‘Thus the law has been confined and drawn up into a narrow and inglorious study, and that which should be the leading science in every well-ordered commonwealth remained in all the barbarism of the rudest times… insomuch that the study of our jurisprudence presented to liberal and well-educated minds, even in the best authors, hardly anything but barbarous terms, ill explained, a coarse, but not a plain expression, an indigested method, and a species of reasoning the very refuse of the schools, which deduced the spirit of the laws, not from original justice or legal conformity, but from causes foreign to it and altogether whimsical.’ (Edmund Burke, ‘An essay towards an Abridgement of the English History’, Writings and Speeches of Edmund Burke (Beaconsfield Edition 1901, vol 7) p 477).

It is a commonplace that ‘Equity will not assist a volunteer’, or ‘Equity will not perfect an imperfect gift’. One problem posed by this rule is the question: what is the attitude of equity to instruments which, though not effective at law to transfer property, may at law give the volunteer beneficiary, or a person named as a trustee for volunteers, a right of action in damages? This is the very well-trodden ground of covenants to settle property and Re Pryce, Re Kay’s Settlement, and Re Cook’s Settlement Trusts, and the apparent conflict between these cases and Fletcher v Fletcher and Re Cavendish-Browne’s Settlement Trusts.

‘Today, therefore, the controlling factor in determining whether the exercise of a prerogative power is subject to judicial review is not its source but its subject matter.’ So uttered Lord Scarman, expressing the view of the majority of the House of Lords in Council of Civil Service Unions v Minister for the Civil Service (the GCHQ case). The Attorney General, in deciding whether to institute proceedings for the enforcement ofa public right, exercises a power vested in him by virtue of the royal prerogative. This power, it was previously held, was ‘absolute and non-reviewable’. The question now arises as to whether the Attorney General’s discretionary powers are embraced within that category of prerogative powers whose subject matter renders them amenable to judicial review, or whether they remain beyond judicial scrutiny.

Some recent attitudes to the scope of judicial review in the field of immigration policy represent a sharp contrast with the trends which typify the current renaissance in administrative law. The conspicuous features of modern developments are the range and intensity ofjudicial initiatives in expanding, almost beyond recognition, the parameters within which the exercise of supervisory jurisdiction is warranted in principle. Despite some suggestions to the contrary, it is not altogether satisfactory to regard the revamped notion oferror oflaw as an organising principle which supplants review mechanisms founded on the bedrock of vires; but it is quite evident that the theory of jurisdiction which lies at the root of seminal concepts sustaining the framework of judicial review is in the process of being transformed by contemporary ap roaches. The virtual equation of error of law with jurisdictional excess at any rate in regard to administrative tribunals as distinguished from inferior courts, has dramatically enlarged the scope of judicial review on the ground of jurisdictional fault, especially in the light of radical perceptions of the criteria which are called in aid to identify errors of law.