TIME LIMIT CLAUSES AND JUDICIAL REVIEW—SMITH v. EAST ELLOE REVISITED
| Author | J. Alder |
| Date | 01 May 1975 |
| DOI | http://doi.org/10.1111/j.1468-2230.1975.tb01415.x |
| Published date | 01 May 1975 |
TIME LIMIT CLAUSES AND JUDICIAL REVIEW-
SMITH
v.
EAST ELLOE REVISITED
PROBLEMS
involving statutory formulae which purport to exclude
or
restrict judicial review of administrative action still regularly exercise
the courts.I The constitutional significance of such clauses has declined
in
recent years. This is partly no doubt due to the strictures of the
1932
Committee on Ministers’ Powers and the
1957
Franks Com-
mittee with the resulting enactment of section
11
of the Tribunals and
Inquiries Act
1958
which
‘‘
outlawed
”
albeit on
a
selective basis
many such private clause~.~
Not surprisingly the courts have been hostile to these clauses
although the actual decisions have fluctuated between interpretations
so
restrictive as to reduce the meaning of some formulae to vanishing
point and a reluctant commitment to the ostensible meaning of the
clause.6 The cases, however, cover
a
wide range of formulae ranging
from the ambiguous
‘‘
finality clause
”
to the seemingly comprehen-
sive
“
conclusive evidence
”
provision.‘
In
modern legislation the most common privative formula is the
“time limit clause,” which forms the subject of this article. This
consists of the provision
of
a right to challenge
a
decision in the
High Court within six weeks upon the grounds, either that the
decision
“
is not
within
the powers of the Act,”
or
that
“
any rele-
vant requirements have not been complied with.” The powers of
the
court include the making of an interim order suspending
the
administrative decision concerned, and
a
final order setting aside the
decision. Apart from this, it is provided, that the decision “shall
not be questioned in any legal proceedings whatsoever.” This formula
is standard form
in
modern legislation concerned with administrative
action affecting the use of land and other natural resources.8
In
some
1
Anisminic
V.
Foreign Compensation Commission
(19691
2
A.C.
147;
Tehrani
v.
Rosrron
(19711
3
All
E.R.
790;
Ealing
Borough Council
V.
Race Relations Board
(19721
1
All
E.R.
105;
Routh
V.
Reading Corporation
(1971)
E.G.
1337;
Hamiltoti
v.
Secretary of State for Scotland,
1972 S.L.T. 233;
Jeary
V.
Chniley R.D.C.
(1973) 226
E.G.
1119.
See
(1974) 37
M.L.R.
222.
2
1932
Cmd.
4060,
40,
65, 117. 1957 Cmnd. 218.
Cf.
Hewart,
The New Despotism
(1929), pp. 63-65.
3
See now Tribunals and Inquiries Act 1971,
s.
14.
4
Institute
of
Patent Agents
v.
Lockwood
[I8941 A.C. 347, 359;
R.
v.
Minister
of
Health, ex p. Ynge C.A.
[I9301 K.B. 98, 144-145;
Smith
v.
East Elloe R.D.C.
(1956) A.C. 736, 750;
Ex
p.
Gilmore
(19571
1
Q.B. 574, 587;
Pyx
Granite Co.
V.
Minisfry
of
Housing
[1959] 3 All
E.R.
1,
6.
5
Cf.
The Finality Clause cases.
E.r
p.
Gilmore,
above, note 4.
Tehrani
v.
Rostron,
above, note 1.
Atiisrninic
V.
Foreign Compensatfon
Commission
(ibid.)
6
Cf.
Lockwoad case,
above, note 4.
Ex
p.
Ringer
(1909) 25 T.L.R. 718;
Smith
V.
East Elloe R.D.C.
(19561 A.C. 736.
7
Cf.
Committee
on
Ministers’ Powers Report (note
2,
above) at
p.
40.
8
Acquisition
of
Land (Authorisation Procedure) Act
1946,
Sched.
I,
Pt.
4,
para.
15-16. Housing Act 1957, Sched. 4, para. 3. Water Resources Act 1%3,
s.
117 and
Sched
5.
New Towns Act
l%S,
Scheds.
1
and 3. Agriculture Act 1967, Sched.
I.
Forestry Act 1967, Sched.
5.
Town and Country Planning Act 1971,
ss.
142, 145.
274
May
19751
TIME LIMIT
CLAUSES AND JUDICIAL
REVIEW
275
statutes variations exist. For example the second of the two grounds
of challenge is sometimes permitted only
if
the applicant can show
that he has been “substantially prejudiced” by the defect in
question.¶
The well-known decision of the House of Lords in
Anisminic
v.
Foreign Compensation Commission
lo
has been taken as a reassertion
of
the ultimate power
of
the High Court
to
review administration
decisions
for
vires,
despite the existence of an ostensibly compre-
hensive privative formula.11 Their lordships considered the effect
of a simple “determinations shall not be questioned in any legal
proceedings whatsoever
”
clause and held that an
ultra
vires
decision
being a nullity is not a
“
determination
”
within the meaning of the
clause. This formula therefore does not protect jurisdictional defects,
although errors within jurisdiction, which make a decision voidable
only, are within the clause and thus immune from review.” This
principle
is
of course well established in the older cases,I3 and is no
doubt acceptable where the question
of
jurisdiction is solely one of
statutory construction, for which the High Court is an appropriate
forum.I4 But their lordships took an extremely wide view of what
defects go to jurisdiction. including in
the
list irrelevancy. and breach
of both rules of natural justice.’’ Indeed
it
has recently been held
that complete lack of evidence results in an
id/ru
vires
decision.I6 It
has thus been observed with some force that a defect within juris-
diction is now extremely hard to identify.” and that any error is
potentially reviewable by the High Court, to the detriment of internal
statutory procedures which became, at most, a non-mandatory alter-
native remedy.l8 Indeed it has sometimes been held that a statutory
right of appeal cannot be exercised where the initial decision is a
n~llity.’~ This principle has been used
in
Canadian cases with ruthless
9
See
Cordondale lnvestineri/s
v.
Environrneii/ Secrelary
(1972)
23
P.
&
C.R. 334.
In
Miller
V.
Weyniorrth
U.D.C.
(1974)
P.
&
C.R.
468
Kerr
J.
held that the “sub-
stantial prejudice
”
requirement was relevant
also
to
the court’s discretion to
quash
on
the first ground.
Sed qitaere
whether
“may”
in
this connection should be
construed
as
mandatorv.
.
_._
See (1975) 92
L.Q.R.’lO.
10
11~91
AC
147
L__l_l
-
...
11
See Wade,
(1969)
85 L.Q.R. 198;
Could,
[I9701
P.L.
358.
12
Ex
p.
Gilinore,
above, note 4, at p.
588.
Hualey
v.
Minister
o/
Heal//i
I19541
2
Q.B.
221;
Pioiton
V.
Miirhter
of
Pensions
(No.
2)
[I9641
1
All E.R.
448;
R.
v.
Paddington Valua/ioii Oficer
[1%5]
2
All E.R.
836.
13
Cf.
Rubinstein,
Jurisdictiori
and
Illegality
(1%5),
pp.
72,
85-88.
14
See
Gilinore
case, above, note
4.
Per
Romer
L.J.
lor.
ci/.
and Lord Pearce in
15
[I9691
2
A.C. at pp. 171, 195, u)7,
210.
16
Colcen
v.
Minister
of
Housing
[I9711
I
All
E.R.
1049,
1055
and 1056. But
see
R.
v.
Governor
of
Rrixrori Prisoii ex
p.
Arnrair
[l%S] A.C.
192;
Gortlondale
/iivestiiiefits
V.
Eiwirotiincnt Secretary
(1972) 23
P.
&
C.R.
334.
17
Diplock [1971]
C.L.P.
13. Could
loc. cit.,
note
11,
above. Gordon (1971)
34
M.L.R.
I.
18
Birariiighain Overseers
v.
Shaw
(1849)
10
Q.B. 868,
880;
Cooper
v.
Wilsori
[I9371
2
K.B.
309;
Ridge
V.
Ballwiii
[I9643
A.C.
40.
19
Barnard
v.
National
Dock
Lobour Board
[I9531
1
All
E.R. 1,113, 1119;
Chap
nion
V.
Earl
119681
2
All
E.R.
1214;
1,enry
V.
National Union
of
Vehicle Biti1dei.s
[I9701
2
All E.R.
713;
Stringer
v.
Minis/er
of
Horrsing
(1971]
1
All
E.R. 65,
75;
Anisnrinic
(above) at
pp.
194,
195.
To continue reading
Request your trial