R v Boundary Commission for England, ex parte Foot
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 25 January 1983 |
| Neutral Citation | [1983] EWCA Civ J0125-2 |
| Judgment citation (vLex) | [1983] EWCA Civ J0125-3 |
| Docket Number | 83/0021,83/0020 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 January 1983 |
[1983] EWCA Civ J0125-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
(OLIVER, L.J. and WEBSTER, J.)
Royal Courts of Justice.
The Master of The Rolls
(Sir John Donaldson)
Lord Justice Slade
and
Lord Justice Robert Goff
83/0020
MR. J. MELVILLE WILLIAMS, Q.C. and MR. JULIAN FULBROOK (instructed by Messrs. Irwin Mitchell & Co.) appeared on behalf of the Appellants.
MR. SIMON BROWN and MR. JOHN MUMMERY (instructed by the Treasury Solicitor) appeared on behalf of the Respondents.
This is an appeal against the decision of a Divisional Court consisting of Lord Justice Oliver and Mr. Justice Webster dismissing an application by the appellants for an order of prohibition or injunction restraining the Boundary Commission for England from submitting to the Home Secretary a report containing recommendations for revised Parliamentary constituency boundaries of a nature which it is now expected that the Commission intends shortly to make. This judgment is one to which we have all contributed.
The Parties
The appellants are all distinguished politicians. Mr. Michael Foot is the Member of Parliament for Ebbw Vale and the Leader of the Labour Party. Mr. Michael Cocks is the Member of Parliament for Bristol South and the Opposition Chief Whip. Mr. James Mortimer is the General Secretary and Mr. David Hughes the National Agent of the Labour Party.
The respondents are all distinguished non-political lawyers. Sir Raymond Walton is the Deputy Chairman of the Boundary Commission for England (to which we will refer as "the Commission") the Speaker of the House of Commons being the Chairman. He is also a judge of the High Court. His Honour Judge Newey, Q.C. is a member of the Commission and also a circuit judge. Mr. William Ruff is a member of the Commission and is also a solicitor with great experience of local government.
All parties, and indeed the members of this court, are electors in one parliamentary constituency or another.
The role of the Boundary Commission
Over a period of years the electorate of Great Britain must inevitably change both in terms of numbers and in terms of where they live. If there is to be fair representation in Parliament, it follows that constituency boundaries must also be changed, but there would be scope for embarrassment if politicians were to be required to redraw those boundaries without independent advice. Hence the creation of Boundary Commissions, the membership of which is independent and non-political. Under the terms of the House of Commons (Redistribution of Seats) Acts 1949–1979, the Boundary Commissions are required to report to the Secretary of State from time to time on which changes, if any, they recommend. When the report is made, the Secretary of State is required to lay it before Parliament together, except in a case where the report states that no alteration is required to be made, with the draft of an Order in Council giving effect, with or without modifications, to the recommendations contained in the report. A Boundary Commission can make recommendations when particular local changes take place, but this appeal concerns a general review which has to be undertaken not less than ten nor more than fifteen years from their last review.
A Boundary Commission would face considerable problems if they received no guidance on the principles to be applied in their reviews. However, that is not the case. Such guidance is provided by the Second Schedule of the 1949 Act read with section 2 (2) of the 1958 Act.
The role of the court
Since a very large number of people are interested in this appeal and since it is most unlikely that our decision, whether for or against the appellants, will meet with universal approval, it is important that it should at least be understood. In particular it is important that everyone should understand what is the function and duty of the courts. Parliament entrusted the duty of recommending changes in English constituency boundaries to the Commission. It could, if it had wished, have further provided that anyone who was dissatisfied with those recommendations could appeal to the courts. Had it done so, the duty of the court would, to a considerable extent, have been to repeat the operations of the Commission and see whether it arrived at the same answer. If it did, the appeal would have been dismissed. If it did not, it would have substituted its own recommendations. Parliament, for reasons which we can well understand, did no such thing. It made no mention of the courts and gave no right of appeal to the courts.
There are some who will think that in that situation the courts have no part to play, but they would be wrong. There are many Acts of Parliament which give ministers and local authorities extensive powers to take action which affects the citizenry of this country, but give no right of appeal to the courts. In such cases, the courts are not concerned or involved so long as ministers and local authorities do not exceed the powers given to them by Parliament. Those powers may give them a wide range of choice on what action to take or to refrain from taking and so long as they confine themselves to making choices within that range, the courts will have no wish or power to intervene. But if ministers or local authorities exceed their powers—if they choose to do something or to refrain from doing something in circumstances in which this is not one of the options given to them by Parliament—the courts can and will intervene in defence of the ordinary citizen. It is of the essence of parliamentary democracy that those to whom powers are given by Parliament shall be free to exercise those powers, subject to constitutional protest and criticism and parliamentary or other democratic control. But any attempt by ministers or local authorities to usurp powers which they have not got or to exercise their powers in a way which is unauthorised by Parliament is quite a different matter. As Sir Winston Churchill was wont to say, "that is something up with which we will not put". If asked to do so, it is then the role of the courts to intervene and, in the interest of everyone concerned, to prevent this happening.
There are undoubtedly distinctions between the position of the Commission and that of a minister or local authority taking executive action under statutory powers which affects the individual citizen. The Commission have no executive power. Their function and duty is limited to making advisory recommendations. Furthermore the Commission's task is ancillary to something which is exclusively the responsibility of Parliament itself, namely, the final decision on parliamentary representation and constituency boundaries. These are distinctions to which we will return when giving further consideration to what action should or should not be taken by the court in the circumstances of this case. At the moment all that need be said is that it is common ground that in same circumstances it would be wholly proper for the courts to consider whether the Commission have, no doubt inadvertently, misconstrued the instructions which they have been given by Parliament and, if they have done so, to take such action as may be appropriate in order to ensure that the will of Parliament is done.
The Commission's instructions from Parliament and their method of working
Parliament has laid down certain "Rules for Redistribution of Seats", which tell the Commission the basis upon which they should formulate recommendations to the Secretary of State. We shall set out the relevant statutory provisions, and in particular these rules, later in this judgment. We shall also consider the proper construction to be placed on the rules, as to which there has been some argument. The rules indicate the number of constituencies in each part of the United Kingdom, and point to certain basic considerations, such as that constituencies shall, so far as practicable, not cross county or London borough boundaries (Rule 4); that the electorate of each constituency shall be as near as practicable to what is called the electoral quota (Rule 5); and the relevance of geographical considerations (Rule 6). The manner of calculating the electoral quota for each constituency is also specified, and it is common ground that, for the purposes of the present review, the electoral quota is 65,753 electors for each constituency. Some provision is made for the procedures to be adapted by the Commission. Thus they have to publish provisional recommendations and, in certain circumstances, to cause local enquiries to be held to investigate abjections to those recommendations before making their report to the Secretary of State. However, subject to these somewhat limited requirements, the Commission are entitled to regulate their own procedure.
The Commission have to report not later than 15 years after their last general report, and they must begin their review in sufficient time to enable this to be done. In the present instance the report is due not later than May 1984 and the Commission decided to begin their task in February 1976. Hence it is that the figure for the electoral quota and the basic figures for the electorate are those for 1976. Having given formal notice of an intention to make a report, the procedure is as follows: the Commission's first task is to formulate provisional recommendations and publish them in the localities which may be affected. Where they receive...
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