Brown v Hamilton District Council
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Fraser of Tullybelton,Lord Keith of Kinkel,Lord Bridge of Harwich,Lord Brightman |
| Judgment Date | 25 November 1982 |
| Judgment citation (vLex) | [1982] UKHL J1125-4 |
| Date | 25 November 1982 |
| Court | House of Lords |
| Docket Number | No. 1. |
[1982] UKHL J1125-4
House of Lords
Lord Diplock
Lord Fraser of Tullybelton
Lord Keith of Kinkel
Lord Bridge of Harwich
Lord Brightman
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Fraser of Tullybelton. I agree with it and would dismiss the action.
My Lords,
The question in this appeal is whether the Sheriff Court has jurisdiction to review administrative decisions of local authorities and similar bodies, on the ground that they are unreasonable or that the procedure by which they had been reached was contrary to natural justice, or whether the jurisdiction to review such decisions on those grounds is vested exclusively in the Court of Session.
The case arises out of a decision by Hamilton District Council ("the appellants"), as housing authority, under section 4 of the Housing (Homeless Persons) Act 1977 that Mr. Brown ("the respondent") was a homeless person with a priority need, but that he had become homeless "intentionally" in the sense of section 17 of that Act. The practical consequence of the decision was that the appellants were not under a duty to secure that accommodation became available for the respondent's occupation, except on a temporary basis. The respondent seeks to challenge the decision as being unreasonable or contrary to natural justice, and he raised an action in the Sheriff Court at Hamilton, the first crave of which (as amended) is for declarator that the purported decision of the appellants that they were satisfied that he had become homeless intentionally was "not a decision which the [appellants] were entitled to reach". There are other craves which I shall mention later. The appellants maintain that the action is incompetent and that the Sheriff Court has no jurisdiction to entertain it. The appellants' first and third pleas-in-law are directed to the issues of competency and jurisdiction respectively, and they raise substantially the same issue.
The Sheriff repelled these pleas-in-law and held that he had jurisdiction, but he granted leave to appeal against his decision. The Second Division of the Court of Session by a majority (the Lord Justice-Clerk (Wheatley), and Lord Robertson, with Lord Dunpark dissenting), held that the action, as amended before them, was competent. If the action is competent, further questions arise as to the relevancy of certain averments. I shall consider first the question of jurisdiction and competency.
My Lords, it has long been recognised in Scotland that the Court of Session has jurisdiction to exercise a supervisory control over inferior courts and tribunals in cases where there is no right of appeal from those courts or tribunals, and even in cases where appeal is expressly excluded by statute. The principle was stated, in terms which, so far as they go, would be perfectly appropriate at the present day, in Magistrates of Perth v. Trustees on the Road from Queensferry to Perth (1756) (Kilkerran's Notes) Brown's Supplement Volume 5 318 at page 319, where a statute had provided that the justices should "finally determine" questions between the road trustees and other persons. Lord Kilkerran held that the provision did not exclude the supreme jurisdiction of the Court of Session "to determine what it is that falls within their powers; but whatever matter is found to be within their power, this Court, [the Court of Session] cannot review their proceedings".
It is not necessary for me to consider the grounds on which judicial review may be open. The decisions in the English cases of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, and Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147, so far as they relate to matters of substance and not of procedure, are accepted as being applicable in Scotland, see Watt v. Lord Advocate 1979 S.C. 102. There is no difference of substance between the laws of the two countries on this matter, although, in order to avoid confusion, it has to be remembered that the word "review" is commonly used in Scottish cases to describe a process which in England would be called "appeal" and is not restricted to procedure corresponding to the English procedure of judicial review. Control over inferior courts and tribunals is exercised in Scotland either by declaring a decision to be null or invalid, or by reducing the decision, or by both declarator and reduction. In some cases also interdict may be an appropriate remedy.
The supervisory jurisdiction over inferior courts and tribunals is vested exclusively in the Court of Session, as supreme court. So much is undoubted and is not in dispute in this appeal. But the respondent maintains that the supervisory jurisdiction of the Court of Session over decisions of bodies other than courts and tribunals is only exclusive or privative in respect of decisions which are judicial or quasi judicial. In the case of administrative decisions of bodies such as local authorities, the respondent contends that there is supervisory jurisdiction in the Sheriff Court as well as in the Court of Session. The issue of competency turns upon whether that distinction between administrative and judicial decisions is well founded. The majority of the Second Division accepted the respondent's contention, and they therefore proceeded to consider whether the decision of the housing authority in the present case fell to be regarded as administrative, or as judicial or quasi judicial. Having decided that it was administrative, they held that the Sheriff Court has jurisdiction to review it.
I shall assume for the moment that the decision of the housing authority was administrative in character, although, as I shall explain later, I do not regard the distinction between administrative and judicial or quasi judicial decisions as important for the purpose of this appeal. In considering whether the Sheriff Court had jurisdiction it is convenient to start from the case of Forbes v. Underwood (1886) 13 R. 465, 467 where Lord President Inglis said this:
"The position of an arbiter is very much like that of a judge in many respects, and there is no doubt whatever that whenever an inferior judge, no matter what kind, fails to perform his duty, or transgresses his duty, either by going beyond his jurisdiction, or by failing to exercise his jurisdiction when called upon to do so by a party entitled to come before him, there is a remedy in this court, and the inferior judge, if it turns out that he is wrong, may be ordered by this court to go on and perform his duty and if he fails to do so he will be liable to imprisonment as upon a decree ad factum praestandum. The same rule applies to a variety of other public officers, such as statutory trustees or commissioners, who are under an obligation to exercise their functions for the benefit of the parties for whose benefit these functions are entrusted to them, and if they capriciously and without just cause refuse to perform their duty they will be ordained to do so by decree of this court, and failing their performance will, in like manner, be committed to prison. Now all this belongs to the Court of Session as the supreme civil court of this country in the exercise of what is called, very properly, its super-eminent jurisdiction … Of one thing there can be no doubt, that in making such orders against inferior judges, or statutory trustees, or commissioners, or the like, this court is exercising an exclusive jurisdiction—a jurisdiction which cannot possibly belong to any other court in the country. It is enough to suggest the idea, that an inferior judge should be called upon to ordain another inferior judge to perform his duty—the very idea carries absurdity with it. It can be only the Supreme Court of the country that can possibly exercise such jurisdiction." (Emphasis added).
Both parties founded on that statement. The appellants point out that it applies in terms to inferior judges and also to "public officers such as statutory trustees or commissioners". They say, further, that it is not expressly limited to judicial or quasi judicial decisions of such public officers and that there is no reason to imply such a limitation. The respondent says that a limitation to that effect is to be implied. In my opinion the passage was not intended to be limited to judicial or quasi judicial decisions of public officers. True, the actual decision in Forbes was about the duties of an arbiter and his position was compared with that of an inferior judge. But the functions of public officers, such as statutory trustees and commissioners, were mainly administrative in character, and if the Lord President had not intended his observations to apply to their administrative functions, I think he would certainly have said so in express terms. The class of bodies to which he referred would in 1886 have included for example the Commissioners of Supply, most of whose functions were transferred to county councils by the Local Government (Scotland) Act 1889 and are now vested in regional councils or district councils. They are thus the statutory ancestors of the appellants, Hamilton District Council. The class would also have included the Commissioners of Police, who were the local authority in burghs created under various Police Acts, and also more specialised bodies such as the Commissioners of the Caledonian Canal—see McTavish v. Commissioners of the Caledonian Canal (1876) 3 R.412, referred to infra. I accordingly regard the passage that I have quoted as authority for two propositions relevant to this appeal; first, the Court of Session has a supervisory jurisdiction over decisions of administrative bodies such as local...
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