Statutory Restriction Of Judicial Review
| Date | 01 November 1955 |
| Author | S. A. Smith |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00324.x |
| Published date | 01 November 1955 |
STATUTOR
Y
RESTRIC'I'ION
OF .JITDICIAI,
REVIEW
ALTHOUGH
writers on administrative law have given a good deal
of attention to the implications of statutory provisions which pur-
port
to
exclude
or
limit the powers of review exercisable by the
ordinary courts over the acts and decisions of Ministers and special
tribunals, no fully comprehensive study of judicial interpretation
of these provisions has been published.
It
may therefore be help-
ful to present a concise survey of the whole field, bringing together
most of the decisions of the courts and indicating the main lines
of interpretation.
I.
THE
PRESUMPTION
AGAINST TAKING
AWAY
JURISDICTION
The courts have long been zealous to resist encroachments upon
their jurisdiction. An attitude which may have originally been
conditioned by the solicitude of the judges
for
their emoluments
(which were dependent largely on fees paid by suitors) has been
reinforced by traditions stemming from the battles successfully
waged against the prerogative courts in the seventeenth century
and by the unique prestige that the superior judges have since
earned. The view is widely held that, in the words of Romer
L.J.,
"
the proper tribunals for the determination of legal disputes
in this country are the courts, and they are the only tribunals
which, by training and experience, and assisted by properly
qualified advocates, are fitted
for
the task."
'
It
is a common law
presumption of legislative intent that access to the Queen's
courts
is
not to be denied save by clear words in a statute.3
Subordinate legislation purporting
to
restrict
or
exclude access to
the courts has been held to be
ultra
vires
in the absence of express
authorisation of such provisions in the parent Act.4 At common
law, moreover, a contract will be held to be illegal on grounds of
1
Lce
v.
Showmen's
Guild
of
Great Britain
[1952]
2
Q.B.
309
at
p.
354.
2
Recently reaffirmed in
Goldsnck
v.
Show
[1950]
1
K.H.
708
at
p.
711'
mil
Bennett
d
White (Calgary),
Lttl.
v.
Municipal District
of
Sugar
City,
Yo.
5
[1951J
A.C.
786
at
p.
81'2.
See
also
Re
Boaler
[I9151
1
K.B.
21
at
p.
36.
3
See
Maxwell
on the
Inferpretafion
of
Statutes,
10th
ed.
pp.
U3-34,
for the
scope
of
the presumption, which is sonietimel; limited
to
issues
involving
common
law
rights.
4
Chester
v.
Buteson
[L920]
1
1i.B.
829;
Yeiccnstlc
Brerceries,
Lftl.
v.
R.,
ibid.,
854:
R.
(6
U'.
Paul,
Ltd.
v.
Wheat
Conzviission
[1937]
A\.i!.
139.
See
also
Re
B~/.Jitind
v.
Dupuis
[1946]
2
D.L.R.
641
(B.C.)
(orders
piirporting
t,o
make execution
of
court
judgments conditional
on
n.dminialrativt.
;ipprnvd.
held invalid); nnd
Re
Kcllncr's
Will
Trusts
[19491
2
.\I1
R.R.
-13.
575
576
THE MODERN
LAW
REVIEW
VOL.
18
public policy in
so
far as its terms forbid the parties to proceed in
the ordinary courts.,i Agreements to submit disputes to arbitra-
tion constitute a limited exception to this rule
s;
but a court has
recently declined to give effect to an agreement by members of a
voluntary association that its central council shall have the last
word in the legal construction of rules of the association.‘ Also,
it would seem that a testator cannot wholly deprive the courts
of their power to construe the terms of his
In matters of public law the role of the ordinary courts is of
high constitutional importance.
It
is the function of the judiciary
to pass upon the validity of acts and decisions of the executive
and to afford protection to the rights of the citizen. Legislation
which deprives them of this power
to
perform this function is often
claimed to be inimical to the principle of the rule
or
supremacy of
law. The executive, however, has shown an understandable
reluctance to offer the citizen a sporting chance to disturb the
course of administration, and has secured the passage of legislation
designed
to
protect the exercise of its administrative and sub-
ordinate legislative powers against effective challenge in the courts.
In addition, attempts have been made to limit
or
take away the
inherent supervisory jurisdiction of the High Court over the
determination of some classes of claims and controversies by
Ministers and special tribunals.
Cases in which the courts have construed the legislative
formulae commonly employed for these purposes will be considered
in this article. The decisions are diffuse, and it may seem
futile to attempt to relate them to one another; “the process of
reasoning that because one set of words means one thing in one
context
.
. .
the same words in a different context must necessarily
mean the same thing is often vexatious and fruitless.” But even
an analysis which does no more than throw into relief the main
trends of judicial interpretation may have its vaIue; and
it
may
emerge that problems which the courts are thought to be obliged
to answer in only one way admit of alternative solutions.
Bei~nelt
V.
Be~~etl
[I9521
1
K.B.
049;
~f.
Addisoit
V.
Brown
[1954]
1
W.L.R.
779;
Goodinson
v.
Goodinson
[1954]
2
Q.B.
118.
6
The parties cannot wholly exclude access to the conrts by making the decision
of
the arbitrator
final:
Czamzikoto
v.
Rofh,
Sehmidt
d
Co.
[1939]
2
K.B.
478;
Comp’giiie
den
Memngcrics
Ilfaritimes
v.
Wilson
(1955)
28
A.L.J.
465.
Pifferent considerations apply where arbitration is provided for
by
statute
;
see
pp.
680-2,
post.
7
Baker
v.
Joitcc
119541
1
W.L.R.
1005.
applping
Lre
V.
Shocunzeiz’s
Guild
of
Greaf.
Brita.ix
[19521
2
Q.R.
at
p.
34:’.
8
Re
Ravcit
[1915]
1
Ch.
673;
Rc
Wy,itir’.s
M.i/l
Triistr
[I9501
Ch.
271;
though
cf.
Dnnclcc
Gcnoral
Hospifalv
Board
of
.\foiin~ciiiciit
v.
A-alh.cr
[1952]
1
All
E.R.
89ti
(H-Tj.);
and
see Mitchell, Xnte.
15
M.1j.R.
-197.
Tmrhllrn,
I,.(’.
9
K!,M
V.
L;v,-~/I~
N-~J~JI
~‘on~~~tittc~
r19o81
.w.
3.27
31
p.
331,
Ijcr
LO~CI
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