Notes of Cases
| Date | 01 November 1986 |
| Published date | 01 November 1986 |
| DOI | http://doi.org/10.1111/j.1468-2230.1986.tb01716.x |
NOTES
OF CASES
GILLICK:
A COMEDY
OF
ERRORS?
UNDENIABLY,
Gillick
v.
West Norfolk
&
Wisbech Area Health
Authority’
raises substantive issues of major importance. In this
note, however,
I
wish to sidestep the substantive issues and
concentrate on procedure. My argument is that the
Gillick
litigation
was not in the public interest and that, if the courts had observed
the spirit of their recently erected procedural barriers, the case
should never have come to court.
1.
Salient Facts
As long ago as 1980, the Department of Health (DHSS) issued a
departmental circular, (HN(80)46), which included advice to health
authorities as to the circumstances in which contraceptive and
abortion advice should be made available to children under the age
of 16. When this circular first came to the attention of Mrs. Gillick
(G.)
we do not know, but, at the end of the year, she was writing
to her local health authority asking for assurances that her own
daughters would be given no such advice without her consent while
under 16. On January 29 and February 19, 1981 the authority
replied refusing the assurances which were, in any case, scarcely
urgent as none of G.’s daughters had ever applied nor seemed
likely to apply for contraceptive advice with or without parental
consent. Nevertheless, on August
5,
1982, G. issued a writ in the
Cambridge District Registry seeking declarations first, against the
DHSS on the: ground that HN(80)46 gave advice that was “unlawful
and wrong and which adversely affected or might affect the welfare
of the plaintiffs children, and/or the rights of the plaintiff as
parent” and secondly, against the Area Health Authority (AHA)
in terms of the assurances which
G.
had originally sought. Woolf
J.
dismissed the plaintiff‘s claim, but her appeal was allowed by a
unanimous Court of Appeal. The House of Lords
by
a narrow
majority2 quashed both declarations despite the fact that the AHA
had not appealed
so
that the second declaration was not properly
in issue.
2.
Locus Standi
At least prior to introduction of the new R.S.C. Ord. 53 in 1977,
G.’s
interest to sue for a declaration would have been seriously in
doubt. Some: of the cases went
so
far as to insist that a declaration
[I9831 3
W.L.R.
859
(Woolf
J.);
[1985]
2
W.L.R.
413
(C.A.);
[1985]
3
W.L.R.
830
Lords Fraser, Scarman and Bridge; Lords Brandon and Templeman dissenting.
(H.L.).
768
Nov. 19861
NOTES
OF
CASES
769
was only available where a legal right had been infringed. Others,
more lenient, required the plaintiff to show that his interests were
“peculiarly affected” or to show an “immediate personal interest
.”
The reasoning which underlies this rule is clear. Although
increasingly the declaration was being used as a public law remedy
to test the extent of public powers and duties, the private law
requirement of a
lis inter partes
remained paramount. English
courts never have been and are not today enthusiastic to decide
hypothetical issues. Ord. 15, r.16 makes this clear providing that,
in an action for a declaration, one must show that “a real and not
a fictitious or academic question
is
involved and is in being between
the parties.”
At common law,
locus standi
for the various remedies varied. As
is well known, however, Ord. 53, r.3(5) provided a new test
of
“sufficient interest” and in
R.
v.
Inland Revenue Commissioners, ex
p, Federation
of
Self Employed)
the House
of
Lords ruled that this
test replaced the common law
so
far as the application for judicial
review was concerned. For the purposes
of
this note, it is important
to bear in mind two points. First, the House ruled that the
question of
locus
should not normally be wholly divorced from
consideration of the merits, but while Lord Diplock’s judgment
might be read to suggest that the two stages
of
judicial review were
in future to be fused to produce the result that someone with an
arguable case on the merits would normally have
focus,
none of
the other judgments go as far. Lord Wilberforce spoke of “a
threshold requirement,” emphasising that the new Order “does not
remove the whole-and vitally important question of
locus standi
into the realm
of
pure discretion,” while Lord Fraser stressed that
questions of
locus
must be answered affirmatively
before
the action
proceeded. Secondly, we must remember that the House ruled
unanimously that the Federation had no sufficient interest (though
Lord Diplock in the widest judgment dealt with the case primarily
on its merits).
Where did this leave the private law declaration? Lords Scarman
and Diplock were particularly careful to confine their ruling to
public law
uses
of
the declaration. “The new Order has made the
remedy available as an alternative, or an addition to a prerogative
order. Its availability has, therefore, been extended, but
only in the
field
of
public law
where a prerogative order may be granted.”
And in
Burrs
v.
Bethelf,4
where the same reasoning was adopted,
Warner
J.
referred to the crucial need for a filter if the courts were
not to be overwhelmed by frivolous and vexatious attacks on
public authorities. In Ord. 53 proceedings, this requirement was
met by the need for leave from a judge to apply for judicial
review. In private actions there was no such filter. It was therefore
right that the plaintiff should show “either an interference with
[1981] 2
W.L.R.
722.
[1981]
3
W.L.R.
874.
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