Notes on Administrative Law
| Date | 01 July 1936 |
| Published date | 01 July 1936 |
| DOI | http://doi.org/10.1111/j.1467-9299.1936.tb02442.x |
| Author | W. Ivor Jennings |
Notes
NOTES
ON
ADMINISTRATIVE
LAW
By
W.
IVOR
JENNINGS,
M.A.,
LL.D.
Naturd
Justice.
The most remarkable feature of the recent case law
is
the resurrection of
the
doctrine of “natural justice.” The idea is not unfamii
to
those learned
in political philosophy.
It
is
believed by some that there are
rigid
and immutable
principles of justice. By judges, too,
it
is
believed that’these principles are
to
be found best illustrated,
if
not exclusively illustrated, by the practice
of
the
courts.
As
long ago
as
1863,
it
was laid down in
Cooper
v.
Wandsworth Board
of
Works
(1863).
14
C.B.N.S.
180,
by
a
remarkable piece
of
jqdicial legislation,
that
a
district board could
not
lawfully demolish
a
house
on
the ground
t6at
it
infringed
a
statute, without giving the owner
an
opportunity of stating
his
case.
There was nothing in the Act
to
suggest such
a
requirement; but,
as
Byles
J.
said,
‘‘
the justice
of
the common law will supply the omission of the legislature.”
It
may be doubted whether
this
case
really
decided
that
the
owner
must be
permitted
to
appear
in
person.
It
was certainly said
so,
but the
basis
of
the
decision
is
that
the owner had had
no opportunity
to put forward reasons for
not having the building demolished.
In
so
far
as
the language of the case goes
further,
it
appears to conflict with
Local Government
Board
v.
Arlidge,
[1g15]
A.C.
120.
In
studying the
development of case law,
it
is wise always to bear
in
mind the political and
economic background.
It
is easy to show, for instance,
that
the restrictive
interpretation of Housing legislation dates from
1gzg.1
It
may not
be
altogether
a
coincidence that several interesting lines of development of the law
of
proceed-
irigs against public authorities begin
with
Mr.
Lloyd George’s budget. The
question which arose in
1910
was
purely technical, relating
to
the appellate
powers of the Board of Education under the Education Act,
1902.
but
I‘
natural
justice
”
was
soon
found to be mixed up
in
it.
In
R.
v.
Board
of
Education
(I~IO),
8
L.G.R.
549,
the
Court
of
Appeal ordered the issue of a
certiorari
to
quash a decision
of
the Board and
a
mandamus to determine the
real
question.
As
Farwell
L.
J.
said, the question of the power
of
the courts to intervene
“
is
of
very great importance in these latter days when
so
many Acts of Parliament
refer questions of
great
public importance to some Government Department.
Such Department when
so
entrusted become a tribunal charged with the perform-
ance of
a
public duty, and
as
such amenable
to
the jurisdiction of the High
Court,
wisn
the
limits
now well established by law.
If
the tribunal
has
exercised the discretion entrusted
to
it
bona
fide,
not influenced by extraneous
or
irrelevant considerations, and not arbitrarily or illegally, the
Courts
cannot
interfere; they are not
a
Court of Appeal
from
the tribunal, but they have
power
to
prevent the intentional or mistaken assumption of
a
jurisdiction beyond
that
given
to
the
tribunal
by law, and also the refusal of their true jurisdiction
by
the
adoption of extraneous considerations
in
amving
at
their conclusion or
The modem law
on
this
point, however, dates from
1910.
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