REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00627.x |
| Date | 01 July 1960 |
| Published date | 01 July 1960 |
REVIEWS
JUDICIAL
REVIEW
OF
ADMINISTRATIVE ACTION.
By
S.
A.
DE
SMITH,
M.A.,
PH.D.,
Reader in Public Law in the University
of
London.
[London: Stevens
&
Sons,
Ltd.
1959.
xlvii
and
486
pp.
€8
10s.
net.]
ENOLISH
Administrative Law has been the subject of academic study for
a
generation, the legal profession is already becoming aware of its importance
as well as
its
imperfections, and we are now getting monographs suitable for
teachers and students. Professor de Smith is to be congratulated on the
industry and analytical acumen that have gone to the writing of this book,
which is as he claims “the first of its kind to have been written by an
English author.”
It
concerns that part of administrative law which is
of
most practical interest to the legal profession, namely, judicial review. The
scope is similar to that covered comparatively by Galeotti’s
Jwdicial
Control
of
Public Authorities in
Emqtglarui
ad
in
Ztialy;
but de Smith is much fuller,
primarily analytical, secondarily historical and only incidentally comparative.
He does not profess to have perfectly solved all problems of classification
and arrangement. Even the title must have caus‘ed him some difficulty, for
often it is not “administrative” action thpt the courts review but the
“
judicial
”
or
(dare we say?i
“
quasi-judicial
”
action of administrative
authorities. The subject-matter covers the decisions of statutory tribunals,
and he may not have liked to bring tribunals under the titld of
“
administrative
authorities
”
:
on the other hand, should we call their decisions
“
administra-
tive action”? We should certainly not
so
describe delegated legislation,
which is referred to in
a
number of passages. Incidentally, one that we
specially commend is the statement that by-laws must be
“
not unreasonable.”
This
is
the way we like to put it ourselvek: there is
a
lot in the lawyer’s
double negative.
-
The introductory part makes
a
brave attempt to elucidate the meanings
of those difficult terms, administrative, legislative and judicial; and we are
persuaded to accept the conclusion that “in many cases
. .
.
the mode
of
classifying statutory functions is determined by the scope of review that the
courts deem
to
be desirable and practicable.” Part
I1
on the principles and
scope of judicial review covers
oirss
and jurisdiction, natural justice
(aocdi
alterarm.
prtmn,
interest and bias), and statutory restriction of judicial review.
The chapter on the review of discretionary powers contains an admirable
treatment of improper motive
or
purpose, though the terminology used in
the first few pages might perhaps be reconsidered in the next edition. At
page
166,
for example,
“
powers,”
‘‘
discretions
”
and
“
discretionary powers
”
might express the same
or
different concepts. Are we
to
add “discretions”
to the Hohfeldian analysis,
or
may we simply say that discretion is the
ambit of
a
power?
Part
I11
on judicial remedies describes in turn the history and scope of
certiorari and prohibition, injunction, declaratian and mandamus. Professor
de Smith has done some pioneering work on the history (as well as the scope)
of these remedies,
but
in
a
book which
is
rich in footnote references he perhaps
does less than justice to the work of
Dr.
Yardley. Specially valuable is the
balanced account of the action for
a
declaration, which some think may be
destined largely to replace the prerogative orders. The historical sketch
suggests that the jurisdiction to grant
a
declaratory judgment against ad-
ministrative authorities, including the
Crown,
traces its origin to the Court of
Exchequkr rather than the Chancery. This supports
our
View that the
declaration in public law should not be regarded
as
an equitable remedy.
458
JULY
1960
REVIEWS
459
To keep the book within bounds, Professor de Smith has excluded habeas
corpus (fortunately, in view of recent decisions and pending legislation) and
any full treatment of the civil liability of public authorities. Crown proceed-
ings, which have already received a
fair
amount of attention from writers on
constitutional and administrative law, are not dealt with separately but are
woven into the general body of the text. The findings of the Franks Com-
mittee and the provisions of the Tribunals and Inquiries Act,
1958,
are,
of
course, incorporated. Skilful use is made of revised versions of articles
which the learned author has contributed in the last few years to various
periodicals.
This is
a
very sound and useful work in the tradition of English legal
textbooks. The common temptation
to
read too much into individual cases
is
avoided; for example, in that part of Chapter
12
which discusses what the
courts regard as “judicial” acts for the purpose of the application of
certiorari.
It
is both the strength and the weakness of English courts that
they tend to base their decisions on the facts of a particular case
or
the
wording
of
a
particular statute rather than to formulate
a
body of general
principles. Perhaps we cannot say more in commendation of the book than
that we had already bought
a
copy on the reputation of the author before we
were asked
to
review it; and that having studied it and used it in seminars,
we
are
happy to keep both copies-one.$t home and the other
at
“the office.”
Our
students specialising in administrative law find it indispensable.
It
may
already be described as
a
standard textbook on the subject, and it is likely
to remain
so,
with those improvements which the ever-industrious author will
no doubt make in each succeeding edition.
Having fired this general salute, we cannot resist
a
parting shot.
Smith
v.
East
Ell00
R.
D.
C.
is cited in one place as an example of
“a
particularly
strong addiction to the literal rule’’ on the part of the House of Lords. But
surely the policy, not merely the
letter,
of the statute is to ensure that the
titls
to land acquired by
a
public authority should not be rendered uncertain
by being liable to be impugned
after
more than
a
short time. This is quite
a
different matter from the question whether
damzages
should be recoverable
for
loss
caused by an abuse of power. The fact that council houses had been
built on the land before action
was
brought in that case emphasises the point.
On the question of the cause of action for damages against the clerk to
the
council if he acted in bad faith, Professor de Smith suggests later that an
action against the clerk might be founded on deceit
or
injurious falsehood.
Professor
Street,
on the other hand, has suggested more than once elsewhere
that the clerk’s wrong would be abuse of process. But however great
our
sympathy for the plaintiff may be, we cannot see that the clerk’s conduct
could be brought within the definition of any of these torts. About damages
there is also the problem that the plaintiff has received for the enforced sale
the amount of compensation that Parliament considers adequate.
It
is
interesting to note that in the subsequent proceedings which were actually
taken against the clerk and
a
representative of the Ministry, the plaintiff
claimed damages for conspiracy
to
injure
(8mith
v.
PyeweZZ, The Times,
April
29, 1959).
Diplock
J.
held that there was no conspiracy; that damages
had already been recovered for trespass; and anyway his lordship was not
satisfied that the clerk had in fact acted in bad faith.
0.
HOOD
PHILLIPS.
WILLS,
PROBATE
AND
ADMINISTRATION. A
Manual
of
the Law.
By
B.
S.
KER,
M.A. (Cantab.), Solicitor
of
the Supreme Court.
[London: Sweet
&
Maxwell, Ltd.
1959.
xxiv and
294
pp.
42s.
net.]
A new book on the law of succession has to stand comparison with such well-
established favourites
as
Gibson’s
Probate
Law
(now in its sixteenth edition),
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