Law and practice in the 1960s: (2) Public law

 

This is the second paper in the series “Law and Practice in the 1960s.”

Part of what follows is based on a paper I gave in Washington DC in 1997 when I was explaining our arrangements to a conference attended by senior judges from across the common law world.

In England we do not have a written constitution. Nor did we have an entrenched bill of rights because our liberties were traditionally based on freedoms, not rights. Our attitude to the separation of powers was traditionally schizophrenic. Until the Second World War the appointment of High Court judges often owed much to political patronage, and the Attorney-General of the day was seen to have the right to the succession if there was a vacancy in the office of Lord Chief Justice.

One of the last appointments of a former law officer to high judicial office[1] was in fact made by a Lord Chancellor of the opposing party. It was Lord Jowett, a Labour Lord Chancellor, who in 1948 recommended the appointment of Mr John Reid KC to be a law lord. He had served as a Scottish Unionist MR off and on since 1931, and was a Scottish law officer for most of Winston Churchill’s wartime administration, but he had never previously held judicial office. His service as a law lord continued until his retirement in 1975 at the age of 85, and he dominated the law lords during the first 11 years I practised at the Bar.  Indeed, I saw him in action for four days when I appeared as Junior Counsel for the Inland Revenue in the House of Lords in Wiseman v Borneman[2] in 1969.

Against this background it is perhaps hardly surprising that we never had a fully structured system of administrative law. In 1960 the Lord Chief Justice, Lord Parker of Waddington, who was a former Treasury “devil”, was reported in The Times as saying that the Courts “have a positive responsibility to be the handmaiden of administration rather than its governor”. There were the old prerogative writs (renamed orders after 1938) which were under the control of the Court of King’s Bench, but with a conservative (with a small “c”) judiciary they presented a formidable obstacle course to most of those who sought recourse to them as a remedy for abuse of executive power. And there was something called “natural justice” which sputtered fitfully, in fits and starts, as a remedy for procedural unfairness.

When I was a Bar student in the early 1960s one of my favourite books was a collection of Lord Justice Denning’s 1951 Hamlyn Lectures, published under the title “Freedom under the Law”.   I still possess it. The times were very different then. The Crown Proceedings Act 1947, which allowed you to sue the Crown without asking the Attorney-General for permission to do so, had only just been passed.   The report of the Franks Committee, which led to a right of appeal to the High Court on points of law from tribunal decisions, was still six years away.

In his lectures Lord Justice Denning complained, among other things, about the limitations of certiorari as a remedy for wrongs done by public authorities. You had to detect an error of law on the face of the record if you were to get anywhere, and if there was nothing that even the most ingenious judicial mind could recognise as a record, what was now the Divisional Court of the Queen’s Bench Division could give you no remedy by way of prerogative order, because there was no record that could be brought up there to be quashed.

In a purple passage at the very end of his lectures, he said this:

“Our procedure for securing personal freedom is efficient, but our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age.”

His message was that the old procedures had to be replaced by new and up to date machinery, by declarations and injunctions and actions for negligence.   All of these were what we would now call private law remedies.

In those days there was a time limit of six months for applications for certiorari. There was no time limit, however, for applying for the prerogative orders of prohibition and mandamus, or for applications for a declaration or an injunction in civil proceedings, although since these were all discretionary remedies, delay could be fatal to the prospects of obtaining relief. A three-judge Divisional Court of the Queen’s Bench Division (often, but not necessarily, presided over by the Lord Chief Justice[3]) was the venue for applications for prerogative orders (for which leave had to be obtained, also from a three-judge court). Applications for a declaration or an injunction would be heard by a single judge in the Queen’s Bench Division or the Chancery Division.

Twenty years ago Professor Jeffrey Jowell expressed the view that the dark days for administrative law had lasted till the 1960s, when a trilogy of House of Lords decisions first loosened a few of the barriers which were blocking the orderly development of judicial review along principled lines. I said in 1997 that it was indeed the case that with one exception we never now referred to cases decided before 1964. The old landmark cases were superseded by modern authority which often restated the principles they established in an up to date context.

The single exception is the case in 19481 which established the concept of “Wednesbury unreasonableness”. Lord Greene MR, speaking of the power of judicial supervision over the exercise of administrative discretion, said this:

“…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 matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ‘unreasonably.’ Similarly, you may have something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ, I think it was, gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith. In fact, all those things largely fall under one head.”

The other landmark dictum which is worth mentioning at this stage, although it is now subsumed by later authority, is to be found in a judgment of the future Lord Atkin in 1923[4] when he said:

“The operation of the writs [of prohibition and certiorari] has extended to control the proceedings of bodies which do not claim to be and would not be recognised as, courts of justice. Whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.”

We often cited these words in the 1960s.

But the years between 1945 and 1964 were not wholly wasted. Largely driven on by Lord Denning, the courts revived the remedy of certiorari for error of law on the face of the record,[5] and adapted the old private law remedies of declaration and injunction for use as public law remedies. Everyone knew at the time that these were makeshift solutions, but they were very much better than nothing, and in the 1950s and early 1960s the principles of what we now recognise as administrative law were largely being advanced, on a case by case basis, by decisions taken in private law actions claiming a declaration of right.

The first breakthrough came in 1964. The Chief Constable of Brighton had been summarily dismissed, following his acquittal on serious criminal charges, and he complained about the absence of procedural fairness surrounding his dismissal, which had deprived him, inter alia, of his pension rights. By this time Atkin LJ’s 1923 decision had become encrusted with barnacles, so that it was thought that “natural justice” would only be applied to decisions of a judicial, or quasi-judicial nature, and not to decisions of an administrative nature.

The House of Lords swept away these distinctions.[6] Lord Reid said that if the decisions in post-1923 cases meant that it was never enough that a body simply had a duty to determine what the rights of an individual should be, but that there must always be something more to impose on it a duty to act judicially before it could be required to observe the principles of natural justice, then that appeared to him impossible to reconcile with earlier authorities. It is on the foundation-stone of Ridge v Baldwin that the modern principles of procedural impropriety as a free-standing ground for judicial review were built.

The next breakthrough came in 1968. Statute had established a right of complaint to a Minister, but the Minister contended that he had an absolutely unfettered discretion to decide which complaints he should entertain and which he should ignore. The House of Lords would have none of it.[7] Lord Reid said this:

“It is implicit in the argument for the Minister that there are only two possible interpretations of this provision—either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case. I do not think that that is right. Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole, and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act.”

He also held that in this context the Minister could not simply evade the supervisory jurisdiction of the courts by giving no reasons for refusing to entertain a complaint. It is notable that ten years earlier Parliament had placed the new burgeoning jurisdiction of administrative tribunals very firmly under judicial supervision, when in the Tribunals and Inquiries Act 1958 it had created an express avenue of statutory appeal on errors of law to the courts, and an express duty on the tribunals to give reasons for their decisions.

The third landmark case[8] followed the next year. From time to time Parliament had been creating “ouster” provisions in legislation, by which it purported to oust the supervisory jurisdiction of the courts, not only by creating a more convenient statutory remedy for errors of law, but also, on occasion, by extinguishing the authority of the courts altogether. This had led to sophisticated distinctions being made between void and voidable decisions, and a lot of time and money being consumed in the courts in trying to discern the difference.

In the Anisminic case, decided in 1969, this all came to an end. The Foreign Compensation Commission had been created under statute to make awards of compensation in certain circumstances to British citizens whose property had been expropriated by foreign governments, and a “no certiorari” clause was enacted to protect the Commission’s decisions from litigation. The Court of Appeal, overruling the judge, upheld the clause. Again the House of Lords would have none of it.   After reciting the words of the clause –

“The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law” –

Lord Reid set out the rival contentions:

“The Commission maintain that these are plain words only capable of having one meaning. Here is a determination which is apparently valid; there is nothing on the face of the document to cast any doubt on its validity. If it is a nullity, that could only be established by raising some kind of proceedings in court. But that would be calling the determination in question, and that is expressly prohibited by the statute. The appellants maintain that that is not the meaning of the words of this provision. They say that ‘determination’ means a real determination and does not include an apparent or purported determination which in the eyes of the law has no existence because it is a nullity.  Or, putting it in another way, if one seeks to show that a determination is a nullity, one is not questioning the purported determination—one is maintaining that it does not exist as a determination.  It is one thing to question a determination which does exist; it is quite another thing to say that there is nothing to be questioned.”

A student learning administrative law in England today would be astonished that there was ever a need for these sophistries.   By its decision in Anisminic the House of Lords held that any material error of law constituted an excess of jurisdiction, thereby burying forever the old distinctions between errors of law which went to a court’s jurisdiction and errors of law committed by it within its jurisdiction.

I would now add to this trilogy of Lord Reid’s decisions a fourth, taken in the case of Wiseman v Borneman, in which I had appeared as counsel. Curiously, because we were concerned with the fate of a summons to strike out the plaintiff’s claim as disclosing no cause of action, we spent four days in the House of Lords arguing whether there was anything to argue about! The question was whether the courts could insert principles of natural justice into what appeared to be a self-contained statutory scheme.

Lord Reid said:

“Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules. For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation.”

In my first six years of practice at the Bar (1964-1970) I only appeared once before a Queen’s Bench Divisional Court, on 6th November 1970. Lord Parker was presiding. My clients were the Special Commissioners of Income Tax, and my instructing solicitor was John Bailey, who later sent me instructions to act as Counsel to the Sizewell “B” Nuclear Power Station Inquiry. Later still he became Treasury Solicitor.

The case arose because the Commissioners had for their own protection bespoken a transcript of what turned out to be extremely long drawn out legal proceedings in which they had been threatened with libel proceedings by counsel for the taxpayer (who was himself disbarred much later for professional misconduct in an entirely different context). Counsel was seeking an order from the Divisional Court that my clients should disclose the transcript. On my advice the Special Commissioners altered their stance and expressed themselves willing to do so, so long as they were indemnified for 50% of the cost of the transcript. The court was happy to dispose of the matter on that basis, and the earlier eagerness to obtain a copy disappeared rather rapidly.

[1] More recent examples were the appointment of Sir Jocelyn Simon as President of the Probate, Divorce and Admiralty Division, and of Sir Ross Cranston as a High Court Judge. Both were former Solicitors-General and distinguished lawyers in their own right.

[2] [1971] AC 297.

[3] Lord Parker often sat with Mr Justice Winn and Mr Justice Ashworth, who were also both former Treasury devils (as the standing Treasury Counsel in common law matters is called). There is a story that a retired law lord saw Rodger Winn QC admiring the pelicans in St James’s Park one day as he walked across to the Athenaeum for lunch. “Hullo, Winn, not in court”, he remarked, to receive the reply “I am being led by silks in six different courts and I don’t want to show any favouritism.”

[4]             In R v Electricity Commissioners, Ex p London Electricity Joint Committee [1924] 1 KB 171 at p 198.

[5]             See R v Northumberland Compensation Appeal Tribunal ex p Shaw [1951] 1 KB 711.

[6]             Ridge v Baldwin [1964] AC 40.

[7]             Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.

[8]             Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.

3 thoughts on “Law and practice in the 1960s: (2) Public law

  1. Pingback: The Treasury Devil – Henry Brooke

  2. Pingback: The Treasury Solicitor – Henry Brooke

  3. Pingback: Memorable judgments (5): When is a decision not a decision? – Henry Brooke

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