Академический Документы
Профессиональный Документы
Культура Документы
7.1
Statutory remedies
7.2
The prerogative orders of certiorari, prohibition and mandamus (the public law
remedies) and the equitable remedies of injunction and declaration (the private
law remedies) are discretionary. The discretionary nature of the remedies
allows the court to refuse judicial review where, inter alia, it is considered that
an alternative remedy is more suitable.
However, in some cases, the issue has been raised whether alternative
statutory remedies must be exhausted before an application for review can be
entertained. On the one hand, it might be argued that where Parliament has
provided a particular remedy, that remedy ought to be pursued in the first
instance. On the other hand, the nature of the alternative statutory remedy may
be quite different from judicial review. In particular, appeal is concerned with
the merits, not the legality, of the decision. Its non-exercise should not preclude
a challenge based upon the lawfulness of the decision.
Older authorities suggest that some freedom of choice was open to the litigant in selecting his or her remedy. However, the weight of recent authority
suggests that, as a normal rule, an applicant should exhaust alternative statutory remedies. It is only exceptionally that such remedies can be by-passed in
an application for judicial review.
In Cooper v Wilson (1937), a police officer successfully challenged his dismissal by the Watch Committee by way of judicial review even though he had
not exercised his statutory right of appeal to the Home Secretary. In Reg v
Governor of Pentonville Prison ex parte Azam (1974), the applicants challenged
their detention as illegal immigrants by way of writs of habeas corpus despite the
availability of a statutory appeal (which could only be exercised from outside
the United Kingdom). The Court of Appeal looked to the suitability of the
statutory remedy in deciding whether the decision could be challenged by way
of review. Lord Denning stated:
Once the Secretary of State gives directions that a man is to be removed on the
ground that he is an illegal entrant, the man is given a right of appeal to an adjudicator on the ground that ... he is not in law an illegal entrant ... He cannot
appeal so long as he is in the United Kingdom ... He can only appeal after he has
been removed ... Such an appeal would not seem to be a very beneficial remedy if a mistake has been made.
These provisions as to appeal give rise to a question of the first importance. Do
they take away a persons right to come to the High Court and seek a writ of
habeas corpus? I do not think so. If Parliament is to suspend habeas corpus, it must
do so expressly or by clear implication.
It would appear here that the litigant was to be allowed total freedom of choice
in selecting a remedy. It is difficult to envisage any situation where the alleged
illegal immigrant would not choose to challenge his or her detention by habeas
corpus rather than by the statutory procedure which could be activated only
196
In the instant case, Lord Denning considered the remedy by way of appeal to
be useless.
On the other hand, in R v Chief Constable of Merseyside Police ex parte Calveley
(1986), police officers dismissed from the force after a disciplinary hearing conducted by the Chief Constable exercised their statutory right of appeal and also
applied for judicial review on the ground that delay prior to the disciplinary
hearing constituted a breach of natural justice. Here, May LJ asserted that the
normal rule was that an applicant for judicial review should first exhaust whatever other rights he has by way of appeal and that judicial review should only
be granted where there was an abuse of process. He concluded, however, that
the delay in the instant case amounted to such an abuse. May LJ cited the
House of Lords decision in R v IRC ex parte Preston (1985). There, Lord
Templeman had asserted that judicial review should not be granted where an
197
7.3
198
Again, the court can exercise its discretion (where such exists) and refuse a remedy where it believes that an alternative remedy is more appropriate (see
Stepney Corporation v John Walker & Sons (1934) cf R v Paddington Valuation
Officer ex parte Peachey Property Co Ltd (1966)).
On the effect of statutory clauses in excluding judicial review, see below.
In view of the established principle that access to alternative remedies can
be excluded only by express words or necessary implication, it is perhaps all
the more surprising that, pursuant to the 1977 reforms of remedies in administrative law, the courts themselves developed the so-called exclusivity principle of public law remedies (see O'Reilly v Mackman above, pp 16869), ie that
where there is a live issue of public law, the applicant must proceed by way of
the application for judicial review and not by action in private law. However,
an attempt was made to reassert the established principle in Wandsworth LBC v
Winder (see above, pp 17172).
7.4
7.4.1
Introduction
199
200
7.4.2
Indirect ouster
7.4.3
Direct ouster
201
202
203
The House of Lords allowed the appeal by a 3:2 majority. All their Lordships
agreed that s 4(4) would not protect a determination made in excess of jurisdiction. A majority held that the Commission had exceeded its jurisdiction. Its
decision was ultra vires and so void. Consequently, it was not a real determination at all but a purported determination. As the determination was void
and of no effect, it had no existence and there was no determination to which
s 4(4) could apply.
Wade says of the Anisminic decision that it shows clearly the great determination of the courts to uphold their long-standing policy of resisting
attempts by Parliament to disarm them by enacting provisions which, if interpreted literally, would confer uncontrollable power upon subordinate tribunals (Administrative Law, 7th edn, 1994, Oxford University Press). On the
other hand, however, it might be argued that this decision makes a nonsense of
the assertion by the courts that they interpret legislation in such a way as to
merely uphold the intentions of Parliament. In Anisminic, the House of Lords
appeared to have diminished the distinction between errors within and outside
jurisdiction to a point where all errors of law were outside jurisdiction.
Arguably, the exclusion clause was designed to protect at least some errors of
law, otherwise what would be the point of its existence? The House of Lords
has rendered such a clause of absolutely no effect.
Parliament did, on this occasion, respond to what it might have legitimately perceived to be a usurpation of the judicial function. In the Foreign
Compensation Act 1969, whilst providing for a right of appeal to the Court of
Appeal on questions relating to the jurisdiction of the Foreign Compensation
Commission, it also provided that anything which purports to be a determination shall not be called into question in any court of law.
In Re Racal Communications (1981), s 441(3) of the Companies Act 1948 provided that a decision of a High Court judge on an application shall not be
appealable. The Court of Appeal held that a decision of the High Court was
reviewable if it went to jurisdiction. However, this approach was rejected by
the House of Lords on the ground, inter alia, that the jurisdiction of the Court
of Appeal was itself appellate only and so it could not deal with an original
application for judicial review (ie the Court of Appeal was itself acting outside
jurisdiction!).
204
7.4.4
7.4.5
In 1958, the Franks Committee (Cmnd 218) recommended the removal of clauses which ousted judicial review. Now, s 12(1) of the Tribunals and Inquiries Act
(TIA) 1992 (replacing equivalent provisions in Acts of the same name of 1958
and 1972) provides:
207
Under s 12(3) of the TIA 1992, this provision does not apply to orders or determinations made by a court of law or to time clauses (see above).
7.5
Conclusion
The judicial response to exclusion clauses illustrates graphically the contradictions in administrative law in particular, the courts insistence on their assertion that the function of statutory interpretation is to fulfil the intentions of
Parliament. The intention of Parliament in many of these cases is to curtail to
the highest degree the possibility of judicial intervention. However, this cannot,
of course, be publicly stated for fear of incurring allegations of conduct in defiance of the rule of law, itself a principle much used by the courts to justify their
interventionist stance. It seems that, however large the sledgehammer used by
Parliament, the courts will not allow the nut of judicial review to be cracked.
As stated by Craig (Administrative Law, 3rd edn, 1994, Sweet and Maxwell):
Whether it would be possible to devise an ouster clause which succeeded in
excluding review is less a matter of semantics than of judicial attitude and legislative response.
208
SUMMARY OF CHAPTER 7
Statutory remedies
Parliament may provide a complainant with a remedy at the time it invests a
body with a decision-making power. Such a remedy may take the form of an
appeal which may be general or on a point of law only. Such statutory remedies are often restricted by the statute itself by reference to, for example, the
persons to whom the remedy is available, the grounds on which the remedy is
available or the time within which the remedy can be applied for.
210