Wrongs and Remedies in Administrative Law

DOIhttp://doi.org/10.1111/j.1468-2230.1952.tb00232.x
Publication Date01 Apr 1952
AuthorS. A. Smith
WRONGS AND REMEDIES IN
ADMINISTRATIVE
LAW
I
No
aspect of English law lends itself less readily to traditional
methods of exposition than the law relating to judicial review of
administrative acts and decisions. Most of the reasons for this
intractability are well known. Administrative law is not a homo-
geneous body of jurisprudence, but is rather an agglomeration of
diverse and complex branches of law-liquor licensing, transport,
social insurance, education, public health, housing, town and
country planning, to mention only a few-and judicial review in
each individual branch of administrative law has tended to develop
in
a
distinctive manner. Thus, the standards of conduct that the
courts have imposed
on
a Minister who
is
deciding whether
to
confirm a compulsory purchase order differ from the standards
imposed on licensing justices. The difficulty of general exposition
is increased by the variety of verbal formulas to be found in
statutes conferring powers and duties upon administrative bodies.
And in the process of interpretation a statutory formula literally
applied by one judge may be read in an opposite sense by another
judge, using another canon of interpretation, in a different context.
Moreover, the terminology employed by the courts is often indeter-
minate.
‘‘
Executive,”
administrative,”
ministerial,”
legis-
lative,”
quasi-judicial,” may be used to describe the same act
or
decision. The’scope of review often depends upon whether
a
function
is
characterised as judicial
or
administrative; yet no
consistently applied test for distinguishing between the two cate-
gories can be extracted from the English cases
or
from the multi-
tudinous decisions in other common law jurisdictions.’ To one
who is attempting to expound the law of judicial review this may
seem unfortunate. On the other hand, had the courts defined the
terms uniformly for all purposes the effect upon the state
of
the law
might have been still more unfortunate.
Faced with these formidable but intriguing problems, writers
on administrative law have adopted two main methods of approach.
The one has been
to
state certain broad general propositions and
to support them with the citation of a small number of leading
cases. This makes for an attractive simplicity, but is apt to leave
an impression of over-simplification among those who have wrestled
1
For valuable analyses
of
thc confused state
of
the
law
in relation
to
this
problem’in Australia, see the articlcs
of
Geoffrey Sewer in (1948)
1
U:
of
W.
Australia Annual
Law
Revicw 29; Zelman Cowen in (1948)
26
Can.B.R.
829;
and
P.
R.
Beasley in (1949)
27
C8n.B.R.
G86.
189
190
THE
MODERN
LAW
REVIEW
VOL.
16
with the problems. When a distinguished private lawyer recently
expressed the view that there was
66
too much flabbiness and too
little toughness about many aspects of our public law,” he may
have had in mind the reluctance of public lawyers to come to grips
with problems which are, unhappily, only too likely to tie them into
knots. The other favourite method of approach has been to
analyse not
so
much what the judges say as what they do, and
in particular to expose the inadequacies of the conceptualistic
approach to be found in the judgments. This approach to the
problems of judicial review is,
it
is thought, valuable and necessary
;
but unless critical analysis is combined with constructive proposals
and thorough exposition of the present law, such writings are
unlikely to have much direct influence on legal development.
There is, however, one vital aspect of judicial review which can
be
examined historically and critically and which at the same time
is suited to detailed analytical exposition. That aspect is the law
relating to judicial remedies, of which the most important are
certiorari, prohibition and mandamus.
It
is possible to trace with
assurance their origins and development. The rules governing
their availability can be extracted from the cases,
or,
where these
are unsafe guides, from the basic principles that underlie the general
practice of the courts.
To
prophesy the view that a court will take
of the powers
or
duties of an administrative authority in
a
particular
case must inevitably remain a hazardous undertaking; but there is
no reason why it should be equally hard to say what is likely to
be the appropriate method of challenging the conduct of that
authority. Nevertheless doubts about the exact scope of the several
remedies remain a source of uncertainty. Suits are
lost
because
the wrong remedies have been chosen. And, what is in the long
view a more serious matter, suits have been lost
or
won that might
have been otherwise decided had the courts analysed the principles
on which they were entitled to award the remedies sought.
Applications for certiorari, prohibition and mandamus must be
made to a Divisional Court of the Queen’s Bench Division. They
concern a wide range of administrative bodies and also inferior
courts of law. Cases cited to the Divisional Court tend to be
confined to those directly related to the provisions of the statute
before the court. Leading cases on the scope of the
remedy
that
is being sought, are too often overlooked because they were decided
in a different
legislative
context. Judgment in the Divisional
Court is seldom reserved. The result has been that contradictory
decisions upon the scope of judicial remedies have been reached
although the court has not appeared to be aware of any inconsis-
tency. One object of the present article is to draw attention to
some
of the anomalies that impede rational exposition of the law,
and, where possible, to suggest how they may best be removed.
2
Sir
David
Hughes
Parry
in
(1960).28
Can.B.R.
at
193.

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