R v Lord President of the Privy Council, ex parte Page
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Griffiths,Lord Browne-Wilkinson,Lord Mustill,Lord Slynn of Hadley |
| Judgment Date | 03 December 1992 |
| Judgment citation (vLex) | [1992] UKHL J1203-1 |
| Docket Number | Parliamentary Archives, HL/PO/JU/18/252 |
| Court | House of Lords |
| Date | 03 December 1992 |
[1992] UKHL J1203-1
House of Lords
Lord Keith of Kinkel
Lord Griffiths
Lord Browne-Wilkinson
Lord Mustill
Lord Slynn of Hadley
Parliamentary Archives, HL/PO/JU/18/252
My Lords,
For the reasons set out in the speech to be delivered by my noble and learned friend Lord Browne-Wilkinson, which I have had the opportunity of considering in draft and with which I agree, I would dismiss this appeal and allow the cross-appeals.
My Lords,
I have had the advantage of reading the judgment of Lord Browne-Wilkinson with which I agree and I would dismiss this appeal on the ground that certiorari is not available to challenge the decision of a visitor on the ground of an error of law within his jurisdiction. I add a few words of my own only because of the difference of opinion between your Lordships on this question and because what I said about the availability of certiorari in my speech in Thomas v. University of Bradford [1987] A.C. 795 has been interpreted to include an error of law by the Divisional Court and the Court of Appeal which was not what I had intended.
It is in my opinion important to keep the purpose of judicial review clearly in mind. The purpose is to ensure that those bodies that are susceptible to judicial review have carried out their public duties in the way it was intended they should. In the case of bodies other than courts, in so far as they are required to apply the law they are required to apply the law correctly. If they apply the law incorrectly they have not performed their duty correctly and judicial review is available to correct their error of law so that they may make their decision upon a proper understanding of the law.
- 1 -In the case of inferior courts, that is courts, of a lower status than the High Court, such as the Justices of the Peace, it was recognised that their learning and understanding of the law might sometimes be imperfect and require correction by the High Court and so the rule evolved that certiorari was available to correct an error of law of an inferior court. At first it was confined to an error on the face of the record but it is now available to correct any error of law made by an inferior court. But despite this general rule Parliament can if it wishes confine a decision on a question of law to a particular inferior court and provide that the decision shall be final so that it is not to be challenged either by appeal or by judicial review. Such a case was Pearlman v. Keepers and Governors of Harrow School [1979] Q.B. 56 in which the dissenting judgment of Geoffrey Lane L.J. was approved by the majority of the House of Lords in Re Racal Communications Limited [1981] A.C. 374.
The common law has ever since the decision in Philips v. Bury (1694) Holt K.B. 715 recognised that the visitor acting as a judge has exclusive jurisdiction and that his decision is final in all matters within his jurisdiction. The common law courts have through three centuries consistently resisted all attempts to appeal decisions of the visitor. The courts have however been prepared to confine the visitor to his proper role as a judge of the internal affairs of the foundation by the use of the writs of prohibition and mandamus.
When I said in Thomas;
"I have myself no doubt that in the light of the modern development of administrative law, the High Court would have power, upon an application for judicial review, to quash a decision of the visitor which amounted to an abuse of his powers"
I used the words "an abuse of his powers" advisedly. I do not regard a judge who makes what an Appellate Court later regards as a mistake of law as abusing his powers. In such a case the judge is not abusing his powers; he is exercising them to the best of his ability albeit some other court thinks he was mistaken. I used the phrase "abuse of his powers" to connote some form of misbehaviour that was wholly incompatible with the judicial role that the judge was expected to perform. I did not intend it to include a mere error of law.
The decision in Racal shows that Parliament can by the use of appropriate language provide that a decision on a question of law whether taken by a judge or by some other form of tribunal shall be considered as final and not be subject to challenge either by way of appeal or judicial review. For three centuries the common law courts have recognised the value of the visitor acting as the judge of the internal laws of the foundation and have refused to trespass upon his territory. I do not believe that it would be right to reverse this long line of authority and declare that certiorari should now lie to reverse the decision of a visitor on a question of law. The value of the visitorial jurisdiction is that it is swift, cheap and final. These benefits will be largely dissipated if the visitor's decision can be challenged by way of judicial review. Many decisions may turn upon the interpretation of the statutes and other decisions of a more factual nature can all too easily be dressed up as issues of law under the guise of "Wednesbury" principles. The learning and ingenuity of those members of the foundation who are likely to be in dispute with the foundation should not be lightly underestimated and I believe to admit certiorari to challenge the visitor's decision on the grounds of error of law will in practice prove to be the introduction of an appeal by another name.
The visitor is either a person holding a high judicial office, or is advised on questions of law by such a person, in whose decision on matters of law it is reasonable to repose a high degree of confidence. I say this not because any holder of judicial office should ever regard it as an affront to be overruled by an Appellate Court but merely to emphasize that as a practical matter the chances are that the visitor probably will get it right.
If it is thought that the exclusive jurisdiction of the visitor has outlived its usefulness, which I beg to doubt, then I think that it should be swept away by Parliament and not undermined by judicial review.
I would add that in the present case I am satisfied that the decision of the visitor was correct.
My Lords,
The appellant, Mr. Page was appointed a lecturer in the Department of Philosophy at the University of Hull by a letter dated 13 June 1966. The letter stated 'The appointment may be terminated by either party on giving three months' notice in writing expiring at the end of a term or of the long vacation." As a lecturer, Mr. Page became a member of the University which is a corporate body regulated by Royal Charter. Section 34 of the Statutes made under the Charter provides:
"1. The Vice-Chancellor and all Officers of the University including Professors and members of the Staff holding their appointments until the age of retirement may be removed by the Council for good cause… .
2… .
3. Subject to the terms of his appointment no member of the teaching research or administrative staff of the University (including the Vice-Chancellor) shall be removed from office save upon the grounds specified in paragraph 2 of this Section and in pursuance of the procedure specified in Clause 1 of this Section."
Section 34(2) defines the meaning of "good cause".
On 30 June 1988 Mr. Page was given three months' notice terminating his appointment on the grounds of redundancy. It is common ground that there was no "good cause" within the meaning of section 34; the University was reiying on the three months' notice term contained in the letter of appointment coupled with the provision in section 34(3) that Mr. Page's tenure was to be subject to the terms of the appointment.
Mr. Page took the view that on the true construction of section 34 of the statutes the University had no power to remove him from office and terminate his employment save for good cause. Your Lordships were told that Mr. Page started an action in the Queen's Bench Division for wrongful dismissal which action was struck out on the grounds that the matter fell within the exclusive jurisdiction of the Visitor of the University, Her Majesty the Queen. Mr. Page then petitioned the Visitor for a declaration that his purported dismissal was ultra vires and of no effect. The petition was considered by the Lord President of the Council, on behalf of Her Majesty. He sought advice from Lord Jauncey of Tullichettle who advised that on the true construction of the Statutes the dismissal was valid and intra vires. On that advice, the petition was dismissed by the Visitor.
Mr. Page then applied by way of judicial review for an order quashing the Visitor's decision. Before the Divisional Court (Taylor L.J. and Rougier J.) two issues arose: first, did the Divisional Court have jurisdiction to review the Visitor's decision and, if so, second, was the Visitor's construction of the Statutes correct? The Divisional Court held that it had jurisdiction to review the Visitor's decision and that the Visitor's decision was wrong in law. They made an order quashing the decision and made a declaration that "upon a true construction of the Statutes of the University of Hull the University has and had no power to dismiss Edgar Page by reason of redundancy and his purported dismissal is without effect".
The University and the Visitor appealed to the Court of Appeal (Lord Donaldson of Lymington M.R., Staughton and Farquharson L.JJ.) who upheld the Divisional Court's decision on jurisdiction but reversed its decision on construction taking the view that the Visitor's construction of the Statutes was correct.
Mr. Page appeals to your Lordships' House against the decision of the Court of Appeal on the construction of the Statutes: the University and the Visitor cross appeal against the decision on...
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