The Advantages of The Declaratory Judgment In Administrative Law
| Date | 01 March 1955 |
| DOI | http://doi.org/10.1111/j.1468-2230.1955.tb00288.x |
| Published date | 01 March 1955 |
THE
ADVANTAGES
OF
THE DECLARATORY JUDGMENT
IN ADMINISTRATIVE LAW
ALTHOUQH
the declaratory judgment has, in recent years, been
employed more readily in administrative law, the remedy has not
yet attained the pre-eminence in this field that its considerable
advantages would seem to merit. The fundamental point is that
coercive relief is generally unnecessary against public and govern-
mental authorities-normally, a declaration
of
the, law is enough
and
no
coercive backing is needed to compel officials to observe
the law
or
to remain or be kept within the bounds
of
legality.
Public bodies in Britain would never blatantly disregard an authori-
tative declaration of the law obtained against them. Morever,
the limitations besetting the prerogative orders of mandamus,
certiorari, and prohibition, remedies which do give coercive relief,
and the doubts as to their precise scope, are such that these
remedies compare unfavourably with the simplicity
of
the declara-
tory judgment procedure.
In
an age when, in more and more fields of activity, an
individual's action is liable to bring him into conflict with the
Administration, there is a very real need for a simsle all-embracing
method of redress, unencumbered by restrictions such as have
attached themselves over a long period
of
development to the older
remedies. Bringing a declaratory action is, further, the best way
to avoid the loss of a case
on
the ground of wrong choice of remedies.
It
is now prbposed to outline some of the disadvantages of
mandamus, certiorari, and prohibition, the older remedies available
in public law, and
to
compare these remedies with the action for
a declaratory judgment.
I-TEE
DISADVANTAGES
OF
MANDAMUS
If
an authoritative declaration of the law is obtained against a
government department, local authority,
or
other public body,
that body is not likely to disobey
it.
An
order of mandamus, which
compels the performance of a public duty
is,
therefore, generally
unnecessary, and the conditions for its grant being, as we shall see,
somewhat technical, a declaration should usually be preferred.
The most recent definitive statement
on
the scope of mandamus
was made by Lord Goddard
C.J.
in
R.
v.
Dunsheath, em
p.
Meredith
l-
"
Mandamus
.
. .
will be granted
if
the duty is in the nature
1
[1951]
1
K.B.
137,
131.
138
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