of Lord
Goff, ‘not only large in number, but bewildering in their effect’. Since the deci-
sion in Lannon, the court had tended to set aside any decision by reference to the
objective test of a reasonable suspicion of bias. This case was however distin-
guished by the High Court in R v Sevenoaks District Council, ex p Terry (1985)
where the council had accepted a tender for the lease of a site in its ownership
from a development company. Thereupon the council granted planning permis-
sion for the agreed development before a formal agreement was struck between
the parties. The decision to grant planning permission was challenged unsuc-
cessfully. The court concluded that administrative decisions, if they were sub-
ject to challenge on the Lannon test, would lead to an administrative impasse
where the local authority owned the land in question. The test was whether the
authority had exercised a proper discretion: remarkably the court found that a
proper discretion was exercised, prior to the formal agreement.
Another test was expounded by the court in R v Barnsley Licensing Justices, ex
p Barnsley and District Licensed Victuallers’ Association (1960) where Devlin LJ
considered that the members of the court had to satisfy themselves that there
was a real likelihood of bias. Compared with the test defined by Lord Denning
in Lannon, this test is concerned essentially with the subjective estimation of bias
by the members of the court. Another version of the objective test occurred in R
v Sussex Justices, ex p McCarthy (1924) where Lord Hewart CJ said that it is ‘... of
fundamental importance that justice should not only be done, but should mani-
festly and undoubtedly be seen to be done’. Applying the test of a real likeli-
hood of bias in the Barnsley Licensing Justices case, the court found that Justices
who were members of the Co-operative Society which was applying for a spirits
off-licence were legally disqualified. However, it was decided that certiorari
would not lie to quash the decision since there was no real likelihood of bias. It
is probably the case that there was very little if any difference in the result of
applying the two tests. Interestingly, Lord Goff was of the opinion in R v Gough
that whilst Lord Denning in Lannon purported to differ from the remarks of
Lord Justice Devlin in the Barnsley Licensing Justices case, what he in fact said
differed very little from that which had been said by the latter. To an extent the
point is of academic interest only since R v Gough has now clarified the position
with regard to the ‘reasonable suspicion test’ and the ‘real likelihood test’. In all
cases of apparent bias, whether they involve justices or members of other infe-
168
NATURAL JUSTICE
rior tribunals, or, as in the present case, jurors or alternatively arbitrators, the
test is now that if there is a real danger of bias on the part of the decision-maker
then justice requires that the decision should not be allowed to stand. In so find-
ing, the House of Lords applied the ‘real danger’ test laid down in R v Spencer
(1987). The preference for the statement of the test in terms of ‘real danger’
rather than ‘real likelihood’ reflects a deliberate attempt by the House of Lords
‘to ensure that the court is thinking in terms of possibility rather than probabil-
ity of bias’. Lord Woolf summed up the view of their Lordships when he con-
cluded his judgment with the observation that:
The real danger test is quite capable of producing the right answer and
ensure that the purity of justice is maintained across the range of situations
where bias may exist.
Since the decision in Gough, the real danger test for bias has been applied in a
number of cases. In R v Bailey (1994), for example, an appeal against conviction
was not upheld where a juror had accidentally sighted the defendant at a tube
station during the course of the trial since although the jury had collectively dis-
cussed the sighting and the juror’s fear, the incident had not coloured their deci-
sion; in the circumstances, there was no real danger of bias. By contrast, in R v
Khan (1995), there was held to be a real danger of bias where a juror knew one
of the witnesses called on the defendant’s behalf as well as the victim of the
crime and the victim’s mother. Accordingly, the appeal against conviction was
allowed and a retrial was ordered at a Crown Court where the likelihood of wit-
nesses and jurors knowing one another would be reduced.
10.5.3 Modification or exclusion

The rule can be modified or excluded by statute. Equally, the common law may
exclude or modify the rule, eg on the ground of necessity or by reference to a
party’s waiver of his legal right requiring observance of the rule as in Thomas v
University of Bradford (No 2) (1992). Necessity might well be pleaded where no
other suitable adjudicator is available while waiver requires that the party
knows of the adjudicator’s disqualification (R v Essex Justices, ex p Perkins
(1927)). The statutory exclusion or modification of the rule usually relates to
some governmental function where the particular administrative agency is nec-
essarily judge in its own cause in the absence of any other statutory machinery
securing independent facilities for the performance of relevant functions. In
Wilkinson v Barking Corporation (1948) the relevant legislation provided that a
person’s entitlement to a superannuation allowance was to be determined ini-
tially by his local authority employer with an appeal to the Minister of Health,
even though both parties contributed to the relevant fund. In Jeffs v New Zealand
Dairy Production and Marketing Board (1967) it was also decided that there could
be no legal objection on the matter of bias to an order of the Board which allo-
cated areas of supply among various companies, even though the Board had
made large loans to one of the companies and so had an interest in its prosper-
169
ity, since these were functions expressly conferred on the Board by statute.
Statute may also expressly clarify areas of difficulty in relation to the rule
against bias. Section 3 of the Justices of the Peace Act 1949, as re-enacted in 1979,
prohibited a magistrate from hearing an action brought by a local authority of
which he is a member. However, s 130 of the Licensing Act 1964 stipulates that
a magistrate is not disqualified from hearing a licensing application merely
because he is a member of the licensing planning committee. Nevertheless, s 193
of the Act states that:
No justice shall act for any purpose under this Act in a case that concerns
any premises in the profits of which he is interested ... Provided that a justice
shall not be disqualified under this provision by reasons only of his having
vested in him a legal interest only, and not a beneficial interest, in the
premises concerned or the profits of them.
The section goes on to state that no act done by any justice disqualified by the
section shall be invalid by reason only of the statutory disqualification.
10.6 The Right to Be Heard

The second of the rules of natural justice – audi alteram partem – states that no
person shall be condemned without being given a reasonable opportunity for
his case to be heard. There are two aspects to this rule requiring that adequate
prior notice is given of any case, charge or allegation and that the person con-
cerned should have a reasonable opportunity to put his case against the same. It
has been seen previously that natural justice is generally presumed to be
excluded in a number of circumstances. Nevertheless, the court may prescribe a
duty to act fairly in these circumstances, to the extent that the context of any
decision-making process may suggest that one aspect only of natural justice
applies. Where, for example, a minister is conducting a preliminary inquiry into
a company’s affairs under the Companies Acts, there may be a duty to act fairly
to the extent that prior notice may have to be given of any potentially con-
tentious finding (Re Pergamon Press (1971)). However, where it appears that any
administrative agency is obliged to act judicially then there is a presumption
that all aspects of the rules apply, in which case the court would require clear
statutory words in order to justify any exclusion of natural justice (R v Housing
Appeal Tribunal (1920)).
10.6.1 Prior notice

The first requirement of the rule is that adequate prior notice should be given of
any charge or allegation. Accordingly, in Fairmount Investments Ltd v Secretary of
State for the Environment (1976) it was found by the court that there was no
notice given to the owner of the building subject to a compulsory purchase
order in respect of the inspector’s findings on the condition of the structure.
These findings had not been in issue at the inquiry but were made following the
170
NATURAL JUSTICE
close of the inquiry and used by the Secretary of State as the basis for his deci-
sion, without any opportunity being made available for the owner to rebut
them. Furthermore, in R v Trafford Magistrates’ Court, ex p Riley (1995), a convic-
tion for an offence under the Dangerous Dogs Act 1991 together with a destruc-
tion order made under the same Act were quashed, in part due to the fact that
there had been a denial of natural justice by not giving the owner of the dog
notice of the hearing at which magistrates made the destruction order. The
unusual circumstances of the case were that at the time that the applicant’s dog
bit a policeman, another woman was holding the dog’s lead and accordingly it
was this other woman rather than the owner who was proceeded against on the
basis that she was the person for the time being in charge of a dog dangerously
out of control in a public place. In the opinion of the court, the owner of the dog
should be given notice of any further hearing so that she would be able to
attend and make such points as were open to her. Nevertheless, in some cases
the facts may suggest that the substance of a charge or allegation is, in fact,
known to the plaintiff so that the absence of any further information thereon
does not amount to a breach of the rules (Sloan v General Medical Council (1970)).
Statutory provisions may expressly require clear notice to be given of proposed
action by an administrative agency as well as providing in many cases a definite
opportunity for any person affected to be heard. For example, s 73 of the
Planning (Listed Buildings and Conservation Areas) Act 1990 requires a local
planning authority to publicise any application for planning permission affect-
ing land in a conservation area. Thereafter, in determining such an application
the authority is obliged by s 29 to ‘take into account’ any representation made in
response to the publicity. In practice, such representations are made in writing
and there is no legal obligation on the authority to permit oral representations
(Local Government Board v Arlidge (1915)).
In theory, the requirement relating to prior notice must extend to every per-
son who is actually or potentially affected by any charge, allegation or other
administrative action (R v Kensington and Chelsea Rent Tribunal, ex p MacFarlane
(1974)). Statutory provisions like s 73 of the Planning (Listed Buildings and
Conservation Areas) Act 1990 recognise that the local planning authority cannot
ascertain precisely who may be affected by development in conservation areas.
In a slightly different vein, s 176 of the Town and Country Planning Act 1990
allows the Secretary of State for the Environment, in an appeal against an
enforcement notice requiring that unlawful development of land without plan-
ning permission should be discontinued, to disregard failure to serve the notice
on everyone affected if there has been no substantial prejudice to interests as a
result.
The notice actually served must contain sufficient detail to enable the person
concerned to know the substance of any charge, allegation or action to be taken
against him. Where, as in the case of an enforcement notice, statutory provisions
stipulate the need to specify the details of any allegation of unlawful develop-
171
ment, there may be few problems. In other, non-statutory cases the adequacy of
the notice, eg in relation to the time allowed to respond or the definition of the
allegation, will be a question of fact and degree for the court (R v North, ex p
Oakey (1927)).
10.6.2 The opportunity to be heard

The second requirement of the audi alteram partem rule, that there should be a
reasonable opportunity for a person’s case to be heard, is capable of applying to
a justiciable issue between two parties. In this case it was stated by Lord
Loreburn in Board of Education v Rice (1911) the respective parties must be able
to exercise a fair opportunity to put their case and to correct or contradict any
relevant prejudicial statement. Equally, the requirement can apply where an
issue relates to the rights or other interests of one party (Ridge v Baldwin (1963)).
It has been seen that there is no general obligation in law to accord an oral hear-
ing so that this area of natural justice might be complied with, eg where written
representations were permitted. However, if an oral hearing is given it is gener-
ally required that the case shall both be heard and decided by the same person
(Jeffs v New Zealand Dairy Production and Marketing Board (1967)). Nevertheless,
in the case of decisions taken in the name of a minister within a government
department, there is no right to be heard by the person taking the decision or to
know his identity. An inquiry may be conducted by one of the minister’s
inspectors but the ultimate decision may be taken by another member of the
department (Local Government Board v Arlidge). The common law exclusion of
the right to be heard before the person taking a decision in the name of a minis-
ter is considerably modified by contemporary legislation prescribing rights to
be heard before the minister’s inspector at a statutory public inquiry, previously
referred to in Chapter 3.
10.6.3 Scope of the rule

Subject to statutory procedures administrative agencies (including statutory tri-
bunals and inquiries) in complying with the rules of natural justice are not
required to adopt and observe the various technical rules of evidence associated
with courts of law (R v Deputy Industrial Injuries Commissioner, ex p Moore
(1965)). Accordingly, it will not be contrary to natural justice where hearsay evi-
dence is accepted (Miller v Minister of Housing and Local Government (1968)). Any
information acted upon must have some probative value and there must be a
preparedness to hear both sides, according to the type of hearing granted, and
to allow comment and contradiction to both sides in respect of any information
obtained (R v Hull Prison Board of Visitors, ex p St Germain (No 2) (1979)). It must
be emphasised that the audi alteram partem rule requires only a reasonable
opportunity to be granted: eg there is no requirement that there should be an
adjournment where a party absents himself from a hearing without explanation
172
NATURAL JUSTICE
(Glynn v Keele University). On the other hand, the refusal of an adjournment to a

party who reasonably requires additional time for the preparation of his case
could be seen as a breach of the audi alteram partem rule (R v Thames Magistrates’
Court, ex p Polemis (1974)).
10.6.4 Legal representation

Whether the rule permits legal representation is by no means easy to determine.
In Pett v Greyhound Racing Association (No 1) (1968) the Court of Appeal was con-
cerned with proceedings for an interlocutory injunction to prevent an inquiry
by the Association into suspicions that one of Pett’s dogs was drugged before a
race. The injunction was granted on the ground that Pett was entitled to legal
representation at the inquiry. Lord Denning, who gave the leading judgment of
the court, was of the opinion that not every person has the ability to either
defend themselves or cross-examine witnesses during the course of a hearing.
Accordingly he considered that:
If justice is to be done, he ought to have the help of someone to speak for
him; and who better than a lawyer who has been trained for the task? I
should have thought, therefore, that when a man’s reputation or livelihood
is at stake, he not only has a right to speak by his own mouth. He has also a
right to speak by counsel or solicitor.
Subsequently in a claim by Pett for a declaration that the Association was acting
ultra vires in refusing legal representation, it was decided that there was no facet
of natural justice requiring the provision of legal representation (Pett v
Greyhound Racing Association (No 2) (1969)).
Whereas the rules of the Greyhound Racing Association did not exclude
legal representation, the rules of the Football Association in contention before
the Court of Appeal in Enderby Town Football Club Ltd v Football Association Ltd
(1971) did exclude such representation. On this occasion an injunction to pre-
vent the hearing of an appeal without legal representation was refused.
Although difficult issues of law arose in the appeal, the court considered that
they might be adequately dealt with on an application to the court for a declara-
tion. In the meantime, the Association rules had to be observed. Consequently,
it may now be the case that if the rules of an association do exclude legal repre-
sentation, such an exclusion can be enforced except that, in its discretion, the
association may be required to allow representation to any person who seems to
be in need of such a facility, eg because of difficulties with language or by virtue
of a particularly serious charge or allegation. In Manchanda v Medical Eye Centre
Association (1987) the court considered that a domestic disciplinary tribunal had
a duty to allow legal representation if the issue concerned an allegation of unbe-
coming conduct. Any police officer appearing before the chief constable in
respect of an alleged breach of discipline is not entitled to legal representation
(Maynard v Osmond (1976)). The Court of Appeal justified this conclusion by ref-
erence to the requirement of the Police (Discipline) Regulations 1965 that repre-
173
sentation be provided by a police officer, not a lawyer, which was found to be

intra vires. Similarly, in Fraser v Mudge (1975) it was decided, again by the Court
of Appeal, that a prisoner had no right in law to legal representation for the
purpose of appearing before the board of visitors on a disciplinary charge.
This latter decision has been followed in Hone v Maze Prison Board of Prison
Visitors (1988) where the House of Lords considered for the first time the ques-
tion whether a prisoner was entitled as of right to legal representation during
disciplinary proceedings. In dismissing the appeal against the decision of the
prison visitors not to grant the appellant legal representation, Lord Goff
declared himself to be:
... unable to accept ... that any person charged with a crime (or the equivalent
thereof) and liable to punishment is entitled as a matter of natural justice to
legal representation. No doubt it is true that a man charged with a crime
before a criminal court is entitled to legal representation ... No doubt it is
also correct that a board of visitors is bound to give effect to the rules of nat-
ural justice. But it does not follow that, simply because a charge before a dis-
ciplinary tribunal such as a board of visitors relates to facts which in law
constitute a crime, the rules of natural justice require the tribunal to grant
legal representation.
Thus it would seem to be the case that whether or not an individual may be
legally represented at a hearing is very much a matter of discretion for the tri-
bunal. In exercising that discretion, especially in the context of prison discipli-
nary proceedings, the following factors may be taken into account: the
seriousness of the charge and of the potential penalty; whether any points of
law are likely to arise; the capacity of a particular prisoner to present his own
case; any likelihood of procedural difficulties arising; the need for reasonable
speed in the making of an application; and, the need for fairness as between
prisoners and as between prisoners and prison officers (R v Secretary of State for
the Home Department, ex p Tarrant (1985)).
10.6.5 Duty to give reasons

A duty to give reasons for an administrative decision has the appearance of a
logical and desirable aspect of the general duty to act fairly. When a decision
has an adverse affect upon the rights of an individual, it seems only just that he
should be informed of the reasons which influenced the decision-maker and
which therefore underpin the decision itself. However, despite the desirability
of giving reasons for decisions which have been made in that in addition to the
argument advanced above, such an approach also ensures a degree of openness
in the administrative process, it is not entirely clear whether English law as it
stands at present recognises a general duty to give reasons.
There have been a number of recent cases in which this issue has exercised
the minds of the courts, but it is important to note that the approach taken by
the courts has, to a large extent, been influenced by the circumstances of the
174
NATURAL JUSTICE
case before them. As a general proposition, it seems to be the case that the
courts are more inclined to impose an obligation to give reasons on a decision-
maker where the impugned decision has a serious affect upon the individual to
whom it relates. For example, in R v Secretary of State for the Home Department, ex
p Duggan (1993), the Divisional Court held that a high security risk category A
prisoner ought to be informed of the reasons for any decision not to change his
category A status. The justification for this finding was that such a decision had
important consequences for the liberty of the prisoner since category A prison-
ers are those who are considered to present grave danger to the public in the
event of an escape, and accordingly, to remain classified as a category A pris-
oner would lessen the likelihood of being released on parole. By contrast, in R v
Higher Education Funding Council, ex p Institute of Dental Surgery (1994), it was
held that reasons need not be given by the Higher Education Funding Council
for its decision not to award the Institute the research rating which the Institute
itself believed that it merited.
The leading authority in this developing area of administrative law is the
decision of the House of Lords in Doody v Secretary of State for the Home
Department (1993). The applicants in this case were all convicted murderers who
had received mandatory life sentences for their crimes. By virtue of s 35 of the
Criminal Justice Act 1991, the Home Secretary has a discretion whether to refer
the case of such a prisoner to the Parole Board for review. Before so doing, it is
Home Office procedure for the Home Secretary to consult both the trial judge
and the Lord Chief Justice with regard to the issues of retribution and deter-
rence as they apply to the sentence which was originally imposed, and then the
Home Secretary himself decides upon the penal element of the sentence. The
applicants in the present case sought, among other things, a declaration that the
Home Secretary was obliged to give reasons for his decision where that decision
departed from the period recommended by the trial judge and the Lord Chief
Justice. In granting the relief sought by the applicants, Lord Mustill stated the
current position of the law thus:
I accept without hesitation ... that the law does not at present recognise a
general duty to give reasons for an administrative decision. Nevertheless, it
is equally beyond question that such a duty may in appropriate circum-
stances be implied.
Thus although there is currently no general duty to give reasons for an adminis-
trative decision, it would seem that whether reasons are in fact given in practice,
or alternatively, whether they are demanded by the courts in judicial review
proceedings before them, will depend very much upon what is required in the
interests of fairness. It may be that the views expressed in McInnes v Onslow
Fane (1978), to the effect that a board is under no obligation to inform an appli-
cant of the reasons why his application has been unsuccessful, represent a line
of thinking for which there is still solid support since in such a situation, the
applicant has not lost anything; he has simply not been granted that for which
175
he applied but to which he was not entitled as of right. However, in the more
serious cases, such as those involving the liberty of the individual as discussed
above, it seems only right and proper that the decision-maker should be
required to give reasons for his decision.
10.7 The Effect of Breaches of Natural Justice

The effect in law of a failure to comply with the rules of natural justice seems to
be that any decision or other administrative action is null and void (Ridge v
Baldwin). There are also dicta to this effect in Anisminic v Foreign Compensation
Commission (1969) where Lord Pearce, for example, observed that:
Lack of jurisdiction may arise in various ways ... the tribunal ... while
engaged in a proper inquiry ... may depart from the rules of natural justice ...
thereby it would step outside its jurisdiction. It would turn its inquiry into
something not directed by Parliament and fail to make the inquiry which
Parliament did direct. [This] would cause its purported decision to be a nul-
lity.
If any breach of natural justice is to render a decision null and void it is because
statutory powers and the rules of private organisations are impliedly subject to
the rules of natural justice. There are also dicta in Dimes v Grand Junction Canal
Proprietors (1852) to the effect that a breach of the rule against bias renders a
decision merely voidable but since this case involved a decision by a judge of a
superior court the term ‘voidable’ may simply mean that the decision is ‘appeal-
able’ to the next court in the hierarchy of superior courts. The same approach
could apply to decisions of inferior courts such as magistrates’ courts except
that here there is the possibility of seeking review of the decision. In the case of
statutory administrative agencies and voluntary domestic organisations there
may also be an appeal available within the statutory scheme or rules of the
organisations so that again there will be a similar choice as in the case of a deci-
sion by an inferior court. Generally, the court will entertain an application to set
aside such a decision affected by a breach of natural justice, subject to any
express restrictions in the scheme or rules of an organisation, as the case may be
(Leigh v National Union of Railwaymen (1970)).
However, until a decision is declared null and void by the court, it may have
some existence in law (per Lord Wilberforce in Calvin v Carr (1979)). Where,
within the rules of a voluntary domestic organisation, a subsequent hearing is
conducted by an appellate body, the decision may still be open to challenge in
the court on the ground that the person aggrieved has not enjoyed a proper ini-
tial hearing and an appellate hearing (Leary v National Union of Vehicle Builders
(1970)). It was suggested by the Judicial Committee of the Privy Council in
Calvin v Carr that the principle in Leary was too widely expressed. It was
decided in Calvin that the result of a stewards’ inquiry in New South Wales was
affected by a breach of natural justice. The jockey in question was disqualified
176
NATURAL JUSTICE
for one year but it was also decided that the original breach could be remedied
by a subsequent hearing before the appeal committee of the Jockey Club which
did comply with natural justice. It was suggested that the principle in Leary
would apply only in cases where, for example, the rules of the organisation
required observance of a natural justice at every stage of the relevant proce-
dures. As an alternative to the above situations, it is always possible that a fail-
ure to comply with natural justice may be made good by a fresh hearing,
leading to a legally valid decision (De Verteuil v Knaggs (1918)). In Ridge v
Baldwin, Ridge’s solicitor was not fully informed of the charges against the Chief
Constable of Brighton and the Watch Committee did not annul the decision
which they had already published and proceed to a new decision: an inade-
quate substitute for a full rehearing.
177
11 Substantive Ultra Vires
11.1 The Nature of Substantive Powers

Chapter 7 dealt with the nature and characteristics of administrative powers
while Part 1 described the various administrative agencies which use those
powers. Whereas the statutory procedures described in Chapter 9 and the rules
of natural justice described in Chapter 10 determine the steps to be taken in pur-
suing the exercise of administrative powers, the present chapter is concerned
with the rules of administrative law as they are developed and applied for the
purpose of defining the scope of any functions conferred on an administrative
agency.
11.2 Judicial Review of Substantive Powers

It was seen in Chapter 1 that the High Court sets the limits of statutory substan-
tive powers on any occasion when uncertainty about those limits has given rise
to litigation. Through its inherent power to review the legality of administrative
action, the High Court is able to ascertain whether an administrative agency or
inferior court has exceeded or abused the legal limits of the substantive powers
governing its functions. Any excess or abuse of those powers means that the
decision or other administrative action is ultra vires and may be dealt with
through a range of remedies, which are described in Chapter 13. However,
merely because the High Court disagrees with a decision and considers it to be
wrong on the merits of the case in question does not mean the decision is ultra
vires. To be ultra vires a decision has to be proved to have exceeded the express
or implied statutory limits of the powers given to the administrative agency, ie
to have gone beyond the jurisdiction of that agency. The GCHQ case contains an
important statement by Lord Diplock about the qualifying requirements for
judicial review. He considered that:
... the decision must have consequences which affect some person (or body
of persons) other than the decision-maker, although it may affect him too. It
must affect such other person either: (a) by altering rights or obligations of
that person which are enforceable by or against him in private law; or (b) by
depriving him of some benefit or advantage which either (i) he had in the
past been permitted by the decision-maker to enjoy and which he can legiti-
mately expect to be permitted to continue to do until there has been commu-
nicated to him some rational grounds for withdrawing it on which he has
been given opportunity to comment; or (ii) he has received assurance from
178
SUBSTANTIVE ULTRA VIRES
the decision-maker will not be withdrawn without giving him first an oppor-
tunity of advancing reasons for contending that they should not be with-
drawn.
It will be seen that this formula encompasses procedural and substantive short-
comings as well as those that fall under the heading of natural justice.
11.3 The Limits of Statutory Powers

The law prescribes various rules or tests for the limits of substantive powers. In
general, these rules are applicable according to whether or not the powers are
discretionary and whether matters of fact or law are in issue. However, before
these rules are examined, it must be re-emphasised very strongly that merely
because the reviewing court considers a decision to be wrong on the merits, ie
matters within the limits of statutory powers, does not render it ultra vires. The
law recognises here that an administrative agency should have some opportu-
nity to exercise its expert skill or judgment in particular cases. Hypothetically, a
furnished rent tribunal might have the power ‘... to determine disputes between
landlord and tenant in respect of the payment of rent for furnished premises’. If
the tribunal is to avoid an ultra vires decision it would probably have to decide
correctly at the outset and to the satisfaction of a reviewing court that a case
referred to it involved what is in fact a dispute on what in law is a rent payment
as between parties who are in law landlord and tenant concerning premises
which are, as a fact, furnished premises (R v Fulham, Hammersmith and
Kensington Rent Tribunal, ex p Zerek (1951)). Thereafter, any expert conclusions
arrived at by the tribunal about the physical condition of the premises and that,
for example, the rent should be reduced by 10% in recognition of those condi-
tions is a decision on the merits of the case and therefore generally beyond
review for ultra vires. However, if Parliament had prescribed an appeal from the
tribunal’s decisions, the appeal court or tribunal would be able to re-examine
the merits of the tribunal’s decision in order to substitute its own decision, eg by
reducing the rent by 20%. Accordingly, there is a fundamental distinction
between review, which is concerned to ascertain whether a decision should be
quashed or declared a nullity as being in excess or abuse of statutory limits, and
appeal.
The need for any administrative tribunal or agency to determine correctly
the limits of its powers is well illustrated in R v Blackpool Rent Tribunal, ex p
Ashton (1948), where the tribunal had statutory responsibility for determining
disputes in relation to furnished premises. The tenancy of a flat was referred to
the tribunal where the flat contained a clock, curtains in two rooms, a gas
cooker and a water heater. The court quashed the tribunal’s decision: the first
two items were regarded by the court as being de minimis while the other items
were not ‘furniture’. The fact that certain matters have nothing to do with the
limits of statutory powers but relate entirely to the merits of a case, to be
179
weighed and dealt with entirely by the agency itself, is seen in Dowty, Boulton
Paul Ltd v Wolverhampton Corporation (No 2) (1973). The corporation decided to
discontinue the provision of its municipal airport by virtue of the powers in s
163 of the Local Government Act 1933 which stipulated that ‘... a council may
appropriate for any purpose for which the council are authorised ... to acquire
land ... any land which belongs to the council and is no longer required for the
purpose for which it is held immediately before the appropriation’. It was found
by the court that a decision of the corporation under these powers by which the
land’s use could be discontinued in order to permit the building of houses was
entirely a matter within their powers, that is, a matter for their judgment on the
merits of the competing claims to the land. Even if the court sympathised with
the merits of the airport user’s claim, this could not have rendered the corpora-
tion’s decision ultra vires.
The fundamental distinction between on the one hand, the merits of an
administrative decision, which is not a matter which is appropriate for the
supervisory jurisdiction of the courts, and on the other, the legality of that same
decision which is, was highlighted in Save Britain’s Heritage v Secretary of State for
the Environment (1991) referred to in Chapters 3 and 9. The developers’ propos-
als to demolish listed and unlisted buildings in a conservation area and build in
their place a modern building designed by a leading architect had aroused
much public controversy. Indeed, the local planning authority, English Heritage
and non-statutory organisations such as Save Britain’s Heritage were all
opposed to the scheme. However, the House of Lords made it abundantly clear
that aesthetic judgments were for the Secretary of State to make, not the court.
Accordingly, the issue for the court was whether or not the Secretary of State
had complied with the statutory requirement to give reasons for his decision to
approve the scheme. Lord Bridge, echoing earlier judicial sentiments, stated that
the concern of the court in the context of judicial review proceedings ‘is solely
with the legality of the decision-making process, not at all with the merits of the
decision’.
11.3.1 Defining the limits

The task of identifying the limits of powers depends on the definition of matters
of fact and/or law which are considered to be fundamental to the powers of any
administrative agency. If such matters of fact and/or law are considered by the
court to be fundamental, this is an indication of Parliament’s supposed inten-
tions in relation to the limits of an administrative agency’s powers. In R v
Hillingdon London Borough Council, ex p Puhlhofer (1986), for example, the House
of Lords emphasised that under the Housing (Homeless Persons) Act 1977 the
local authority was obliged only to provide ‘accommodation’. This fundamental
requirement was not qualified by any requirement that the accommodation was
fit for human habitation, for example, any failing in the quality of the accommo-
dation would not be capable of rendering action ultra vires. The legislation has
180
now been amended by the Housing and Planning Act 1986 which stipulates that
a person shall not be treated as having accommodation unless it is accommoda-
tion which it would be reasonable for him to continue to occupy. Failure to
interpret correctly a legal requirement which is fundamental to the limits of
powers renders a decision ultra vires. Equally, failure to find evidence for a mat-
ter of fundamental fact is a prerequisite for an ultra vires decision (Coleen
Properties Ltd v Minister of Housing and Local Government (1971)).
11.3.2 Fundamental matters of law

In Padfield v Minister of Agriculture (1968) the House of Lords dealt with the min-
ister’s refusal to refer a complaint about differentials in milk prices paid by the
Milk Marketing Board to farmers in different regions of the country to a com-
mittee of investigation under s 19 of the Agricultural Marketing Act 1958.
Section 19 stipulated that the minister shall appoint a committee of investigation
which ‘shall ... be charged with the duty, if the minister in any case so directs, of
considering and reporting to the minister on ... any complaint made to the min-
ister’. It was decided by the House of Lords that the minister had misconstrued
the legal requirements of the Act which indicated that he was obliged to refer
the complaint made if the objects and intentions of the legislation were to be
realised. Although the minister had a discretion, there was a fundamental legal
requirement that complaints be referred to a committee in order to provide pro-
tection for those affected by milk marketing schemes. In Pearlman v Keepers and
Governors of Harrow School (1978) the court quashed the decision of a county
court in respect of a determination relating to the rateable value of a dwelling
for the purposes of the Leasehold Reform Act. Under the Act certain require-
ments have to be satisfied before a long leaseholder can purchase the freehold of
his property, one of which is a rateable value limit. Normally, any improvement
or alteration to a property would have the effect of pushing up the rateable
value beyond the limit so that the long leaseholder would no longer qualify for
a purchase of the freehold. Accordingly, it is provided by the Act that in some
circumstances such as where there is a ‘structural alteration’ to property, the
rateable value should be subject to a notional reduction. Any long leaseholder is
permitted by the Act to apply to a county court for a determination whether cer-
tain improvements amount to a ‘structural alteration’: any such determination is
stated to be ‘final and conclusive’. In this case the county court decided that the
installation of central heating was not a ‘structural alteration’, a decision which
was quashed by the Court of Appeal as being an ultra vires, fundamental error
of law.
11.3.3 Inferior courts

The House of Lords in Re Racal Communications Ltd (1980) concluded that there
is something akin to a presumption that errors of law by inferior courts like the
181
county court are not generally fundamental, primarily by reference to the need
to recognise the expertise of the judges in those courts. Consequently, decisions
of inferior courts affected by errors of law will usually be, at most, voidable
decisions (legally effective decisions unless quashed by the court) by virtue of
there being a less than fundamental error of law on the face of the record of the
decision. This concept is examined below. It will be noted that the principle in
Re Racal Communications Ltd applies to inferior courts as opposed to other
administrative agencies, including tribunals, where the House of Lords’ deci-
sion in Anisminic Ltd v Foreign Compensation Commission (1969) remains the lead-
ing authority.
11.3.4 Administrative agencies

In Anisminic the British government received from the Egyptian government a
sum of money in respect of outstanding claims following the sequestration of
British property in Egypt. By virtue of the Foreign Compensation Act 1950, it
has been seen that the Foreign Compensation Commission has statutory respon-
sibility for the determination of claims made in respect of the money received
from any foreign government. A claim would be ‘established’ according to an
Order in Council if certain requirements were met, one of which was that a
claimant had to be British. In rejecting Anisminic’s claim the Commission found
that the company, although British, had not satisfied another requirement, ie
that a claimant’s successor in title should also have been British. It was found
that the Commission had misinterpreted the Order in Council defining the lim-
its of its powers. The Commission had made a fundamental error of law by tak-
ing into account the need for a claimant to prove that a successor in title was
also British, something that amounted to an additional requirement which had
not been specified in the Order in Council. Despite the words of s 4(4) of the
Foreign Compensation Act to the effect that any decision on an application
made to the Commission ‘shall not be called in question’ in any court of law, the
House of Lords was willing to grant a declaration that the Commission’s deci-
sion was ultra vires. Lord Pearce emphasised that it is possible to exceed or
abuse statutory powers in various ways:
There may be an absence of those formalities or things which are conditions
precedent to the tribunal having any jurisdiction to embark on an inquiry. Or
the tribunal may at the end make an order that it has no jurisdiction to make.
Or in the intervening stage, while engaged in a property inquiry, the tribunal
may depart from the rules of natural justice; or it may ask itself the wrong
questions; or it may take into account matters which it was not directed to
take into account. Thereby it would step outside its jurisdiction. It would
turn its inquiry into something not directed by Parliament and fail to make
the inquiry which Parliament did direct. Any of these things would cause its
purported decision to be a nullity.
182
The decisions in Anisminic and Re Racal Communications Ltd indicate that virtu-
ally any error of law committed by an administrative agency such as a local
authority or an administrative tribunal will be regarded by the High Court as a
fundamental error of law rendering any resulting decision or other administra-
tive action ultra vires. The accuracy of this view has recently been confirmed by
the House of Lords in R v Hull University Visitor, ex p Page (1993) where Lord
Browne-Wilkinson in the leading judgment observed that ‘... Parliament had
only conferred the decision-making power on the basis that it was to be exer-
cised on the correct legal basis: a misdirection in law in making the decision
therefore rendered the decision ultra vires’. In Pearlman, Lord Denning and the
majority of the court considered that such a principle should extend to all
administrative agencies and inferior courts. Lord Denning stated that: ‘No court
or tribunal has any jurisdiction to make an error of law on which the decision of
a case depends. If it makes such an error, it goes outside its jurisdiction.’ In his
important dissenting judgment, which was subsequently approved by the
House of Lords in Re Racal Communications Ltd, Geoffrey Lane LJ considered
that the inferior court should have some leeway in which to make wrong deter-
minations of law without any eventual decision being regarded as ultra vires.
Clearly, expert judges are capable of arriving at differing views of the law on
many occasions. Although the High Court may consider a county court judge’s
interpretation of the law to be wrong in a particular case, that does not necessar-
ily mean that it is so wrong as to offend the fundamental limits of powers pre-
scribed by Parliament in order to render a decision ultra vires.
11.4 Error of Law on the Face of the Record

It was noted previously from the case of Re Racal Communications Ltd that deci-
sions of inferior courts affected by errors of law will usually be regarded, not as
ultra vires for excess or abuse of some fundamental legal requirement of their
powers, but as merely voidable decisions. A voidable decision is a legally effec-
tive decision until it is quashed by the court, in contrast to an ultra vires decision
which is null and void ab initio, that is, a decision which has never existed in
law. Because an error of law on the face of the record does not render a decision
ultra vires, the error is not, therefore, made in respect of some fundamental
requirement defining the limit of statutory powers. Accordingly, some inciden-
tal misconstruction of a statutory provision appearing on the face of the record
of a decision by an inferior court is the most likely occurrence where the court
would be invited to quash a voidable decision. In R v Crown Court at
Knightsbridge, ex p International Sporting Club (London) Ltd (1981) the court
quashed a decision of the Crown Court, dismissing appeals from decisions of
the justices, to the effect that companies’ licences to operate casinos should be
cancelled on the ground that there had been serious contraventions of the
Gaming Act 1968 in the operation of the premises. The error of law appearing in
183
the record of the judgment related to the judge’s conclusion that the question
whether the companies were ‘fit and proper persons’ for the purpose of the
Gaming Act could only be judged by their past conduct. This conclusion failed
to take into account the legally relevant fact that the original companies had
sold their interests and shareholdings to new owners: this failure to take into
account company restructuring was an error of law appearing on the face of the
record of the decision.
11.4.1 Error of law on the face of the record and the doctrine
of ultra vires
Historically, error of law on the face of the record provided the basis for the
High Court’s control over inferior courts and other administrative bodies.
Nevertheless, a decision could be quashed as being ultra vires if additional evi-
dence beyond the record of a decision could be produced. Gradually in the case
of error of law on the face of the record, certiorari would issue to quash even the
most trifling, technical errors of law. Parliament responded by legislating that in
many cases certiorari would not be available to quash certain decisions.
Accordingly, efforts were made by the court to admit evidence more freely for
the purpose of establishing that decisions may have been made in excess of
powers conferred, that is, ultra vires. Thereafter, the doctrine of ultra vires
became the real basis of judicial review and error of law on the face of the
record was virtually forgotten until the Court of Appeal decision in R v
Northumberland Compensation Appeal Tribunal, ex p Shaw (1952).
Mr Shaw lost his job as clerk to the West Northumberland Joint Hospital
Board when the National Health Service Act 1946 was passed. As a result he
was entitled to claim compensation and he claimed in turn that his previous
employment in local government should have been taken into account in com-
puting the payment. Being dissatisfied with the amount of compensation
awarded, Shaw appealed to the tribunal which rejected his claim that previous
employment should have been taken into account. Shaw made a successful
application to the court for an order of certiorari to quash the tribunal’s decision
on the ground that an error of law resulting from the misinterpretation of statu-
tory regulations relating to compensation appeared on the face of the record of
the tribunal’s decision. The error of law in misconstruing the statutory compen-
sation regulations was not a fundamental error affecting the very limits of the
tribunal’s powers. As an error of law which appeared on the face of the record it
merely rendered the decision voidable and quashable by certiorari. As for the
record of the tribunal’s decision, the error was admitted in open court and
incorporated as reasons for the decision. Denning LJ considered that:
... the record must contain at least the document which initiates the proceed-
ings; the pleadings, if any; and the adjudication; but not the evidence, nor
the reasons, unless the tribunal chooses to incorporate them. If the tribunal
184
does state its reasons, and those reasons are wrong in law, certiorari lies to
quash the decision.
Although the availability of certiorari to cure error of law on the face of the
record once assumed considerable importance, the remedy in this context is of
increasingly less significance. First, the Tribunals and Inquiries Act 1992 pro-
vides an appeal on a point of law from many administrative tribunals to the
High Court in an area which was previously dominated by certiorari where a tri-
bunal’s decision was affected by an error of law on the face of the record.
Secondly, the House of Lords’ dicta in Re Racal Communications Ltd, as seen pre-
viously in the present chapter, seem to restrict error of law on the face of the
record to the decisions of inferior courts, as opposed to tribunals and other
administrative agencies.
11.5 Ouster Clauses and the Doctrine of Ultra Vires

It is sometimes the case that an Act of Parliament will attempt to prevent any
challenge to an administrative decision, usually by attempting to oust the juris-
diction of the court. In R v Medical Appeal Tribunal, ex p Gilmore (1957) the legis-
lation provided that decisions of the tribunal should be ‘final’. It was decided by
the Court of Appeal that in the absence of any other clearer statutory words, the
decisions of the tribunal were subject to certiorari either in respect of decisions
beyond the limits of the statutory powers or for an error of law on the face of
the record. The court considered, therefore, that although a decision might be
final as to the facts and (presumably) any expert conclusions drawn from those
facts, it would not be final in respect of any matter of law. Therefore, the finality
clause in the Act could be effective only to prevent any appeal against the facts
and merits of the decision. Nevertheless, it is at least arguable that Parliament
actually intended to exclude any challenge to the tribunal’s decisions, including
review.
Another significant ouster clause arose for the court’s consideration in
Anisminic. It was seen previously that the ouster clause here related to decisions
of the Foreign Compensation Commission. The Act stated that the ‘... determi-
nation by the Tribunal of any application made to them under this Act shall not
be called in question in any Court of Law’. It was decided by the House of
Lords that this ouster clause would not exclude any challenge by the court in
respect of any decision which involved any error which took the tribunal
beyond the limits of its statutory powers, that is, an ultra vires decision. In the
event, a fundamental error of law rendered the Commission’s decision ultra
vires. The basis of the court’s decision is that a reference in the ouster clause to a
‘determination’ or a ‘decision’ implies a legally effective decision, as opposed to
an ultra vires decision. While the ouster clause protects any determination or
decision which exists as a legally valid decision, including a merely voidable
decision, it cannot be taken to protect from review by the court a determination
185
or decision which does not exist in law, ie an ultra vires decision. Accordingly, in
Anisminic the court was prepared to declare that the decision was null and void
as an ultra vires decision because the fundamental error of law had taken the
Commission beyond the limits of its statutory powers. A similar approach is
seen in the Court of Appeal decision in Pearlman where the court was concerned
with s 107 of the County Courts Act 1959 which states that: ‘No judgment or
order of any judge of County Courts, nor any proceedings brought before him
or pending in his court, shall be removed by appeal, motion, certiorari or other-
wise into any other court whatever.’ Despite these words in s 107, it has been
seen previously that the court was prepared to grant certiorari to quash a county
court decision, following the reasoning in Anisminic.
Another ouster clause of considerable scope was before the Judicial
Committee of the Privy Council in South-East Asia Fire Bricks v Non-Metallic
Mineral Products Manufacturing Employees Union (1980). This clause appeared in
the Malaysian Industrial Relations Act 1967 and stipulated that: ‘... an award of
the (Industrial) Court shall be final and conclusive, and no award shall be chal-
lenged, appealed against, reviewed, quashed or called into question in any
court of law.’ Again, following the approach in Anisminic, it was decided that
although these words would protect any voidable decision affected by an error
of law on the face of the record from review by the court, they did not prevent
the court reviewing a decision of the Industrial Court which was found to be
ultra vires and void.
The foregoing ouster clauses can be distinguished from other clauses which
do permit the High Court to review the legality of decisions but only where an
application for that purpose is made to the court within six weeks of that deci-
sion. Such clauses are examined in the context of judicial remedies in Chapter
13. These clauses are to be found primarily in legislation governing town and
country planning and compulsory purchase. In both cases a decision of the
Secretary of State for the Environment, for example, on an appeal from a refusal
of planning permission by a local authority or in respect of a local authority’s
invitation to confirm one of its compulsory purchase orders, may be challenged,
but only within the strict limit of six weeks (Smith v East Elloe Rural District
Council (1956)). It is clear, therefore, that these statutory ouster clauses differ
from the other varieties previously examined, particularly in so far as six weeks
are allowed for a challenge in the High Court. It is probably this factor which
has influenced the court more than any other in resisting an application of the
principle in Anisminic so that any application to the court after six weeks would
still be refused (R v Secretary of State for the Environment, ex p Ostler (1977)).
In R v Cornwall County Council, ex p Huntington (1992), the Divisional Court
ruled that the court had no jurisdiction to grant judicial review of an order
made under the Wildlife and Countryside Act 1981 where the statutorily pre-
scribed time limit of 42 days for such a challenge had been exceeded. In a pas-
sage which was cited with approval by the Court of Appeal when they later
186
upheld the Divisional Court’s decision (R v Cornwall County Council, ex p

Huntington (1994)), Mann LJ stated the position in relation to ouster clauses and
time limit clauses in the following terms:
The intention of Parliament when it uses an Anisminic clause is that ques-
tions as to validity are not excluded. When paragraphs such as those consid-
ered in ex parte Ostler are used, then the legislative intention is that questions
as to invalidity may be raised on the specified grounds in the prescribed
time and in the prescribed manner, but that otherwise the jurisdiction of the
court is excluded in the interest of certainty.
11.6 The Limits of Discretionary Powers

Reference has been made to the general practice of conferring discretion on the
initiators of administrative action to determine the limits of their statutory pow-
ers whereas the adjudicators – tribunals in particular – usually operate with ref-
erence to such discretionary powers. Where an administrative agency’s powers
are discretionary so that it is able to make choices before acting, those choices
must be made by reference to lawful factors which are expressly or impliedly
recognised by and within the statutory limits under which the powers are exer-
cised. Equally, any policy which is made by the administrative agency in order
to guide the exercise of these discretionary choices must be within the same
statutory limits.
Before these principles are explained and illustrated, reference must be made
to the leading statement of principle by Lord Greene MR in Associated Provincial
Picture Houses Ltd v Wednesbury Corporation (1948). He stated that when a discre-
tion is granted:
... the law recognises certain principles upon which that discretion must be
exercised, but within the four corners of those principles the discretion ... is
an absolute one and cannot be questioned in any court of law. What then are
those principles ... The exercise of such a discretion must be a real exercise of
the discretion. If, in the statute conferring the discretion, there is to be found
expressly or by implication matters which the authority exercising the dis-
cretion ought to have regard to, then in exercising the discretion it must have
regard to those matters. Conversely, if the nature of the subject-matter and
the general interpretation of the Act make it clear that certain matters would
not be germane to the matter in question, the authority must disregard those
irrelevant collateral matters ... [A] person entrusted with a discretion must ...
direct himself properly in law. He must call his own attention to the matters
which he is bound to consider. He must exclude from his consideration mat-
ters which are irrelevant to what he has to consider. If he does not obey those
rules, he may truly be said ... to be acting ‘unreasonably’.
A good example of a statutory discretion is to be found in s 8 of the Education
Act 1944 by which the council of a local education authority is obliged ‘... to
secure that there should be available for their area sufficient schools for provid-
187
ing full-time education’ suitable to the requirements of pupils. It was decided in

Meade v Haringey London Borough Council (1979) that this discretion does not per-
mit the council simply to provide school buildings. Through an interpretation of
the Act the Court of Appeal decided that the discretion also required the provi-
sion of teachers and other essentials if the object of the Act – to secure the edu-
cation of children – was to be realised. In other words, these wider requirements
mark the limits of the council’s statutory powers, emphasising the fact that it is
the court which is the judge of the legal limits of discretionary powers. It was
further suggested in Meade that the council would have been acting ultra vires
had it been established that its schools had remained closed during a caretakers’
strike as a result of political influences and considerations. In the event, the
injunction sought by parents against the council to restrain any further breach
of duty under s 8 and to require the reopening of the schools was not granted
when, during the litigation, the strike was ended. From the foregoing principles
it can be seen that any discretion, whether it relates to the limits of statutory
powers (as in Meade) or to a determination of the merits of any case by an
administrative agency within those limits, can only be influenced by considera-
tions which are legally relevant to the legislation containing the powers. Hence
from Meade political reasons for keeping the schools closed were regarded as
being legally irrelevant to and ultra vires the Education Act powers. The same is
true of the hypothetical furnished rent tribunal mentioned at the beginning of
the present chapter. Where that tribunal, in the course of dealing with the merits
of any claim by a tenant within its powers, takes into account some considera-
tion which is regarded as alien to the Act conferring the powers, eg that the ten-
ant is an immigrant, its eventual decision will again be ultra vires. The same
conclusion would be possible upon proof that the administrative agencies in
question had used their various statutory powers for improper purposes, that
is, unlawful purposes beyond the defined statutory limits.
Assuming that an administrative agency has correctly determined the scope
of its statutory powers at the outset, either for the purpose of initiating adminis-
trative action or for the purpose of adjudicating some claim or dispute, then it
will be action intra vires, that is, within the limits of its statutory powers.
Thereafter, the agency, in dealing with the merits of different alternatives for
administrative action or the merits of competing claims, as the case may be, has
to avoid the foregoing irrelevant considerations or improper purposes. If it does
then its eventual decision or other action will not be ultra vires as long as that
decision or other action is expressly or impliedly permitted by the empowering
legislation. In so avoiding any review of the legality of its decision or other
action, the administrative agency is free, within these legal constraints, to exer-
cise its expertise, judgment and opinion in relation to the problem to be dealt
with. Accordingly, and by way of illustration, the way in which educational
facilities are provided by virtue of s 8 of the Education Act is entirely a matter
for the responsible council acting as local education authority. If, therefore, it is
felt that more resources are required for the provision of educational facilities to
188
benefit particularly deprived members of the community, that is a matter

entirely for the council acting within its powers: any such decision cannot be
ultra vires where it is motivated by educational considerations.
The point is also illustrated in Eckersley v Secretary of State for the Environment
(1978) where the Secretary of State confirmed a compulsory purchase order for
the acquisition of land to permit the clearance of slum properties, by virtue of
powers contained in Part 3 of the Housing Act 1957 now contained in the con-
solidating Housing Act 1985. It was decided that the confirmation was ultra
vires on the ground that there was a failure to take into consideration compara-
tive costs of demolition and rebuilding. Had the Secretary of State lawfully
taken these fundamental factors into consideration, his conclusions on cost
would not generally have been of any concern to the court. He may have had a
policy to aid him in the exercise of his discretionary powers. The policy may
have been in favour of saving houses where possible. Accordingly, any decision
not to confirm a compulsory purchase order, even though renovation of the
housing might cost £500,000 more than demolition and redevelopment, is
entirely a matter for the Secretary of State acting within his statutory powers, ie
it is a matter going to the merits of the decision, which cannot be challenged as
an ultra vires decision.
11.6.1 The problem of subjectively worded discretionary

powers
It has been emphasised that the High Court must be the final arbiter of the outer
limits of any discretion conferred on an administrative agency. One of the lead-
ing statements of principle comes from the judgment of Sachs J in Customs and
Excise Commissioners v Cure and Deeley Ltd (1961). By virtue of s 33 of the Finance
(No 2) Act 1940 the Commissioners were empowered to ‘... make regulations
providing for any matter for which provision appears to them to be necessary
for the purpose of giving effect to the provisions of this Part of this Act and of
enabling them to discharge their functions thereunder’. In a set of regulations
made in 1945 it was stated that: ‘If a person fails to furnish a return as required
by these regulations the Commissioners may ... determine the amount of tax
appearing to them to be due from such person ... which amount shall be
deemed to be the proper tax due.’ In a claim for purchase tax against the com-
pany it was decided that this regulation was ultra vires the empowering Act. In
so deciding, Sachs J rejected the view that the words ‘appear to them to be nec-
essary’ when used in a statute conferring powers on a competent authority:
... necessarily make that authority the sole judge of what are its powers as
well as the sole judge of the way in which it can exercise such powers as it
may have. It is axiomatic that ... ‘the paramount rule remains that every
statute is to be expounded according to its manifest or expressed intention’.
It is no less axiomatic that the application of that rule may result in phrases
identical in wording or in substance receiving quite different interpretations
189
according to the tenor of the legislation under consideration. As an apt illus-

tration of such a result it is not necessary to go further than Liversidge v
Anderson (1942) ... and Nakkuda Ali v Jayaratne (1951) ... in which the words
‘reasonable cause to believe’ and ‘reasonable grounds to believe’ received
quite different interpretations.
In Liversidge the Home Secretary was empowered by Defence Regulation 18B to
make order for the detention of persons where he had reasonable cause to
believe that they were of hostile origin or association. In an action by a detainee
for false imprisonment against the Home Secretary it was found by the House
of Lords that there could be no inquiry by the court into the question of whether
there were reasonable grounds for the Home Secretary’s belief that a person
should be detained, except on proof of bad faith. In exercising his considerable
discretion the Home Secretary was responsible only to Parliament, not the
court. By contrast, in Nakkuda Ali it has been seen in the chapter on natural jus-
tice that a Controller of Textiles in Ceylon was empowered by a regulation gov-
erning his powers to cancel textile licences where he had reasonable ground to
believe that any dealer was unfit to continue in that capacity. In giving judg-
ment the Judicial Committee of the Privy Council sought to emphasise that
Liversidge was a decision referable to its own peculiar wartime context. As to the
words in the present case, Lord Radcliffe giving judgment considered that:
... they must be intended to serve in some sense as a condition limiting the
exercise of an otherwise arbitrary power. But if the question whether the
condition has been satisfied is to be conclusively decided by the man who
wields the power the value of the intended restraint is in effect nothing ...
Their Lordships therefore treat the words in [the] regulation ... as imposing a
condition that there must in fact exist such reasonable grounds, known to the
controller, before he can validly exercise the power of cancellation.
Decisions like that in Liversidge, where the court was effectively saying that it
could not define any statutory limits surrounding the minister’s powers, are
rare. Indeed, the case is most frequently remembered for the dissenting judg-
ment of Lord Atkin who desired that an objective construction be placed on the
terms of Defence Regulation 18B. In what was a truly remarkable judgment,
Lord Atkin was unashamedly critical of ‘... judges who on a mere question of
construction when face to face with claims involving the liberty of the subject
show themselves more Executive-minded than the Executive’. However, the
trend is very much in a direction where the court will not often find that a com-
plete discretion has been granted to a minister or any other administrative
agency. In Secretary of State for Employment v ASLEF (No 2) (1972) the court
found that the Secretary of State’s decision to order a strike ballot under the
Industrial Relations Act 1972 was not ultra vires his powers under the Act.
Nevertheless, and despite the fact that he could take action ‘where it appeared’
to him that irregular industrial action had begun or was likely to begin, this did
not mean, according to Lord Denning that:
190
... the minister’s decision is put beyond challenge ... [I]f the minister does not
act in good faith, or if he acts on extraneous considerations which ought not
to influence him, or if he plainly misdirects himself in fact or in law, it may
well be that a court would interfere; but if he honestly takes a view of the
facts or of the law which could reasonably be entertained, then his decision
is not to be set aside simply because thereafter someone thinks that his view
was wrong. After all, this is an emergency procedure, it has to be set in
motion quickly, when there is no time for minute analysis of facts or of law.
Further important examples in the present context of the court’s concern about
discretionary powers are found in Norwich City Council v Secretary of State for the
Environment (1982), referred to in Chapter 1, Congreve v Home Office (1976) and
Secretary of State for Education and Science v Tameside Metropolitan Borough Council
(1977). In Congreve a large number of television licence holders had prematurely
renewed their licences in order to avoid paying an increased fee when it came
into force subsequently. They were told by the Home Office that unless they
paid the balance between the cost of the old licence and the increased cost for
new licences, their licences would be revoked. This action was taken under s
1(2) and s 1(4) of the Wireless Telegraphy Act 1949. Section 1(2) states that: ‘A
licence ... may be issued subject to such terms, provisions and limitations as the
minister may think fit.’ Section 1(4) states that a licence: ‘... may be revoked ... by
a notice in writing served on the holder.’ It was found by the Court of Appeal
that the powers were not unlimited and could only be exercised to revoke a
licence for good reason and the Home Office’s dislike of ‘overlapping’ licences
was not a good reason so that the threatened revocation was ultra vires. In the
Tameside case a Conservative-controlled education authority refused to imple-
ment proposals for the introduction of comprehensive secondary education
which had been approved by the Secretary of State for Education when the
Labour Party had controlled the authority. Section 68 of the Education Act 1944
empowers the Secretary of State to serve a direction against an education
authority if he ‘... is satisfied ... that any local education authority ... have acted
or are proposing to act unreasonably with respect to the exercise of any power
conferred or the performance of any duty imposed by or under this Act’. In the
face of the refusal to implement the proposals for comprehensive education, the
Secretary of State served a direction and now sought an order of mandamus to
enforce observance of that direction. It was decided by the House of Lords that
the direction was ultra vires because there were no grounds for concluding that
the authority has acted ‘unreasonably’. Following the dicta of Lord Denning in
the ASLEF case, it was considered that although the Secretary of State might
legitimately take the view that the authority’s proposal to retain grammar
schools and to implement selection procedures for certain schools was mis-
guided or wrong, there were no grounds which could justify a conclusion that
the proposal was such that no education authority, acting reasonably, would
carry it out.
191
A similar conclusion to that in Tameside was reached by the Court of Appeal

in Coleen Properties Ltd v Minister of Housing and Local Government (1971), using
the so-called ‘no evidence’ rule. Once again the court was confronted by a min-
ister’s statutory powers which appeared to confer a considerable discretion. The
Housing Act 1985 empowers the minister to confirm a local authority’s compul-
sory purchase order which includes land which is ‘reasonably necessary’, either
for the purpose of securing a slum clearance area of convenient shape and
dimensions or to secure the satisfactory development or use of the area (s
290(2)). The court concluded that what is ‘reasonably necessary’ is a fundamen-
tal question of fact so that if land is to be included in a confirmed order, the
minister should have evidence to justify its inclusion. On this basis, the
‘grounds’ which were lacking in the Secretary of State’s action in Tameside could
have been provided had there been some evidence that the education authority
had acted ‘unreasonably’ (a question of fact) in refusing to implement the pro-
posals for comprehensive education.
11.7 Policy and the Exercise of Discretionary Powers

It has been seen previously that where statute confers a discretion on an admin-
istrative agency, that agency has an opportunity to make a choice in determin-
ing what action to take or decision to make. In order to guide the making of any
such discretionary choice, the administrative agency may adopt a policy. A pol-
icy will often be made where the administrative agency is charged with the
responsibility of distributing scarce resources in order to achieve what seems to
be the most equitable distribution of that resource. A local authority, for exam-
ple, may adopt a policy in relation to the payment of grants for the repair and
improvement of houses by reference to the high priority needs of certain areas
of urban decay. Whatever the policy adopted by an administrative agency, that
policy must be within the limits of the powers of the Act in question (Cumings v
Birkenhead Corporation (1972)).
11.7.1 Lawful and unlawful policies

If a policy is ultra vires the Act under which an administrative agency is dis-
charging its functions, that agency nevertheless acts unlawfully where the pol-
icy prevents consideration of the merits of each case. The essence of this legal
requirement has been expressed in a number of cases. The requirement was
dealt with by Lord Reid in British Oxygen Co Ltd v Minister of Technology (1971):
The general rule is that anyone who has to exercise a statutory discretion
must not ‘shut his ears’ to an application ... There may be cases where the
Board should listen to argument against the policy. What it must not do is to
refuse to listen at all ... a large authority may have had to deal already with
many similar applications and then it will almost certainly have evolved a
192
policy ... There is no objection to that provided it is always ready to listen to

new argument.
In another leading statement of principle, Bankes LJ in R v Port of London
Authority, ex p Kynoch (1919) expanded this all important distinction between
lawful policies and unlawful, preclusive policies. Referring to a licensing func-
tion of the Authority, he observed that:
There are on the one hand cases where a tribunal in the honest exercise of its
discretion has adopted a policy, and, without refusing to hear the applicant,
intimates to him what its policy is, and that after hearing him it will in accor-
dance with its policy decide against him, unless there is something excep-
tional in his case ... If the policy has been adopted for reasons which the
tribunal may legitimately entertain, no objection could be taken to such a
course. On the other hand there are cases where a tribunal has passed a rule,
or come to a determination, not to hear any application of a particular char-
acter by whomsoever made. There is a wide distinction to be drawn between
these two cases.
The basis of these legal requirements relating to policy is that the statutory
responsibilities of administrative agencies cannot be fettered or frustrated.
Wherever Parliament has specified by statute that administrative action should
be initiated, that administrative disputes should be adjudicated or that applica-
tions should be processed, any attendant duty or discretion should be exercised
according to law. In R v Secretary of State for the Environment, ex p Brent London
Borough Council & Others (1982) the court was concerned with the Secretary of
State’s policy to reduce the rate support grant payable to local authorities
affected by this policy. Because their rights were adversely affected by the
potential loss of grant it was decided that the Secretary of State had not acted
fairly towards the local authorities and in so doing had used his policy unlaw-
fully to fetter any genuine exercise of his statutory discretion under the Local
Government, Planning and Land Act 1980. As a result, the court quashed the
decision to reduce the local authorities’ rate support grant.
In the same way that an unlawful policy may preclude or fetter the lawful
exercise of a statutory duty or discretion, these statutory responsibilities may
also be affected by contracts and other similar transactions. In Ayr Harbour
Trustees v Oswald (1883) the trustees were subject to a statutory duty to acquire
such land as was required for the construction of harbour facilities. Having pur-
chased land, it was agreed that no construction would take place on that land
which would injuriously affect other neighbouring land retained by the vendor.
It was decided that this restriction in the agreement was ultra vires the trustees’
statutory duty. Similarly, in William Cory & Son Ltd v Corporation of London
(1951) the court refused to imply a term in a contract between the parties that
the local authority would not make a bylaw which was inconsistent with the
contractual terms. However, there can be no such objection to such a contract or
other similar transaction which is consistent with statutory duties or discretions.
It was seen in Chapter 4 that local authorities have wide statutory powers to
193
undertake a large range of functions involving the making of contracts of all

sorts. That such contracts are usually compatible with underlying statutory
powers is illustrated by Birkdale District Electricity Supply Co Ltd v Southport
Corporation (1926). It was agreed between the parties that the company would
not charge higher prices for electricity than those charged by Southport
Corporation. Subsequently, the corporation sought an injunction to restrain the
company charging higher prices in breach of the agreement. It was found by the
court that the agreement was not ultra vires: it was an agreement which was
compatible with the corporation’s statutory power to determine the rates for
electricity supply. That some contracts and agreements are not incompatible
with statutory powers may be represented as a tenuous conclusion, as seen in
Terry in the previous chapter. Finally in this context there seems to be a general
presumption in the law that where the Crown is concerned, the court, in order
to preserve freedom of executive action, will find that a contract or any other
similar transaction cannot lawfully fetter the exercise of appropriate statutory or
prerogative powers (Crown Lands Commissioners v Page (1960)).
11.7.2 Acts under dictation

There is resort to what is in effect an unlawful policy where an act is performed
under dictation. This problem has occurred previously where local authorities
in undertaking their statutory film licensing responsibilities have been prepared
to grant licences to films approved by the British Board of Film Censors without
themselves adjudicating the merits of each film (Ellis v Dubowski (1921)). In H
Lavender & Son Ltd v Minister of Housing and Local Government (1970) the minis-
ter, in determining a planning appeal in respect of a proposal to extract minerals
from high-grade agricultural land, indicated that it was his policy not to permit
such extraction in such areas unless the Minister of Agriculture was not against
the proposal. The court quashed the minister’s decision on the ground that the
policy precluded an exercise of the minister’s statutory discretion so that in fail-
ing to determine the appeal himself, he had acted ultra vires. An opinion from
the Secretary of State confirming that he would grant planning permission on
appeal in conformity with a department circular is ultra vires when it influenced
the local planning authority’s decision: R v Worthing Borough Council, ex p Burch
(1983). Even in the absence of a policy an administrative agency may act unlaw-
fully under dictation. In Laker Airways Ltd v Department of Trade (1977) which
was previously dealt with in Chapter 9 under the heading of ‘Estoppel’, the
Civil Aviation Authority had to review Laker Airways’ licence to operate
‘Skytrain’, acting under dictation from the Department of Trade. It was decided
that any withdrawal of the licence was ultra vires because the Department had
no power to give ‘directions’ to the Authority which, under the Civil Aviation
Act 1971, was subject only to ‘guidance’ from the Department. Whether a policy
is unlawfully preclusive is a matter of fact in each case. In Attorney General, ex rel
Tilley v Wandsworth London Borough Council (1981) the local authority adopted a
194
policy that whenever any case of an intentionally homeless family was before
the social services committee it would not provide accommodation by virtue of
s 1(1) of the Children and Young Persons Act 1963 which allows ‘assistance in
kind’ (including the provision of accommodation) as part of the local authority’s
statutory duty to promote children’s welfare. There was evidence before the
court that exceptions to the policy could be made in appropriate cases.
However, it was decided by the court that the policy was unlawful: the commit-
tee would be much influenced by the policy to an extent that there would be
doubts as to the fairness of decisions made. The mere existence of the policy
meant that in operating s 1(1) there would be differentiation between children
according to the conduct of their parents.
Tilley was distinguished by the House of Lords in Re Findlay (1984) where
the Home Secretary’s parole policy was in issue in proceedings where prisoners
claimed that they had suffered loss of expectation of parole. The policy here was
regarded as a complex one but perfectly lawful in so far as the merits of cases in
particular categories could still be considered.
11.7.3 The interpretation and application of policy

Where an administrative agency indicates reliance on a policy for the purpose
of making a decision or taking any other administrative action, the law may
require a correct interpretation and application of that policy. The precise
requirements were set out in Niarchos v Secretary of State for the Environment
(1978) where it was considered to be:
... trite law that the Secretary of State is entitled to have a policy and to
change it from day to day, and accordingly he is not bound to apply
(although he must have regard to) the policy ... However ... when he
expresses himself to be deciding a case under a stated policy, it must follow
that if he decides the case other than in accordance with the policy he misdi-
rects himself ... where there are no other considerations. Accordingly, ... if he
misdirects himself as to the provisions of the policy he acts in excess of his
power.
Although this case related to the Secretary of State’s determination of a plan-
ning appeal, where the Town and Country Planning Act 1971 s 29 ( the prede-
cessor of s 70 of the Town and Country Planning Act 1990) required him to have
regard to the policy in the appropriate development plan and to any other
material considerations, the principle could be applicable elsewhere in other
statutory contexts.
11.8 Relevant Considerations

Whether or not a policy is being employed by an administrative agency in order
to guide its exercise of discretion, the court will require that it avoids being
influenced by irrelevant considerations. Equally, the administrative agency
195
must not fail to take into account any relevant considerations. According to
Lord Greene MR in Associated Provincial Picture Houses, if:
... in the statute conferring the discretion, there is to be found expressly or by
implication matters which the authority exercising the discretion ought to
have regard to, then in exercising the discretion it must have regard to those
matters. Conversely, if the nature of the subject-matter and the general inter-
pretation of the Act make it clear that certain matters would not be germane
to the matter in question, the authority must disregard those irrelevant col-
lateral matters ...
Failure to adhere to any of these requirements will usually render any decision
or other administrative action ultra vires. However, where the administrative
agency is responsible for a purely administrative function which does not affect
a person’s rights, the court will not apply these requirements (R v Barnet and
Camden Rent Tribunal, ex p Frey Investments Ltd (1972)).
Where statute prescribes the relevant or material considerations which can
influence a discretionary decision there will be few problems for the court in
determining the limits of the statutory powers in question. However, it is not
uncommon to find that Parliament has merely stipulated, as in s 70 of the Town
and Country Planning Act 1990 relating to the determination of applications for
planning permission by local authorities and (on appeal) the Secretary of State,
that there shall be regard for ‘the development plan’ and ‘any other material
considerations’. In Stringer v Minister of Housing and Local Government (1971) it
was decided that the minister, in determining a planning appeal, was able to
take into consideration possible interference with Jodrell Bank telescope by a
proposed new residential development nearby. Looking at the overall objects of
the Act, Cooke J concluded that ‘material’ considerations:
... have to be ‘planning’ considerations ... In principle ... any consideration
which relates to the use and development of land is capable of being a plan-
ning consideration’.
Whatever the identity of a consideration which is legally relevant to a discre-
tionary decision, the weight and significance to be given to that consideration is
entirely a matter within the powers of the administrative agency. Accordingly,
in Sovmots Investments Ltd v Secretary of State for the Environment (1976) it was
decided at first instance that cost is a legally relevant consideration for the
Secretary of State in deciding whether to confirm a compulsory purchase order
for the acquisition of land for the provision of housing accommodation under
the Housing Act. Forbes J went on to emphasise ‘... that the weight to be given
to cost ... is also a matter for the minister and not one in respect of which the
court is entitled to substitute its opinion’.
Two leading cases in the present context relate to local government finance.
First, in Roberts v Hopwood (1925) the court was concerned with s 62 of the
Metropolis Management Act 1855 by which Poplar Borough Council was
empowered to pay employees ‘... such salaries and wages as ... [the Council]
196
may think fit’. The district auditor disallowed part of the wages paid by the
council. The council had continued to pay a minimum wage of £4 per week in
1921–22 as in the previous year despite a fall in the cost of living. The auditor
found that the payments were not wholly wages but were in part contrary to
law as gratuities. The disallowance was upheld by the House of Lords on the
ground that the discretion in s 62 had not been exercised reasonably, more par-
ticularly because there had been no regard for factors like existing labour condi-
tions and other ordinary economic considerations.
The second case, Bromley London Borough Council v Greater London Council
(1982), was concerned with the legality of a supplementary rate levied by the
GLC on constituent councils in order to finance a 25% reduction of fares on
London Transport. It was decided by the House of Lords that the rate was ultra
vires the Transport (London) Act 1969. The basis of the decision was that the
GLC had failed to take into account the need for the London Transport
Executive to avoid a deficit by disregarding their legal duty to operate ‘eco-
nomic’ transport facilities. This occurred through the acceptance of the scheme
to reduce fares which placed an undue burden on ratepayers in breach of a legal
duty to ensure that, so far as was practicable, outgoings were met by revenue.
In many cases involving local government finance the court has accepted the
broad proposition that a local authority should have due regard for the interest
of its rate payers, as was seen in the section of Chapter 4 dealing with audit.
11.9 Improper Purposes

Closely related to the above requirements relating to relevant considerations is
the requirement that a statutory power can be used only for the purposes
expressly or impliedly indicated in the legislation. In many instances it may be
the case that a decision or other administrative action may be ultra vires by refer-
ence to either of these legal requirements. Indeed, on those occasions when a
decision is quashed as being ultra vires by reference to improper purposes, the
likelihood is that the administrative agency has either taken account of irrele-
vant considerations or failed to take into account relevant considerations.
A further, final example of a case in which the issue of relevant considera-
tions was central to the decision of the court is R v Secretary of State for the Home
Department, ex p Asif Khan (1985). In this case, the Secretary of State had issued a
circular in which he had set out the criteria that would be applied in relation to
the admission of children into the UK for adoption. The applicant complied
with the published criteria but nevertheless the Secretary of State refused to
admit a relative’s child that he wished to adopt on the basis of a ground that
was not present in the published criteria. Accordingly on an application for
judicial review, the court of Appeal quashed the refusal of entry clearance. The
circular had created a legitimate expectation that entry would be allowed pro-
vided that the criteria were complied with. The Secretary of State had in effect
197
made his own rules by stating those matters which were relevant to his deci-
sion, but the fact that he had decided the matter on the basis of a consideration
not stated in the circular, an irrelevant consideration, ensured that in the opin-
ion of the court, he had ‘misdirected himself as to his own criteria and acted
unreasonably’.
Whether a statutory power has been used lawfully for the express or implied
requirements or purposes of the particular legislation is again a matter of statu-
tory interpretation for the court. In Sydney Municipal Council v Campbell (1925)
the council was empowered to purchase compulsorily any land required for
‘carrying out improvements in or remodelling any portion of the city’. Without
any proposal or intention to improve or remodel any area, the council resolved
to purchase land, including land in the ownership of the respondent. It was
found that the council’s intention was to obtain the benefit of an increase in land
values following a highway extension into the area, a proposal which was not
related, directly or indirectly, to the objects and purposes of the statutory pow-
ers. Similarly in Webb v Minister of Housing and Local Government (1965) it was
decided that a power to acquire land for the provision of coast protection could
not lawfully be used for the purpose of providing a promenade. However, in
Hanks v Minister of Housing and Local Government (1963) it was decided that gen-
eral highway and planning purposes were lawfully incidental to the prime pur-
pose of powers in the Housing Act by which land can be acquired for the
provision of housing and, more particularly in this case, a housing estate.
Where the purposes for which statutory powers are conferred are not clearly
and expressly indicated, the court will look to the overall policy and objects of
the relevant Act or section of the Act (Padfield v Minister of Agriculture (1968)).
Section 120(1) of the Local Government Act 1972 states that:
(1) For the purposes of –
...
(b) the benefit, improvement or development of their area, a principal coun-
cil may acquire by agreement any land, whether situated inside or out-
side their area.
It was decided in Costello v Dacorum District Council (1983) that these powers are
widely drawn. As a result the council was found not to have used these and
other powers under the Open Spaces Act 1906 for an unlawful, improper pur-
pose when a lease was taken of land in order to enable the eviction of gipsies.
This was despite a temporary planning permission given to the Secretary of
State for the Environment under the Town and Country Planning Act enabling
the gipsies to stay on the land. However, in R v Somerset County Council, ex p
Fewings (1995), the principal issue for the court was whether the councillors
moral objections to the practice of stag-hunting were capable of justifying the
prohibition of hunting on land that they owned as a measure achieving the pur-
pose of s 120 of the 1972 Act. The Divisional Court held that the council’s reso-
lution to ban stag-hunting was ultra vires since it amounted to the use of its
198
statutory powers for an improper purpose as well as the taking of irrelevant

considerations into account, namely the ethical perceptions of the councillors as
to the rights and wrongs of hunting.
Where there appears to be a plurality of motives for administrative action
the court will seek to identify the dominant purpose for which the powers are
exercised. In Westminster Corporation v London and North Western Railway Co
(1905) the court was concerned with a statutory provision which stated that:
‘Every sanitary authority may provide and maintain public lavatories ... in situ-
ations where they deem the same to be required.’ The corporation used this
power to build lavatories underneath the middle of a street and provided access
by means of a subway from either side. Consequently, the subway could be
used as a means of crossing the street by persons with no desire to use the lava-
tories. It was argued that the corporation had unlawfully abused its powers.
This argument was rejected by the court and in delivering judgment, Lord
MacNaughton observed that:
It is not enough to show that the Corporation contemplated that the public
might use the subway as a means of crossing the street ... it must be shown
that the Corporation constructed this subway as a means of crossing the
street under colour and pretence of providing public conveniences which
were not really wanted at that particular place.
It seems, therefore, that as long as the corporation considered that the lavatories
were genuinely required at the point in question, it mattered not that some con-
sideration may have been given to the need to provide a subway street crossing.
It is sometimes the case that an administrative agency is confronted by a
number of different courses of action, any one of which could be adopted for
the purpose of dealing with a particular problem. This was the case in Asher v
Secretary of State for the Environment (1974) where local councillors refused to
increase council house rents, as required by the Housing Finance Act 1972. The
Secretary of State had four possible alternative options in order to deal with this
situation. He could appoint a Housing Commissioner to take over the council’s
statutory housing responsibilities, require the district auditor to undertake an
extraordinary audit of the council’s accounts, reduce the council’s housing sub-
sidy, or apply to the High Court for an order of mandamus requiring the council
to undertake its statutory housing responsibilities according to law. The
Secretary of State chose an extraordinary audit of the accounts as a result of
which the councillors were surcharged and disqualified. The court rejected an
argument that the Secretary of State was motivated by an unlawful, improper
motive, to see the councillors punished. It was emphasised that ministers fre-
quently have to balance one course of action against another and in the absence
of any proof of bad faith the court would not interfere. The court did interfere in
Wheeler v Leicester City Council (1985) when the council purported to use its
statutory powers to ban the use of a public park for practice by Leicester Rugby
Football Club. The ban occurred after the club refused to condemn a rugby tour
199
to South Africa in which members of the club would participate. In essence the
House of Lords decided that the powers could not be used to punish the club
when it had done no wrong. Similarly, in R v Lewisham London Borough Council,
ex p Shell UK Ltd (1988), the court upheld an application for judicial review of a
decision by the council to boycott the company’s products due to its links with
South Africa. Whilst the council was entitled to take into account the need to
promote good race relations in the exercise of its functions, its attempt to induce
Shell to sever its trading links with South Africa amounted to the exercise of a
power for an improper purpose.
Finally, where statutory powers overlap so that it may be apparent that
either power may be used by an administrative agency, it may be unlawful to
use one power to the exclusion of the other, particularly if a person’s rights are
affected as may have been the case in Costello. However, statute may prescribe
that the administrative agency may lawfully use particular powers, even though
a person’s rights may be prejudiced by the use of these but not the other over-
lapping powers. This was the case in Westminster Bank Ltd v Minister of Housing
and Local Government (1970) where proposed development involving an exten-
sion to a bank could be restrained either by refusing planning permission under
the Town and Country Planning Act or by imposing an ‘improvement’ line
under the Highways Act. The latter powers involved a payment of compensa-
tion whereas a refusal of consent under the Planning Act powers did not attract
compensation. It was decided by the House of Lords that in refusing consent
under the planning powers, there had been no ultra vires decision motivated by
any unlawful desire to avoid compensation primarily because the Town and
Country Planning Act expressly permitted other powers to be ignored. The sec-
tion in question stipulates that:
... the provisions of this Act ... apply ... in relation to any land notwithstand-
ing that provision is made by any enactment in force at the passing of the
Act ... for statutory ‘immunity’ in relation to improper purposes only extends
to ‘competing’ powers in an Act in force at the passing of the Town and
Country Planning Act where the authority is concerned with the ‘regulation’
of any development of land.
11.10 Total Unreasonableness

Lord Greene MR in Associated Provincial Picture Houses characterised any admin-
istrative act as having been performed ‘unreasonably’ in law where, for exam-
ple, there is a failure to take account of relevant considerations. The same
description would apply to any act motivated by unlawful, improper purposes.
However, Lord Greene goes on to say such unreasonableness in law can also
cover a situation where ‘... a decision on a competent matter is so unreasonable
that no reasonable authority could even come to it’. Clearly, any such decision
will be regarded in law as being ultra vires not because it is affected by irrele-
200
vant considerations, failure to take into account relevant considerations or

improper purposes, but because it is such an extreme decision that the court
will assume that Parliament could never have intended that any reasonable
authority would use the statutory powers in that way. In the GCHQ case, Lord
Diplock chose to use the term ‘irrationality’ to denote ‘unreasonableness’ in the
Wednesbury sense. In his Lordship’s opinion, an irrational decision is ‘a decision
which is so outrageous in its defiance of logic or of accepted moral standards
that no sensible person who had applied his mind to the question to be decided
could have arrived at it’.
There are very few authentic examples of the court’s use of this ground for
the review of discretionary powers. One of the best examples is the Court of
Appeal decision in Hall & Co v Shoreham-by-Sea Urban District Council (1964).
The local planning authority granted planning permission subject to a number
of conditions, one of which was that the developer should construct a road on
his land to be dedicated to the public, as and when required by the authority.
This condition was held to be totally unreasonable and therefore ultra vires on
the basis that there was interference with the developer’s property rights with-
out a payment of compensation. There was no suggestion that the condition
was influenced by irrelevant considerations since the provision of roads is
clearly relevant where planning powers are exercised. Consequently, it is the
extreme requirements of the condition alien to the presumed limits of the pow-
ers in the Act that render it totally unreasonable. In R v Hillingdon London
Borough Council, ex p Royco Homes Ltd (1974) planning permission was granted
for the construction of flats subject to conditions which included the require-
ments that they should first be occupied by persons who had been on the hous-
ing waiting list for 12 months and that such persons should have security of
tenure for 10 years from the date of occupation. These conditions were found to
be totally unreasonable and ultra vires, again on the grounds advanced in Hall.
However, Royco Homes is not as clear an example of unreasonableness as Hall
if it is accepted that the local planning authority was influenced at the outset by
an irrelevant consideration, ie the provision of housing. In other words, if the
provision of housing is not a legally relevant consideration for the purpose of a
planning decision that would have been the simpler ground on which to base
the conclusion about the legality of the conditions.
Accordingly, total unreasonableness is a ground for the review of discre-
tionary decisions, eg wherever they are beyond challenge by reference to irrele-
vant considerations or improper purposes. Total unreasonableness may also
apply to any decision which cannot reasonably be justified on the evidence so
that no other reasonable authority would have come to that decision (Banks
Horticultural Products Ltd v Secretary of State for the Environment (1979)). Again,
such a conclusion must be justified only on the ground that Parliament could
not have intended that the powers should be exercised except by reference to a
certain minimum ‘quantity’ or ‘quality’ of evidence. This variety of total unrea-
201
sonableness serves to emphasise the great difficulty in using and applying this
ground for review. Indeed, of the few cases apparently decided by reference to
total unreasonableness, it is clear that they could have been decided, as perhaps
is the case in Royco Homes, eg by reference to irrelevant considerations or
improper purposes. A prime example is Backhouse v Lambeth London Borough
Council (1972), previously seen in the section of Chapter 4 dealing with audit.
Although it was decided that the resolution containing the proposal to increase
the rent of one council house was totally unreasonable, the case could have been
decided quite easily by reference to a failure to take into account some relevant
consideration contemplated by the Housing Finance Act.
11.11 Proportionality
Whilst the discussion in this chapter has, in part, focused on the accepted
grounds for review of administrative decisions, it is worth emphasising that
such grounds rarely exist in isolation; it is by no means uncommon for a deci-
sion to be susceptible to review for more than one reason as was indicated when
improper purposes and relevant considerations were discussed above. In addi-
tion, it would appear that the grounds for review are by no means closed. This
point was made by Lord Diplock in the GCHQ case where his Lordship
observed that:
That is not to say that further development on a case by case basis may not
in course of time add further grounds. I have in mind particularly the possi-
ble adoption in the future of the principle of ‘proportionality’ which is recog-
nised in the administrative law of several of our fellow members of the
European Community.
The principle of proportionality is, as Lord Diplock implied, a general principle
of EU law and as such, it has been relied upon where the legality of an EU mea-
sure has been contested, or alternatively, in relation to a challenge against a
national measure seeking to implement an EU provision. Proportionality as a
ground for review does not question the objective or the end sought, rather, it
alleges that the means of achieving the objective were disproportionate; they
were in excess of what was necessary to bring about the intended result. Put
more colloquially, it could be argued that a disproportionate administrative
decision gives rise to the same effect that would occur were a sledgehammer
used to crack a nut. The status of the principle of proportionality in domestic
administrative law is not entirely settled at present.
In the leading case of R v Secretary of State for the Home Department, ex p Brind
(1991), where journalists sought judicial review of directives issued by the
Home Secretary which had the effect of placing a ban on the direct broadcasting
of statements made by terrorists and the supporters of terrorism, the House of
Lords rejected proportionality as a separate ground for review. Concern was
expressed at the perceived constitutional dangers inherent in the acceptance of
202
the principle. It was felt by Lord Roskill and Lord Ackner that if the courts
showed a willingness to review administrative decisions on the basis of propor-
tionality, there was every likelihood that they would become involved in an
inquiry into the merits of the decision which is of course beyond the remit of the
court in judicial review proceedings. However, such sentiments do not mean
that proportionality will not ultimately become part of English administrative
law. Lord Bridge in Brind felt that incorporation will eventually take place some
time in the future, and then of course there are the remarks of Lord Diplock in
GCHQ referred to earlier. In addition, there have been cases where the principle
of proportionality has been either expressly or implicitly referred to, the most
notable of these being R v Barnsley Metropolitan Borough Council, ex p Hook (1976)
where a market stallholder had his licence revoked after he had been caught
urinating in a side street by two council workmen after the closure of the public
lavatories. Whilst the case was decided on the basis that the principles of nat-
ural justice had not been complied with during the course of an appeal hearing
conducted in relation to the revocation of the licence, two of the three members
of the Court of Appeal were prepared to discuss the facts in terms of ‘propor-
tionality’ during the course of their judgments. Sir John Pennycuick felt that the
loss of the licence amounted to a too severe punishment for what was an iso-
lated and trivial incident. Lord Denning went still further and contended that
the decision of the corporation could be quashed solely on the basis of the dis-
proportionate nature of the punishment since a review of the authorities
revealed that a court ‘can interfere by certiorari if a punishment is altogether
excessive and out of proportion to the occasion’. Subsequent judicial decisions
have not embraced the principle of proportionality with quite the same vigour
as did the majority of the Court of Appeal in Hook, but it is possible to discern
traces of the principle in decisions such as Wheeler v Leicester City Council (1985)
and R v Lewisham London Borough Council, ex p Shell UK Ltd (1988) where it tends
to co-exist with other, more widely accepted grounds for review. If proportion-
ality does ultimately achieve judicial acceptance as a separate ground for
review, as seems likely, it will have to be treated with caution by the courts so
as to avoid any suggestion that they are flagrantly exceeding the bounds of their
supervisory jurisdiction.
203
PART 4: REMEDIES FOR UNLAWFUL AND IRREGULAR
ADMINISTRATIVE ACTION
12 Administrative Remedies
12.1 Administrative and Judicial Remedies

Contrasted
A remedy can be described as an administrative remedy where it is provided
for by statute and does not involve recourse to a court of law. Whatever the sta-
tus of the remedy, be it administrative or judicial, the law provides such a facil-
ity for the purposes of enabling an individual to challenge administrative
action. The nature and effect of any such challenge allowed by a remedy will
depend on a wide range of factors. In the case of the administrative remedy, it is
usual to find that the challenge available through the remedy permits a com-
plete re-examination of a decision or some other administrative action. In the
case of judicial remedies, which are the subject of the next chapter, the law
seeks to ensure that administrative action takes place according to the require-
ments of the law. If it does not then the individual who is aggrieved and has a
sufficient interest in the matter, eg as the person directly affected by a decision,
should be able to apply to the appropriate court for one of the judicial remedies.
Such a judicial remedy is likely to be available once any administrative reme-
dies have been exhausted. Where, for example, a local planning authority has
served an enforcement notice under the Town and Country Planning Act alleg-
ing unlawful development without planning permission there is an appeal
against the notice to the Secretary of State for the Environment and a further
appeal on a point of law to the High Court against his appeal decision.
Sometimes there may be a limit placed on any challenge to the validity of a
decision taken by an administrative agency on an appeal through the use of an
ouster clause of the sort described in Chapter 11. Such a clause might state that:
‘... the validity of any decision shall not be questioned in any proceedings what-
soever’ and appears to make the decision final and conclusive. However,
important decisions in cases like Anisminic v Foreign Compensation Commission
(1969) which are dealt with in Chapter 11 show that the decision of the adminis-
trative agency concerned may be final and conclusive in relation to its intra vires
facts and merit but not on matters of law. Because it is the High Court which is
the final arbiter on matters of law and legality, there is always the possibility
204
ADMINISTRATIVE REMEDIES
that the decision’s legality can be challenged through one of the statutory or
non-statutory remedies to be described in the next chapter. It is not unusual to
find that Parliament has already addressed itself to the question of the status of
the decision which emerges from an administrative remedy like an appeal. It
has been seen in Chapter 5 that the decisions of some administrative tribunals
are subject to a statutory appeal on a point of law to the High Court. A decision
of the tribunal affected by an error of law can be taken to the High Court
although one of the non-statutory remedies, certiorari, could be employed to
quash the decision where the error was considered so fundamental as to render
it ultra vires. In some instances and particularly in relation to decisions of the
Secretary of State for the Environment in the area of town and country planning
and compulsory purchase, it will be seen in the following chapter that an ouster
clause often protects the decision while statutory provision is made for the lim-
ited terms on which the High Court can review its legality.
12.1.1 Varieties of administrative remedy

The administrative appeal is probably the best-known of the administrative
remedies. There are two categories of appeal which are of considerable practical
significance: appeals from decisions and other administrative action taken by
local authorities and appeals from the decisions of government departments.
Examples of these appeals are given in Chapter 4 on local government and in
Chapter 5 on administrative tribunals. In the case of local authorities, one of the
best-known appeals is that which is available to an applicant for planning per-
mission where the local planning authority has refused planning permission or
granted it subject to conditions. The appeal is to the Secretary of State for the
Environment who is at liberty to look at the case afresh (perhaps with the help
of a statutory inquiry) so that he could, for example, impose conditions which
were even more stringent than those appealed against. The procedural require-
ments for these appeals are outlined in Chapter 9. Appeals from some local
authority decisions go to administrative tribunals, as with disputes concerning
Council Tax valuations, which go to the local valuation tribunals. Many appeals
from decisions of government departments relate to welfare rights where the
usual practice, as seen in Chapter 5, is to give an appeal against an adverse deci-
sion to an appropriate tribunal. Whatever the destination of an appeal, statutory
rules of procedure will set out the detailed requirements for the process indicat-
ing the nature of any documentation required, time limits to be observed and so
on. In some cases there are very distinct procedural requirements arising from
an appeal, as in the case of appeals to the Social Security Appeal Tribunals
where the initial decision is automatically reviewed when the appeal is notified.
In general, the administrative appeal stands out as the most common rem-
edy for the person who is in some way affected by administrative action. There
are, of course, other, more limited remedies for the individual such as the audit
procedures dealt within Chapter 4 and the facilities for complaint to the appro-
205
priate minister in central government concerning the alleged failure of an

administrative agency to undertake its statutory responsibilities. This latter
facility will be dealt with later in the chapter. In addition, the individual can
complain of maladministration which has caused him injustice at the hands of
any one of a variety of different administrative agencies. Such a complaint of
intra vires maladministration will go to one of the ombudsmen and this impor-
tant remedy is described in Chapter 15. In any description of administrative
remedies it should not be forgotten that such remedies may be available to
agencies within a system of administration in order to permit some control of
other agencies. Again, there are references to remedies such as directions and
other default powers in Chapter 4 in the context of central government’s control
of local authorities as well as in Chapter 6.
12.2 Administrative Remedies and the Question of

Legality
At the beginning of this chapter it was seen that where any challenge to a deci-
sion or other action is through an administrative remedy such as an appeal,
there can be a complete re-examination of the decision. In other words, all the
intra vires merits of the decision can be re-appraised and, if necessary, the
appeal body can substitute its own decision for that made originally and which
has now been brought to appeal. However, when the original decision is made
by the administrative agency it may be suspected, on the basis of legal advice,
that the legality of the decision is in doubt. It may be suspected, for example,
that the decision is, in fact, ultra vires. For the individual who is affected by the
decision there may be something of a dilemma. The decision may be made in
respect of that activity from which he proposes to earn his livelihood. The
licensing authority may have granted a licence by its decision but imposed per-
haps onerous conditions. Should the individual pursue an administrative
appeal in the hope that the onerous conditions might be lifted, or should he
attempt to challenge the legality of the decision as a whole by applying to the
High Court for one of the judicial remedies in administrative law? If the latter
course is possible and the High Court found that the decision was ultra vires, that
decision would probably be quashed or declared a nullity, so enabling the indi-
vidual to start all over again with a fresh application to the licensing authority.
12.2.1 Administrative versus judicial remedies

For the individual faced with the dilemma described above there is the vital
question of whether, in law, it is possible to go for the judicial remedy in the
High Court where there is an administrative remedy already provided. The
answer to this question emerges from the decision in R v Hillingdon London
Borough Council, ex p Royco Homes Ltd (1974) where the administrative remedy
206
was the appeal to the Secretary of State for the Environment against a condi-
tional grant of planning permission by a local planning authority while the judi-
cial remedy was an order of certiorari from the High Court to quash the decision
by reference to ultra vires conditions. The crucial point was whether certiorari
was available or whether the High Court would have to admit that the only
remedy was the administrative remedy provided in this case by the Town and
Country Planning Act. The Act provides that the applicant who is aggrieved by
the decision of a local planning authority on an application for planning permis-
sion ‘... may by notice ... appeal to the Secretary of State’. On the face of it, the
word ‘may’ seems to indicate that there is an option so that the aggrieved appli-
cant does not necessarily have to take that route. It was decided by the High
Court that the judicial remedy, ie in this case, the order of certiorari, would be
available in a ‘proper’ case, where the only issue (as in this case) is the legality
of a decision. Consequently, in any case where the only complaint about a deci-
sion is its legality, eg where there is an error of law on the face of the record, the
administrative remedy can be ignored in favour of the judicial remedy from the
High Court. The then Lord Chief Justice, Lord Widgery, giving judgment sum-
marised the position by saying that:
Whether the issue between [the parties] is a matter of law or fact, or policy or
opinion, or a combination of some or all of those, one hearing before the
Secretary of State has jurisdiction to deal with them all, whereas of course an
application for certiorari is limited to cases where the issue is a matter of law ...
12.2.2 Administrative and judicial remedies serving the

same purpose
It has been seen in the previous section that the two types of remedy available
may not necessarily serve the same purpose although there would have been no
objection to an appeal to the Secretary of State by Royco Homes under s 36.
Indeed an administrative appeal is likely to be the cheaper option unless the
parties become embroiled in an expensive public inquiry into the issues before
the final decision is made. Had Royco Homes appealed against the conditions
attached to its planning permission, a finding by the Secretary of State that they
were ultra vires would not have necessitated a dismissal of the appeal in view of
the fact that the Secretary of State can look at the application afresh and substi-
tute his own decision (Robert Hitchens (Builders) Ltd v Secretary of State for the
Environment (1979)). In another case from the background of town and country
planning, Pyx Granite Co Ltd v Minister of Housing and Local Government (1959),
the company sought a declaration (one of the judicial remedies to be described
in the next chapter) that their quarrying operations could be carried out without
planning permission because they were authorised by a ‘private Act of
Parliament’ (the Malvern Hills Act 1924) for the purposes of a statutory order
made under the Town and Country Planning Act. It was decided by the House
of Lords that it could grant the declaration sought. One member observed that:
207
‘It is surely proper that in a case like this involving ... difficult questions of con-
struction of Acts of Parliament, a court of law should declare what are the rights
of the subject who claims to have them determined’ (Viscount Simonds). In this
case, the court’s declaration served the same purpose as the administrative rem-
edy. This remedy, provided for in what is now s 64 of the Town and Country
Planning Act 1990, provides than any person who wishes to ascertain whether
proposed activities on land amount to ‘development’ requiring planning per-
mission ‘... may ... apply to the local planning authority to determine that ques-
tion’. In other cases where there is no overlap so that the respective remedies
serve different purposes the court will require that the administrative or any
other exclusive statutory remedy be followed, as in Barraclough v Brown (1897),
which was distinguished by the House of Lords as a different case in Pyx Granite.
In Barraclough the court was concerned with the statutory facilities which gave
the plaintiff an entitlement to claim his expenses arising from the recovery of
sunken vessels from the River Ouse. Such expenses were recoverable from a
magistrates’ court: this remedy, it was decided, was an exclusive remedy so that
the plaintiff could not obtain a declaration from the High Court in respect of the
validity of a claim, which was a matter entirely for the magistrates.
12.2.3 Exclusive administrative remedies

In the previous chapter reference was made to s 8 of the Education Act 1944 by
which a local education authority is obliged ‘... to secure that there should be
available for their area sufficient schools for providing full-time education’ suit-
able to the requirements of pupils. The statutory definition of such broad duties
is not uncommon: s 11 of the Water Act 1973 declared very broadly that: ‘It shall
be the duty of a water authority to supply water within their area.’ This broad
duty is now repeated in similar terms by the Water Industry Act 1991 in the
case of the privatised water companies. However, any alleged failure of an
administrative agency to undertake such a duty cannot be dealt with by means
of a judicial remedy such as mandamus, which would direct that a statutory duty
should be performed according to law. In many cases Parliament and the courts
have foreseen that these very broad duties depend for their performance on all
sorts of financial, economic and other variables. The Water Act 1989, for exam-
ple, contained many duties which are enforceable by the Director General of
Water Services and the Secretary of State through the service of provisional or
final enforcement orders. As a consequence, the courts have decided that such
duties (now consolidated in the Water Industry Act 1991) are not legally
enforceable directly, a conclusion which is often fortified by statutory provi-
sions which provide an alternative, exclusive remedy for those occasions when
there is a failure to perform the duty or, to use a technical legal expression, a
‘non-feasance’. Such a remedy is necessarily associated with default powers
exercisable by various ministers in central government departments as illus-
trated in a section of Chapter 4 dealing with this type of central government
208
control. One example mentioned in this section came from the Education Act
1944, s 99 of which states that:
If [the Secretary of State] is satisfied, either upon complaint by any person
interested or otherwise, that any local education authority ... have failed to
discharge any duty imposed upon them by or for the purposes of this Act
[the Secretary of State] may make an order declaring the authority ... to be in
default in respect of that duty, and giving such directions for the purpose of
enforcing the execution thereof as appear ... to be expedient; and any such
directions shall be enforceable, on an application made on behalf of [the
Secretary of State], by mandamus.
It will be seen from this provision that only at the end of the special procedure
is there any possibility of enforcement by the law, but only through the
Secretary of State’s application for an order of mandamus where any directions
have not been complied with.
209
13 Judicial Remedies
13.1 Judicial Remedies Generally

Despite the existence of a wide variety of administrative remedies such as the
appeal, described in the previous chapter, the individual who wishes to defend,
establish or assert his legal rights in the face of administrative action usually has
an opportunity of so doing before a court of law. In this context the individual
will look for the protection of the law through any one or more of the remedies
which can be granted by a court of law, hence the reference to ‘judicial reme-
dies’. In most cases the remedy sought will attempt to deal with an ultra vires act
or decision of an administrative agency in proceedings before the High Court,
which has the inherent power to review the legality of the actions and decisions
of administrative agencies and inferior courts. The judicial remedies for ultra
vires actions and decisions are the declaration, injunction, certiorari, prohibition
and mandamus which are described later in this chapter. It should not be forgot-
ten that on a prosecution for non-compliance with an administrative order,
notice, licence or some item of delegated legislation, it may be possible to raise
what is, in effect, a defence of ultra vires. This form of remedy would apply
equally to any civil enforcement where, again, the argument would be that there
can be no breach of or non-compliance with something which does not exist in
law, that is, something which is ultra vires. In some instances it is the case that
statutory administrative schemes provide for general appeals to an inferior
court where that court can look at the merits of any decision or other adminis-
trative action. In the case of such a general appeal the court has wide powers to
look afresh at the decision or other action and to substitute its own decision, for
example. Such general appeals are in contrast to the more restricted appeals on
a point of law which go to the High Court. Both categories of appeal are dealt
with in the present chapter which deals also with the limited remedy of dam-
ages in administrative law and the remedy of annulment before the European
Court of Justice in respect of unlawful administrative action within the
European Economic Community. It is proposed to deal first with the facilities
for appeals, followed by the High Court’s inherent powers of review by refer-
ence to the doctrine of ultra vires, the remedy of damages and the power of
annulment in the European Court of Justice.
210
JUDICIAL REMEDIES
13.2 Appeals
An appeal can be made to a court of law only where it is expressly provided for
by statute. As was stated in the opening section of this chapter, there are two
varieties of appeal: the general appeal and the appeal on a point of law. Each
variety is dealt with in turn.
13.2.1 The general appeal

A wide variety of statutory provisions contain facilities for appeals to inferior
courts and for present purposes three examples are given covering the magis-
trates’ courts, the county courts and the Crown Courts.
First, in the case of the magistrates’ courts one function, seen in Chapter 8,
may be to deal with appeals against licensing decisions of local authorities to
which applications are made by persons wishing to set up sex establishments.
The second example relates to the county courts’ responsibility for appeals
against repair notices served by local authorities in respect of houses which are
unfit for human habitation and which may or may not be repairable at reason-
able expense, as was explained in Chapter 5. Finally, the Crown Courts have
dealt with appeals in connection with the validity of a local authority’s rate as it
affects a particular individual or hereditament. In each case the scope of the
court’s powers on appeal depends on the particular statutory provision. In the
case of an appeal to a county court against a repairs notice, the county court
judge is empowered to uphold, vary or quash a repairs notice. Similar powers
exist under the Housing Act 1985 where the county courts also deal with
appeals from improvement notices served by local authorities requiring the pro-
vision of standard amenities such as a bath and toilet in a house. Once again, a
key factor is ‘reasonable expense’ and it is not uncommon to find that an appeal
is being pursued on the ground that standard amenities cannot be provided at a
reasonable expense so that the improvement notice should be quashed. In this
case, the decision of the court whether to vary or quash the notice will depend
on whether or not the cost of providing the standard amenities is more than any
resulting increase in the value of the house on the market. Any such decision
relates to the merits of the original decision of the local authority to serve the
improvement notice, the crucial characteristic of an appeal which distinguishes
it from review where the High Court is concerned only with the question
whether a decision or other administrative action is outside the statutory pow-
ers, ie ultra vires.
13.2.2 The appeal on a point of law

Such appeals are clearly more restricted in that the court is concerned only with
questions of law, its interpretation and application. As was seen in Chapter 5,
the decisions of various tribunals included in Schedule 1 of the Tribunals and
211
Inquiries Act 1992 are subject to an appeal on a point of law to the High Court
or, in more limited cases, the Court of Appeal.
Although the appeal on a point of law is primarily a feature of decision-mak-
ing by administrative tribunals, there is one important instance where a minis-
ter’s decision is subject to an appeal on a point of law. This is in relation to the
decision of the Secretary of State for the Environment on an appeal against an
enforcement notice served by a local planning authority under the Town and
Country Planning Act 1990. Many such appeals are undertaken annually when
the task of the High Court often centres on the question of whether, as a matter
of law, the Secretary of State was right to confirm an enforcement notice alleg-
ing unlawful ‘development’ (as defined by the Act) without planning permis-
sion. Whether the decision subject to an appeal on a point of law is that of a
tribunal or a minister, it is usual for there to be a requirement that if some error
or mistake of law is found by the High Court the case is remitted back to the tri-
bunal or minister for reconsideration and a fresh decision.
A person’s legal standing or status (locus standi) to bring an appeal is closely
controlled. In the case of tribunals, if the procedural rules say nothing about
locus standi then the Tribunals and Inquiries Act requirement will apply, that is,
that an appeal may be brought by ‘... any party to proceedings ... dissatisfied’
with a decision. At the outset it was emphasised that the appeal is restricted to a
point of law. This is clearly of fundamental importance and has been empha-
sised by the High Court in many cases, of which Jolliffe v Secretary of State for the
Environment (1971) is typical. In that case the judge, Lyell J, referring to the
appeal on a point of law from the decision of the Secretary of State on an
enforcement notice appeal, stated that:
The Court is not a court of appeal from the minister’s decision. Its powers
are closely circumscribed by statute, and it should not be tempted into substi-
tuting its own judgment for matters which fall to be decided by the minister.
13.3 Review
While an appeal can be pursued only where statute provides for an appeal, the
High Court has an inherent power to review the legality of acts and decisions of
administrative agencies and inferior courts. This supervisory jurisdiction of the
High Court operates by reference to the rules of law described in Chapters 9 to
11. Although the High Court’s inherent power of judicial review owes much of
its development to the common law, statute has intervened quite frequently in
recent times in order to amend or cut down the inherent powers of judicial
review possessed by the High Court. Statute has intervened in two ways:
(1) to replace the inherent power of judicial review with a review process whose
terms are found very largely in the legislation governing certain areas of
decision-making and referred to in the present chapter as ‘statutory review’;
and
212
JUDICIAL REMEDIES
(2) to streamline the system of remedies in judicial review according to the

High Court’s inherent powers under a relatively new procedure known as
the application for judicial review.
Despite the intervention of statute in this latter case in order to deal with the
substantive changes in law relating to what are essentially, discretionary reme-
dies, the procedures by which the remedies are sought continue to be governed
by the Rules of the Supreme Court. In the next sections of this chapter it is pro-
posed to describe the remedies which are available in the review process under-
taken by the High Court, including a special section on statutory review, before
going on to deal with the process referred to by the Rules of the Supreme Court
as the application for judicial review which governs procedures for judicial
review, with the exception of statutory review.
13.4 The Declaration

This discretionary remedy is one which confirms the legal status of a relation-
ship and is now widely used in administrative law, even though it does not
coerce or force a party to do or refrain from doing anything.
13.4.1 Uses of the declaration in administrative law

The declaration has its most obvious use on those occasions when it is declared
that the act or decision of an administrative agency is ultra vires, as in the lead-
ing case of Anisminic v Foreign Compensation Commission (1969) seen in Chapter
11. The remedy can be used also where a relationship is affected by a breach of
natural justice, as seen in Chapter 10 (Ridge v Baldwin (1963)), where it is desired
to challenge the legality of delegated legislation, as seen in Chapter 8
(Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury
Mushrooms Ltd (1972)), and where it is desired to establish that an administra-
tive agency is bound by an act or statement of its representative, as seen in
Chapter 9 (Lever (Finance) Ltd v Westminster (City) London Borough Council
(1970)). Most of these principal examples of the uses of the declaration indicate
that in administrative law it is a remedy which, if granted, usually confirms that
the act or decision of an administrative agency is ultra vires, that is, null and
void. As such, the declaration is clearly unsuited to and will not be granted in
respect of a merely voidable decision which is affected by an error of law on the
face of the record which was explained in Chapter 11. In Punton v Ministry of
Pensions and National Insurance (No 2) (1964) it was found that a decision of a
National Insurance Commissioner was intra vires but voidable, being affected by
an error of law on the face of the record. Unlike a remedy such as certiorari,
which is dealt with later in this chapter, the declaration does not quash a deci-
sion, that is, it is not a ‘coercive’ remedy. Consequently, in this and similar
cases, to grant a declaration would leave two decisions in force, the voidable
213
decision of the Commissioner and the court’s declaration. In these circum-

stances therefore, the remedy of certiorari is needed in order to quash the void-
able decision so that from the date of quashing it has no force in law so that no
one can rely on it for any purpose.
The scope of the declaration in administrative law has been further consid-
ered, on this occasion by the House of Lords, in Equal Opportunities Commission
v Secretary of State for Employment (1994). The Commission sought declarations
in judicial review proceedings that certain provisions of the Employment
Protection (Consolidation) Act 1978 were not compatible with EU law regarding
equal pay and equal treatment of workers. Thus the application amounted to a
challenge to the legality of primary rather than delegated legislation. It was
argued by the Commission that the provisions of the 1978 Act relating to the
right to statutory redundancy pay and compensation for unfair dismissal
amounted to indirect discrimination since the Act imposed thresholds, in terms
of the number of hours worked in each week, which ensured that part-time
male workers had more statutory rights than part-time female workers who
formed the great majority of those who fell below the threshold of 16 hours per
week. One of the central issues for the House of Lords to consider was whether
a court had the jurisdiction to make a declaration that the domestic law of the
UK was not in conformity with EU law. It was argued on behalf of the Secretary
of State that declaratory relief would only be available in judicial review pro-
ceedings where one of the prerogative orders would be available under Order
53. However, the House of Lords refused to accept that the effect of Order 53
was that a declaration can only be made in lieu of a prerogative order. As Lord
Browne-Wilkinson observed:
I have sought to demonstrate that the history of declaratory relief, authority
and the terms of Order 15, r 16 all point to the court having power to make a
declaratory judgment in judicial review proceedings brought by a plaintiff
who has locus standi, whether or not the court could also make a prerogative
order.
The decision in the Equal Opportunities Commission case thus highlights the
increasingly flexible and pragmatic approach taken by the courts in relation to
the declaration. Evidently the procedural reforms that were made to the reme-
dies in administrative law following the recommendations of the Law
Commission, which are considered later in this chapter, have not been such as
to prevent the granting of declaratory relief by itself. Prior to 1977, it was by no
means uncommon for a plaintiff to seek to obtain a declaration of public rights
in civil proceedings provided that it could be shown that there was sufficient
locus standi. Indeed, it was this avenue that was pursued by the plaintiffs in both
Ridge v Baldwin and Anisminic v Foreign Compensation Commission.
214
JUDICIAL REMEDIES
13.4.2 Exclusion of the declaration

It has been seen in the previous section that a declaration will not be granted in
respect of a voidable decision. There are other circumstances in which (usually
as a matter of discretion) the remedy will be excluded, where:
(1) there is some alternative statutory remedy;
(2) the issue before the court is purely hypothetical; and
(3) some alleged right or interest is not recognised by the law.
As to the first area of exclusion, there probably needs to be clear statutory
words (Barraclough v Brown (1897)) as seen in the previous chapter on adminis-
trative remedies. The second area of exclusion is well illustrated by the decision
in Blackburn v Attorney General (1971) where a challenge to the treaty-making
powers of the Crown was unsuccessful. The challenge arose from a suggestion
that accession to membership of the EEC by the UK as a result of signing the
Treaty of Rome would lead to an irreversible loss of some of Parliament’s sover-
eignty. Whether or not this would have been the case was regarded by the
Court of Appeal as being purely hypothetical, for which reason the court
declined to intervene by refusing the declaration sought. The third area of
exclusion, where some alleged right or interest is not recognised by the law,
arose in Malone v Metropolitan Police Commissioner (1979) where a declaration
was sought, to the effect that telephone tapping was contrary to the European
Convention on Human Rights. The declaration was refused and the case served
to emphasise that telephone tapping was not unlawful, eg as an unlawful tres-
pass on a person’s property, and that the European Convention has no legally
enforceable status in the UK. The Interception of Communications Act 1985 now
defines an offence of intercepting communications transmitted by post or
through a public telecommunication system. The Secretary of State is authorised
to allow certain interceptions, subject to safeguards.
In addition to the foregoing categories of exclusion, it should be noted that
there is one further category of exclusion – locus standi, ie where the applicant
for a declaration does not have the requisite standing, status or interest in the
issue before the court to qualify for an award of the remedy. Before the locus
standi requirements for the declaration are examined, a section of the chapter will
be devoted to locus standi requirements generally as they affect the remedies.
13.4.3 Locus standi generally

Where an individual is directly affected by the decision or other action of an
administrative agency, eg as an applicant for a licence, he will have locus standi
and so should be able to seek to obtain his remedy to deal with what he alleges
to be an ultra vires decision. This assumes, of course, that the allegation can be
established before the court and that other requirements for the remedy sought,
such as an order of certiorari to quash, are present. Cases involving such a direct
215
interest in the issue before the court do not usually raise any problems of locus
standi, unlike those where a person has a less than direct interest. Typically,
such a person will stand in a weaker position than the person with a direct
interest. This being the case, the court has to decide whether Parliament could
have intended that the applicant should have had any enforceable rights in rela-
tion to the administrative agency, its actions and decisions under the statutory
provisions in question. It will be seen in a later section of this chapter devoted to
the application for judicial review in the Queen’s Bench Division of the High
Court that most applicants for the administrative law remedies are now
required to establish that they have a ‘sufficient interest’ in the matter before the
court. The underlying test for sufficiency of interest is to be found in the House
of Lords’ decision in Inland Revenue Commissioners v National Federation of Self-
Employed and Small Businesses Ltd (1981). In this case it was seen that, by virtue
of a well-established practice in Fleet Street, casual workers on national newspa-
pers received their wages without tax deductions. In order to avoid tax deduc-
tions, such workers did not give their true names on receipt of wage packets.
Later an arrangement was made by which it was agreed between the employ-
ers, workers and the Commissioners that there would be a tax amnesty in
respect of unpaid tax prior to 1977 in return for an agreement that the workers
would register for the assessment of tax in the future. The Federation, claiming
to represent a body of taxpayers, sought a declaration that the tax amnesty was
unlawful and an order of mandamus directing the Commissioners to assess and
collect tax from the workers as required by law. Among other things, it was
decided by the House of Lords that the Federation did not have a ‘sufficient
interest’ in the issues before the court so that the remedies were not available.
The basis for this part of the decision is the nature of the Commissioners’ statu-
tory responsibilities. Lord Roskill, one member of the House of Lords, explained
the position as follows:
The Revenue are responsible for the overall management of the relevant part
of the taxation system ... and for the assessment and collection of taxes from
those who are, by law, liable to pay them. Such assessment and collection is
a confidential matter between the Revenue and each individual tax-payer.
Such confidence is allowed to be broken only in those exceptional circum-
stances for which the statute makes express provision ... It is clear that the
Federation is seeking to intervene in the affairs of individual taxpayers ...
[H]aving regard to the nature of the Revenue’s statutory duty and the degree
of confidentiality enjoined by statute which attaches to their performance ...
in general it is not open to individual taxpayers or to a group of tax payers to
seek to interfere between the Revenue and other taxpayers.
Another member of the same court in this case, Lord Fraser, summarised the
present law of locus standi in a statement of principle now applicable whenever
it is necessary to ascertain whether an applicant has a ‘sufficient interest’ for any
of the remedies of declaration, injunction, certiorari, prohibition or mandamus.
He stated that:
216
JUDICIAL REMEDIES
... a direct financial or legal interest is not now required, and ... the require-
ment of a legal specific interest is no longer applicable. There is also general
agreement that a mere busybody does not have a sufficient interest. The dif-
ficulty is, in between those extremes, to distinguish between the desire of a
busybody to interfere in other people’s affairs and the interest of the person
affected by or having a reasonable concern with the matter to which the
application relates. In the present case that matter is an alleged failure by the
Revenue to perform the duty imposed on them by statute. The correct
approach in such a case is ... to look at the statute under which the duty
arises, and to see whether it gives any express or implied right to persons in
the position of the applicant to complain of the alleged unlawful act or omis-
sion.
In the recent case of R v Inspectorate of Pollution, ex p Greenpeace (No 2) (1994), the
applicants, Greenpeace, sought judicial review of a decision taken by Her
Majesty’s Inspectorate of Pollution and the Minister of Agriculture, Fisheries
and Food to grant applications by British Nuclear Fuels plc (BNFL) for varia-
tions of statutory authorisations which it had been granted to discharge radioac-
tive waste from its thermal oxide reprocessing plant (THORP) at Sellafield in
Cumbria. Although the substantive application failed, the case is of interest in
the context of the locus standi question since Otton J considered that despite
arguments advanced by counsel for BNFL, Greenpeace, which had some 2,500
supporters living in the immediate area, was more than a ‘meddlesome’ or
‘mere’ busybody; it did in fact have a sufficient interest in the matter to which
the application related. In determining the locus standi issue at the hearing of a
substantive application, it was felt that the court should take into account: the
nature of the applicant; the extent of his interest in the issues raised by the
application; the remedy which he sought to achieve; and, the nature of the relief
sought. Thus the earlier decision in R v Secretary of State for the Environment, ex p
Rose Theatre Trust Co (1990) was not followed where it had been held that an
interest group which had been set up solely for the purpose of saving the Rose
Theatre site did not have a sufficient interest in the matter.
In a further recent case the issue of locus standi was also of some importance.
In R v Secretary of State for Foreign Affairs, ex p World Development Movement Ltd
(1995), the applicants sought a declaration that the Foreign Secretary had acted
unlawfully by deciding to grant aid for the construction of a dam and hydro-
electric power station (the Pergau scheme) in Malaysia in the purported exercise
of powers under the Overseas Development and Co-operation Act 1980. In
granting the relief sought due to the fact that the project was economically
unsound and therefore not within the criteria for the grant of aid under the 1980
Act, the Divisional Court held that the World Development Movement Ltd had
a sufficient interest in the matter to which the application related. Their stand-
ing was based on a number of factors: the importance of vindicating the rule of
law; the importance of the issue raised; the likely absence of any other responsi-
ble challenger; the nature of the breach of duty against which the relief was
217
sought; the prominent role of the applicants in the tendering of advice, guid-
ance and assistance with regard to aid; and, the applicants’ national and inter-
national expertise and interest in the promotion and protection of aid granted to
underdeveloped countries. In addition, Rose J pointed to the fact that ‘the
authorities referred to seem to me to indicate an increasingly liberal approach to
standing on the part of the courts during the last 12 years’. In making such an
observation, it would appear that his Lordship particularly had in mind the case
of R v Secretary of State for Foreign and Commonwealth Affairs, ex p Rees-Mogg
(1994) where the Divisional Court held that Lord Rees-Mogg had standing to
challenge the UK’s ratification of the Treaty on European Union (the Maastricht
Treaty) ‘because of his sincere concern for constitutional issues’. It may perhaps
be argued that this is a somewhat tenuous reason for holding that the applicant
had a sufficient interest in the matter, but before concluding that the Rees-Mogg
case is evidence of a modern, increasingly liberal approach taken by the courts
in relation to the issue of standing, it should be remembered that in 1971 the
Court of Appeal was prepared to consider a challenge to the UK’s accession to
the Treaty of Rome by an individual even if ultimately the challenge failed
because this exercise of the prerogative power was held not to be susceptible to
review (Blackburn v Attorney General).
13.4.4 Locus standi for the declaration

It is by no means easy to generalise about the cases where locus standi has been
in issue, very largely because each case depends on its own facts and individual
judges’ perceptions of the statutory background to administrative action and
decisions for the purpose of deciding whether an applicant has a sufficient
interest in relation to the remedy sought. In the Equal Opportunities Commission
case, a majority of the House of Lords were of the opinion that the Commission
did have locus standi to seek declarations that certain UK primary legislation
was inconsistent with EU law. In a number of earlier cases such as Equal
Opportunities Commission v Birmingham City Council (1989), it had never been
suggested at any stage in the proceedings that the Commission lacked the nec-
essary standing. Furthermore, the duties of the Commission under the Sex
Discrimination Act 1975 included working towards the elimination of discrimi-
nation which was what the Commission were in effect trying to achieve in the
present proceedings in the context of equal pay and equal treatment for male
and female part-time employees.
A further two cases in this section come from the area of planning law. In
Steeples v Derbyshire County Council (1981) the applicant for declarations was
found to have locus standi. The County Council had by resolution granted itself
planning permission to develop land as a leisure park, but the applicant per-
suaded the High Court that the decision had been taken in breach of certain
statutory requirements under the Town and Country Planning Act. The
strongest justification for the finding of locus standi lay in the fact that part of the
218
JUDICIAL REMEDIES
proposed development involved the taking of a section of the applicant’s land

so that it could be said that his private rights were affected. This was not the
case in Gregory v Camden London Borough Council (1966) where, again, the appli-
cant sought a declaration that the decision of the local planning authority was
ultra vires. The applicant was a neighbour of a convent for which the authority
had decided to grant planning permission for the erection of school buildings. It
was decided that the applicant did not have locus standi for a declaration since
the Town and Country Planning Act did not give ‘third parties’ like Gregory
any legally enforceable rights against the local planning authority. It will have
been seen in the previous chapter that the applicant for planning permission
does have locus standi to challenge the legality of a local planning authority’s
decision on an application (R v Hillingdon London Borough Council, ex p Royco
Homes Ltd (1974)). In the case of Gregory involving a third-party neighbour, it
appears that his remedies may be limited to objections made to his local council-
lor in advance of an application or complaints of maladministration causing
injustice made to a local Commissioner for Administration. Two cases involving
certiorari – Covent Garden Community Association Ltd v Greater London Council
(1981) and R v North Hertfordshire District Council, ex p Sullivan (1981) – appear to
put this view of the law in some doubt. These cases will be dealt with later
under the section on certiorari. In many instances it is the task of the court to dis-
tinguish between an applicant’s private rights and interests as they appear from
statutory provisions, and purely public rights, which the individual cannot
enforce in proceedings in his own name. The only exceptions to this latter
proposition occur where the individual has suffered some special damage or
loss peculiar to himself or where his own private rights are some way affected
(Boyce v Paddington Borough Council (1903)). In Gouriet v Union of Post Office
Workers (1977) it was decided by the House of Lords that only the Attorney
General could sue on behalf of the public for an injunction to restrain a public
wrong, more particularly a trade union threat to interrupt postal services to
South Africa, contrary to provisions in the Post Office Act 1953. In the same way
only the Attorney General could seek declarations as to the scope of public
rights. Because Gouriet had no private rights at stake and had not suffered any
loss or damage from the threatened interruption of postal services, he had no
locus standi. Had Gouriet’s mail been interrupted then his case would have been
similar to that in Dyson v Attorney General (1911) where the plaintiff claimed that
a notice served on him by the Inland Revenue Commissioners requiring certain
returns within 30 days subject to a penalty, contained an unlawful requirement.
Although other taxpayers could have made a similar claim, the court granted a
declaration that the plaintiff was not obliged to comply with the notice since he
was defending his own private rights and was not seeking to act on behalf of
the public.
Finally, in Barrs v Bethell (1981) three ratepayers sought declarations against
the local authority and some of the controlling councillors to the effect that there
had been a breach of the duty owed to ratepayers in the way in which the
219
authority’s finances were managed. The case was brought in the Chancery
Division of the High Court whereas most cases involving dispute about admin-
istrative action in public law now have to be brought before the Queen’s Bench
Division through the procedure known as the application for judicial review,
which is explained later in the chapter. This latter procedure is in two stages,
where the first stage requires the applicant to prove a ‘sufficient interest’ in the
matter to which the application relates before he can go to the trial of the full
case in the second stage. It was therefore decided in Barrs that, apart from this
procedure and the audit procedure, which was covered in Chapter 4, a
ratepayer was not able to sue the local authority except with the permission of
the Attorney General, whose role and status will be dealt with in the next sec-
tion on injunctions, unless the ratepayer could show some interference with a
public right from which he has suffered damage peculiar to himself.
13.5 The Injunction

Unlike the declaration, the injunction is a coercive remedy which requires a
party to proceedings before the court to discontinue or to undertake some speci-
fied act. In practice it is not uncommon to find that the court is asked for a dec-
laration that some act of an administrative agency is ultra vires, and an
injunction to prevent any reliance on or enforcement of the act. Indeed, there are
some striking similarities between the declaration and the injunction, particu-
larly in relation to questions of locus standi. In addition, there are circumstances
in which the court may as a matter of discretion exclude the remedy, eg where
the applicant is guilty of delay, as in Bates v Lord Hailsham (1972) where the
application was made at 2pm for an injunction to restrain certain acts which
may have taken place at 4.30pm on the same day where the proposals had been
known for 10 weeks in general terms and for four weeks in specific terms. Other
grounds for exclusion of the remedy include the availability of some alternative
statutory remedy and any situation in which the applicant has suffered nothing
more than a trivial loss or damage.
13.5.1 Varieties of injunction

There are three varieties of injunction:
(1) prohibitory;
(2) mandatory; and
(3) interlocutory.
13.5.2 The prohibitory injunction

This is perhaps the best-known of the injunctions in so far as it seeks to restrain
any action which is found to be contrary to law. As such, it is employed in vari-
220
JUDICIAL REMEDIES
ous areas of interest to administrative law. One of the more obvious areas con-
cerns ultra vires acts of administrative agencies, as in Sydney Municipal Council v
Campbell (1925), a case which was covered in Chapter 11. Breaches of statutory
duty may be restrained by the prohibitory injunction, as in Attorney General, ex
rel McWhirter v Independent Broadcasting Authority (1973) where a temporary
injunction was at first granted against the Independent Broadcasting Authority
to prevent the showing on television of an Andy Warhol film. The injunction
was sought by reference to the Authority’s duty in s 3(1)(a) of the Television Act
1954 ‘... to satisfy themselves that, so far as possible ... nothing is included in the
programmes which offends against good taste or decency or is likely to be
offensive to public feeling’. A third area where the prohibitory injunction is
used is in relation to continuing breaches of the criminal law where the courts
have had little difficulty in resisting the argument that breaches of the criminal
law should be prosecuted in the usual way without resort to the injunction. One
of many examples is Attorney General v Sharp (1931) where bus operators could
only operate with a licence from the local authority. Failure to adhere to the
licensing system was a criminal offence. Sharp operated buses without a licence
and was accordingly fined on many occasions for continuing offences where-
upon the Attorney General, acting at the request of the local authority, applied
for and obtained an injunction to restrain the unlicensed bus services. Failure to
comply with any such injunction is a contempt of court for which imprisonment
is a penalty. On some occasions, the normal process of criminal prosecution
may be ineffective in the face of some unlawful act which will bring lasting
damage or loss unless it is restrained quickly by injunction. In Attorney General v
Melville Construction Co Ltd (1968) an injunction was granted in order to restrain
any further felling of trees protected by tree preservation orders, even though
there had been no criminal prosecution. The leading statement of principle is
now to be found in the House of Lords case of Stoke on Trent City Council v B &
Q (Retail) Ltd (1984) where it was said that generally a local authority ‘... should
try the effect of criminal proceedings before seeking the assistance of the civil
courts [but can] take the view that the [defendants] would not be deterred by a
maximum fine ...’
13.5.3 The mandatory injunction

This form of the injunction commands a person to act according to law where
the applicant has a private right which arises out of a failure to perform some
public duty. In Attorney General v Bastow (1957), the defendant had been fined
on several occasions for failing to comply with an enforcement notice requiring
the removal of caravans from a site which did not have the benefit of planning
permission. Eventually, the Attorney General applied for and obtained an
injunction on behalf of the local authority. The injunction was mandatory in
directing that the offending caravans should be removed from the site. It may
be difficult to obtain a mandatory injunction against an administrative agency
221
where the effect of such an injunction would be to bind that body to undertake
specified acts for the benefit of an individual where those acts would frustrate
or compromise the performance of statutory responsibilities (Dowty, Boulton
Paul Ltd v Wolverhampton Corporation (No 1) (1971)).
13.5.4 The interlocutory injunction

The interlocutory injunction is intended to preserve the status quo between the
parties until the issue or issues between them can be tried fully. The court will
grant an interlocutory injunction where:
(1) there is a serious question to be tried, and
(2) the court decides that on the balance of convenience the injunction should be
granted (American Cyanamid Co v Ethicon Ltd (1975)).
Where the interlocutory injunction may be granted against an administrative
agency there could be potential problems which were recognised by the Court
of Appeal in Smith v Inner London Education Authority (1978). The Court of
Appeal allowed an appeal against interlocutory injunctions on the ground that
the Authority’s action in introducing comprehensive education was lawful:
those who had opposed the reorganisation of secondary education failed to
show the court that there was a real prospect of success in any later action for
permanent injunctions. It was emphasised that the interlocutory injunction
applies to bodies exercising public duties in the same way as it applies to other
individuals and organisations. However, Browne LJ added that:
... where the defendant is a public authority performing duties to the public
one must look at the balance of convenience more widely, and take into
account the interests of the public in general to whom those duties are owed.
One final point concerns the usual practice whereby an undertaking is expected
from the applicant in proceedings for an interlocutory injunction to the effect
that he will indemnify the defendant against any loss where it is found later that
the injunction should not have been granted. However, where it is the Crown
which acts as applicant for an interlocutory injunction, such an undertaking is
not normally required. This was the case in Hoffman-La Roche & Co AG v Secretary
of State for Trade and Industry (1974) where the Secretary of State sought an injunc-
tion in order to enforce an order which reduced drug prices, pending a later
decision on its legality. The injunction was granted and the strong view of the
House of Lords was that because it is the Crown’s duty to see that the law is
enforced, there should be no legal liability to any person or organisation alleged
to be in breach of the order, which is presumed to be legally valid until it is set
aside. In a recent case, Kirklees Metropolitan Borough Council v Wickes Building
Supplies Ltd (1992), where a local authority sought an interlocutory injunction to
restrain a do-it-yourself retailer from trading on Sundays contrary to the Shops
Act 1950, the House of Lords held that the special privilege afforded to the
Crown as law enforcer not to give a cross-undertaking in damages where such
222
JUDICIAL REMEDIES
relief was sought also applied to other public authorities, including a local
authority where it was exercising a law enforcement function in the public inter-
est. Furthermore, the fact that the respondent might have a defence based upon a
provision of the EEC Treaty did not require the court to extract an undertaking
in damages from the local authority since such an undertaking would be super-
fluous in view of the fact that the UK government would itself be under an oblig-
ation to remedy any damage suffered by the respondent as a consequence of its
own failure to ensure that its national law complied with EU law.
13.5.5 Locus standi for the injunction

The locus standi requirements for the injunction are very similar to those for the
declaration. Much of the law in this area has been clarified in Gouriet which was
described in the section on locus standi for the declaration. There are four cate-
gories of individuals and organisations with potential locus standi for the injunc-
tion:
(1) the Attorney General ex officio;
(2) the Attorney General ex relatione;
(3) the individual; and
(4) the local authority.
The first category is a recognition of the Attorney General’s status as the
defender of public rights and interests. Accordingly, the Attorney General may
take the initiative in seeking an injunction to restrain unlawful expenditure by a
local authority where (in the unlikely event) the auditor does not take action, for
example. Applications ex officio are the exception. The second category is a refer-
ence to the ‘relator action’ which arises where an individual does not appear to
have sufficient locus standi. In these circumstances, a request can be made to the
Attorney General to use his name in the proceedings. Whether the Attorney
General agrees to relator proceedings is entirely a matter for his discretion. In
recent times, the Attorney General refused relator proceedings in Gouriet but
agreed to them in McWhirter. Where relator proceedings are sanctioned, the
relator (the individual) bears the cost of the action. Coming to the third category
of the individual, whether he has locus standi for an injunction depends on the
statement of principle in Gouriet, previously referred to in the section on the
declaration. In that House of Lords decision, mention was made of an important
exception, the local authority, which is the final category. More particularly, this
exception refers to the provision in s 222 of the Local Government Act 1972
which states that:
... where a local authority consider it expedient for the promotion or protec-
tion of the interests of the inhabitants of their area –
(a) they may prosecute or defend or appear in any legal proceedings and, in
the case of civil proceedings, may institute them in their own name ...
223
Prior to the appearance of this provision on the statute book, local authorities
had to rely on relator proceedings in collaboration with the Attorney General.
Section 222 now allows a local authority to apply for an injunction in its own
name although specific powers to apply for injunctions still remain, eg under
the Environmental Protection Act 1990 where criminal proceedings for statutory
nuisances prove to be inadequate.
13.5.6 Injunctions and the Crown

In M v Home Office (1993) the House of Lords was required to consider issues of
quite considerable constitutional importance concerning the relationship
between the executive and the courts which arose out of a claim for political
asylum by a citizen of Zaire. The claim was rejected by the Home Secretary and
consequently, an application for judicial review of his decision was made to a
judge in chambers. At this point a misunderstanding occurred between counsel
for the Home Secretary and the judge who understood counsel to have given
him an undertaking that the applicant would not, pending a further hearing, be
returned to Zaire. However, that is exactly what did happen. Accordingly, the
judge issued a mandatory injunction directing the Home Secretary to procure
the return of the applicant. After having taken legal advice, the Home Secretary
declined to comply with the order and thus he became the subject of proceed-
ings for contempt of court. A unanimous House of Lords was of the opinion
that if a minister acted in disregard of an injunction made against him in his
official capacity, then a court was entitled to find him in contempt. Lord
Templeman observed that:
... the argument that there is no power to enforce the law by injunction or
contempt proceedings against a minister in his official capacity would, if
upheld, establish the proposition that the executive obey the law as a matter
of grace and not as a matter of necessity, a proposition which would reverse
the result of the Civil War.
In view of the fact that ministers of the Crown or government departments are
extremely unlikely to disobey decisions of the courts, the decision in M v Home
Office is as much important in terms of principle as it is in terms of practice.
Indeed, Lord Woolf, who gave the leading judgment in the case, drew attention
to the fact that whilst the courts have jurisdiction to grant interim and final
injunctions against government ministers, it was, despite this, a jurisdiction
which would not be exercised ‘except in the most limited circumstances’.
Nevertheless, the decision not only serves to emphasise the comparative separa-
tion between the judicial and executive functions of government in the British
constitution, but, it also reinforces the fundamental principle that the functions
of government must be performed in accordance with the law. In addition and
finally, the case casts considerable doubt upon the reasoning of Lord Bridge in
Factortame Ltd v Secretary of State for Transport (1989) where his Lordship
224
JUDICIAL REMEDIES
expressed the view that injunctive relief was not available against the Crown or
its ministers in judicial review proceedings.
13.6 Certiorari
Certiorari, prohibition and mandamus (the latter two will be dealt with later in
the chapter) are prerogative orders of great importance in the context of the
remedies available in administrative law. These prerogative remedies were his-
torically available only to the Crown and allowed the Crown an opportunity to
monitor the activities of administrative agencies and inferior courts to ensure
that they undertook their responsibilities according to law. Gradually these
remedies were made available for individuals without any need to seek the con-
sent of the Crown, and this explains the style of title for cases involving these
remedies: R (Regina: the Crown) v Slagborough District Council (the name of the
administrative agency against which the remedy is sought), ex parte (on behalf
of) Jones (the applicant)). As to certiorari itself, the order removes proceedings
from an administrative agency or inferior court with a view to any decision or
similar action being quashed on any one or more of three grounds.
13.6.1 The grounds for certiorari

The three grounds for certiorari are:
(1) ultra vires;
(2) breach of natural justice; and
(3) error of law on the face of the record.
Examples of each of these three grounds in action can be drawn from previous
chapters:
(1) ultra vires: R v Blackpool Rent Tribunal, ex p Ashton (1948) (Chapter 11);
(2) natural justice: R v Hendon Rural District Council, ex p Chorley (1933) (Chapter
10); and
(3) error of law on the face of the record: R v Crown Court at Knightsbridge, ex p
International Sporting Club (London) Ltd (1981) (Chapter 11).
13.6.2 Bodies amenable to certiorari

Certiorari may be obtained against the following bodies:
(1) administrative tribunals;
(2) inferior courts;
(3) local authorities;
(4) ministers of the Crown;
(5) miscellaneous statutory and non-statutory bodies exercising public functions.
225
In relation to the first category of administrative tribunals, it was seen in

Chapter 5 that a number of tribunals are within a special category where their
decisions are subject to an appeal on a point of law to the High Court or, more
rarely, the Court of Appeal. There are however, exceptions such as the
Immigration Appeals Tribunal whose decisions are subject to review only, prin-
cipally by certiorari. Inferior courts, such as the magistrates’ courts, are subject to
the High Court’s supervisory powers by way of judicial review. The supervi-
sion of such courts by the High Court provides a reminder that the magistrates
in particular undertook a great deal of local administration before the advent of
local authorities as we now know them. That local authorities are amenable to
certiorari means that, potentially, a great number of administrative powers are
subject to the control of the law. The opportunities for control by certiorari of
powers exercised by ministers of the Crown may not be as extensive as in the
case of local authorities, very largely because any scheme of statutory powers is
more likely to provide some exclusive system of statutory review, for example.
As will be seen in the later section on statutory review, such a remedy will
exclude the non-statutory remedies like the prerogative orders and substitute
what may be a more restricted opportunity for the review of the minister’s deci-
sions under a particular statutory scheme. Finally, in the catalogue of bodies
amenable to certiorari there is an ill-defined collection of miscellaneous statutory
bodies exercising various public functions. In Chapter 10 reference was made to
the disciplinary functions of prison boards of visitors in R v Hull Prison Board of
Visitors, ex p St Germain (1979), though it was also pointed out that such func-
tions have now been removed from the boards as a consequence of recommen-
dations made in the Woolf Report. In R v Police Complaints Board, ex p Madden
(1983) a decision of the Board was quashed by certiorari when it committed an
error of law in refusing to consider a complaint which the Director of Public
Prosecutions had decided did not justify the initiation of criminal proceedings.
Although certiorari applies to bodies created by statute, there has been one
notable exception on those occasions when decisions of the Criminal Injuries
Board (which was created under the prerogative) have been quashed. In the
first of these cases, R v Criminal Injuries Board, ex p Lain (1967), it appears that the
High Court was concerned only with the fact that the Board performs public
duties in conjunction with a duty to act judicially.
13.6.3 Certiorari and the duty to act judicially

As a general rule it can be said that certiorari applies to statutory bodies per-
forming public duties with an obligation to act judicially. It was seen in Chapter
10 that the duty to act judicially arises where a body has legal authority to make
decisions or take action which affects the rights of subjects (R v Electricity
Commissioners, ex p London Electricity Joint Committee Co (1920) Ltd (1924) and
Ridge v Baldwin (1963)). In practice, the definition of this requirement has been
very flexible. On the one hand, it may not be difficult to identify a duty to act
226
JUDICIAL REMEDIES
judicially in a case like R v Crown Court at Knightsbridge, ex p International

Sporting Club (London) Ltd (1981) involving a decision of the Crown Court. On
the other hand, it may be somewhat more difficult to conclude that a local
authority has a duty to act judicially in deciding an application for planning
permission as in a case like R v Hillingdon London Borough Council, ex p Royco
Homes Ltd (1974). Bearing in mind that the Town and Country Planning Act 1947
took away an individual’s virtually unfettered legal right to develop his land, it
can be argued that wherever he applies for planning permission to develop the
land, he does so as a person without any rights, that is, he is applying to regain
his right to develop. In view of this argument, it is perhaps as well that the courts
have usually adopted a much wider view of the duty to act judicially.
13.6.4 Certiorari and private bodies

Whereas certiorari applies to statutory bodies, including the prerogative
Criminal Injuries Compensation Board, as previously described, it does not, of
course, apply to purely private, domestic organisations. Accordingly, the rem-
edy would not be available to challenge the legality of decisions of trade unions
and professional organisations, for example, where the relationship between
member and union or organisation is based on a privately concluded contract.
By way of illustration, in R v British Broadcasting Corporation, ex p Lavelle (1982),
Miss Lavelle, a tape examiner employed by the BBC, was dismissed from her
employment as a result of what was described as a disciplinary interview and a
decision of the managing director of BBC Radio upholding the formal letter of
dismissal. The justification for dismissal was the unauthorised removal of tapes
from the BBC. It was decided by the court that an order of certiorari was not
available: although the BBC was a public corporation the matter in issue related
to a private employment dispute and the decision of a domestic tribunal. It was
pointed out that the scheme for obtaining certiorari and the other prerogative
orders, through the application for judicial review prescribed by s 31 of the
Supreme Court Act 1981 and Order 53 of the Rules of the Supreme Court, is
concerned only with activities of a public nature. In the important Court of
Appeal decision in R v Panel on Takeovers and Mergers, ex p Datafin (1987), it was
decided that the Voluntary City Panel for Take-overs and Mergers (which
enforces a voluntary code between companies in this field) is amenable to judi-
cial review because it performs a public duty of a judicial nature that affects
indirectly the rights of shareholders. The considerable powers that the panel
enjoys in ‘devising, promulgating, amending and interpreting the City Code on
Take-overs and Mergers’ did not owe their origin to statute or the prerogative,
and neither were they founded on any sort of contractual relationship with
those involved in the work of the financial market. Nevertheless, in the opinion
of the Court of Appeal, the panel which is ‘supported and sustained by a
periphery of statutory powers and penalties’ operated very much in the public
domain and accordingly, it is a body which is susceptible to judicial review.
227
Dealing with the question of the jurisdiction of the courts in judicial review pro-
ceedings, Sir John Donaldson MR observed that:
In all the reports it is possible to find enumeration of factors giving rise to
the jurisdiction, but it is a fatal error to regard the presence of all those fac-
tors as essential or as being exclusive of other factors. Possibly the only
essential elements are what can be described as a public element, which can
take many different forms, and the exclusion from the jurisdiction of bodies
whose sole source of power is a consensual submission to its jurisdiction.
In Datafin, it was argued that since the panel was exercising a decision-making
power in which there was, as later described by Simon Brown J in R v Chief
Rabbi of the United Hebrew Congregation, ex p Wachmann (1992), a ‘governmental
interest’, it therefore followed that judicial review was available. This argument
has been seized upon in later cases such as R v Advertising Standards Authority
Ltd, ex p Insurance Services plc (1990) where it was held that the decisions of the
Advertising Standards Authority were subject to judicial review and R v Code of
Practice Committee of the Association of the British Pharmaceutical Industry, ex p
Professional Counselling Aids Ltd (1990) where the court concluded that the com-
mittee is also a body subject to judicial review. The same applies to the func-
tions of the Civil Service Appeal Board, dealing with employment disputes in
the public service: R v Civil Service Appeal Board, ex p Bruce (1988). It is also clear
from Bank of Scotland, Petitioner (1988) that the self-regulatory organisations in
the financial markets, set up under the Financial Services Act 1986 perform suf-
ficiently public, administrative tasks, to be amenable to judicial review.
The effect of Datafin has thus been to bring the decisions of a number of non-
statutory bodies within the supervisory jurisdiction of the courts. However, in a
string of cases concerned with applications for judicial review of the decisions
of sports governing bodies such as Law v National Greyhound Racing Club Ltd
(1983), R v Football Association, ex p Football League (1993), and, R v Disciplinary
Committee of the Jockey Club, ex p Aga Khan (1993) where the Aga Khan sought
among other things an order of certiorari to quash the decision of the Jockey
Club to disqualify his horse for failing a dope test following its victory in the
1989 Oaks, the courts have steadfastly refused the invitation to extend their
supervisory jurisdiction to such bodies. Despite the fact that these domestic tri-
bunals enjoy powers which the courts have readily acknowledged as being vir-
tually monopolistic, it is the view of the courts that the relationship between the
body and the applicant in these cases is essentially contractual in nature.
Accordingly, any disputes arising between these parties are to be settled via the
private law rather than by way of an application for judicial review, the princi-
ples of which have been designed for the control of the abuse of power by gov-
ernment.
228
JUDICIAL REMEDIES
13.6.5 Locus standi for certiorari

Once again it can be said that locus standi is not a problem for the person
directly affected by some administrative decision or other action, as in R v
Hillingdon London Borough Council, ex p Royco Homes Ltd (1974). In other problem
cases involving third parties, reference has to be made to the requirement of a
‘sufficient interest’ as explained in the Inland Revenue Commissioners case (the
‘Fleet Street Casuals’ case). The question, therefore, is whether the statutory
background to the challenge gives the applicant any express or implied right to
complain of the allegedly unlawful act or decision. In the case of R v Hendon
Rural District Council, ex p Chorley (1933), the facts of which were seen in
Chapter 10, Chorley was a third-party neighbour of land for which planning
permission was obtained by a decision of the local planning authority which
was quashed by certiorari for bias. Although the locus standi of Chorley was not
discussed in the case, it may be explained by reference to the early Town and
Country Planning Act under which the decision was taken. Where a grant of
planning permission was made but later affected by a town planning scheme
preventing the implementation of the permission, compensation was payable,
the resources for which would come from the ratepayers, of whom Chorley was
one. Such a case may be categorised as one where the statute gave Chorley an
implied right to complain. In the later case of R v Bradford-on-Avon Urban
District Council, ex p Boulton (1964) (where the applicant, who merely used a
road through the area of the local planning authority each day, had no locus
standi to challenge the legality of a planning decision by the authority), the court
considered that Chorley had locus standi as an adjoining property owner. By
contrast, in Gregory, the case where a declaration was refused, the court consid-
ered that Chorley had locus standi as a ratepayer, the argument which is set out
towards the beginning of this section.
In two cases which were mentioned previously in the section on locus standi
for the declaration, Covent Garden Community Association Ltd v Greater London
Council and R v North Hertfordshire District Council, ex p Sullivan, it was decided
that third parties did have locus standi for the orders of certiorari although the
order was not granted in the first case because an ultra vires decision of the local
planning authority could not be established. In the Covent Garden case the local
residents’ interests were represented by the specially formed company which
attempted to challenge the legality of the council’s resolution to grant itself
planning permission. In Sullivan a neighbour succeeded in obtaining certiorari to
quash a decision granting planning permission and listed building consent in
respect of a development of land in relation to which she had been an objector
and which would have interfered with her privacy. However, it was assumed
without the point being argued that Sullivan had locus standi in this case, which
may cast some doubt on the authority of the decision. The Covent Garden deci-
sion does, on the other hand, strengthen the position of third parties in the pre-
sent context, but the question must be whether the present town and country
229
planning legislation expressly or impliedly permits a third party to complain

successfully to the High Court in respect of the legality of a decision of the local
planning authority. The alternative approach to that in the Covent Garden case is
that put forward in the declaration decision in Gregory, that the Act creates no
legally enforceable rights for the third party. The basis of this approach is that
the Act defines a very limited facility for objections and representations in
respect of applications for planning permission, involving the democratic
processes of the council (acting as guardian of the local planning process) and
its members. If the courts prescribe that third parties have locus standi for certio-
rari in this context, the argument would be that there is no express or implied
authorisation in the Act giving third parties such legally enforceable rights.
13.7 Prohibition
This remedy is very similar to the order of certiorari in seeking to prevent ultra
vires action or action in breach of natural justice pending a final decision by a
statutory agency exercising public functions with an obligation to act judicially.
By way of illustration, an order of prohibition was granted in R v Broadcasting
Complaints Commission, ex p Thames Television Ltd (1982) where the Commission
was restrained from continuing to deal with a complaint about the Czech dissi-
dent movement pending the outcome of legal proceedings for libel which were
associated with the complaint. In granting the order the court was enforcing a
provision of the Broadcasting Act 1981 which placed certain restrictions on the
Commission’s powers to deal with complaints. A second illustration comes
from R v Kent Police Authority, ex p Godden (1971), which was referred to in
Chapter 10. The chief medical officer of a police authority certified that a chief
inspector was suffering from a mental disorder. Thereupon, the policy author-
ity, wishing to retire the inspector compulsorily, was obliged by statute to refer
his medical condition to a doctor. The chief medical officer was selected for this
purpose but an order of prohibition was granted in view of the likely impact of
a decision on the inspector’s future and the fact that the chief medical officer
could have committed himself to a view in advance.
One final issue in relation to prohibition is the question of locus standi where
the impression is that the law’s attitude is perhaps more liberal than it can be in
the case of the other remedies, almost certainly because the order is an interim
remedy only. One of the most influential cases here is R v Greater London
Council, ex p Blackburn (1976) where it was decided that a Mr and Mrs Blackburn
had locus standi to prevent the local authority undertaking their film censorship
functions by reference to a test which was found to be legally invalid. The appli-
cants lived in the area of the local authority, Mrs Blackburn was a ratepayer and
they had children who might be affected by pornographic films.
230
JUDICIAL REMEDIES
13.8 Mandamus
This prerogative order requires anybody obliged to perform a public duty by
statute to perform that duty according to law. In most cases mandamus has been
employed to compel the performance of a clear statutory duty on any occasion
when the administrative agency has plainly and unlawfully refused to under-
take the duty at the request of a person intended by Parliament to benefit from
it. The need for a public duty means that mandamus would not be available to
enforce a private duty arising by virtue of a contract, for example.
13.8.1 The legally enforceable duty

Mandamus can be used only in relation to a duty which, as a public duty, is also
specifically enforceable. Such a duty, it was decided in R v Kerrier District
Council, ex p Guppys (Bridport) Ltd (1976), occurs in s 189 of the Housing Act 1985
which states that:
... where a local authority ... are satisfied that any house is unfit for human
habitation, they shall, unless they are satisfied that it is not capable at a rea-
sonable expense of being rendered so fit, serve upon the person having con-
trol of the house, a notice requiring him ... to execute works specified in the
notice ...
In this case it was decided that the local authority had refused unlawfully to
serve a repairs notice so that an order of mandamus was available to enforce the
specific public duty characterised by the use of the word ‘shall’ in the provision.
In other words, once the requirements of the section were satisfied, the local
authority had no choice but to serve the notice. By contrast, the duty formerly
set out in s 14 of the Water Act 1973 was not specifically enforceable. The section
declared that: ‘It shall be the duty of every water authority to provide ... such
public sewers as may be necessary for effectually draining their area’. As with
any of the general duties covered in the previous chapter, the only remedy
appears to be a complaint to the minister. Where, following any inquiry into
such a complaint, the minister chose to issue directions, compelling compliance
with some requirement arising from the duty, failure to comply with the direc-
tions was dealt with through the minister’s statutory power to apply for man-
damus in these circumstances.
In the same way that mandamus cannot be used to enforce a general duty, the
order cannot be used to enforce the performance of a discretionary power. In Re
Fletcher’s Application (1970) mandamus was refused when it was sought in order
to compel the Parliamentary Commissioner for Administration to investigate a
complaint of maladministration made by the applicant. The court had no hesita-
tion in finding that whether a complaint is investigated is entirely a matter for
the Parliamentary Commissioner according to the words of the Parliamentary
Commissioner Act 1967 which state that: ‘In determining whether to initiate ...
an investigation under this Act, the Commissioner shall ... act in accordance
231
with his own discretion.’ However, it is always possible that a discretionary

power could be found to be linked with a duty and therefore enforceable by
mandamus. This was the case in the important House of Lords decision in
Padfield v Minister of Agriculture (1968), which has been encountered already in
Chapters 9 and 11. Because the Agricultural Marketing Act gave rise to a well-
defined object, the minister’s discretion could be exercised only in conformity
with that object. In other words, the minister could do nothing other than to
refer a complaint to a committee without frustrating the object of the Act. The
importance of this decision in Padfield lies in the fact that the potential scope of
mandamus in judicial review has been extended considerably.
13.8.2 The scope of mandamus

In its application to the enforcement of public, specifically enforceable statutory
duties, the order of mandamus extends to administrative and judicial functions.
In this latter respect, therefore, it can be seen that the remedy had a wider cover-
age than certiorari and prohibition and would apply equally to a statutory duty
to undertake an investigation as well as to a duty to adjudicate a licensee’s
application for the renewal of a licence, for example. It was even suggested in R
v Commissioner for Metropolitan Police, ex p Blackburn (1968) that mandamus might
have been granted had the Commissioner not withdrawn a policy directive that
aspects of the gaming laws should not be enforced by the police. One argument
in this case was that mandamus should be refused because the applicant could
resort to a suitable alternative remedy with private prosecutions against those
who were allegedly acting in breach of the Gaming laws. Although the private
prosecution was rejected as a suitable alternative remedy in this case, the court
does have a discretion, as with the other remedies, to refuse an order of man-
damus where a suitable alternative remedy is shown to exist, eg an administra-
tive remedy such as an appeal to a tribunal or a minister. On some occasions the
court may have to employ its discretion in potentially difficult circumstances as
seen in R v Bristol Corporation, ex p Hendy (1974). In this case the court was con-
cerned with the duty of a local authority to provide suitable alternative accom-
modation, where such accommodation is not otherwise available on reasonable
terms, for any person displaced from accommodation for various reasons such
as the demolition of a house by virtue of a demolition order served under the
Housing Act 1985. Hendy had to vacate his flat when another Housing Act
order, a closing order, required that it should not be occupied for the purposes
of human habitation. Thereupon the local authority provided Hendy with tem-
porary accommodation until more suitable, permanent accommodation was
available. It was decided by the court that the local authority’s statutory duty
had been satisfied. In his judgment, Scarman LJ justified the court’s decision by
saying that:
... if, in a situation ... there is evidence that a local authority is doing all that it
honestly and honourably can to meet [a] statutory obligation, and that its
232
JUDICIAL REMEDIES
failure, if there be failure, to meet that obligation arises out of circumstances

over which it has no control, then I would think it would be improper for the
court to make an order of mandamus compelling it to do that which either it
cannot do or which it can only do at the expense of other persons not before
the court who may have equal rights with the applicant and some of whom
would certainly have equal moral claims.
13.8.3 Locus standi for mandamus

The order of mandamus was refused by the House of Lords in the ‘Fleet Street
Casuals’ case, referred to earlier in the chapter. As to the broad legal principle in
that case, it is difficult to speculate whether some of the older cases would have
been decided in the same way had they occurred after the decision in the ‘Fleet
Street Casuals’ case. R v Commissioner for Metropolitan Police, ex p Blackburn
referred to previously is one of the more interesting cases. Blackburn sought an
order of mandamus as a private citizen in order to compel the Commissioner to
enforce the gaming laws. The Court of Appeal appeared to doubt whether
Blackburn had locus standi although one member of the Court of Appeal
thought that mandamus would be available to a householder where a chief con-
stable directed that no housebreaker should be prosecuted in the district. In R v
Hereford Corporation, ex p Harrower (1970) the Corporation placed a contract with
the Electricity Board for the provision of central heating in council flats.
Standing orders were broken because the Corporation did not seek tenders. The
Corporation maintained a list of approved electrical contractors who now
sought an order of mandamus requiring compliance with the standing orders.
That order of mandamus was granted but only by reference to the applicants’
status as ratepayers. The court also suspended the order to permit suspension of
the standing orders in question. Whether there is locus standi in cases like these
will continue to depend on the courts’ conclusion as to whether the applicant
has an implied right to complain of an unlawful decision or other action. While
the first case of Blackburn would probably be decided in the same way, there
may be a greater difficulty for the ratepayer if the locus standi requirements in
Barrs v Bethell, albeit a declaration case, represent a trend in judicial policy.
13.9 The Application for Judicial Review

In 1976 the Law Commission published a report entitled Remedies in
Administrative Law (Law Com No 73) which pointed to the deficiencies of the
law then governing the remedies available to the individual intent on question-
ing the legality of administrative action in proceedings before the High Court. A
section of the report headed ‘The dilemma of the litigant seeking judicial
review’ observed that:
The scope and procedural particularities of one remedy may suit one case
except in one respect; but another remedy which is not deficient in this
233
respect may well be unsatisfactory from other points of view; and to add to
his difficulties he may not be able to apply for both remedies in one proceed-
ing.
The report proceeds to summarise the deficiencies, looking first at the declara-
tion. It was noted that the declaration is available in respect of a wide range of
acts, proposed acts or omissions of public authorities, including the Crown.
Proceedings, it was said, can be initiated without leave, that is, the consent of
the court, without any time limit constraint and with the advantage of full dis-
covery, that is, the production by order of the court of documents and similar
evidence connected with the claim. However, the declaration only states the
legal position: it does not order or prohibit any action, it does not quash and
there are doubts about locus standi. The report then observes that where the liti-
gant looks to the prerogative orders to avoid the disadvantages of the declara-
tion, he may lose some of the advantages of the declaration. Certiorari, for
example, appeared to be more generous in relation to locus standi although leave
to apply was necessary, discovery was not normally available, any application
for the remedy had to be made within six months for the decision and claims for
damages or an injunction could not be joined to the application for certiorari. A
similar situation was seen to exist with mandamus and prohibition which,
although they do not apply to the Crown, were subject to conditions similar to
those for certiorari in relation to leave and discovery. Finally, it was suggested
that the litigant, wishing to avoid the disadvantages of the declaration, might
resort to the injunction. This remedy, it was said, gave the same advantages as
the declaration in relation to the absence of leave, the full discovery of docu-
ments and the facility for joining a claim for damages or a declaration. Interim,
interlocutory injunctions are available to preserve the status quo between the
parties, but the injunction does not lie against the Crown.
13.9.1 Recommendation for reform: the application for

judicial review
At the conclusion of the Law Commission’s report there was a basic recommen-
dation:
... that there should be a form of procedure to be entitled an ‘application for
judicial review’. Under cover of the application for judicial review a litigant
should be able to obtain any of the prerogative orders, or, in appropriate cir-
cumstances, a declaration or injunction. The litigant would have to specify in
his application ... which particular remedy or remedies he was seeking, but if
he later desired to apply for a remedy for which he had not initially asked he
would be able with the leave of the court to amend his application.
This recommendation was implemented with effect from 1 January 1978, when
Order 53 of the Rules of the Supreme Court was amended accordingly. Some of
the changes were confirmed by s 31 of the Supreme Court Act 1981.
Nevertheless, references throughout will be to ‘Order 53’.
234
JUDICIAL REMEDIES
13.9.2 Remedies available on an application for judicial

review
Any application for certiorari, prohibition and mandamus is required always to
be made under the Order 53 procedure known as the application for judicial
review. The same is true of the declaration and injunction where either or both
are sought in proceedings to challenge the legality of the actions or decisions of
administrative agencies, that is, public authorities, arising from the exercise of
their powers in public law. In other words, the Order 53 procedure will have to
be used by a person seeking to establish that an administrative agency has acted
ultra vires its statutory powers. On the other hand, such a person would be free
to apply by writ to the Chancery Division of the High Court for a declaration
where he is asserting that a local authority had no easement or right of way
across his land, for example. In this latter case, the issue arises from the private
law relationship between a landowner and another and does not involve the
public, administrative law remedies prescribed by the Order 53 procedure. This
important distinction is developed in a later section of the chapter.
13.9.3 Procedures and other requirements

Where the application for judicial review is made, any of the foregoing reme-
dies may be claimed in the alternative or in addition to the remedy sought.
Consequently, a declaration might be sought to the effect that the decision of an
administrative agency is ultra vires, with an injunction to prevent any reliance
on that decision by the agency.
The application for judicial review cannot be made unless the applicant has
first obtained leave, that is, the permission of the Queen’s Bench Division of the
High Court. The application for leave is dealt with by a single member of that
court and it is the task of the applicant by sworn evidence to establish that he
has a ‘sufficient interest’ in the matter to which the application relates. Even
where it is decided that the applicant has ‘sufficient interest’ and can proceed, it
was decided by the House of Lords in the ‘Fleet Street Casuals’ case that this
question of locus standi can be examined again and decided on when, at the sec-
ond stage, the application comes to full trial. Suffice it to say at the moment, that
the application for leave is designed as a filter to eliminate busybodies for the
protection of the public, administrative agencies. Indeed, at this stage the
administrative agency is not involved: the court is concerned only with the
applicant’s affidavits setting out his case. In granting leave, the court can
impose conditions as to matters like costs. Any application has to be made
promptly and in any event within three months from the date when grounds for
the application first arose unless the court considers that there is good reason
for extending that period. Where it is considered that there has been undue
delay in making an application, the application for leave or for any of the reme-
dies can be refused where otherwise there would be undue hardship or detri-
235
ment to good administration. Good administration has to be understood from

the point of view of the applicant and the person who may be subject to any
remedy granted. The court will take account of the length of any delay and
whether it is excusable, whether any action or inaction of an agent is attribut-
able to the applicant, any further inexcusable delay following an application, a
respondent’s behaviour and any contribution to the delay, any adverse impact
that may occur through a refusal of relief, any adverse affect on the respondent
or third party through the grant of a remedy and the extent of any adverse
impact on good administration: R v Dairy Product Quotas Tribunal, ex p Caswell
(1988). In R v Stratford-on-Avon District Council, ex p Jackson (1985) an application
for leave to apply outside the required period of three months was allowed
because (through no fault of the applicant) there had been difficulty in obtain-
ing a legal aid certificate.
Where leave is granted notice of the proceedings is served on those who are
directly affected, together with all relevant supporting documents. At the hear-
ing of the application the court is able to amend the statement of claim by speci-
fying different or additional grounds or remedies. This facility means that
where the initial application is for (say) a declaration that a decision is ultra vires
that is, null and void and of no effect, the application can be amended so that
the claim is for certiorari to quash where it becomes clear that the decision is
merely voidable. This power to amend is a notable feature of Order 53.
Whatever the content of an application the court can award damages if speci-
fied. The subject of damages is taken up in a later section of this chapter. Order
53 also provides for applications in respect of the discovery of documents (sub-
ject to some restrictions in the case of the Crown examined in Chapter 14), and,
in particular, those held by an administrative agency concerned with the pro-
ceedings, together with applications for interrogatories and cross-examination.
Proceedings in this context are normally conducted by reference to the parties’
evidence contained in their affidavits, eg where one side will contend that there
has been an ultra vires decision while the other will dispute the allegation.
Consequently, the more traditional format of a trial involving questioning,
cross-questioning and the discovery of documents is not commonly found in
proceedings on an application in the present context. Indeed, there appears to be
a well-founded fear that if this more traditional format does not become more
common there would be a temptation for the court to substitute its own views of
the facts and merits of a case thus likening the court to a court of appeal whereas
its only concern here is with the legality of an administrative action or decision.
There are two final points about procedure. First, where an application is made
for certiorari and the court finds that there are grounds for quashing, the decision
may be quashed and remitted to the administrative agency for reconsideration
and a fresh decision in a manner similar to the procedure on an appeal on a point
of law in the High Court. The administrative agency is perfectly at liberty to
decide the matter in the same way as the decision which was quashed, provided
that in so doing it acts intra vires. Secondly, where an application has been made
236
JUDICIAL REMEDIES
for a declaration, an injunction or damages and the court considers that any such
remedy should not be granted, eg because the main issue is the applicant’s rights
in private law, the court can order that the proceedings should continue as
though they were begun by writ in another court.
13.9.4 The importance of the application for judicial review

This procedure is recognised as containing important safeguards, primarily for
the benefit of the public, administrative agencies subject to the rules of public
law. These safeguards, some of which have been seen already, are as follows:
(1) the need for leave to apply;
(2) the court’s discretionary control of discovery, interrogatories and cross-
examination;
(3) the ability of the court to expedite the proceedings;
(4) the avoidance of the courts involvement in the intra vires facts and merits of
an application;
(5) the recognition of the consequences of delay in making an application;
(6) the channelling of applications through the Queen’s Bench Division of the
High Court with its judicial expertise in administrative law where the court
has considerable control over the proceedings, so enabling the foregoing
safeguards to be implemented.
13.9.5 The application for judicial review and the protection

of rights in public law
It has been seen that the remedies available in the present context are concerned
with the legality of action by public, administrative agencies arising from the
exercise of their powers in public law. The applicant under Order 53 is therefore
obliged to establish an infringement of his rights which are protected or mainly
affected by public law. If that applicant attempts to avoid Order 53 and, for
example, applies to the Chancery Division of the High Court for a declaration,
the court would be obliged to strike out the action as an abuse of the court’s
process (O’Reilly v Mackman (1982)). Whether a case is one which must be pur-
sued through the Order 53 procedure with its own special characteristics and
safeguards rather than any other procedure is a matter of some difficulty. In
O’Reilly it was decided by the House of Lords that a claim by a prisoner that a
prison board of visitors should stay within their statutory jurisdiction and com-
ply with the rules of natural justice should be dealt with under Order 53. In an
earlier case from the same context, Heywood v Hull Prison Board of Visitors (1980),
a prisoner who had been found guilty of certain disciplinary offences and pun-
ished by a board of visitors sought a declaration by writ in the Chancery
Division that the decision was a nullity by virtue of breaches of natural justice.
It was decided that although the remedies – the application by writ to the
237
Chancery Division for a declaration and the Order 53 procedure – were in the
alternative, the characteristics of and safeguards contained in Order 53 meant
that that procedure should be used. The decision shows the importance of the
need for leave to apply in Order 53, a requirement that does not apply in the
proceedings before the Chancery Division. The decision also suggest some of
the practical difficulties in distinguishing between a procedure such as that by
writ for a declaration before the Chancery Division, as opposed to the Order 53
procedure before the Queen’s Bench Division. The process of discovering which
is the correct procedure through additional litigation in the courts could prove
very expensive and time-consuming for the individual. Some guidance emerges
from two recent cases. In the first, Cocks v Thanet District Council (1982), it was
decided by the House of Lords that a decision of a local authority under the
Housing (Homeless Persons) Act 1977 (now part of the Housing Act 1985) to the
effect that the applicant was intentionally homeless and not therefore entitled to
permanent housing accommodation could be challenged only under Order 53.
In such a case the individual applicant’s rights would be affected by what was
alleged to be an ultra vires decision. On the other hand, it was emphasised that
once a decision of a local authority, for example, to grant permanent housing
accommodation, had been given, this conferred private law rights.
Consequently, in the unlikely event of a local authority refusing to provide such
accommodation subsequently, the individual applicant would be able to look
beyond Order 53 for the legal enforcement of his rights in private law, for exam-
ple, through an action for damages for breach of statutory duty (Thornton v
Kirklees Metropolitan Borough Council (1979)). In the second case, Davy v
Spelthorne Borough Council (1983), it was decided that an injunction to restrain a
local authority’s implementation of an enforcement notice was a matter to be
dealt with under Order 53 since the notice was made by a public administrative
agency under public law powers with the intention that it should have effect
against the applicant. In addition it was considered important by the court that
the local authority should have the protection of the safeguards in Order 53. In
addition a claim for damages was made in respect of allegedly negligent advice
from the local authority as a result of which the applicant failed to appeal
against the enforcement notice. In this case the claim arose from and affected
the applicant’s rights in private law so that although such a claim for damages
could be pursued through Order 53, it would not be an abuse of the court’s
process if an alternative procedure was followed.
Both Cocks and O’Reilly v Mackman were distinguished by the House of
Lords in Wandsworth London Borough Council v Winder (1985). Here the council
sought possession of a house on the ground of non-payment of rent increases.
The tenant sought to defend himself on the ground that the increases were ultra
vires. The council unsuccessfully argued that such a defence should be
processed through an application for judicial review in the High Court. The
House of Lords disagreed: the tenant was complaining about infringement of
his rights in private law, not public law; the tenant had not started the proceed-
238
JUDICIAL REMEDIES
ings; the tenant was not wanting to gain some right or entitlement from a public
authority, as in Cocks; there was a need for a speedy decision on the dispute in
the interests of good administration; the tenant had not started the proceedings
and merely sought to exercise his right to advance a defence against the claim.
By contrast, in Avon County Council v Buscott (1988) a local authority decided to
bring proceedings against trespassers. However, the Court of Appeal found that
the court below was right to refuse an adjournment to allow argument of a case
that eviction was unreasonable through the alleged failure of the Council to pro-
vide sites for gipsies. This matter had to be raised in Order 53 proceedings; no
defence was raised on the merits of the case as in Winder.
The decision in Cocks has been followed in the recent case of Ali v Tower
Hamlets London Borough Council (1992), where the issue before the court was
whether the alleged failure of the council to discharge its statutory duty under
ss 65 and 69 of the Housing Act 1985 to provide ‘suitable accommodation’ for
homeless persons could only be challenged by way of judicial review proceed-
ings as the council contended. In upholding the council’s appeal, the Court of
Appeal was of the opinion that whether or not accommodation was suitable
was a matter of subjective judgment for the housing authority. The public law
duties of the council were not discharged until the process of deciding on suit-
able accommodation had been completed. Therefore, since at this stage no pri-
vate law rights had accrued in favour of the applicant, he had been wrong to
bring an action for an injunction in the county court. Any challenge to the hous-
ing authority’s decision could only be made by way of judicial review proceed-
ings. On this basis, Ali can be distinguished from the decision in Roy v
Kensington and Chelsea and Westminster Family Practitioner Committee (1992). In
this case, Dr Roy commenced by writ an action against the Family Practitioner
Committee in respect of among other things, payment of part of his basic prac-
tice allowance to which he believed he was entitled but which the Committee
had withheld from him on account of the fact that in their view, he had failed to
devote sufficient time to his National Health Service work. The Committee
sought to have Dr Roy’s action struck out as an abuse of the process since it was
argued on their behalf that the issues raised by the case were public law issues
and that therefore, Dr Roy’s sole means of redress lay in judicial review pro-
ceedings. The House of Lords refused to accept this argument. Whilst Dr Roy
may or may not have been in a contractual relationship with the Committee, he
nevertheless had ‘a bundle of rights which should be regarded as his individual
private law rights against the Committee’, and one of these private law rights
was the right to be paid for the work that he had done. Accordingly, the effect
of the rule in O’Reilly v Mackman is not such as to prevent a litigant possessed of
a private law right from seeking to enforce that right by an ordinary action even
when the proceedings necessarily involve a challenge to a public law decision.
239
13.9.6 Proposals for reforming judicial review

The Law Commission has recently returned to this area of administrative law in
its report Administrative Law: Judicial Review and Statutory Appeals (Law Com No
226) in which it proposes a series of reforms which it considers ought to be
made to the judicial review procedure as well as making certain recommenda-
tions with regard to the concept of public interest challenges. Dealing with the
procedural proposals first, among the Law Commission’s more important rec-
ommendations are that the term ‘leave to apply for judicial review’ ought to be
removed and replaced by a ‘preliminary consultation’ stage which would, save
in exceptional circumstances, be an exercise conducted on paper rather than by
way of an oral hearing. Whether or not the case would proceed beyond this pre-
liminary stage would depend on whether it was considered that there was a
serious issue to be determined. With regard to the time limit for judicial review,
the Law Commission is in favour of the retention of the three-month time limit
together with the requirement that judicial review ought to be promptly sought
within this three-month period. In addition, it is felt that an application ought
not to proceed to a substantive hearing where an applicant has been unable to
show that all alternative legal remedies have been exhausted. The Law
Commission is evidently anxious to ensure that judicial review proceedings
should only be pursued where the matter involved raises issues of a solely pub-
lic law nature, thus emphasising the exclusive nature of the remedy. In the
event that an applicant commences judicial review proceedings where a writ
action would have been more appropriate, it is possible, as was stated in a pre-
vious section, for the court to convert the proceedings to a writ action.
However, it has not been possible for an action begun by writ to be converted to
judicial review proceedings. The Law Commission now proposes that machin-
ery facilitating such a conversion ought to be put in place. Finally with regard to
the Law Commission’s recommendations for procedural reforms, it is suggested
that the rather archaic terms for the remedies which are available ought to be
changed on account of the fact that few people, including lawyers, can either
pronounce them or know what they imply. Accordingly, an order for certiorari
would subsequently be known as a quashing order, a prohibition would
become a prohibiting order, and, mandamus would be replaced by mandatory
orders.
Turning to the Law Commission’s recommendations in relation to public
interest challenges, principal among these is that an applicant’s standing should
no longer depend on whether they have a ‘sufficient interest’ in the matter to
which the application relates. It is recommended that the new test for standing
would be based upon either whether the court felt that the applicant had been
or would be adversely affected by the matter to which the challenge was made,
or, where the court considers that it is in the public interest for an application to
be made. In addition, it is argued that pressure groups and other unincorpo-
rated associations should be allowed to make applications for judicial review in
240
JUDICIAL REMEDIES
their own names. No doubt these recommendations will spark much debate
among those actively involved in the judicial review process. However, whether
these recommendations will ultimately receive statutory endorsement like their
1976 predecessors remains to be seen.
13.10 Statutory Review

In the case of some decision-making processes, Parliament has legislated to
eliminate the process of judicial review as described in this chapter. In its place
Parliament has legislated a special scheme of review, hence the expression
‘statutory review’ where statute dictates the substantive terms on which the
legality of decisions may be challenged in the High Court. Applications for
statutory review are a particular characteristic of the legislation governing town
and country planning and compulsory purchase. In both cases, the Secretary of
State for the Environment’s decisions are subject to review by a single judge in
the Queen’s Bench Division of the High Court. For present purposes, the statu-
tory review provisions of the Town and Country Planning Act 1990 will be used
as an illustration.
13.10.1 The background to statutory review

Sections 284 and 288 of the Town and Country Planning Act contain the facili-
ties for statutory review in respect of a full range of decisions by the Secretary of
State under the Act. In practice, the most significant decision is that on an
appeal from the decision of a local planning authority refusing planning per-
mission or granting planning permission subject to conditions. Section 284
states that, the validity of any decision shall not be questioned in any legal pro-
ceedings whatsoever.
13.10.2 The scope of statutory review

Section 284 sets out a fairly common formula for statutory review. Where a per-
son is aggrieved by a decision which is not within the powers of the Act or in
respect of which relevant procedural requirements have not been complied
with, he may apply to the High Court within six weeks of the decision. On such
an application for statutory review, the High Court may quash the decision if it
is found not to be within the powers of the Act, that is ultra vires. In the same
way, the High Court may quash a decision where relevant procedural require-
ments are not complied with and the interests of the applicant are substantially
prejudiced as a result.
241
13.10.3 The grounds for statutory review

The first ground, relating to substantive ultra vires, can be illustrated by refer-
ring back to Chapter 11 and, in particular, the case of H Lavender & Son Ltd v
Minister of Housing and Local Government (1970). The second ground relates to
the various rules of procedure which apply in the field of decision-making in
town and country planning, as described in Chapter 3. However, it will be
noticed that the court’s discretion to quash applies only where the applicant’s
interests have been substantially prejudiced. Consequently, the court would not
quash a decision affected by nothing more than a mere technical breach of the
rules in procedure.
13.10.4 The six-week limitation

The need to apply for statutory review within six weeks is the outstanding char-
acteristic of this form of review. The time limit here is absolute: there is no pos-
sibility of proceedings beyond six weeks, an issue which was referred to
previously in the section on ouster clauses in Chapter 11 (Smith v East Elloe Rural
District Council (1956)). The prescription of a six-week time limit does mean that
there can be certainty as to the status of a decision granting planning permis-
sion, for example, after a relatively short period of time. Accordingly, the devel-
oper can go ahead with his development without fearing challenges to the
legality of his planning permission. The same comment can be made in respect
of the many confirmed compulsory purchase orders subject to the same pattern
of statutory review.
13.10.5 The person aggrieved

Once again it is necessary to look at the locus standi requirements for what is in
practice a very important remedy. The applicant for planning permission who
wishes to challenge an adverse appeal decision of the Secretary of State for the
Environment who confirms the local planning authority’s refusal of planning
permission clearly has locus standi as a ‘person aggrieved’ (Buxton v Minister of
Housing and Local Government (1960)). The Town and Country Planning Act itself
specifies that the local planning authority has locus standi where the Secretary of
State reverses his decision on appeal. In Buxton the appeal against a local plan-
ning authority’s decision resulted in a grant of planning permission to quarry
chalk adjacent to Buxton’s farm. Because the application for planning permis-
sion had not fallen into a category where there was a statutory requirement for
publicity and a statutory obligation to take into account any objections arising
from the publicity, and because Buxton’s common law rights had not been
infringed, eg by any nuisance, Buxton, it was decided, was not a person
aggrieved. However, it was decided that had Buxton been a statutory objector
within the above category, he would have been a ‘person aggrieved’ and able to
seek statutory review of the minister’s decision. In Turner v Secretary of State for
242
JUDICIAL REMEDIES
the Environment (1974), the applicant for statutory review represented an

amenity society which had objected to development at Richmond Hill. The soci-
ety had been allowed by an inspector to appear at a public inquiry into the pro-
posed development, which was a factor which weighed heavily in the decision
that Turner was a person aggrieved. In practice most third parties have an
opportunity of appearing at a public inquiry into a planning appeal so that the
range of persons aggrieved is considerably widened by this decision in Turner.
Desirable though this may be, it is probably contrary to the policy and objects of
the Town and Country Planning Act which gives only limited statutory rights
to the applicant for planning permission, the local planning authority and statu-
tory objectors. Indeed, this limited background of statutory rights which must
be presumed to be legally enforceable before the courts should be borne in mind
when considering the question of locus standi for the declaration and certiorari in
respect of decisions of the local planning authority.
13.11 Damages
English administrative law is concerned primarily with the quality of adminis-
trative action, that is, whether a decision is ultra vires and void or merely void-
able. The law does not provide for damages in respect of unlawful
administrative action so that the victim of ultra vires action by an administrative
agency has no legal right to compensation for any loss, damage or injury which
may have been sustained. An illustration of the way in which this gap in the
law may occur in practice comes from the reference to estoppel in Chapter 9.
Where an individual relies on an ultra vires statement from a representative of
an administrative agency, it is not binding in law and can be denied. Any com-
pensation which is paid will be ex gratia compensation, as will any compensa-
tion payable following a successful complaint to one of the ombudsmen
(depending on the status of the administrative agency) described in Chapter 15.
Earlier in the present chapter, it was seen that damages can be claimed under
the Order 53 procedure in the High Court. Whether this or any other appropri-
ate procedure is used, any damages claimed against a public administrative
agency must fall within pre-existing categories of the law such as negligence,
nuisance and breach of statutory duty which were outlined in Chapter 4. The
difficulties in this area of administrative law are well summarised by Lord
Wilberforce in Hoffman-La Roche, referred to earlier in the present chapter. He
considered that, at the root of the various phrases describing the quality in law
of an administrative action, lies:
... an unwillingness to accept that a subject should be indemnified for loss
sustained by invalid administrative action. It is this which requires examina-
tion rather than some supposed visible quality of the order itself. In more
developed legal systems this particular difficulty does not arise. Such sys-
tems give indemnity to persons injured by illegal acts of the administration.
Consequently, where the prospective loss which may be caused by an order
243
is pecuniary, there is no need to suspend the impugned administrative act: it

can take effect ... and at the end of the day the subject can, if necessary, be
compensated.
13.12 Powers of Annulment in the European Court

of Justice
The nature and sources of EU law have been dealt with previously in Part 2
where it was seen that the European Court of Justice has the task of overseeing
the interpretation and application of the treaties governing the Union, the best-
known of which is the Treaty of Rome. One facet of this task is the review of
administrative action although there are other closely related tasks including
the need to deal with preliminary references from courts in Member States
requiring a conclusive interpretation of EU law, the adjudication of any alleged
refusal to act by a Community institution, the adjudication of claims that regula-
tions are illegal and the settlement of claims for damages against EU institu-
tions. However, it is the power of review which occupies the place of
importance for present purposes.
13.12.1 The power of review

The court’s power of review is found in Article 173 of the Treaty of Rome as
amended by Article G (53) of the Treaty on European Union (Maastricht). This
states that:
The Court of Justice shall review the legality of acts adopted jointly by the
European Parliament and the Council, of acts of the Council, of the
Commission and of the ECB [European Central Bank], other than recommen-
dations and opinions, and acts of the European Parliament intended to pro-
duce legal effects vis-à-vis third parties. It shall for this purpose have
jurisdiction in actions brought by a Member State, the Council or the
Commission on grounds of lack of competence, infringement of an essential
procedural requirement, infringement of this Treaty or of any rule of law
relating to its application, or misuse of powers. The court shall have jurisdic-
tion under the same conditions in actions brought by the European
Parliament and by the ECB for the purpose of protecting their prerogatives.
Any natural or legal person may, under the same conditions, institute pro-
ceedings against a decision addressed to that person or against a decision
which, although in the form of a regulation or a decision addressed to
another person, is of direct and individual concern to the former. The pro-
ceedings provided for in this Article shall be instituted within two months of
the publication of the measure, or of its notification to the plaintiff, or, in the
absence thereof, of the day on which it came to the knowledge of the latter,
as the case may be.
244
JUDICIAL REMEDIES
13.12.2 The scope of review

The first crucial point to notice is that Article 173 applies to directives, regula-
tions and decisions in the case of Member States, the Council and the
Commission whereas review is more limited in the case of proceedings insti-
tuted by an individual or ‘legal person’, eg a company. Nevertheless, the court
has attempted to widen its sphere of influence in relation to review by giving a
generous interpretation of the concept of an EU ‘act’. In approaching its task in
the present context of review, the court assumes that the act complained of is
legally valid until annulled, that is, in effect a voidable act.
13.12.3 The grounds for annulment

The four grounds for annulment listed above are closely related to each other
and in some respects similar to the categories of the doctrine of ultra vires in
English administrative law set out in Part 3.
The first ground, lack of competence, frequently arises from questions con-
cerning delegation of functions by the Council to the Commission or any other
EU institution. The leading case is Meroni v Commission (1958) where it was
decided that there had been an unlawful delegation by the Commission of its
functions to private organisations, as a result of which various legal safeguards
could not operate as they would where the functions stayed within their autho-
rised framework.
The second ground, the infringement of an essential procedural requirement,
frequently appears in relation to the legal requirement for reasons to be given in
respect of any ‘binding’ act (Article 190 of the Treaty of Rome) and in relation to
the requirement for consultation arising from a number of provisions in the
Treaty of Rome. It will be noticed that any procedural requirement for the pur-
pose of Article 173 must be an ‘essential’ procedural requirement. Failure to
give sufficient reasons has been justification for the annulment of a number of
Union acts over the years. In the same way that the court has developed a body
of law on the sufficiency of reasons, so it has developed a body of law on the
requirement for consultation, bearing in mind the need to consult the European
Parliament, for example, before certain legislative acts become legally effective.
The third ground involving the infringement of the Treaty or of a rule of law
relating to its application probably covers most situations which occur where
the court is invited to annul administrative action in the EU. Most action which
is subject to annulment is likely to be an infringement of the Treaty in one way
or another. Rules of law relating to the application of the Treaty include regula-
tions, certain rules of international law at the foundation of the treaties and
rules of law which crystallise particular fundamental rights from the legal sys-
tems of Member States and which provide guidance on the scope of EU law
where it is silent on certain requirements.
245
Finally, there is the ground of misuse of powers which is particularly rele-

vant on those occasions when it is alleged that administrative action in the EU is
based on the unlawful abuse of discretionary powers.
13.12.4 Related functions of the European Court of Justice

Reference been made previously in this chapter and earlier in Part 2 to the func-
tion of the court in dealing with preliminary references on the interpretation of
EU law made by national courts in Member States. This facility is particularly
important on those occasions when the exercise of statutory powers for admin-
istrative purposes in a Member State may be subject to the constraints of EU
law. In very general terms it may be said that any administrative activity which
involves economic or associated regulation may come under the influence of
constraints of EU law. Any doubts about the scope of that influence of those
constraints can of course, be settled by a reference under Article 177. Another
related function of the court occurs in Article 175 and deals with the alleged
refusal of the Council or the Commission to act, in breach of the Treaty. Before
the court can intervene, it is necessary to establish that a request was first made
for the institution to act. In the face of a refusal to act, the institution has two
months in which to define its position and any action that is then necessary may
be brought within a further period of two months. As in Article 173, any indi-
vidual or ‘legal person’ may take advantage of the facility in Article 175 where
an institution has failed to address to that person any act other than a recom-
mendation or opinion. A case of fundamental significance here is European
Parliament v Council of the European Communities (1987). This case is the first
action under Article 175 by one EU institution against another and the first
admissible action under the Article brought before the European Court of
Justice. The main issue was the Council’s failure to create a Common Transport
Policy. It was held that although the Council had a considerable discretion in
this connection, thereby making a specific case of failure to act difficult, there
were some aspects of the policy that could be defined with precision for the
purpose of framing a case of failure to act.
Article 173 is reinforced by the provisions of Article 184 which relates to the
regulations of the Union. Article 184 states that even though the two-month
time limit in Article 173 has expired, any party may challenge the legality of a
regulation on any of the four grounds in Article 173. Finally, Article 215 states
that the EU shall make good any damage caused by its institutions or by its ser-
vants in the performance of their duties. However, provision is limited to non-
contractual liability in conformity with the general principles common to the
laws of the Member States. Potentially, therefore, this provision could open up
very significant areas of legal liability whereby the individual could benefit
from compensation for a wide variety of unlawful administrative action in the
Union.
246
14 Crown Proceedings
14.1 The Background to Crown Proceedings

Going back through the course of legal history, a particularly harsh limitation
prevented the Crown being sued in its own courts. This limitation resulted in
considerable injustice. However, a process known as a ‘petition of right’ became
available in some cases where legal proceedings could be brought against the
Crown, but only with the consent of the Crown. This process did not unfortu-
nately apply to torts, that is, civil wrongs, by virtue of the maxim that ‘the
Queen can do no wrong’. Nevertheless, there was an understanding that if dam-
ages were awarded against a servant or agent of the Crown for negligence, for
example, those damages would be paid by the Crown. The legal liability of the
Crown was altered quite considerably by the Crown Proceedings Act 1947.
14.1.1 The Crown Proceedings Act

The background to the passage of this piece of legislation is a useful illustration
of the fact that moves for reform can sometimes take a long time to actually
achieve their objective. It is not uncommon for the 1947 Act to be seen as the
direct result of the decisions in Adams v Naylor (1946) and Royster v Cavey (1947)
in which criticism was levelled at the Crown practice of nominating a Crown
servant as a defendant in civil proceedings. However, such a view overlooks the
complex departmental discussions that took place long before 1947 and which
eventually resulted in a legislative initiative. In the House of Commons debates
on the Crown Proceedings Bill, the Attorney General stated that the new legisla-
tion put ‘... the Crown, so far as may be, in matters of litigation in the same posi-
tion as the subject, so that a subject who wants to bring an action against the
Crown may proceed as though he were proceeding against another subject’.
That the Crown’s position in litigation is not the same as that of the subject will
be seen in the following sections of this chapter. Indeed, it has been seen already
in Chapter 2 that certain of the remedies described in the previous chapter do
not apply to the Crown by virtue of the Crown Proceedings Act and that the Act
confirmed that the rights and interests of the Crown shall not be prejudiced by
statute unless that statute refers to the Crown.
247
14.2 Contracts and the Crown

Section 1 of the Crown Proceedings Act states that if a contract could have been
enforced by the pre-1947 petition of right process or by virtue of any Act
repealed by the Act of 1947, such a claim against the Crown can now be
enforced in law without resort to the ‘petition of right’. Although as a result of s
1 it now appears to be easier to sue the Crown in the law of contract, some of
the restrictions previously existing still have to be taken into account. Those
restrictions are of particular significance in three areas:
(1) employment contracts with the Crown;
(2) the funding of Crown contracts; and
(3) contracts which allegedly fetter future executive action by the Crown.
Before these three matters are examined, it should be pointed out that some
statutory provisions repealed by the Act of 1947 permitted legal proceedings
against a minister, without reference to the petition of right. Such statutory pro-
visions in various Acts are referred to in the summary of s 1 at the beginning of
this section. However, the Act of 1947 is not concerned with those Acts which
incorporated various government departments and whose contracts are not
made in the name of the Crown, as seen in Chapter 2.
14.2.1 Employment contracts

The legal position for the Crown servant is particularly weak and in the case of
military servants there is virtually no legal protection at all. A member of the
armed forces cannot resort to the law in order to enforce the provisions of any
employment contract with the Crown. As far as the civil servant is concerned,
his employer, the Crown, can dismiss him at will (Dunn v R (1896)). Although it
has been suggested, even within the last 25 years, that a civil servant does not
have an employment contract with the Crown but simply holds an appointment
with the Crown, the position in law would not appear to be changing. In the
previous chapter, for example, it was seen that decisions of the Civil Service
Appeal Board are subject to judicial review. The Board has jurisdiction to hear
appeals from civil servants in respect of dismissal notices, among other employ-
ment matters. Nevertheless, the court in Bruce confirmed that no contract exists
between the Crown and its civil servant, simply because there is no intention to
create legal relations on the evidence of the Civil Service Code of Pay and
Conditions. However, there is deemed to be a contract of employment here by
the Trade Union and Labour Relations (Consolidation) Act 1992 s 245. Without
a deemed contract the civil service unions are not obliged to hold a strike ballot
for the purposes of the 1992 Act and cannot be liable in tort for inducing
breaches of contract. Although it remains the case that a civil servant cannot sue
the Crown for ‘wrongful’ dismissal in breach of contract, there exists in the Civil
Service a large number of voluntary employment agreements, many of which
248
CROWN PROCEEDINGS
are negotiated and concluded with the trade unions. In addition, a good deal of
legal protection has emerged from recent employment legislation. Perhaps the
best example relates to the provisions of the Employment Protection
(Consolidation) Act 1978 among which is the statutory right of an employee not
to be dismissed unfairly. The Act of 1978 indicates that this part of the Act
applies to the Crown, together with other parts such as those relating to mater-
nity rights for women.
14.2.2 The funding of Crown contracts

Although it was at one time thought to be a prerequisite of a legally enforceable
contract with the Crown that Parliament should have appropriated, expressly or
impliedly, the funds for the contract, this seems not to be the present legal posi-
tion. In an Australian case, New South Wales v Bardolph (1934), a government
officer, on the authorisation of the state premier, purchased space in a newspa-
per for government advertising. A number of Acts of Parliament permitted
‘government advertising’ although this particular contract was not specifically
authorised by Parliament. Following a change of government, there was a
refusal by the new government to pay for the contracted advertising although
the advertising continued. The newspaper sued the government for damages. In
giving judgment for the newspaper, it was confirmed that the contract in ques-
tion was a Crown contract and that while Parliament provided sufficient
monies for its fulfilment it was binding on the Crown.
14.2.3 Contracts fettering future executive action by the

Crown
This particular restriction is nothing more than a repetition of the broader legal
principle governing other administrative agencies as seen previously in Chapter
11. One of the cases mentioned in this context in that earlier chapter was Crown
Lands Commissioners v Page (1960). In that case it was decided that any implied
covenant in a lease to which the Crown is a party and which relates to the quiet
enjoyment of land would have to exclude executive acts undertaken in the
national interest. Such acts might relate to national emergencies when the
Crown, through the government, initiates measures under the prerogative. A
further case of significance here is Robertson v Minister of Pensions (1949) where it
was decided that the minister was bound by an assurance in circumstances
where it was not considered necessary to invoke the Crown defence of ‘execu-
tive necessity’. As was seen in Chapter 9 where Robertson was dealt with in
some detail, it is clear that the correct decision was arrived at although there are
technical legal objections to the decision. As to the defence of executive neces-
sity, the case illustrates the fact that such a defence may often be irrelevant and
its employment unjust against individuals whose dealings with the Crown have
nothing to do with ‘public security’ or the ‘national interest’.
249
14.3 Tortious Liability of the Crown

Section 2 of the Crown Proceedings Act provides that the Crown is subject to
liability in tort in the same way that a private person of full age and capacity is
so liable. The Act defines three main areas of liability:
(1) torts committed by a Crown servant or agent;
(2) torts arising from any breach of those common law duties owed by an
employer to his servants and agents; and
(3) torts arising from any breach of those common law duties concerning the
ownership, occupation, possession or control of property.
Three other areas of tortious liability dealt with by the Crown Proceedings Act
should be mentioned:
(1) breaches of statutory duty;
(2) immunity from tortious liability in respect of acts or omissions by persons
discharging responsibilities of a judicial nature; and
(3) immunity from tortious liability for certain acts of a member of the armed
forces causing the death of or injury to another member of the armed forces.
Each of these six areas will be dealt with in turn.
14.3.1 Vicarious liability of the Crown

Although it has been possible to sue a Crown servant or agent personally for a
tort which he has committed, the Act of 1947 adds to this remedy by stating that
the Crown can be vicariously liable for a tort of its servant or agent, as long as
that servant or agent would have been liable himself. One of the leading cases
here is Home Office v Dorset Yacht Co Ltd (1970) where is was decided that there
was liability in damages to the owner of a yacht which was damaged by borstal
boys who, during an exercise outside the borstal, were not supervised with rea-
sonable care by the officers in charge. A crucial finding in the case was that the
damage to the yacht could have been foreseen by the officers on any lapse of
their supervision so that this gave rise to a duty in favour of the yacht owner to
take reasonable care. Clearly, therefore, the Crown can be liable in a situation of
this sort since the servant or agent himself would be liable in negligence.
14.3.2 The employer’s common law duties

Although the welfare of most employees is governed in so many ways by
statute, eg by virtue of regulations made under the Health and Safety at Work
Act 1974 governing various safety standards for the work place, there are some
common law duties which fill any occasional gap in the statutory provision.
One example for the area of the employer’s common law duties is the duty to
250
CROWN PROCEEDINGS
provide a safe place of work for the employee. Such a duty is owed by the
Crown to any of its employees by s 2.
14.3.3 Common law duties relating to Crown property

It has been seen that the Crown is liable in tort for any breach of the common
law duties relating to the ownership, occupation, possession or control of prop-
erty. Consequently, where a person is injured while visiting Crown property it
is likely that he will be able to sustain a successful action in tort where it can be
established that there was a failure to maintain the premises in a safe condition.
However, as in the case of the Crown’s legal responsibilities as an employer, the
Crown’s tortious liability here is governed more often by statute. The
Occupiers’ Liability Acts 1957 and 1984, for example, bind the Crown and
impose a statutory duty on any occupier to take reasonable care to ensure that
premises are safe for those visitors who are invited or otherwise permitted to be
on those premises. A third area of liability which could be related to this part of
the Crown Proceedings Act was mentioned in Chapter 4. It was seen in that
chapter that, even in the absence of negligence, there may be so-called ‘strict’
liability where a person, for his own purposes, brings on to his land and collects
and keeps there anything likely to do mischief if it escapes (Rylands v Fletcher
(1868)). Although there may be some doubt whether the Crown is acting for its
own purposes in performing its usual public functions, there is at least potential
liability against the Crown in this context.
14.3.4 Breach of statutory duty

Reference has been made to various statutory duties which are binding on the
Crown. Where any such duty is binding on the Crown it is declared by s 2 of the
Crown Proceedings Act that liability will attach in the normal way as if the
defendant were a private person of full age and capacity. Of course, the Crown
is not subject to the provisions of a statute unless referred to expressly or by
implication so that liability for any alleged beach of statutory duty is subject to
this crucial precondition.
14.3.5 The discharge of judicial responsibilities

Section 2 of the Crown Proceedings Act gives the Crown immunity from tor-
tious liability in respect of any act or omission by a person who is discharging
responsibilities of a judicial nature vested in him or any responsibilities in con-
nection with the execution of judicial process. The crucial problem in assessing
the scope of the Crown’s legal immunity here lies in the definition of the term
‘judicial’. The immunity clearly applies to the activities of judges in the Crown’s
courts although the fundamental need for an independent judiciary means that
they cannot be regarded as Crown servants in the conventional sense. However,
251
there are areas of uncertainty, eg in relation to the functions and responsibilities

of administrative tribunals, although such uncertainty is reduced bearing in
mind that the person allegedly responsible for the tort must be a Crown servant
and that it is necessary to prove that he himself would have been liable. As to
this latter point, a person with legal authority to undertake judicial function
enjoys absolute privilege in relation to the words he uses. Such a defence could
be used by the Crown in order to deny vicarious liability for the words used in
these circumstances.
14.3.6 Immunity in respect of certain acts of members of the

armed forces
The Crown Proceedings Act in s 10 prevented a member of the armed forces
suing either the Crown or a fellow member of the armed forces in respect of
personal injury sustained while on duty or on premises being used for the pur-
poses of the armed forces where the alleged tort was committed by a member of
the armed forces on duty. Where it was certified that the injury is attributable to
pensionable service, the individual’s claim for damages in tort was excluded by
the Act. Section 10 was abolished by the Crown Proceedings (Amendment) Act
1987, with effect from 15 May 1987. However, the Secretary of State is empow-
ered to revive s 10 if it is thought necessary or expedient in times of war or
emergency, but not with retrospective effect. Such revival would be by statutory
instrument.
14.4 Judicial Remedies and the Crown

Reference has been made at various points to the fact that some remedies are
not available in legal proceedings against the Crown. In general terms, these
remedies can be described as ‘coercive’ remedies and in law it is not considered
appropriate that coercive measures should be exercised against the Crown in
order to enforce these remedies. This is illustrated in s 25 of the Crown
Proceedings Act, which prohibits any form of enforced payment by the Crown.
As far as the prerogative orders are concerned, it is clear that since it is the
Crown that acts as nominal applicant, the orders should not be available against
the Crown. In reality, the only potential difficulty relates to the order of man-
damus.
14.4.1 Mandamus and the Crown

Where an enforceable legal duty is conferred by statute on the Crown then the
order of mandamus is not available. The same is true on those occasions when an
enforceable duty is conferred on a servant or agent of the Crown, acting as such
(R v Lords Commissioners of the Treasury (1872)). On the other hand, mandamus
252
CROWN PROCEEDINGS
will be available on those occasions when the duty is conferred on a minister

who is not required to exercise the duty on behalf of the Crown (Padfield v
Minister of Agriculture (1968)). This state of affairs was left unaltered by the
Crown Proceedings Act for the good reason that very few duties are conferred
directly on the Crown. It has been seen already that most such duties are con-
ferred on named ministers or other administrative agencies.
14.4.2 Injunctions and the Crown

The Crown Proceedings Act provides in s 21 that the injunction is not available
against the Crown and that, in the same way, the injunction is not available
against a Crown servant or agent where the effect would be to make the remedy
available against the Crown indirectly. In lieu of the injunction here the Act
does permit a declaration of the rights of the parties. Despite the limitation in s
21 it was argued that the injunction is available against the Crown or a minister
of the Crown by virtue of the Supreme Court Act 1981 and the framework for
judicial review. The Act of 1981 introduced a new framework whereas the
Crown Proceedings Act made no provision for judicial review applications: R v
Licensing Authority, ex p Smith Kline and French Laboratories Ltd (No 2) (1988). This
view did not find favour with the House of Lords in R v Secretary of State for
Transport, ex p Factortame Ltd (1989). The House of Lords took the view that no
new jurisdiction to grant injunctions arose from the Act of 1981. However, in the
light of the more recent decision of the House of Lords in M v Home Office (1993)
discussed in Chapter 13, it is now beyond doubt that an injunction can be
granted against a minister of the Crown. It was felt that the unqualified nature
of the language of the 1981 Act was such that it did not warrant restricting its
application in respect of ministers and other officers of the Crown.
14.5 Procedure
Where proceedings are brought against the Crown the litigation follows the
usual procedures. In most cases the plaintiff will know the identity of the gov-
ernment department to be named as defendant but on those occasions when
such a department cannot be identified the Attorney General will be the defen-
dant. Whether the proceedings are dealt with by the High Court or a county
court will depend on the amounts involved in any claim in contract, tort or for
the recovery of property. During the course of the trial, discovery of documents
is available against the Crown by virtue of s 28 of the Crown Proceedings Act.
The Crown can also be required to answer any interrogatories. At the conclu-
sion of the trial, any damages and costs will be payable by the department
responsible although the normal measures of coercive enforcement of judg-
ments are not available. In the same vein, the court may well make use of the
declaration as a substitute for the coercive remedies, eg to declare the plaintiff’s
253
rights in property alleged to be in the unlawful possession of the Crown.

Returning to the availability of discovery and interrogatories against the Crown
under s 28, it should be noted that these facilities cannot affect any rule of law
which:
(1) authorises the withholding of a document, or
(2) requires a refusal to answer a question, on the ground that any disclosure or
revelation would be injurious to the public interest.
For a long time the Crown’s ability to refuse to disclose certain documents or to
answer particular questions in litigation was referred to as ‘Crown privilege’.
However, the law governing the sometimes difficult balance between the need
to disclose and the need to retain information has wider implications so that this
area of concern about disclosure is now more widely referred to as ‘public inter-
est immunity’, which is the subject of the remaining sections of this chapter.
14.6 Public Interest Immunity

Before the Crown Proceedings Act came on to the statute book, a famous test-
case came to the House of Lord for decision, a decision which was to influence
the course of the law on disclosure of documents by the Crown for a long time.
The case was Duncan v Cammell, Laird & Co Ltd (1942) and it arose from the loss
of the submarine HMS Thetis in Liverpool Bay during trials after its launching.
A claim for damages in negligence was made against the builders who were
required by the Admiralty not to produce various design documents which had
been demanded because their disclosure would be injurious to the national
defence. This claim of Crown privilege for the documents was upheld by the
House of Lords which decided that ‘... a court of law ought to uphold an objec-
tion, taken by a public department when called on to produce documents in a
suit between private citizens that, on grounds of public policy, the documents
should not be produced’. It will be remembered that the facilities for discovery
of documents against the Crown given by s 28 of the Crown Proceedings Act
are subject to any rule of law which authorised the withholding of a document.
That rule of law seemed to be clearly defined as a result of the decision in
Duncan. But notice that the claim of privilege for the documents was on the
basis that their disclosure would be injurious to the national defence whereas
the decision of the House of Lords apparently goes wider in referring to ‘public
policy’ as the justification for a refusal to allow disclosure. This was just one
crucial area of uncertainty left by the decision in Duncan. In addition, there was
no certainty as to the circumstances in which a minister might oppose discovery
in the public interest where two individuals are involved in private legal pro-
ceedings against each other, and no certainty whether a minister’s claim for
privilege would be conclusive in the eyes of the court.
254
CROWN PROCEEDINGS
The House of Lords in Duncan had appeared at first glance to endorse the
approved practice which had been to treat a ministerial objection against disclo-
sure as conclusive, provided that it was made in the proper form. Lord Simon
stated with approval what has become known as the Zamora principle which
holds that: ‘Those who are responsible for the national security must be the sole
judges of what the national security requires.’ However, the seemingly
unequivocal nature of this position became somewhat confused by Lord
Simon’s later observation that:
Although an objection validly taken to production on the ground that this
would be injurious to the public interest is conclusive, it is important to
remember that the decision ruling out such documents is the decision of the
judge.
14.6.1 The conclusiveness of claims opposing discovery

It was some years before there was any clarification of the uncertain position
concerning the conclusiveness of a claim that documents should be protected
from discovery. The important turning point came in another House of Lords’
decision, Conway v Rimmer (1968). In this case, a probationer policeman had
been prosecuted for the theft of a torch, acquitted and then dismissed from the
force. In an action by the probationer against a superintendent for malicious
prosecution (a tort), the probationer sought the discovery of certain reports
which had been made about him by his superiors. Although both parties
wanted this evidence produced, the Home Secretary resisted discovery on the
ground that these documents belonged to a class whose production would be
injurious to the public interest. In an important decision, the House of Lords
ordered five of the documents to be produced for the court’s inspection, indicat-
ing that it might not accept the Home Secretary’s claim of privilege for at least
four. The decision of the House of Lords shows that any claim of privilege
which may be raised by a minister is not conclusive so that the court may bal-
ance any prejudice to the public interest if there is disclosure against any harm
to the interests of justice if there is no disclosure. In balancing these factors to
decide whether a claim of privilege should or should not be allowed, the court
may examine the documents in private without disclosing them to the parties.
14.6.2 Public interest immunity recognised

In another decision of the House of Lords, Rogers v Home Secretary (1972), it was
considered that the whole issue of discovery of documents should be seen
against the broader background of the public interest. Lord Reid thought that
the:
... real question is whether the public interest requires that [a document]
shall not be produced and whether that public interest is so strong as to
override the ordinary right and interest of a litigant that he shall be able to
lay before a court of justice all relevant evidence. A minister of the Crown is
255
always an appropriate and often the most appropriate person to assert this
public interest ... But, in my view, it must always be open to any person
interested to raised the question and there may be cases where the trial judge
should himself raise the question if no one else has done so.
In this case, a senior police officer wrote a report on an applicant to the Gaming
Board for a gaming licence. The application for a licence was unsuccessful
whereupon the applicant started legal proceedings against the officer alleging
criminal libel arising from the letter sent to the Gaming Board. An attempt to
obtain discovery of the letter was resisted by the Home Secretary and the Board.
It was decided that the letter should remain confidential, primarily because any
disclosure would make it that much more difficult for the Board to fulfil its
function in relation to the issue of gaming licences where there was a need for
candid assessment of applicants’ characters. Consequently, the public interest in
ensuring the suitability of applicants outweighed the possibility of injustice to a
suitable applicant who might be concerned with possibly defamatory material
in correspondence with the Board.
14.6.3 The application of public interest immunity

Public interest immunity is an issue which has arisen quite frequently in litiga-
tion. The final sections of the chapter contain an outline of some of the more sig-
nificant cases where the immunity has been in issue. In D v NSPCC (1977) the
court refused to allow the disclosure of the identity of informers in cases of
alleged child abuse while in Neilson v Laugharne (1981) there was again a refusal
to allow disclosure, this time of documents concerning police investigations of a
complaint made by the plaintiff, for the purpose of an action in damages against
the police. In refusing disclosure it was decided that the documents in question
belonged to a class of documents whose disclosure would impede the proper
functioning of the public service. It was in Duncan that the House of Lords
decided that Crown privilege could be sought in two different ways, either on
the ground that a document falls into a certain class, as seen in Neilson, or on the
ground that the content of a document is such that its disclosure would be con-
trary to the public interest. The decision in Neilson emphasises the need for con-
fidentiality in police investigations. As will be seen in some later cases,
confidentiality is but one factor to be weighed in the balance when deciding
whether there should be discovery. The ‘class’ basis for privilege was used in
Williams v Home Office (1981) when it was claimed that documents about the for-
mation of government policy on ‘control units’ in prisons should not be dis-
closed. In deciding that there should be disclosure to the judge, who eventually
released some of the documents, the court considered it reasonably probable
that they contained material which was relevant to the plaintiff’s case that he
had been detained unlawfully in a ‘control unit’. The competing argument was
that disclosure would attract criticism to the Home Office as the government
department responsible for prisons. This objection to disclosure was not consid-
256
CROWN PROCEEDINGS
ered sufficiently serious to disallow disclosure if the parties concerned in the lit-
igation undertook to use the documents only for the purpose of the litigation.
Inspection of the documents took place in Burmah Oil Co Ltd v Bank of England
(1980), but further disclosure was not permitted by the court following its
inspection. The company had sued the Bank of England for the purpose of set-
ting aside a sale of stock which formed part of its assets and sought discovery of
certain documents which contained details of the government’s intervention in
the transaction. The decision not to allow disclosure provides a good example of
the court’s view that, on balance, the evidential value of documents to the indi-
vidual may be outweighed by the fact that they belong to a class whose disclo-
sure would impede the proper functioning of the public service in relation to the
formation of important government policy. Since this case was decided, there
has been a partial shift in government policy as to the type of documents that can
be disclosed in the interests of open government so that ‘documents are now
being made available which in the past have been the subject of claims to immu-
nity’ (per Lord Woolf in R v Chief Constable of West Midlands Police, ex p Wiley
(1994)). For example, it is now the case that the minutes of the meetings between
the Chancellor of the Exchequer and the Governor of the Bank of England are
disclosed some six weeks after the relevant meeting has taken place.
At a slightly less exalted level there are many day-to-day situations in which
administrative agencies find themselves in possession of confidential informa-
tion. The legal implications of any request for disclosure are dealt with in the
following section of this chapter.
14.6.4 Administrative agencies and the disclosure of confi-

dential information
It was seen previously in this chapter that on an application for discovery the
factor of confidentiality is but one matter for the court’s consideration. Two
cases involving the Commissioners of Customs and Excise provide an illustra-
tion of the law in practice. In the first case, Norwich Pharmacal Co v Customs and
Excise Commissioners (1973), the plaintiff company was the owner and licensee of
a patent for a chemical compound. The company was aware that the compound
was being imported into the country in breach of their legal rights. The names
of the importers were in the possession of the Commissioners who refused to
disclose them to the company. It was decided by the House of Lords that the
company had a right to know the names of the importers since there were
legally enforceable rights at stake so that, on this occasion, the interests of justice
for the individual predominated. In the second case, Alfred Crompton Amusement
Machines Ltd v Customs and Excise Commissioners (1973), the Commissioners had
obtained information in connection with the fixing of purchase tax on the
wholesale value of the plaintiff’s amusement machines. The plaintiff company
now sought disclosure of the information which had been obtained from their
customers. The Commissioners’ claim of privilege was upheld by the House of
257
Lords whose decision emphasised that even though information is given in con-
fidence, this is not necessarily a reason for a refusal of discovery. It was decided
that the arguments for and against disclosure were evenly balanced but it was
decided finally that the information should be protected on the ground that its
disclosure might be harmful to the efficient working of the legislation under
which the Commissioners exercised their powers.
14.6.5 Public interest immunity and Matrix Churchill

The evidential doctrine of public interest immunity has recently been the subject
of much academic and media debate as a direct consequence of the now infa-
mous Matrix Churchill proceedings. The three defendants, all of whom were
directors of a company, Matrix Churchill, which specialised in the manufacture
and export of machine tools, were charged with deception in obtaining export
licences. The prosecution’s case was that between 1987 and 1989 Matrix
Churchill had breached the government’s export guidelines by exporting to Iraq
machine tools which were capable of having military uses. In their defence, the
directors argued that government ministers both knew about and indeed had
authorised the company’s trade with Iraq, and furthermore, it was contended
that the secret intelligence service MI6 was also aware of the situation. What
makes the proceedings of particular interest in the context of this Chapter is that
a number of government ministers signed public interest immunity certificates,
some of which were quashed by the trial judge, in an attempt to prevent the dis-
closure of certain information to the defence. Ultimately however the trial col-
lapsed when it became apparent that the government had known all along that
the intended use of the machine tools was for the manufacture of armaments.
Clearly the episode has given rise to considerable cause for concern in many
quarters since the use of public interest immunity certificates could perhaps
have resulted in the unjust convictions of three innocent men. Accordingly, the
so-called ‘Arms to Iraq’ Inquiry under the chairmanship of Lord Justice Scott
was set up at the end of 1992 to:
... examine and report on decisions taken by the prosecuting authority and
those signing public interest immunity certificates in R v Henderson and any
other similar cases that he considers relevant to the inquiry; and to make rec-
ommendations.
The Scott Inquiry has yet to produce a final report but its recommendations are
eagerly awaited. A number of issues need to be considered, such as the growing
tendency, manifested in the Matrix Churchill proceedings as well as Makanjuola v
Commissioner of Police of the Metropolis (1992), for the assertion of public interest
immunity to be seen not in terms of the claim of a right, but rather, as the
observing of a duty. It is to be hoped that the Inquiry will succeed in clarifying
matters in what has become an increasingly opaque area of administrative law.
258
CROWN PROCEEDINGS
14.6.6 Public interest immunity certificates

Public interest immunity is commonly, but by no means always, claimed by
way of a certificate signed by a government minister. There does not appear to
be a prescribed format for such certificates and neither is there prescription with
regard to the words to be used. However, the wording must clearly be such as
to provide an unequivocal statement as to why the signatory believes that dis-
closure of the relevant documents should be withheld in the public interest. In
Conway v Rimmer (1968), part of the affidavit sworn by the then Home Secretary
was expressed in the following terms:
... 2. I personally examined and carefully considered all the said documents
and I formed the view that those numbered 38; 39; 40 and 48 fell within a
class of documents comprising confidential reports by police officers to chief
officers of police relating to the conduct, efficiency and fitness for employ-
ment of individual police officers under their command and that the said
document numbered 47 fell within a class of documents comprising reports
by police officers to their superiors concerning investigations into the com-
mission of crime. In my opinion the production of documents of each such
class would be injurious to the public interest.
Thus public interest immunity may be claimed on a number of different
grounds such as commercial confidentiality, national security, because secret
intelligence matters are involved, in order to protect informer anonymity, or, as
in the example above, so as to facilitate the proper functioning of the public ser-
vice. Whether or not the certificate is accepted is of course a matter to be deter-
mined by the judge in the relevant proceedings, but it would seem likely that a
strongly worded certificate raising the spectre of national security is as likely as
anything to preclude the disclosure of the documents for which the immunity
was sought.
Turning to the issue of who signs the certificate, dicta of Lord Simon in
Duncan v Cammell, Laird & Co Ltd (1942) suggested that the decision to object to
disclosure ‘should be taken by the minister who is the political head of the
department’ once he has personally seen and considered the contents of the
documents in question. The effect of these remarks has been such as to give rise
to a challenge to a public interest immunity certificate in Continental Reinsurance
Corporation (UK) Ltd v Pine Top Insurance Ltd (1986) on the basis that it was
signed by a junior minister rather than the head of the department. However,
the argument failed on account of the fact that Mr Justice Staughton did not
believe that Lord Simon had ever intended to draw a distinction between a
junior minister and his political superior, and moreover, even if he had so
intended, it was:
... open to question whether the same doctrine should apply now when the
activities of Governments are more widespread, the burden of senior minis-
ters enormous and the occasions when Government Departments are both-
259
ered with requests for evidence or documents in disputes to which they are
not a party more numerous.
This approach has found favour in cases such as Gain v Gain (1961) where both
parties in matrimonial proceedings accepted a certificate signed by a depart-
mental permanent under-secretary as though it had been signed by the political
head of the department, and in the Matrix Churchill proceedings, no mention
was made of the fact that one of the four signatories of the relevant certificates
was a junior foreign minister rather than the Foreign Secretary himself. In many
respects, there is little to cause alarm about such an arrangement, especially
when it is borne in mind that the well known Carltona principle ensures that
ultimately, it is the political head of the department who is accountable to
Parliament for anything that his officials have done under his authority.
260
15 Remedies for Maladministration
15.1 The Ombudsman Remedy

It was seen in Chapter 1 that administrative law is concerned with the legal con-
trol of administrative action, that is, control by the courts. Chapters 9–11 and 13
have shown that such control is centred on the power of the High Court to
review the legality of those mainly statutory functions exercised by the adminis-
trative agencies. However, to complete the picture of the controls available in
respect of the administrative agencies and their functions it is necessary to
appreciate that there are certain non-legal remedies which do not depend on the
courts. Such non-legal remedies include the administrative remedies examined
in Chapter 12 and the so-called ombudsman remedy which is to be examined in
the present chapter. The various ombudsmen who have been established
throughout the UK deal with and investigate complaints of injustice in conse-
quence of maladministration. Any such complaint must relate to maladminis-
tration by an administrative agency where that agency is undertaking its
administrative functions almost always within the scope of its statutory powers.
The term ‘ombudsman’ is of Scandinavian origin and refers to a person who
deals with grievances.
15.1.1 Ombudsmen in the UK

The first ombudsman to be established was the Parliamentary Commissioner
for Administration whose office was created by the Parliamentary
Commissioner Act 1967. The Parliamentary Commissioner Act (Northern
Ireland) 1969 established the office in Northern Ireland to deal with complaints
against the Northern Ireland government until it was suspended. The
Commissioner for Complaints Act (Northern Ireland) Act 1969 established a
Commissioner for Complaints who deals with complaints in the province
against local bodies and certain other public bodies. In the remainder of the UK,
the Local Government Act 1974 and the Local Government (Scotland) Act 1975
established Local Commissioners for Administration with responsibility for
investigating maladministration in local government. Finally, in the National
Health Service Reorganisation Act 1973 provision was made for Health Service
Commissioners, with similar provision in Scotland under different legislation.
Recent extensions to the law in this context are found in the Parliamentary and
Health Service Commissioners Act 1987, the Local Government Act 1988 and
the Health Service Commissioners Act 1993.
261
15.2 The Parliamentary Commissioner for

Administration
The Parliamentary Commissioner is, as the name suggests, accountable to
Parliament. In exercising his statutory function, the Parliamentary
Commissioner reinforces the capacity of Parliament to deal with complaints
against the executive. The Parliamentary Commissioner reports to Parliament
through a series of annual reports, including reports of particular investigations
and matters of concern, and his activities come under the scrutiny of the Select
Committee on the Parliamentary Commissioner for Administration. Complaints
to the Parliamentary Commissioner are required to be referred by a member of
Parliament and it is likely therefore that a complainant will raise their concerns
with their own constituency MP. This is particularly so in the light of the con-
vention that MP’s do not involve themselves in the business of other constituen-
cies. The so-called ‘MP filter’ is a unique feature of the UK’s ombudsman
system. In some respects, it can be likened to the leave requirement in judicial
review proceedings discussed in Chapter 13 since it represents an opportunity
to identify at an early stage those grievances which do not fall within the remit
of the Parliamentary Commissioner. In the event that an MP is unsure as to
whether the subject matter of the complaint is an appropriate matter for the
attention of the Parliamentary Commissioner, the complaint is likely to be
referred so that the Parliamentary Commissioner will ultimately determine the
jurisdiction issue. The need for a complaint to be referred by a member of
Parliament serves to reinforce the MP’s role as the elected representative deal-
ing with complaints against the executive. This point was stressed by the gov-
ernment of the day in the White Paper (Cmnd 2767) which preceded the
enactment of the 1967 Statute:
In Britain Parliament is the place for ventilating the grievances of the citizen
... It is one of the functions of the elected member of Parliament to try to
secure that his constituents do not suffer injustice at the hands of
Government ... Members are continually taking up constituents complaints
... We do not want to create any new institution which would erode the func-
tion of members of Parliament in this respect... We shall give members of
Parliament a better instrument which they can use to protect the citizen,
namely, the services of a Parliamentary Commissioner for Administration.
15.2.1 Government departments and authorities subject to

investigation
The Act of 1967 contains a schedule which includes all of those government
departments and authorities whose administrative functions may be investi-
gated on a complaint to the Parliamentary Commissioner. The list may be
amended but may not include any body or authority whose functions are not
exercised on behalf of the Crown. By way of an example, the Post Office was
262
REMEDIES FOR MALADMINISTRATION
removed from the list when it was created a public corporation in 1969. The
Parliamentary Commissioner is also empowered to investigate action taken by
or on behalf of any of the bodies or authorities listed in the schedule. In general
terms, the bodies included in the list are the government departments headed
by their respective ministers, and certain other bodies which are related to those
departments, such as the Inland Revenue Commissioners. References to particu-
lar departments include their respective ministers, whose own contribution to
any maladministration can be investigated. One of the most famous investiga-
tions carried out by the Parliamentary Commissioner arose from many com-
plaints from individuals who considered that the government had contributed
to their loss when the holiday firm Court Line Ltd failed in 1974. The essence of
the complaints was that holiday-makers who had booked with Court Line were
given the impression by House of Commons statements from the Secretary of
State for Industry two months before the failure that the firm was financially
viable. In a special report, the Parliamentary Commissioner concluded that a
misleading impression had been given by the Secretary of State. The conclusion
was rejected by the government which refused to accept liability for any com-
pensation for those who had suffered loss.
There have been recent extensions to the list of agencies subject to investiga-
tion. Following a report by the Select Committee and discussions with the gov-
ernment, a number of non-departmental public bodies were brought within the
Parliamentary Commissioner’s jurisdiction. The criteria for inclusion refer to
executive or administrative functions directly affecting individuals or compa-
nies which would have been included if undertaken by a government depart-
ment as well as subjection to some degree of ministerial accountability to
Parliament and a dependency on government finance and policy. While the
Monopolies and Mergers Commission is excluded as an advisory body, the
Criminal Injuries Compensation Board is treated as being a tribunal and
excluded also. Bodies that are added to the list include the Equal Opportunities
Commission, the Commission for Racial Equality and the Horserace Betting
Levy Board.
15.2.2 Matters excluded from investigation

The Act of 1967 expressly excludes certain matters from investigation by the
Parliamentary Commissioner. The areas of exclusion are:
(1) foreign relations;
(2) action taken overseas;
(3) action affecting the administration of government in overseas territories such
as colonies;
(4) action taken to extradite individuals by virtue of extradition treaties and to
extradite fugitive offenders;
(5) investigation of crimes;
263
(6) proceedings before any court of law, international court or tribunal or disci-
plinary body in the armed forces;
(7) action taken in connection with the prerogative of mercy;
(8) the health service; see the Health Service Commissioners, whose functions
are dealt with later in this chapter;
(9) commercial and contractual transactions;
(10) the grant of honours, awards, privileges and charters; and
(11) personnel matters in the civil service and armed services.
15.2.3 Complaints
The Act of 1967 prohibits any complaint by local authorities, public service bod-
ies, nationalised corporations, bodies whose membership is appointed by the
Crown, a minister or a department and bodies funded from monies provided by
Parliament. Beyond these categories a complaint can be made by an individual
or body which may or may not be incorporated. Consequently, a complaint may
be made by a company or an unincorporated group of individuals such as a res-
idents’ association. In the more common case where the complaint is that an
individual has suffered injustice in consequence of maladministration, that indi-
vidual must complain personally as an ‘aggrieved’ person to the MP although
there are exceptions to this requirement where, for example, an agent is used if
a person is unable to act for himself, or where that person has died and the com-
plaint is pursued through a personal representative. Any complainant is
required to have been in residence in the UK or at least ‘present’ in the country
when the action subject to the complaint occurred. The complaint to an MP
must be made in writing not later than 12 months from the date when the com-
plainant became aware or should have been aware of the issue which forms the
basis of the complaint. In some exceptional cases, the Parliamentary
Commissioner will allow a complaint to be considered beyond this time limit.
15.2.4 Alternative remedies

The Act of 1967 states that the Parliamentary Commissioner shall not undertake
an investigation where the person aggrieved has or had a right of appeal, refer-
ence or review to or before a tribunal established by statute or under preroga-
tive powers, or where the person aggrieved has or had a remedy by way of
proceedings in any court of law. However, there is an exception in these circum-
stances, allowing the Parliamentary Commissioner to investigate where he is
satisfied that it is not reasonable to expect the complainant to rely or to have
relied on these remedies. This exception indicates that there is no clear division
between the legal remedies and the non-legal ombudsman remedy. This lack of
clarity is well illustrated in Congreve v Home Office (1976) referred to in Chapter
11, where the Court of Appeal decided that a threatened revocation of television
264
licences prematurely renewed was ultra vires the Home Secretary’s powers
under the Wireless Telegraphy Act 1949. This decision followed a successful
complaint to the Parliamentary Commissioner who was critical of the Home
Office for a number of reasons, including the fact that there was a failure to
advise the parties adequately of the department’s attitude to premature renewal
of licences. In many instances, the availability and suitability of the alternative
remedy will be quite clear, eg where a decision of the Secretary of State for the
Environment on a planning appeal can be challenged by way of statutory
review within six weeks where the only issue is the legality of that decision. On
the other hand, it may not be at all clear whether there is any matter of law or
legality in issue so that the Parliamentary Commissioner might be more inclined
to investigate the case. Despite the fact that the decision in R v Commissioner for
Local Administration, ex p Croydon London Borough Council (1989) was concerned
with the jurisdiction of the local commissioner, it nevertheless appears to be rel-
evant to the present issue of alternative remedies and the Parliamentary
Commissioner since there is a very close similarity between the relevant statu-
tory provisions in the 1967 Act and the 1974 Local Government Act.
Accordingly, in deciding whether his jurisdiction to investigate has been
excluded by the 1967 Act, it would seem that the Parliamentary Commissioner
is merely required to satisfy himself that the courts are the appropriate forum
for the investigation of the complaint. He is not required to take a view as to the
likelihood of success if legal proceedings were initiated. In addition, since the
Parliamentary Commissioner is under a continuing duty to consider whether to
carry on with an investigation, it may be that he will decide to discontinue an
investigation where it becomes apparent in the course of that investigation that
the issues raised are more suited to resolution by the courts.
15.2.5 The investigation of administrative functions

An important element in the Parliamentary Commissioner’s powers is the limi-
tation of investigations to administrative functions, as opposed to legislative
(law-making) and judicial functions. While legislative functions such as the
drafting and promotion of various types of statutory provision are outside the
powers of the Parliamentary Commissioner because such functions are the con-
cern of other Parliamentary processes, judicial functions are excluded because,
as was seen in the previous section, there should be some remedy arising from
those functions before a court or tribunal. In general, therefore, it can be said
that if judicial functions are in issue, the individual’s legal rights can be
enforced in proceedings before a court and any appropriate tribunal. This is
well illustrated in a complaint by an ambulance driver against the Department
of Health and Social Security in respect of his classification for natural insurance
purposes (Case No C96/T: First Report of the Parliamentary Commissioner,
1973–74). The ambulance driver had been paying national insurance contribu-
tions as a self-employed person but he considered that he should be classified as
265
an employed person, in which case the contributions are payable by the

employer. When he applied to the Secretary of State for a decision, an inquiry
was convened and the complainant was represented by a trade union official.
Subsequently, it was decided that the complainant had been a self employed
person for national insurance purposes. The complainant and his representative
then complained to the Department about alleged procedural irregularities at
the inquiry and requested a new inquiry. At about the same time, the com-
plainant’s MP wrote to the Secretary of State about the matter and, not being
satisfied with the response, referred the case to the Parliamentary
Commissioner. It was recognised at the outset that the decision of the Secretary
of State on a question of classification is final, subject only to an appeal on a
point of law to the Court of Session in Scotland or, in England, the High Court.
It was also recognised that the Secretary of State may review the decision if new
facts are brought to his notice, or if he is satisfied that the decision was given in
ignorance of, or was based on a mistake as to, some material fact. Although the
existence of the appeal on a point of law was noted, it appears that the investi-
gation proceeded because it was not considered reasonable that the com-
plainant should have to rely on that remedy, possibly because the complaint
appeared at the stage to raise questions relating to the Secretary of State’s power
to review a decision. Following the investigation it was found that there had
been criticism of the conduct of the inquiry but that the complainant and his
representative recognised that the decision had been taken on the correct facts.
In conclusion, it was stated by the Parliamentary Commissioner:
... that the complaint is fundamentally a disagreement with the Secretary of
State’s judicial decision, which is not a matter I am entitled to question; alter-
natively it may constitute a contention that the Secretary of State did not cor-
rectly apply the law to the facts, in which case the proper course open to the
complainant was to exercise his right of appeal to the Court of Session.
15.2.6 Procedures for investigations

Whether a complaint should be investigated is entirely a matter of discretion for
the Parliamentary Commissioner (Re Fletcher’s Application (1970)). If a complaint
is to be investigated, the Parliamentary Commissioner proceeds in private and
gives the head of any department or official concerned an opportunity to make
comments. Relevant files are examined and officials interviewed. In some cases
the complainant will be interviewed, which is what happened in the investiga-
tion described in the previous section where the Parliamentary Commissioner
was particularly concerned to ensure that, despite procedural irregularities at
the inquiry, the correct facts had been reported to the Secretary of State for the
purpose of his decision. The Parliamentary Commissioner has wide powers
through which he can obtain his information. However, no person can be com-
pelled to provide information which relates in any way to cabinet proceedings
and a certificate from the Secretary to the Cabinet for this purpose is regarded
266
as conclusive in relation to such information. Otherwise, the Parliamentary

Commissioner cannot be met by any claim from the Crown that any documents
or other information are privileged from disclosure. Where the Parliamentary
Commissioner considers that he has been obstructed or in any way prevented
from carrying out an investigation he can apply to the High Court which can
deal with any such difficulty as a contempt of court. In the course of an investi-
gation the Parliamentary Commissioner may permit a person concerned in that
investigation to be legally represented while, in addition, an investigation may
sometimes comprise a more formal hearing. Whatever the form of investigation
adopted, the Parliamentary Commissioner has a power to require that evidence
is given on oath. At the conclusion of an investigation, a report is sent to the MP
who referred the complaint in the first place. The Parliamentary Commissioner
may be prohibited from including information in a report on the ground that its
disclosure would be contrary to the public interest as certified by a minister. In
addition, the Parliamentary Commissioner is subject to the Official Secrets Acts.
15.2.7 Injustice in consequence of maladministration

The Act of 1967 allows the Parliamentary Commissioner to investigate com-
plaints from those who allege that they have suffered injustice in consequence
of maladministration where they consent to a reference of that complaint by the
MP to the Parliamentary Commissioner. This central feature of the Act of 1967 is
also a prime characteristic of the powers conferred on the other ombudsmen in
the UK. The Act fails to define the meaning to these important terms, but the
statute’s silence in this respect has in fact been welcomed by one former
Parliamentary Commissioner on the basis that ‘to define maladministration
would be difficult and unprofitable’. In practice, ‘injustice’ receives a wide inter-
pretation which goes beyond some tangible loss or damage which may be suf-
fered when there is an unjustified delay in adjusting a person’s liability for
income tax, for example. Inconvenience, frustration and annoyance are all facets
of injustice even though they may not be capable of being quantified. When the
Act of 1967 was being debated in Parliament it was considered that ‘maladmin-
istration’ would include ‘bias, neglect, inattention, delay, incompetence, inepti-
tude, arbitrariness and so on’. In the early years of his office, the Parliamentary
Commissioner tended to concentrate on what may be described as ‘procedural’
maladministration comprising things like delay, loss of documents or a failure
to follow internal procedures in decision-making. With the encouragement of
the Select Committee on the Parliamentary Commissioner, there has been a
greater willingness to investigate complaints of ‘substantive’ maladministration
where the decision itself is ‘bad’ in quality as where a successful objector to an
administrative scheme is refused the costs he had incurred in that context. Sir
Cecil Clothier, the former Parliamentary Commissioner, has suggested that the
approach he encouraged whilst in office was to treat ‘any departure from what
the average reasonable man would regard as fair, courteous, efficient and
267
prompt administration as maladministration’. However, it must be remembered

that the Parliamentary Commissioner is in no sense an appeal body so that he is
not able to substitute his own decision for that of the administrative agency sub-
ject to investigation. In this respect, his role is rather like that of the Queen’s
Bench Division of the High Court when it is exercising its supervisory jurisdic-
tion in relation to judicial review proceedings as seen in Chapter 13.
Nevertheless, he is able to point out the areas where the decision-making exer-
cise has departed from the standards of good administration. That the
Parliamentary Commissioner is in no way an appeal body is emphasised by the
Act of 1967 which states that the merits of a discretionary decision taken with-
out maladministration cannot be questioned.
15.2.8 Maladministration and injustice in practice

To illustrate the operation of the Parliamentary Commissioner’s powers of
investigation, one particular case has been chosen: Case No 213/T from the First
Report of the Parliamentary Commissioner, 1973–74. The complaint was made
against the Property Services Agency of the Department of the Environment
which was acting for the Post Office (not subject to investigation by the
Parliamentary Commissioner in his powers under the Act of 1967) in the sale of
a strip of land. The land in question was at the rear of the complainant’s garden
and the gardens of her neighbours on either side. Despite instructions from the
Post Office, the surveyor employed by the Agency failed to approach the com-
plainant and accepted the view of one of the neighbours that the complainant’s
husband would not want to buy the strip of land at the rear of his garden. As a
result, the Post Office undertook to convey the strip of land passing at the rear
of all three properties to the neighbour. When the complainant indicated that
she and her husband would be interested in buying the strip of land at the rear
of their garden, they were told by the Agency that there had been an exchange
of contracts for the sale of the complete strip to the neighbour and that they had
had many years in which to secure a purchase of the land in question.
Subsequently, the ground behind the complainant’s garden had been levelled,
trees and bushes removed and old building timber deposited on the land. The
complainant and her husband had incurred expense in erecting a new fence,
planting new trees and bushes and seeking legal advice. On investigation it was
found that the failure to give an opportunity to make an offer for the land, com-
pounded by wrong information about an exchange of contracts together with a
lack of sympathy and understanding in dealing with the complaints made
amounted to maladministration. It was also found that injustice through dis-
tress and expense had been caused as a result of the maladministration. The sta-
tus quo could not be restored and the injustice removed but the Department
agreed to made an ex gratia payment of £100 to cover the distress suffered and
the expenses incurred.
268
15.2.9 Judicial review of reports and decisions

It has recently been established in R v Parliamentary Commissioner for
Administration, ex p Dyer (1994) that both the decisions and reports made by the
Parliamentary Commissioner relating to an investigation into an alleged case of
maladministration are susceptible to judicial review. This case was the first
occasion on which a substantive application for judicial review of the
Parliamentary Commissioner had come before the courts. An earlier application
for leave had been refused in R v Parliamentary Commissioner for Administration,
ex p Lithgow (1990) on the basis that there had been a lengthy delay in making
the application which greatly exceed the three month time limit stipulated in
Order 53. In Ex p Dyer, the applicant’s original complaint centred upon the mis-
handling by the Department of Social Security of various claims made by her
relating to invalidity benefit, supplementary benefit and income support.
Following the Parliamentary Commissioner’s investigation which found that
her complaints were justified, the department made an ex gratia payment of
£500 to the applicant to cover the costs incurred in pursuing her claim as well as
issuing her with an apology for its shortcomings. The applicant was not satis-
fied with either the outcome or the fact that the Parliamentary Commissioner
had chosen to investigate only certain of her complaints and hence she applied
for judicial review of his decision not to reopen the investigation. Despite the
fact that the application was ultimately dismissed, the Divisional Court in Ex p
Dyer were not prepared to accept the argument that the Parliamentary
Commissioner is beyond the supervisory control of the courts simply because
he is answerable to Parliament. There was, the court felt, nothing in the
Parliamentary Commissioner’s role or for that matter the statutory framework
within which he operates to take him wholly outside the reaches of judicial
review. Moreover, the court did not accept the argument that there was a paral-
lel between the decisions of the Parliamentary Commissioner regarding matters
appropriate for investigation and the conduct of the investigation on the one
hand, and the decisions made regarding national economic policy on the other
hand. This was because the latter were decisions that clearly involved an exer-
cise of political judgment (see Hammersmith and Fulham London Borough Council v
Secretary of State for the Environment (1990)), whereas the former were not.
Interestingly, the court did not think that two earlier cases relating to the
judicial review jurisdiction over local commissioners’ reports, R v Commissioner
for Local Administration, ex p Eastleigh Borough Council (1988) and R v
Commissioner for Local Administration, ex p Croydon London Borough Council (1989)
were of any great assistance in the present case. This was because the issue
before the courts in each of those cases was not the review of the local commis-
sioners’ discretionary powers, but rather, it related to an allegation that he had
contravened the requirements of the Local Government Act 1974. Finally with
regard to the issue of whether the Parliamentary Commissioner is entitled to
reopen an investigation, the court agreed with his view that he was precluded
269
from doing so since once his report had been sent to both the MP who referred
the complaint and the department concerned, the Parliamentary Commissioner
was functus officio. Therefore, an investigation could not be reopened without a
further referral of a complaint under the relevant provision of the 1967 Act.
It may be that the decision in Ex p Dyer will prove to be more important in
terms of principle than practice. This view is based on the fact that the 1967 Act
confers a wide discretion on the Parliamentary Commissioner when he is con-
sidering whether to initiate, continue or discontinue an investigation. The sub-
jective nature of these judgments is such that, as was accepted by the court in Ex
p Dyer, it is likely to prove difficult to show that the Parliamentary
Commissioner has exercised his discretionary power unreasonably in a public
law sense. Indeed in the present case, the Divisional Court felt that in the exer-
cise of his discretion, the Parliamentary Commissioner had been perfectly enti-
tled to select which of the applicants’ complaints he would address in his
investigation.
15.3 Health Service Commissioners

Since the National Health Service Reorganisation Act 1973 and similar statutory
provisions in Scotland, the ombudsman remedy has been established with
Health Service Commissioners for England, Wales and Scotland. The
Parliamentary Commissioner for Administration also acts as Health Service
Commissioner in each of these areas of the country. Many aspects of the
ombudsman remedy in the Health Service are very similar to those previously
described in relation to the functions of the Parliamentary Commissioner. One
of the outstanding differences lies in the fact that the Health Service
Commissioners are empowered to investigate injustice or hardship. A com-
plaint must be pursued within 12 months of the date when the complainant had
notice of the issue.

As with the Parliamentary Commissioner, a complaint may not be investigated
where the complainant has some alternative remedy in a court of law, for exam-
ple. The Health Service Commissioners are excluded from investigations into:
(1) clinical decisions;
(2) the functions of any Family Practitioner Committee where it operates as an
administrative tribunal;
(3) personnel issues;
(4) contracts and commercial matters except in so far as they relate to the provi-
sion of services for patients; and
(5) matters subject to a statutory inquiry by the Secretary of State.
270
In addition, various individuals and organisations are excluded from investiga-

tion. Of particular interest here are the community health councils and general
practitioners who provide the basic medical, dental and other services.
15.3.2 Complaints
Any complaint is made directly to a Commissioner, even by a health authority
which may be anxious to have an investigation of a matter for which it is
responsible. The person directly affected and aggrieved by a failure to provide a
service, or a failure of a service or any other action taken by or on behalf of a
health authority or other body subject to investigation may also complain
through a representative where he is unable to undertake a complaint himself.
A personal representative may also complain on behalf of a person who is
deceased. Complaints range across a wide field and include the treatment of
patients by hospital staff, the management of hospital waiting lists and the
transfer of patients between different hospitals. In all of these complaints, it is
the task of the Commissioner to investigate injustice or hardship in consequence
of a failure to provide a service or a failure of that service, or injustice or hard-
ship in consequence of maladministration in relation to any other action.
Following an investigation, a report is sent to the complainant and the Secretary
of State for Health or the health authority. Annual and special reports are made
to the Secretary of State and laid by him before Parliament.
15.4 Local Commissioners for Administration

The Local Government Act 1974 created two Commissions for Local
Administration, one for England and one for Wales. The English Commission
comprises a number of Commissioners with responsibility for different areas of
the country while one Commissioner deals with complaints about maladminis-
tration among local authorities in Wales. Parish councils and their equivalent
community councils in Wales cannot be investigated by the Commissioners.
Otherwise, the Commissioners have been empowered to investigate all local
authorities including the regional water authorities and police authorities,
except for the Metropolitan Police Authority, which is the responsibility of the
Home Secretary. The Commissioners are responsible for investigating com-
plaints of injustice in consequence of maladministration in these authorities. As
in the case of the Parliamentary Commissioner, there is an exclusion of cases
where the complainant can reasonably resort to a suitable alternative remedy
although another alternative applies under the Act of 1974, namely where the
complainant can pursue an appeal to a minister. Because third party objectors to
a grant of planning permission do not have an appeal to the Secretary of State
for the Environment against a grant of planning permission, many complaints
have been entertained by the Commissioners in this area.
271

Apart from the complaint which may be pursued through a suitable alternative
procedure, there are five areas of exclusion from Commissioners’ investigations:
(1) decisions in relation to legal proceedings;
(2) the investigation or prevention of crime;
(3) personnel matters;
(4) the internal organisation and operation of schools and other educational
establishments; and
(5) contracts and commercial matters.
It is notable in Northern Ireland that the Commissioner for Complaints is not
excluded from the investigation of complaints about commercial and personnel
matters. On the same parallel, the Northern Ireland Parliamentary
Commissioner is empowered to investigate personnel matters. As in the cases of
Parliamentary Commissioner for Administration and the Health Service
Commissioners, the Local Commissioners have a general discretion in deciding
whether to investigate a complaint.
15.4.2 Complaints
As in the case of the Parliamentary Commissioner and the Health Service
Commissioners, there are few limitations on the categories of complainant who
need not be ratepayers, residents or electors. Complaints must be made in writ-
ing to a member of the local authority within 12 months but, exceptionally,
when a complaint cannot be so referred, it may be made directly to a Local
Commissioner. Local Commissioners now enjoy a greater discretion to accept
complaints made out of time. Whatever the method of referral, the Local
Commissioner can refuse to undertake an investigation where the complaint
appears to affect all or most of the inhabitants in the local authority’s area.
Where a complaint is accepted for investigation, the Commissioner responsible
is obliged to give the local authority concerned a reasonable opportunity to
investigate and comment on the complaint. At the conclusion of an investiga-
tion a report is sent to the complainant, the member who referred the complaint
and the local authority responsible for the action which forms the basis of the
complaint. The authority is obliged to make copies of the report available for
public perusal and to advertise the fact of its availability. If the report concludes
that there has been injustice in consequence of maladministration, the local
authority is obliged to consider the report and to advise the Local
Commissioner of the action to be taken to deal with its findings. Where the local
authority fails to advise the Local Commissioner in this respect a special report
can be prepared by that Commissioner, highlighting the problem. Local authori-
ties are now specifically empowered to make payments or provide other bene-
fits for the purpose of redressing any reported injustice. Each Commissioner
272
reports to the Commission on an annual basis while the Commissions report to

a representative body, one for England and one for Wales, comprising persons
from those local authorities subject to investigation by the Local
Commissioners. Each Commission publishes a triennial report. The
Parliamentary Commissioner is a member of the Local Commissions as well as
being an ex officio member of the Council on Tribunals, so emphasising the
importance of a close relationship between bodies which operate in areas where
complaints of administrative injustice can be closely related.
15.4.3 Maladministration and injustice in practice

Some of the more frequent complaints to the Local Commissioners arise from
the functions of local authorities in relation to town and country planning and
housing. By comparison, the Parliamentary Commissioner, operating by refer-
ence to the same formula of injustice in consequence of maladministration, also
finds most of his complaints in the area of town and country planning, in addi-
tion to income tax disputes. Both ombudsmen suffer from the fact that there is
no facility for the legal enforcement of any suggested remedy for a finding of
injustice in consequence of maladministration. By contrast, any such finding by
the Northern Ireland Commissioner for Complaints permits the person
aggrieved to apply to a county court for damages or an injunction. The Attorney
General also has the opportunity to make application to the High Court where
any maladministration is likely to continue, despite the efforts of the
Commissioner for Complaints.
15.5 The European Ombudsman

In addition to the prospect of lodging a complaint with a domestic ombudsman,
it is now possible for citizens of the UK, together with the other citizens of the
European Union, to make a complaint to the EU Ombudsman. The post was
established by virtue of Article 138e of the Treaty of Rome which was inserted
by Article G(41) of the Treaty on European Union (the Maastricht Treaty). In
some respects, the European Ombudsman closely resembles his UK counter-
part. For example, he is appointed by the European Parliament to investigate
complaints concerning instances of maladministration in the activities of the
institutions or bodies of the Union, with the exception of the European Court of
Justice and the court of First Instance where they are performing a judicial func-
tion. As with the UK position, there is no authoritative definition of what is
meant by the term ‘maladministration’ despite the central nature of the concept
in terms of the jurisdiction of the ombudsman. With regard to the actual con-
duct of an investigation, the EU Ombudsman is required to inform the institu-
tion or body concerned as soon as a complaint is referred to him, and in return,
the institution or body is obliged to supply him with any information that he
has requested as well as affording him access to the relevant files. However,
273
they may refuse to supply the information required but only on the basis of
‘duly substantial grounds of secrecy’.
Two notable distinctions that can be made between the UK Ombudsman and
the EU Ombudsman relate to the issues of access and initiative. Whilst the UK
Ombudsman cannot be approached directly by a complainant as was indicated
in a previous section, the EU Ombudsman can be approached either directly or
through a member of the European Parliament. Furthermore, in terms of the
impetus for his investigation, the EU Ombudsman may act upon his own initia-
tive in addition to responding to a complaint, whereas his UK counterpart must
of course wait for a complaint to be referred to him. In the event that the EU
Ombudsman finds that there has been maladministration, he is required to
inform the institution or body concerned, and where appropriate, he may make
draft recommendations as to how to put matters right. For their part, the rele-
vant institution or body is under an obligation to send the ombudsman a
detailed opinion within three months of the date of the notification. The inves-
tigative process is brought to a conclusion by the ombudsman sending a report
to both the European Parliament and the institution or body concerned. It is a
requirement that the complainant shall be informed by the ombudsman of the
outcome of his inquiries, of the opinion expressed by the institution or body,
and of any recommendations that he has made. Thus as with the UK
Ombudsman, the EU Ombudsman does not possess any powers of enforcement
in relation to the recommendations which he may make since there is no
express provision made for a sanction in the event of a failure to comply with
his findings. Consequently it would seem that as is the case in the UK, there will
be an expectation that a finding of maladministration will be all that is required
for the relevant institution or body to undertake the necessary remedial action.
However, it is worth noting that in a rare and interesting recent development in
the UK, the Transport Secretary has to date refused to compensate people
whose houses fell in value where they were situated close to the Channel
Tunnel rail link despite a recommendation made by the Parliamentary
Commissioner to this effect.
274
Self-assessment Questions
Chapter 1
1 Why is the judicial review of administrative action such an important char-
acteristic of administrative law?
2 What is the essential task of the High Court in relation to the doctrine of ultra
vires?
3 In what circumstances could it be said that statutory powers conferred on an
administrative agency are contrary to the Rule of Law?
4 Why is it true to say that accession to membership of the EU has radically
altered the sovereignty and supremacy of the United Kingdom Parliament?
5 Identify any matters of interest to administrative law arising from any sepa-
ration of powers that occurs in the United Kingdom.
6 What are the main differences between prerogative and statutory powers?
Chapter 2
1 In what circumstances and to what extent will the courts now review and
question the exercise of prerogative powers?
2 Why might it be so important to ascertain whether it is the Crown, or a
Crown servant or agent which is responsible for the discharge of administra-
tive functions?
3 In the absence of any express definition of an administrative agency’s Crown
status, what factors may nevertheless suggest that that status is implied?
4 What broad guidelines are there for the allocation of functions to administra-
tive agencies involving (1) the adjudication of disputes and (2) the initiation
of administrative action?
5 Why is the element of policy in any decision-making process an important
factor in deciding the type of administrative agency to which that process
should be allocated?
Chapter 3
1 What is the status of the statutory inquiry in relation to decision-making in
many central government departments?
275
2 To what extent can it be said that the statutory inquiry is a facility which is
provided in order to satisfy the public that there is a proper reconciliation of
competing interests in certain areas of decision-making?
3 What legal safeguards are provided to ensure a proper functioning of the
inquiry-based decision-making process?
4 In the case of planning inquiries, what are the essential differences between a
decision to be taken by the Secretary of State and a decision to be taken by an
inspector?
5 What reasons may justify any exclusion, restriction or modification of the
system of statutory, public inquiries?
6 What are the disadvantages of the conventional system of planning inquiries
as a means of dealing with proposals for large-scale energy developments?
7 What are the arguments for and against public inquiries examining the mer-
its of government policy?
Chapter 4
1 What is the essential legal relationship between the council of a local author-
ity and its members?
2 Why is it necessary for there to be a realistic application of the doctrine of
ultra vires to the functions and activities of local authorities?
3 Define the possible legal effects of an ultra vires contract which is approved
by a local authority.
4 How does statute affect the considerations to be ignored by local authorities
in their making of contracts?
5 What means are available to control unlawful expenditure by a local author-
ity?
6 Do local authorities enjoy any autonomy in relation to the management of
their finances?
7 What part does the law play in the audit of local authorities’ accounts?
8 To what extent can it be said that the relationship between central and local
government is based on ‘collaborative partnership’?
9 Does the law provide the local authority with any significant immunities
from legal liability in the exercise of its functions?
Chapter 5
1 How do administrative tribunals differ from courts of law?
2 What is the distinction between administrative tribunals and statutory
inquiries?
276
SELF-ASSESSMENT QUESTIONS
3 Why may the standards of ‘openness, fairness and impartiality’ be in doubt

in the case of some administrative tribunals?
4 Identify the main factors which determine the allocation of functions to
administrative tribunals.
5 To what extent does the Tribunals and Inquiries Act govern the operation of
administrative tribunals?
6 What part is played by the High Court and the Court of Appeal in the super-
vision of administrative tribunals?
Chapter 6
1 What factors will tend to indicate that an administrative function should be
conferred on a public corporation?
2 To what extent are public corporations subject to central government con-
trol?
3 Are there circumstances in which total privatisation may be deemed impos-
sible? If so how can government continue to exercise effective control over a
company’s activities?
4 What are the possible legal consequences where a public corporation has the
status of a Crown servant or agent?
5 Can it be said that a public corporation is more amenable to judicial control
if it is not one of the so-called nationalised industries?
Chapter 7
1 To what extent can the common law be described as a source of administra-
tive powers?
2 What are the legally defined objectives of the European Union?
3 Define the extent to which EU law is superior to the law of the United
Kingdom.
4 Why is EU law of interest to the administrative lawyer?
5 What is the essential difference between the discretionary and non-discre-
tionary statutory power? Indicate which administrative agencies are more
likely to have discretionary powers with which to perform their functions.
6 Are there any special factors which will tend to determine the characteristics
of administrative powers, eg to the extent that a system of licensing may be
preferred to contractual regulation?
277
Chapter 8
1 What are the disadvantages of legislation as a means of providing the statu-
tory framework for an administrative system?
2 In what circumstances is it likely that the promotion of a Private or Local Bill
will fail?
3 What factors would be relevant in deciding whether a proposed major devel-
opment should seek approval through the planning system (involving a
public inquiry) or by means of a Private Act?
4 Define the importance of the statutory instrument.
5 What functions are normally undertaken by regulations, rules and orders?
6 What is the purpose of bylaws?
7 Explain the background to each of the grounds on which a bylaw may be
found to be unlawful.
8 Summarise the basic sources of EU law and define their different characteris-
tics.
9 How might a Belgian worker, required by order of the Home Secretary
under the Immigration Act to leave the United Kingdom, enforce his legal
rights under Article 48 of the Treaty of Rome?
Chapter 9
1 What is the legal consequence of a breach of a mandatory and a directory
procedural requirement?
2 Indicate the broad legal requirements for consultation.
3 Is it always true to say that administrative functions can be delegated, but
not judicial functions?
4 What is the likely effect of s 101 of the Local Government Act on the delega-
tion of functions by a local authority?
5 Define the requirements for common law estoppel and indicate how the
courts may be able to avoid the application of estoppel.
6 Why should the law presume that the time limit for the communication of a
decision is directory while the time limit for notification of an appeal is
mandatory?
7 To what extent can the law ensure that there is an effective, universal obliga-
tion to give adequate, intelligible reasons for all administrative decisions?
278
Chapter 10
1 In what circumstances will the law exclude the rules of natural justice?
2 Outline the circumstances in which the law is likely to require that all the
rules of natural justice will apply or that some of the rules will apply or that
the rules will not apply.
3 What is meant by the duty to act ‘fairly’?
4 How important is the requirement of a ‘judicial’ function in relation to nat-
ural justice?
5 What are the legal requirements for the rule against bias?
6 What are the basic requirements for the audi alteram partem rule?
7 Do the rules of natural justice insist that a person should be able to put his
case with the aid of an oral hearing and legal representation?
8 If there is a denial of natural justice at the first stage of a two-stage discipli-
nary process within a domestic organisation, can this omission be remedied
at the second, appeal stage?
Chapter 11
1 Where it is claimed that a decision of an administrative agency is ultra vires,
but not in relation to matters of procedure, what will the court look for to
confirm that claim?
2 Are the rules of substantive ultra vires more or less stringent in the case of
decisions taken by inferior courts?
3 What is the difference between a decision which is ultra vires as opposed to a
decision which is affected by an error of law on the face of the record?
4 How can the court identify those matters which relate to the merits of a deci-
sion within the powers of an administrative agency and beyond judicial
review?
5 In what circumstances will an ouster clause exclude judicial review of a deci-
sion?
6 What are the difficulties confronting the judicial review of decisions taken by
reference to discretionary powers? How are they overcome?
7 Why are some policies regarded as unlawful, ‘preclusive’ policies?
279
Chapter 12
1 Where it appears that there is an administrative and judicial remedy avail-
able to challenge a decision of an administrative agency, what are the
requirements which will indicate whether the remedies can be sought in the
alternative?
Chapter 13
1 What is the difference between review and appeal?
2 What is the task of the High Court in dealing with an appeal on a point of
law?
3 Comment on the role of the declaration in administrative law and outline the
circumstances in which the court is likely to refuse to grant this remedy.
4 In what circumstances is the injunction available to the administrative
agency and the individual in order to restrain unlawful action?
5 Are there any significant restrictions on the availability of certiorari to control
the unlawful actions of any organisation?
6 Is mandamus available to enforce the performance of any public, statutory
duty?
7 What purposes are served by the application for judicial review?
8 Outline the criteria by which the law insists that certain claims against pub-
lic, administrative agencies are pursued through the application for judicial
review.
9 In what circumstances will a court permit a person to question the legality of
action where the court is now deciding his criminal responsibility for failing
to comply with that action?
10 Identify the significant distinctions between the requirements for statutory
review and those for judicial review in general.
11 Indicate the general legal criteria for locus standi in relation to judicial
review.
Chapter 14
1 What are the main effects of the Crown Proceedings Act in relation to the
legal position of the Crown?
2 In what circumstances will any injunction be available against the Crown?
3 Explain the scope of any legally enforceable employment rights available to
the civil servant.
280
4 In the course of legal proceedings against the Crown what approach is the
court likely to adopt where the Crown claims privilege for certain informa-
tion?
Chapter 15
1 Describe the various limits beyond which the Parliamentary Commissioner
for Administration cannot pursue an investigation of maladministration.
2 In the case of the Parliamentary Commissioner for Administration’s investi-
gations, explain the significance of the complainant’s alternative remedies
and the fact that the merits of a discretionary decision cannot be questioned.
3 What are the main differences between the functions of the Parliamentary
Commissioner for Administration, the Health Service Commissioners and
the Local Commissioners for Administration?
281
Selected Bibliography
B Abel-Smith and R Stevens, In Search of Justice, Allen Lane.
J Beatson and M H Matthews, Administrative Law: Cases and Materials, Oxford.
P Birkinshaw, Grievances, Remedies and the State, Sweet & Maxwell.
A W Bradley and K D Ewing, Constitutional and Administrative Law, Longman.
A Charlesworth and H Cullen, European Community Law, Pitman.
L Collins, European Community Law in the United Kingdom, Butterworths.
Council for Science and Society, JUSTICE, Outer Circle Policy Unit, The Big
Public Inquiry.
Council on Tribunals, Annual Reports, Her Majesty’s Stationery Office.
P P Craig, Administrative Law, Sweet & Maxwell.
C A Cross, Principles of Local Government Law, Sweet & Maxwell.
K Davies, Local Government Law, Butterworths.
Lord Denning, The Discipline of Law, Butterworths.
B Denyer-Green, Development and Planning Law, Estates Gazette.
A Doig, Corruption and Misconduct, Pelican.
C T Emery and B Smyth, Judicial Review, Sweet & Maxwell.
J M Evans, de Smith on Judicial Review of Administrative Action, Sweet & Maxwell.
J A Farmer, Tribunals and Government, Weidenfeld & Nicolson.
D Foulkes, Administrative Law, Butterworths.
G Ganz, Administrative Procedures, Sweet & Maxwell.
G Ganz, ‘Allocation of Decision-making’, [1972] Public Law at 215 and 299.
G Ganz, Quasi-Legislation, Sweet & Maxwell.
L Grant and I Martin, Immigration, Law and Practice, The Cobden Trust.
283
J A G Griffith, The Politics of the Judiciary, Fontana.
I Harden and N Lewis, The Noble Lie, Hutchinson.
C Harlow and H F Rawlings, Law and Administration, Weidenfeld and Nicolson.
T C Hartley, The Foundations of European Community Law, Oxford University

Press.
T C Hartley and J A G Griffith, Government and Law, Weidenfeld & Nicolson.
House of Commons Select Committee on the Parliamentary Commissioner,

Reports, Her Majesty’s Stationery Office.
D Hughes, Environmental Law, Butterworths.
D Hughes, Public Sector Housing Law, Butterworths.
P Jackson, Natural Justice, Sweet & Maxwell.
B L Jones, Garner on Administrative Law, Butterworths.
P Leyland, T Woods and J Harden, Textbook on Administrative Law, Blackstone

Press.
M Loughlin, Local Government in the Modern State, Sweet & Maxwell.
G Marshall, ‘Maladministration’, [1973] Public Law 32.
P McAuslan and J F McEldowney, Law, Legitimacy and the Constitution, Sweet

and Maxwell.
J F McEldowney, Public Law, Sweet and Maxwell.
P Morgan and S Nott, Development Control, Butterworths.
Parliamentary Commissioner for Administration, Annual and Other Reports, Her

Majesty’s Stationery Office.
D Pearl and K Gray, Social Welfare Law, Croom Helm.
H F Rawlings, Law and the Electoral Process, Sweet & Maxwell.
H Street and R Brazier (eds), de Smith on Constitutional and Administrative Law,

Penguin Education.
A E Telling, Planning Law and Procedure, Butterworths.
H W R Wade and C F Forsyth, Administrative Law, Oxford University Press.
284
BIBLIOGRAPHY
R J Walker and R W Ward, The English Legal System, Butterworths.
D W Williams, Maladministration Remedies for Injustice, Oyez.
285
Index
A B
Administrative agencies Bias
breach of statutory duty . . . . . .63–64 natural justice, rule against . .165–170
criminal liability . . . . . . . . . . . . . . . .64 ‘real danger’ test . . . . . . . . . . .168–169
negligence . . . . . . . . . . . . . . . . . .62–63 statutory exclusion or
statutory authority . . . . . . . . . . .61–62 modification . . . . . . . . . . .169–170
substantive ultra vires . . . . . . . . . . .178
tortious liability . . . . . . . . . . . . . . . .61 British Steel . . . . . . . . . . . . . . . . . . . . . . .92
Administrative law Bylaws

definition . . . . . . . . . . . . . . . . . . . . .1–2 confirmation . . . . . . . . . . .53, 117–119
constitutional background . . . . .5–14 judicial control . . . . . . . . . . . .117–119
scope and purpose . . . . . . . . . . . . .1–2 local authorities and . . . . . . . .53, 117
Advisory Conciliation and Arbitration C

Service (ACAS) . . . . . .95–96, 130–131
Central government
Application for judicial review control of local authorities . . . .50–51
declaration . . . . . . . . . . . . . . .234, 235 control of public corporations . . . .89
injunction . . . . . . . . . . . . . . . .234, 235 Crown status . . . . . . . . . .17–19, 20–22
importance . . . . . . . . . . . . . . . . . . . .237 functions . . . . . . . . . . . . . . . . . . .22–24
Law Commission
recommendations . . . . . . . . . .240 Certiorari
prerogative orders . . . . . . . . . . . . .234 bodies amenable to . . . . . . . .225–226
procedures . . . . . . . . . . . . . . .235–237 duty to act judicially . . . . . . .226–227
protection of rights in grounds for . . . . . . . . . . . . . . . . . . .225
public law . . . . . . . . . . . . .237–239 locus standi . . . . . . . . . . . . . . . . .28–229
reform of remedies in private bodies . . . . . . . . . . . . .227–228
administrative law . . . . . .233–240 Compulsory purchase of land
remedies available . . . . . . . . . . . . .235 central government
Appeals approval . . . . . . . . . . . . .23, 27, 42
administrative appeals . . . . .205–206 local authorities’ powers . .42–43, 53,
generally . . . . . . . . . . . . . . .52–53, 205 103, 119, 191–192,
on a point of law 76, 80–81, 82, 83–84 197–200, 241–242
tribunals . .68–69, 73, 80–81, 81–82,84 nature of powers . . . . . . . . . . . . . .103
Attorney General Compulsory purchase orders as

Crown proceedings . . . . . . . .248, 253 delegated legislation . . . . . . . . . . .119
declarations . . . . . . . . . . .218–220, 223 Consultation . . . . . . . . . . . . . . . . .134–137
injunctions . . . . . . . .220–222, 223–224
relator and other proceedings 223–224 Contracts
administrative regulation by . . . .104
Audit . . . . . . . . . . . . . . . . . .47, 48–50, 219 Crown . . . . . . . . . . . . . . . . . . .248–249
local authorities . . . . . . .43–45, 55–57
public corporations . . . . . . . . . .90–92
287
Conventions . . . . . . . . . . . . . . . . . . . . . .11 Discretionary powers

audit control in local
County councils . . . . . . . . . . . . . . . . . . .40 authorities . . . . . . . . . . . . . . .48–50
Criminal liability improper purposes . . . . . . . .197–200
administrative regulation judicial control . . . .2–5, 102, 178–181
by . . . . . . . . . . . . . . . . . . . .104–105 187–203
and local authorities . . . . . . . . . . . .64 nature of . . . . . . . . . . . . . . . . . . . . .102
and public corporations . . . . . .90–91 relevant considerations . . . . . .49–50,
misconduct in a public office . . . . .58 195–197
statutory procedures . . . . . . .128–134
Crown total unreasonableness . .50, 200–202
conduct of government . . . . . . .17–19
contracts . . . . . . . . . . . . . . . . .248–249 Disciplinary functions
Crown Proceedings Acts 17, 248–260 administrative regulation by . . . .105
legal immunities . . . . .19–20, 248–260 agricultural marketing boards . . . .95
public interest immunity . . . .254–260 natural justice . . . . . . . . . . . . .157–159
servants and agents . .20–22, 248–249 District councils . . . . . . . . . . . . . . . .40–41
tortious liability . . . . . . . . . . .250–252
Crown proceedings E
Crown Proceedings
Acts . . . . . . . . . . . . . . .17, 248–260 Electricity companies . . . . . . . . . . . . . . .92
discovery of documents . . . .255–257 EU law
judicial remedies . . . . . . . . . .252–253 and administrative
procedures . . . . . . . . . . . . . . .253–254 powers . . . . . . . .100–101, 124–127
public interest immunity . . . .254–260 annulment of unlawful
administrative action . . .244–246
D applied in Member States . . . . . . .5–9
98–101, 124–127
Damages . . . . . . . . . . . .235–236, 237–239, EU institutions . . . . . . . . . . . . . . . . .124
243, 245–246 European Convention on
Declaration . . . . . . . . . . . . . .213–220, 223 Human Rights . . . . . . . . . . . . . . .6
application for judicial European Court of Justice . . . . . . .125
review . . . . . . . .234–235, 237–239 244–246
exclusion . . . . . . . . . . . . . . . . . . . . .215 nature . . . . . . . . . . . . . . . . . . . . .99–100
locus standi . . . . . . . . . . . . . . . .218–220 object of . . . . . . . . . . . . . . . . . . . .98–99
uses in administrative law . .213–214 sources . . . . . . . . . . . . . . . . . . .125–126
supremacy . . . . . . . . . . . . . . . . . . . .7–8
Delegated legislation
bylaws . . . . . . . . . . . . . . . . . . .117–119 Error of law on the face of the record
classification . . . . . . . . . . . . . .116–117 and certiorari . . . . . . . . . . . . . . .184–185
compulsory purchase orders . . . . .119 and doctrine of ultra vires . . . .184–185
judicial control . . . . . . . . . . . .122–124 Estoppel
Parliamentary control . . . . . .121–122 common law requirements . .143–145
standing orders . . . . . . .120, 232–233 government policy . . . . . . . . . . . . .147
statutory instruments . .116, 120–121 restrictions on . . . . . . . . . . . . .145–147
Delegation European Court of Justice
delegatus non potest delegare . .137–139 annulment powers . . . . . . . . .244–246
implied authority . . . . . . . . . . . . . .141 functions related to
legal implications . . . . . . . . . .137–141 annulment . . . . . . . . . . . . .245–246
local authorities . . . . . . . .60, 139–141
288
INDEX
F mandatory injunctions . . . . . . . . .221

prohibitory injunctions . . . . .220–221
Franks Report on Tribunals and Inquiries relator proceedings . . . . . . . .223–224
Council on Tribunals . . . . . . . . .28–29
implementation . . . . . . . . . . . . .28–29 Inquiries procedure
inquiries . . . . . . . . . . . . . . . . . . . .28–29 at the inquiry . . . . . . . . . . . . . . .33–34
tribunals . . . . . . . . . . . . . . . . . . . .67–68 after the inquiry . . . . . . . . . . . . .34–35
Tribunals and Inquiries Act . . .28–32 decisions and reasons . . . . . . . . . . .35
legal enforcement . . . . . . . . . . . .35–36
G natural justice . . . . . . . . . . . . . . . . . .27
preliminaries . . . . . . . . . . . . . . . .32–33
Government departments role of the inspector . . . . . . .27, 30–36
civil servants . . . . . . . . . . . . . .139–142
incorporation . . . . . . . . . . . . . . . . . .18 Inspectors
ministers . . . . . . . . . . . . . . . . . . .17–19 planning decisions by . . . . . . . .31–32
status . . . . . . . . . . . . . . . . . . . . . . . . .27
H
J
Health Service Commissioners
complaints . . . . . . . . . . . . . . . .270–271 Judicial functions
complainants . . . . . . . . . . . . .270–271 certiorari and . . . . . . . . . . . . . . .226–227
exclusions from delegation of . . . . . . . . . . . . . .137–142
investigations . . . . . . . . . .270–271 and legal immunity . . . . . . . . . . . . .79
functions . . . . . . . . . . . . . . . . . . . . .270 natural justice . . . . . . . . . . . . .159–163
scope of investigations . . . . .270–271 Judicial review: see Delegated
Heard, the right to be Legislation, Discretionary powers,
and statutory inquiries . . . . . . . 29–30 Natural justice, No evidence,
33–34 Procedural
legal representation . . . . . . . .173–174 ultra vires, Substantive ultra vires
natural justice
requirements . . . . . . . . . .170–176 L
prior notice . . . . . . . . . . . . . . .170–172 Legal aid, advice and assistance
the opportunity to be heard . . . . .172 tribunals . . . . . . . . . . . . . . . . . . .78–79
Housing Corporation . . . . . . . . . . . . . .94 Legislation
advantages . . . . . . . . . . . . . . .107–109
I categories . . . . . . . . . . . . . . . . .109–110
Immigration disadvantages . . . . . . . . . . . . .107–109
adjudicators . . . . . . . . . . . . . . . .72–73 legislative procedures . . . . . .110–111
appeals . . . . . . . . . . . . . . . . . . . . .72–73 Local Acts and local government
Immigration Appeals reorganisation . . . . . . . . . . . . . .113
Tribunal . . . . . . . . . . . . . . . . .72–73 Miscellaneous Provisions and
Adoptive Acts . . . . . . . . . . . . .114
Independent Television Private Local Acts . . . . . . . . .112–113
Commission . . . . . . . . . . . . . . . . . . . .91 Provisional Orders . . . . . . . . . . . . .114
Renton Committee on the
Industrial Tribunals . . . . . . . . . . . . . . . .70
Preparation of Legislation . . .109
Injunction Special Procedure Orders . . . . . . .114
and the Crown . . . . . . . . . . . . .224–225
Licensing
application for judicial
administrative regulation
review . . . . . . . . . . . .234, 236–239
by . . . . . . . . . . . . . . . . . . . .103–104
interlocutory injunctions . . . .222–223
locus standi . . . . . . . . . . . . . . . .223–224
289
Local authorities N
acquisition of property . . . . . . .42–43
and the doctrine of ultra vires . .46–47 Nationalised industries . . . . . . . . . . . . .90
as statutory corporations . . . . .42–47 Natural justice
audit . . . . . . . . . . . . . . . . . . . . . . .48–50 bias . . . . . . . . . . . . . . . . . . .56, 165–170
bribery and corruption . . . . . . . . . .57 breach of natural justice
capital expenditure . . . . . . . . . . . . . .48 rules . . . . . . . . . . . . . .176–177, 182
central government control . . . .50–54 contractual and other
contracts . . . . . . . . . . . . . . . . . . .43–45 relationships . . . . . . . . . . .156–157
council tax . . . . . . . . . . . . . . . . . .48, 56 disciplinary proceedings . . . .157–159
county councils . . . . . . . . . . . . . . . . .40 duty to act fairly . . . . . . . . . . .163–165
decisions . . . . . . . . . . . . . . . . . . .40, 60 exclusions . . . . . . . . . . . . . . . .153–159
district councils . . . . . . . . . . . . .40–41 judicial and administrative
extended powers . . . . . . . . . . . .45–46 functions . . . . . . . . . . . . . .159–163
finance . . . . . . . . . . . . . . . . . . . . .48–50 legal representation . . . . . . . .173–174
legal control . . . . . . . . . . . . . . . . . . .48 limitations . . . . . . . . . . . . . . . .153–159
legal liability . . . . . . . . . . . . . . . .60–68 preliminary processes . . . . . .155–156
London government . . . . . . . . . . . .41 professional advice . . . . . . . . . . . .157
meetings . . . . . . . . . . . . . . . . . . .58–59 right to be heard . . . . . . . . . . .170–174
members . . . . . . . . . . . . . . . . . . . . . .54 statutory procedures . . . . . . .153–154
parish councils . . . . . . . . . . . . . .41–42
rate-swaps . . . . . . . . . . . . . . . . . .44–45 Nature Conservancy Council for
Wales . . . . . . . . . . . . . . . . . . . . . . . . .41 England . . . . . . . . . . . . . . . . . . . . . . .95
Local Commissioners for Administration Next Step Agencies . . . . . . . . . . . . .87–88
and judicial review . . . . . . . . . . . .269
No evidence
complaints . . . . . . . . . . . . . . . . . . . .272
appeal on a point of law . . . .211–212
complainants . . . . . . . . . . . . . . . . .272
fundamental questions
exclusions from investigations . . .272
of fact . . . . . . .14–15, 181, 190–191
functions . . . . . . . . . . . . . . . . . . . . . .271
review and ultra vires . . . . . . . . . . .181
scope of investigations . . . . .271–273
Locus standi O
certiorari . . . . . . . . . .215–218, 229–230
declaration . . . . . . .215–218, 218–220 Ombudsmen
generally . . . . . . . . . . . . . . . . .215–218 European Ombudsman . . . . .273–274
injunction . . . . . . . .215–218, 223–224 Health Service
mandamus . . . . . . . . . . . . .215–218, 233 Commissioners . . . . . . . .270–271
prohibition . . . . . . . . . . .215–218, 230 Local Commissioners for
statutory review . . . . . . . . . . . . . . .242 Administration . . . . . . . . .271–273
sufficient interest . . .215–218, 235–237 Northern Ireland
Ombudsmen . . . . . . .261, 272–273
M Ouster clauses
and doctrine of ultra vires . . . .185–187
Maladministration
and injustice . . . . . . . . . .261, 268–273
meaning . . . . . . . . . . . . . . . . . .267–268 P
remedies for . . . . . . . . . . . . . . . . . .261 Parish councils . . . . . . . . . . . . . . . . .41–42
Mandamus Parliamentary Commissioner for
legally enforceable duties . . .231–233 Administration
locus standi . . . . . . . . . . . .215–218, 233 alternative remedies . . . . . . .264–265
scope . . . . . . . . . . . . . . . . . . . . . . . .232 and judicial review . . . . . . . . .269–270
complaints . . . . . . . . . . . . . . . . . . . .264
290
INDEX
complainants . . . . . . . . . . . . . . . . .264 Prohibition . . . . . . . . . . . . . . .106–107, 230

departments and authorities
Proportionality . . . . . . . . . . . . . . .202–203
subject to investigation . .262–263
exclusions from Public corporations
investigations . . . . . . . . . .263–264 categories . . . . . . . . . . . . . . . . . . .87–89
injustice in consequence of government control . . . . . . . . . .87–89
maladministration . . . . . .267–268 judicial control . . . . . . . . . . . . . . . . .90
procedures for legal liability . . . . . . . . . . . . . . . .90–91
investigations . . . . . . . . . .266–267 status . . . . . . . . . . . . . . . . . . . . . .86–91
scope of investigations . . . . . . . . .264 statutory corporations . . . . . . . .86–87
265–266
Public interest immunity
Parole Board . . . . . . . . . . . . . . . . . . .88, 175 certificates . . . . . . . . . . . . . . . .259–260
class and contents of
Powers, administrative
documents . . . . . . . . . . . .256–257
and EU law . . . . . . . . . . . . . . .100–101
conclusiveness of claims . . . . . . . .255
characteristics . . . . . . .97–98, 102–103
confidential information . . . . . . . .257
contractual regulation . . . . . . . . . .104
Crown Proceedings Act . . . . .254–255
disciplinary regulation . . . . . . . . .105
Matrix Churchill . . . . . . . . . . . . . . .258
discretionary powers . . .102, 187–203
financial regulation . . . . . . . . . . . .104
initiation of administrative R
action . . . . . . . . . . . . . . . . . . . . .103 Radio Authority . . . . . . . . . . . . . . . . . . . .91
licensing . . . . . . . . . . . . . . . . . .103–104
nature of . . . . . . . . . . . . .101–102, 178 Rate-swaps . . . . . . . . . . . . . . . . . . . . .44–45
regulation by criminal Reasons
law . . . . . . . . . . . . . . . . . . .104–195 purpose of . . . . . . . . . . . . . . . .149–151
sources . . . . . . . . . . . . . . . . . . .106–127 requirements in law . . . . . . . .148–152
statutory . . . . . . . . . . . . . . . . .101–105
Remedies, administrative
Precedent and questions of legality . . . .206–209
tribunals . . . . . . . . . . . . . . . . . . . . . .80 and the exclusion of judicial
Prerogative orders remedies . . . . . . . . . . . . . .208–209
application for judicial review . . .234 judicial remedies
certiorari . . . . . . . . . . . . . . . . . .225–230 contrasted . . . . . . . . . . . . .206–207
mandamus . . . . . . . . . . . . . . . . .231–233 varieties . . . . . . . . . . . . . . . . . .205–206
prohibition . . . . . . . . . . .106–107, 230 Remedies, judicial
Prerogative powers . . . . . . .11–14, 97–98 annulment in EU law . . . . . .244–246
106–107, 227 appeals . . . . . . . . . . . . . . . . . . .211–212
appeals on a point of law . . .211–212
Privatisation . . . . . . . . . . . . . . . . . . .86–91 application for judicial
Procedural ultra vires review . . . . . . . . . . . . . . . .233–240
appeal requirements . . . . . . . . . . .133 certiorari . . . . . . . . . . . . . . . . . .225–230
application requirements . . .132–133 damages . . . . . . . . . . . . . . . . . . . . .243
communication of declaration . . . . . . . . . . . . . . .213–220
decisions . . . . . . . . . . . . . .147–148 injunction . . . . . . . . . . . . . . . .220–224
consultation . . . . . . . . . . . . . .134–136 mandamus . . . . . . . . . . . . . . . . .231–233
delegation . . . . . . . . . . . . .60, 137–139 nature of . . . . . . . . . . . . . . . . .210–211
estoppel . . . . . . . . . . . . . .142–147, 243 prerogative orders . . . . . . . . .225–233
mandatory and directory prohibition . . . . . . . . . . .106–107, 230
procedures . . . . . . . . . . . .128–130 review . . . . . . . . . . .178–179, 212–213
reasons . . . . . . . . . . . . . . . . . . .148–152 statutory review . . . . . . . . . . .241–243
statutory procedures . . . . . . . . . . .128
291
Rent Assessment Committees nature of substantive powers . . . .178

and Rent Tribunals . . . . . . . . . . .82–84 no evidence . . . . . . . .14, 181, 187–192
ouster clauses . . . . . . . . . . . . . .185–187
Rule of Law . . . . . . . . . . . . . . . . . . . . . .2–4 policies . . . . . . . . . . . . . . . . . . .192–195
proportionality . . . . . . . . . . . .202–203
S relevant considerations . . . . .195–197
Separation of powers . . . . . . . . . . . . .9–11 total unreasonableness . . . . .200–202
Social Security Appeal Tribunals . . . . .84 T

Social Security Commissioners . . . . . .85 Town and country planning
Sovereignty and supremacy of central government control . . .50–54
Parliament . . . . . . . . . . . . . . . . . . . .5–9 enforcement of development
control . . . . . . . .52–53, 53–54, 105
Statutory inquiries 170–172, 210–212
accident inquiries . . . . . . . . . . . . . . .25 planning appeals . . . . . .27, 30–32, 36
and controversial development . . .38 52–53, 73, 133
and decisions of inspectors . . . .31–32 148–149, 151–152
company inquiries . . . . . . . . . . .25–26 153–154, 195–197
exclusion . . . . . . . . . . . . . . . . . . .36–37 206–207, 271
Franks Report on Tribunals planning appeal
and Inquiries . . . . . . . . . . . . .28–30 decisions . . . . . . .27, 29–30, 31–32
future of legal enforcement of 34, 35, 36, 52–53
procedural rules . . . . . . . . . . . . .39 133, 151–152
organisation . . . . . . . . . . . . . . . .30–32 185–187, 194–195
planning inquiries . . . . . . . . . . .30–32 241–243
policy-based decisions . . . . . . . . . . .27 planning permission . . .22, 27, 30–31
procedures . . . . . . . . . . . . . . . . .29–32 35, 36, 38–39, 50–54
public control of land . . . . . . . . . . . .27 71, 73, 104, 105, 132–133
restriction . . . . . . . . . . . . . . . . . .37–38 142–145, 153–154, 166–167
rules of procedure . . . . . . . . . . .32–35 185–187, 195–197, 199–200
tribunals of inquiry . . . . . . . . . . . . . .26 204–208, 210–212, 218–220
Windscale Inquiry . . . . . . . . . . .38–39 228, 229–230, 241, 271
Statutory instruments . . . . .116, 120–121 policies . . . . . . . . . . . . . . . . . . . . . . . .53
statutory review of
Statutory review decisions . . . . . . . .35–36, 241–243
grounds . . . . . . . . . . . . . . . . . . . . . .241 structure and local
locus standi . . . . . . . . . . . . . . . .242–243 plans . . . . . . . . . . . . . .53, 153–154
scope . . . . . . . . . . . . . . . . . . . . . . . .241
six-week limitation . . . . . . . . . . . . .242 Traffic Commissioners
Substantive ultra vires Transport Tribunal . . . . . . . . . . . . . .80–81

administrative agencies Tribunals
generally . . . . . . . . . . . . . .178–183 additional functions . . . . . . . . . . . . .70
discretionary powers . . . . . . .187–203 allocation of functions . . . . . . . .71–74
fundamental matters of law and inferior courts . . . . . . . . . . . . . .74
and fact . . . . . . . . . . . . . . . .181–192 appeals from departmental
improper purposes . . . . . . . .197–200 decisions . . . . . . . . . . . . . . . .68–69
inferior courts . . . . .181–182, 183–185 characteristics . . . . . . . . . . . . . . .67–68
judicial review of substantive Council on Tribunals . . .28–29, 65–66
powers . . . . . . . . . . . . . . . .178–179 74–75, 77, 79
limits of statutory substantive court substitutes . . . . . . . . . . . . . . . .66
powers . . . . . . . . . . . . . . . .179–183 definition . . . . . . . . . . . . . . . . . . .65–66
292
INDEX
disputes between
individuals . . . . . . . . . . . . . . . . .69–70
first instance claims . . . . . . . . . .69
Franks Report . . . . . . . . . . . . . . .65–66
inquiries contrasted . . . . . . . . . .65–66
organisation . . . . . . . . . . . . . . . .77–80
policy-oriented tribunals . . . . .66–67
procedures . . . . . . . . . . . . . . . . .77–80
safeguards . . . . . . . . . . . . . . . . . .75–76
status . . . . . . . . . . . . . . . . . . . . . .65–66
Tribunals and Inquiries Act . . .74–75
U
Ultra Vires, doctrine of: see Delegated
legislation, Discretionary powers,
Natural Justice, No evidence,
Procedural
ultra vires, Substantive ultra vires
V
Vaccine Damage Tribunals . . . . . . .81–82
W
Windscale Inquiry . . . . . . . . . . . . . . .38–39
Wool Marketing Board . . . . . . . . . . .94–95
293

Introduction To Administrative Law

Uploaded by

Copyright:

Available Formats

Introduction To Administrative Law

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Introduction To Administrative Law

Uploaded by

Copyright:

Available Formats

INTRODUCTION

© Hawke, N, Parpworth, N 1996

All rights reserved. No part of this publication may be reproduced, stored in a

ISBN 1 85941 191 6

Printed and bound in Great Britain

Professor Neil Hawke

Part 1 Administrative Law and the Administrative Agencies

1 The Scope and Purpose of Administrative Law 1

2 The Crown and Central Government 17

3.3.1 Implementation of the Franks Report: the Council on

5.4.6 Tribunals and inferior courts 74

6 Public Corporations, Executive and Privatised Agencies 86

6.1.9 Legal liability of public corporations 90

Part 2 Administrative Powers

7 The Nature and Characteristics of Administrative Powers 97

8 The Sources of Administrative Powers 106

8.2 Legislation 107

Part 3 Judicial Review, Ultra Vires and Natural Justice

9 Procedural Ultra Vires 128

9.1.5 Application requirements 132

10 Natural Justice 153

10.6.1 Prior notice 170

11 Substantive Ultra Vires 178

Part 4 Remedies for Unlawful and Irregular Administrative Action

12 Administrative Remedies 204

12.2.2 Administrative and judicial remedies serving

13 Judicial Remedies 210

13.9.4 The importance of the application for judicial review 237

14 Crown Proceedings 247

14.6.2 Public interest immunity recognised 255

15 Remedies for Maladministration 261

Self-assessment Questions 275

Adams v Naylor [1946] AC 543 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .247

Backhouse v Lambeth London Borough Council (1972) Times, 14 October, (1972)

Davy v Spelthorne District Council [1983] 3 All ER 278 . . . . . . . . . . . . . . . . . . . . . . . . . . .238

E (A Minor) v Dorset County Council . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .63

Gaiman v National Association for Mental Health [1971] Ch 317, [1970]

Hibernian Property Co Ltd v Secretary of State for the Environment (1974)

Inland Revenue Commissioners v National Federation of Self-Employed

L (AC) (An infant) Re [1971] 3 All ER 743 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .134, 146

Marshall v Southampton and Southwest Hampshire Area Health Authority

O’Reilly v Mackman [1983] 2 AC 237, [1982] 3 WLR 1096, [1982]

R v Advertising Standards Authority Ltd, ex p Insurance Services plc (1990)

R v Bailey [1994] Crim LR 367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .169

R v Inland Revenue Commissioners, ex p Preston [1985] AC 835, [1985] 2 WLR 836,

R v Post Office, ex p ASTMS [1981] ICR 76 [1981] 1 All ER 139 . . . . . . . . . . . . . . . . . . . . .135

Save Britain’s Heritage v Secretary of State for the Environment [1991]

Tamlin v Hannaford [1950] KB 18, [1950] 65 TLR 422 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Abortion Act 1967 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .110

British Steel Act 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92

Cheques Estate Act 1917 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19

Dangerous Dogs Act 1991 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .171

Education Act 1944 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .109

Finance (No 2) Act 1940 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 189

Gaming Act 1968 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .184

Health Authorities Act 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Immigration Act 1971 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23, 99

Justices of the Peace Act 1949 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .170

Landlord and Tenant Act 1987 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83