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The Future of Certiorari
Published online by Cambridge University Press: 16 January 2009
Extract
Complaints have often been made about the pitfalls of certiorari as a remedy in administrative law. The reports of recent years have been rich in decisions on its scope, and some of them have brought welcome clarification. But others have been bewildering, so much so that the courts themselves have now begun to encourage litigants to abandon certiorari in favour of the action for a declaration. It is a little paradoxical that in 1932, when certiorari was less vexed with uncertainties than now, the Committee on Ministers' Powers proposed to abolish it, yet in 1957, when it had proved notably unequal to the needs of the times, the Franks Committee discharged it without a stain on its character—and, indeed, recommended that it be given a wider operation, as has now been provided in the Tribunals and Inquiries Act, 1958. The explanation lies not merely in the proclivity of the earlier Committee to embark upon difficult legal questions, which their successors wisely avoided, but in the different nature of the problems considered, some being of form and some of substance. What the Ministers' Powers Committee wanted to reform was the “archaic and in some ways cumbrous and inelastic ” procedure of the ancient prerogative writs of certiorari, prohibition and mandamus, for which they wished to substitute a general right of appeal to the High Court on a point of Law. The Franks Committee, on the other hand, did not address themselves to the defects in procedure—although they were pointed out in evidence —and they said singularly little about the proposals of 1932; they were concerned rather to protect certiorari against the operation of “judge-proof” clauses in Acts of Parliament, and to endorse the sound policy of the bench in giving such clauses a narrow construction.
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References
1 Cmd. 4060 (1932), pp. 62, 99, 117.
2 Cmnd. 218 (1957), para. 117, recommending that remedies by certiorari, prohibition and mandamus be not excluded by statute. The same para. says: “It is sometimes asserted that the procedure involved in seeking these remedies is unduly complex, but we think that this criticism is unfounded.”
3 s. 11. For this provision, see p. 133 of this issue. it is interesting that although the section protects certiorari and mandamus, it says nothing as to actions for declarations. This may give certiorari an advantage.
4 See Appendix I to the Minutes of Evidence, pp. 8 (Mr. S. A. de Smith), 30 (Professor E. C. S. Wade). Mr. de Smith's memorandum is a valuable commentary on the present difficulties. Professor Wade's views are amplified in his article on the Franks Report, 73 L.Q.R. at p. 484.
5 See p. 133 of this issue.
6 Administration of Justice (Miscellaneous Provisions) Act, 1933, s. 5, requiring rules of court to be made for the abolition of the procedure by order nisi and for the introduction of the present method of application.
7 Administration of Justice (Miscellaneons Provisions) Act, 1938, s. 7, substituting orders of the High Court for the former writs of mandamus, prohibition and certiorari.
8 See Davis, , Administrative Law (1951), pp. 730, 738.Google Scholar After Degge v. Hitchcock (1913) 229 U.S. 162, certiorari as a method of judicial review was ousted by the injunction, and after the Federal Declaratory; Judgments Act, 1934 (revised, 1938) declarations also became available. But in many States certiorari still reigns, with its familiar difficulties: Davis, p. 779.
9 Of the many decisions, Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 is perhaps the leading modern case.
10 R. v. Fulham, Hammersmith and Kensington Rent Tribunal, ex p. Zerek [1951] 2 K.B. 1.
11 [1953] 2 Q.B. 18.
12 Ibid, at p. 35.
13 R.S.C., Ord. 59, r. 4 (2); the court has jurisdiction to extend the time under Ord. 64, r. 7.
14 The Rule Committee's constitution and powers are laid down in the Supreme Court of Judicaturs (Consolidation) Act, 1925, s. 99. But the statutory provisions of 1933 and 1938 (notes 6 and 7, above) may indicate that the Committee did not feel that its powers extended to radical reform of procedure. Should that be so in this case also, an Act of Parliament would be necessary.
15 Cf. the views expressed by Mr. de Smith in the final paragraph of his memorandum referred to in note 4, above.
16 [1953] 2 Q.B. at p. 38.
17 Ibid. at p. 41.
18 [1924] 1 K.B. 171 at p. 205.
19 The first signs of serious confusion of terminology appeared in Franklin v. Minister of Town and Country Planning [1948] A.C. 87, discussed in (1949) 10 C.L.J. at pp. 234Google Scholaret seq.
20 “But this reasoning seems to be at variance with legal history. Far from there being any presumption that officials who grant licences do not act as tribunals, the presumption has been all the other way, at least where licensing is a means of protecting the public and not merely of raising revenue. The books are full of references to ‘licensing tribunals’ and the reports cover scores of cases in which such tribunals' decisions have been questioned on certiorari and otherwise.” Mr. D. M. Gordon, q.c., commenting on the Parker case (note 22, below), 70 L.Q.R. 205–206.
21 [1951] A.C. 66. The contrast between this decision and Smith v. R. (1878). 3 App.Cas. 624 is especinlly striking: see 67 L.Q.R. at p. 107.
22 [1953] 1 W.L.R. 1150: [1953] 2 All E.R. 717.
23 “I apprehend that a tribunal which is by law invested with power to affect the property of one of Her Majesty's subjects, is bound to give such subject an opportunity of being heard before it proceeds: and that that rule is of universal application, and founded upon the plainest principles of justice.” Willes, J. in Cooper v. Wandsworth Board of Works (1863) 14 C.B.(N.S.) 180 at p. 190.Google Scholar
24 The Nakkuda Ali case is criticised by myself in (1951) 67 L.Q.R. 103; the Parker case by Mr. D. M. Gordon, q.c., in (1954) 70 L.Q.R. 203. Mr. de smith adopts a similarly critical viewpoint in 68 Harv.L.R. 569 at pp. 594–595, and draws attention to the healtheir trend of authority in other countries of the Commonwealth. See also Dr. R. B. Cooke in [1954] C.L.J. 14.
25 Maitland, The Shallows and Silences of Real Life, Collected Papers, i, at p. 478.
26 In the Electricity Commissioners Case [1924] 1 K.B. at p. 193.
27 (1700) 1 Ld.Raym. 580.
28 The licensing powers of justices were only finally determined to be judicial in R. v. Woodhouse [1906] 2 K.B. 501 (reversed on other grounds, [1907] A.C. 420).
29 See “‘Quasi-judicial’ and its Background” (1949) 10 C.L.J. 216.
30 The cases run from Cooper v. Wandsworth Board of Works (note 23, above) to Urban Housing Co. v. Oxford City Council [1940] Ch. 70. They are listed by Mr. de Smith in 68 Harv.L.R. at p. 575.
31 In Hopkins v. Smethwick Loral Board of Health (1890) 24 Q.B.D. 712 at p. 714.
32 In R. v. Woodhouse (note 28, above) at p. 535, quoted with approval by Bankes, L.J. in the Electricity Commissioners case (note 18, above) at p. 195.Google Scholar
33 In Board of Education v. Rice [1911] A.C. 179 at p. 182.
34 Lord, Halsbury L.C. in Sharp v. Wakefield [1891] A.C. 173 at p. 179.Google Scholar
35 See note 23, above.
36 Local Government Board v. Arlidge [1915] A.C. 120.
37 “… although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature”: Byles J. in Cooper v. Wandsworth Board of Works (note 23, above).
38 (1954) 70 L.Q.R. at p. 209.
39 For the wide meaning of “tribunal” in this context, see note 20, above.
40 Fisher v. Keane (1878) 11 Ch.D. 353; Labouchere v. Earl of Wharncliffe (1879) 13 Ch.D. 346; Lee v. The Showmen's Guild of Great Britain [1952] 2 Q.B. 329 at p. 343.
41 Protection from Power under English Law (1957) 88.
42 Ibid. at p. 92.
43 Ibid. at p. 93.
44 Freedom Under the Law (1949) 126.
45 [1958] 1 Q.B. 554, noted in this issue, above, p. 135.
46 [1958] 1 Q.B. at p. 571; [1958] 2 W.L.R. at p. 383; [1958] 1 All E.R. at p. 632.
47 [1933] 2 K.B. 696.
48 [1956] 1 W.L.R. 430 (Denning, Morris and Romer L.JJ.). The report deals only with the right of an applicant for certiorari to appear in person.
49 Ex p. Fry [1954] 1 W.L.R. 730.
50 See p. 169 of this issue, above.
51 [1957] A.C. 488.
52 Above, note 11.
53 [1953] 1 W.L.R. at p. 1155.
54 Above, note 49. On this point, see [1954] C.L.J. at p. 155.
55 [1957] A.C. at p. 511.
56 [1914] 1 K.B. 160 at p. 199.