Leading Works in Public Law: de Smith’s Judicial Review of Administrative Action — “The Context”

I am currently working on a chapter for “Leading Works in Public Law”, a collection edited by Ben Yong and Patrick O’Brien. My chapter is on SA de Smith’s Judicial Review of Administrative Action. Here is a draft of the second section, on “The Context”

The Context

As noted, Judicial Review of Administrative Action began life as Professor de Smith’s Ph.D. thesis. But it was “far from an ordinary Ph.D. thesis”, rather, a “pioneering work in administrative law”,[1] which enjoyed “instant success”.[2] To understand why, it is necessarily to briefly describe the origins and evolution of the control by the English courts of the administrative state.

What we now call “administrative law” or “judicial review of administrative action” began to develop, many centuries ago, in the form of the writs of certiorari, prohibition, mandamus, quo warranto and habeas corpus. These writs were originally designed, by judges sitting in the King’s common law courts in Westminster, to control the actions of so-called “inferior” courts around the country. Today’s centralised court system was then in the earliest stages of its development; most justice was administered locally or in ecclesiastical courts.

Consideration the operation of the writ of certiorari. A common law court could issue a writ of certiorari against an inferior tribunal. The effect of doing so was to transfer the entire record of the proceeding in the inferior tribunal to be sent to the common law court: “The theory is that the Sovereign has been appealed to by some one of his subjects who complains of an injustice done him by an inferior court; whereupon the Sovereign, saying that he wishes to be certified—certiorari— of the matter, orders that the record, etc., be transmitted into a court in which he is sitting”.[3] Once received in the common law court, the record could be scrutinised for error.[4] In this way, the common law courts were able to develop a body of centralised jurisprudence regulating the proceedings of inferior courts – or, as they were termed, “Courts of Record”.

Prohibition, meanwhile, functioned to stave off encroachments on the jurisdiction of the common law courts: ecclesiastical courts, for instance, could be ‘prohibited’ from adjudicating on certain matters. Quo warranto allowed the common law courts to assess whether a particular decision-maker was qualified to act. Mandamus and habeas corpus were available to correct a wide variety of wrongs and not just those committed by inferior tribunals.[5]

Over the centuries, the common law courts extended the scope of the prerogative writs to cover a wider and wider range of bodies, generally reasoning by analogy to justify issuing writs against decision-makers which were not, strictly speaking, “inferior” courts. An early example is Groenvelt v Burwell.[6] Here, a physician had been fined and imprisoned by the College of Physicians. Formally speaking, certiorari would not extend to the College, which was not an “inferior” court: indeed, it was neither a so-called Court of Record, nor acting judicially. Looking, rather, to the substance of the matter Holt CJ held that certiorari could issue against the College: any body with a power to examine, hear and punish is a judicial body; and any jurisdiction with the power to fine and imprison is a Court of Record. Reasoning Groenvelt-style, the courts gradually and incrementally extended the prerogative writs to cover a vast range of non-judicial decision-making.[7] As Lord Parker CJ explained, “the exact limits” of the prerogative writs “have never been and ought not to be specifically defined” but rather “have varied from time to time being extended to meet changing conditions”.[8]

There is a reason, however, that the word “Jesuitical” – which evokes casuistic, case-by-case analysis – is not always employed as a term of endearment. While the prerogative writs were used to control the actions of an array of administrative decision-makers, there was no “administrative law” as such. As with the common law generally prior to the reforms effected by the Judicature Acts in the late nineteenth century, there were no general principles but various, discrete bodies of law relating to the individual writs: there was a “law” relating to certiorari, prohibition and so on but there was no coherent body of principles which, as a whole, could be described as “administrative law”. In the same way as there was until the end of the 19th century no “law of tort” or “law of contract” but rather “laws” of diverse writs of action, “administrative law” as a body of principles did not exist but had to be brought into being.[9]

At the time de Smith published his treatise, what bodies were reviewable, and what types of error might be put in issue before the superior courts of record, depended on the scope of the prerogative writs, not any set of general principles. And, as one can readily imagine, with decisions about the application of the writs accreting like barnacles on the hull of the administrative state, the case law was difficult to interpret. Moreover, decisions relating to mere privileges, or decisions which were “administrative” or “legislative” in nature, were excluded from judicial oversight, as only those decisions affecting “rights” and reached after a “judicial” or “quasi-judicial” process could be reached by the prerogative writs.

Hence Lord Reid’s comment: “We do not have a developed system of administrative law – perhaps because until fairly recently we did not need it”.[10] But by the late 1950s, with the administrative state regulating and/or managing large sectors of the economy and distributing a wide range of entitlements, it was necessary for the judges to emerge from their “long sleep”[11] and more vigorously control administrative decision-making. The stage was set for someone to weave the strands of jurisprudence on the prerogative writs into a coherent whole.

[1] H W R Wade, “Stanley Alexander de Smith, 1922–1974” (1974) 60 Proceedings of the British Academy 477 at 479.

[2] H W R Wade, “Stanley Alexander de Smith, 1922–1974” (1974) 60 Proceedings of the British Academy 477 at 480.

[3] R v Titchmarsh (1914) 22 DLR 272, at pp. 277-278.

[4] R v Northumberland Compensation Appeal Tribunal, ex parte Shaw [1952] 1 KB 338, at p. 357.

[5] As Coke CJ explained of Bagge’s Case (1615) 11 Co Rep 93b, at p. 98:

And in this case it was resolved, that to this Court of King’s Bench belongs authority, not only to correct errors in judicial proceedings, but other errors and misdemeanors extra-judicial, tending to the breach of peace, or oppression of subjects, or to the raising of faction, controversy, debate or any manner of misgovernment; so that no wrong or injury, neither private nor public, can be done, but that it shall be here reformed or punished by due course of law.

[6] (1700) 91 ER 179.

[7] R v Electricity Commissioners, ex parte London Electricity Joint Committee Co [1924] 1 KB 171, at pp. 204-205, per Atkin LJ.

[8] R v Criminal Injuries Compensation Board, ex parte Lain [1967] 2 QB 864, at p. 882 (in relation to certiorari specifically, but his comments are generally applicable). See also Law Commission of Canada, Working Paper 25: Independent Administrative Agencies, 1980, at p. 20; SA de Smith, “The Prerogative Writs” (1951) 11 Cambridge Law Journal 40, at p. 48.

[9] As John Griffith and Harry Street commented: “The remedies, for no practical reason are plural; some of them cannot be used if another remedy is available; the lines between them are imprecise and shifting [and] the judges employ vague concepts (which they do not define) in marking the boundaries of each remedy”. Principles of Administrative Law (1966), at p. 236.

[10] Ridge v Baldwin, [1964] A.C. 40, at p. 72, emphasis added.

[11] Robert Stevens, The English Judges (Hart, Oxford, 2005), at p. 19.

This content has been updated on May 29, 2020 at 19:45.