NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb00731.x |
| Date | 01 September 1963 |
| Published date | 01 September 1963 |
NOTES
OF
CASES
THE
HOUSE
OF
LORDS
ON
NATURAL
JUSTICE
LEADING cases are more easily recognised by hindsight than by
contemporary identification. But even the most myopic observer
could hardly fail to place the decision of the majority of the House
of Lords in
Ridge
v.
Baldwin
l
on
a prominent pedestal.
Quite
clearly this is the most important case to have been decided in
recent years
on
the general principles governing judicial review of
administrative action.
The facts, which were summarised in an earlier case-note,* may
be briefly restated.
A
watch committee has statutory power
to
dismiss any constable whom
it
thinks
“
negligent in the discharge of
his duty, or otherwise unfit for the same.” The Brighton Watch
Committee summarily dismissed the appellant, who was Chief
Constable, in consequence of the evidence given during a
trial
at
which he had been acquitted and of observations made by the trial
judge
on
the appellant’s fitness for
his
duties. The appellant was
given
no
notice of charges laid against
him
nor any opportunity
to
be heard before the committee. Subsequently his solicitor
was
permitted to appear before the committee
on
his behalf; but the
committee (by
a
majority) adhered to its previous decision. He
then appealed to the Home Secretary, whose decision was expressed
by statute to be final; the Home Secretary heard the appeal by way
of written submissions
(as
he was empowered
to
do) and declined
to set aside the watch committee’s decision. The appellant there-
upon instituted proceedings against members of the
committee,
claiming
a
declaration that its decision was void. Streatfeild
J.
found in favour of the respondents, .and his decision was unani-
mously a5rmed, though partly
on
different grounds, by the Court
of Appeal.’ The House of Lords allowed the appeal by a majority
of four to one (Lords Reid, Morris of Borth-y-Gest, Hodson and
Devlin; Lord Evershed dissenting).
The majority held that
in
a case where misconduct involving
neglect of duty was alleged the committee was obliged to follow
the procedural requirements imposed by the Police (Discipline)
Regulations, and that since these had not bee? complied with the
com-
mittee’s decision was invalid. That the question whether the
regulations were to be construed
as
qualifying the exercise of
the power to dismiss was a difficult one is borne out by the fact that
1
[1963] 2
W.L.R.
935; [1963]
2
All
E.R. 66.
2
(1902) 25
M.L.R.
455.
3
Municipal Corporatione Act.
1882,
a.
191
(4).
4
(19631
1
Q.B.
639.
548
544
THE
MODERN
LAW REVIEW
VOL. 26
five out of the nine judges who were called upon to decide it came
to
the contrary conclusion.
Ridge
v.
Baldzoin
assumes first-rate import-
ance not because of the manner in which it has resolved a problem of
statutory interpretation but because of the further reason given
by Lords Reid, Morris and Hodson for holding the committee’s
decision to be invalid. Even if the exercise of the disciplinary power
had not been fettered by the procedural code, it would still have
been exercised invalidly because the resolution to dismiss had been
taken in disregard of the rules of natural justi~e.~ The importance
of their Lordships’ view of the matter lies not in their detailed
analysis of the proceedings before the watch committee-for there
was much to be said
in
favour of the respondents’ contention that
the appellant did
in
frict
have adequate notice of the charges and
a sufficient opportunity to answer them at the reconvened meeting
of the committee-but in the proposition that a duty to observe
the rules of natural justice arose by implication from the nature
of the power conferred.
in
the course of his detailed review
of the authorities, this was not a case of dismissal of a servant by a
master
(if
only because the Chief Constable was not a servant);
nor
was
it
one in which the holder of an office was dismissible at
pleasure;
it
was one in which an office-holder was dismissible only
on
specified groundtinegligence
or
unfitness. There was ample
authority
to
support a common-law rule that one could not be
deprived of
an
office determinable only for cause shown unless one
was given prior notice of the proposed grounds for deprivation and
an opportunity to be heard in one’s
own
defence. But the
applicability of the
audi alteram partem
rule in this context and
many others had been obscured by three factors: the policy and
public interest elements embedded in the exercise of Ministers’
powers
in
housing and planning law; the impact of wartime
emergency legislation; and the interpretation placed
on
Atkin
L.J.’s
judgment
in
R.
v.
Electricity Commiseioners,
in which he had said
that certiorari and prohibition would lie to bodies “having legal
authority to determine questions affecting the rights of subjects,
and
having
the
duty to act judicially
. . .
’’
The idea that
certiorari would not lie, and that the rules
of
natural justice could
not
be
imported into the exercise of a power, unless a
“
super-
added
’’
duty to act judicially was annexed to the grant of power,
5
In
the
court
of
ht
instance Strestfeild
J.
had held that the watch com-
mittee
was
obliged
to
observe the rules of natural justice and had observed
them;
in
the
Court
of
Appeal none
of
the Lords Justices held that the
committee
was
obliged to obseme them, though Holroyd Pearce and
Davies
L.JJ.
were
of
the opinion that if the committee had been under such
an obligation it had failed to discharge it. Lord Evershed and Lord Devlin
expressed no concluded view on the question whether (apart from the
regu-
lations) there was a duty
to
observe natural justice, but Lord Evershed held
that in
any
event there had been
no
violation of natural justice.
As
Lord
Reid pointed out
6
‘1963 2
W.L.R.
935
at pp.
940-942.
7
119241
1
K.B.
171
at
p.
205.
SEm.
1968
NOTES
OF
CASES
545
was a misconception.
To
this extent the judgment
of
the
Privy
Council in
Nakkuda
Ali
v.
Jayaratne
was based
on
a
false premise.
The duty to act
(‘
judicially
”
in accordance with natural justice
had often been read
by implication
into grants of power which
directly affected the status, property or financial interests of
individuals
or
rights to membership
of
professional or social bodies.
also support the view that a
duty to observe natural justice may arise in the exercise of a power
that is not
ex facie
of a judicial character. But
it
would
be
imprudent to assume that we have suddenly leapt from twilight to
a new dawn, that
our
familiar judicial-administrative dichotomy
has been scrapped and that green pastures lie ahead. For instance,
it would surely be wrong to suppose that the power to deport an
alien, which was held in
Venicotf’s
case
lo
(recently approved by
the Court of Appeal in
Soblen’s
case)
l1
to
be
executive (or
administrative) and
therefore
exercisable without prior notice or
opportunity to be heard, must now
be
exercised
in
conformity with
the
audi alteram partem
rule; or that the efforts expended by the
Divisional
Court
in the
Manchester Legal
Aid
Committee
case
l2
to
discern a judicial element in an administrative decision for the
purpose of justifying the issue of certiorari to quash were wholly
irrelevant. From now on label-consciousness and word-worship
may be less conspicuous features of administrative law
in
the
courta,
but one cannot be confident that any hitherto reported case would
have been decided differently if only
Ridge
v.
Baldwin
had preceded
it. Not a single decision was overruled or even directly
dis-
approved by their Lordships.
Nakkuda
Ali
v.
Jayaratne
emerged
bloody and bowed,ls and
Parker’s
case
l4
can hardly have gained
in stature, but they still preserve
a
meagre vestige of authority.
Nevertheless, the general tenor of the judgments delivered by
Lords
Reid, Morris and Hodson shows an awareness that the
courts
have
been straying from paths of righteousness and
a
readiness to
Passages from other judgments
8
[1951]
A.C.
66 at p.
78.
9
Per
Lord Evershed at p. 958;
per
Lord Hodson at pp.
996-998.
10
R.
v.
Leman
Street Police Station Inspector.
ez
p. Venicoff
[1920]
3
K.B.
“0
I
A.
11
R.
v.
Brizton
Prison
Gooernor,
ez
p.
Soblen
[1962j
3
W.L.R.
1154.
12
R.
v.
dlanchester
LegaZ
Aid
Committee,
ex
p.
Brand
(R.A.)
d
Cs.
[1952]
2
Q.B.
113.
1s
Lord Evershed expressed his approval
of
the decision ([1963]
2
W.L.R.
935 at p. 965). but Lord Reid, while treating it as
a
defence regulation
case where
I’
the legislator has substituted an obligation not to act without
reasonable grounds for the ordinary obligation to afford
to
the person affected
an opportunity to submit his defence,” said that “nothing
short
of
a decision
of
this House directly in point would induce me to accept the position that.
although an enactment expressly requires
an
official to have reasonable
grounds for his decision,
our
law is
so
defective that a subject cannot bring
up such
a
decision for review
[sc.
by certiorari] however seriously he may
be affected and however okious it may be that the 05cial acted in breach
of
his statutory obligation (at pp. 950, 951). Lord Hodson also referred
to the decision but did not comment on its merits (at p.
999).
14
R.
v.
Metropolitan
Police
Commiasioner,
ez
p.
Porker
[1959]
1
W.L.R.
1150.
VOL.
26
19
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