Judicial Review Certiorari in UK Law

I would suggest that this distinction should now be discarded The High Court has, and should have, jurisdiction to control the proceedings of inferior courts and tribunals by way of judicial review. The way to get things right is to hold thus: No court or tribunal has any jurisdiction to make an error of law on which the decision of the case depends. If it makes such an error, it goes outside its jurisdiction and certiorari will lie to correct it.

But in between these extremes there is an area in which it is helpful to look not just at the source of the power but at the nature of the power. If the body in question is exercising public law functions, or if the exercise of its functions have public law consequences, then that may, as Mr. Lever submitted, be sufficient to bring the body within the reach of judicial review.

But the nature of the remedy sought cannot affect the principle of the law. But the nature of the remedy sought cannot affect the principle of the law. But the difference arises not in the law's substance but from the nature of the remedy appropriate to the case. But the difference arises not in the law's substance but from the nature of the remedy appropriate to the case.

The remedy of judicial review is only available where an issue of "public law" is involved, but, as Lord Wilberforce pointed out in Davy v. Spelthorne B.C. (1984) 1 Appeal Cases 262, 276, the expressions "public law" and "private law" are recent immigrants and, whilst convenient for descriptive purposes, must be used with caution, since English law traditionally fastens not so much upon principles as upon remedies.

Employment by a public authority does not per se inject any element of public law. Nor does the fact that the employee is in a "higher grade" or is an "officer". This only makes it more likely that there will be special statutory restrictions upon dismissal or other underpinning of his employment (see per Lord Reid in Malloch ( supra)). It will be this underpinning and not the seniority which injects the element of public law.

The need for leave to start proceedings for remedies in public law is not new. Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.

All these, and the like technical niceties, were to be things of the past. All relevant relief could be claimed under the general head of "judicial review", and the form of judicial review sought or granted (if at all) was to be entirely flexible according to the needs of the particular case.