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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
    1. Congreve v Home Office [1976] QB 629; [1976] 1 All ER 697.
    2. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
    3. Padfield and Others v Minister of Agriculture Fisheries and Food and Others [1968] 1 All ER 694
    4. H Lavender and Son Ltd v Minister of Housing and Local Government [1970] 3 All ER 871
    5. British Oxygen Co Ltd v Minister of Technology [1970] 3 All ER 165
    6. Ministry of Agriculture and Fisheries v Matthews [1949] 2 All ER 724
    7. Robertson v Minister of Pensions [1948] 2 All ER 767
    8. Lever (Finance) Ltd v Westminster Corporation [1970] 3 All ER 496
    9. Western Fish Products Ltd v Penwith District Council and another [1981] 2 All ER 204
    10. R v London Borough of Hillingdon, ex parte Royco Homes Ltd [1974] 2 All ER 643
    11. Brind and others v Secretary of State for the Home Department [1991] 1 All ER 720
    12. R v Ministry of Defence, ex parte Smith [1996] 1 All ER 256; [1996] QB 517
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Padfield and Others v Minister of Agriculture Fisheries and Food and Others [1968] 1 All ER 694

LORD REID:....The question at issue in this appeal is the nature and extent of the Minister's duty under s 19(3)(b) of the Act of 1958 in deciding whether to refer to the committee of investigation a complaint as to the operation of any scheme made by persons adversely affected by the scheme. The Minister contends that his only duty is to consider a complaint fairly, and that he is given an unfettered discretion with regard to every complaint either to refer it or not to refer it to the committee as he may think fit. The appellants contend that it is his duty to refer every genuine and substantial complaint, or alternatively that his discretion is not unfettered, and that in this case he failed to exercise his discretion according to law because his refusal was caused or influenced by his having misdirected himself in law, or by his having taken into account extraneous or irrelevant considerations. In my view the appellants' first contention goes too far. There are a number of reasons which would justify the Minister in refusing to refer a complaint. For example he might consider it more suitable for arbitration, or he might consider that in an earlier case the committee of investigation had already rejected a substantially similar complaint, or he might think the complaint to be frivolous or vexatious. So he must have at least some measure of discretion. But is it unfettered?

It is implicit in the argument for the Minister that there are only two possible interpretations of this provision(either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case. I do not think that that is right. Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole, and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act. When these provisions were first enacted in 1931 it was unusual for Parliament to compel people to sell their commodities in a way to which they objected, and it was easily foreseeable that any such scheme would cause loss to some producers. Moreover, if the operation of the scheme was put in the hands of the majority of the producers, it was obvious that they might use their power to the detriment of consumers, distributors or a minority of the producers. So it is not surprising that Parliament enacted safeguards.....

In my view it is plainly the intention of the Act of 1958 that even the widest issues should be investigated if the complaint is genuine and substantial, as this complaint certainly is....

Here the words 'if the Minister in any case so directs' are sufficient to show that he has some discretion, but they give no guide as to its nature or extent. That must be inferred from a construction of the Act of 1958 read as a whole, and for the reasons which I have given I would infer that the discretion is not unlimited, and that it has been used by the Minister in a manner which is not in accord with the intention of the statute which conferred it.

LORD MORRIS OF BORTH-Y-GEST (dissenting):.... Before your lordships it was in the first place submitted that the appellants had a right to have their complaint referred to the committee, and that accordingly an order of mandamus should be directed to the Minister positively commanding him to refer the complaint. This contention was rejected by the Divisional Court and was not even advanced in the Court of Appeal. I, also, would reject it. In my view the Minister is endowed with a discretion. It is for him to decide whether to ask the committee to report on any complaint made as to the operation of any scheme made under the Act of 1958. A duty will only devolve on the committee "if the Minister in any case so directs". These words are in sharp contrast to those which are employed in the Act of 1958 when a positive duty is imposed on the Minister. Thus in s 2(3) are the words 'shall direct a public enquiry to be held'. In s 19(4) are the words 'the Minister shall forthwith publish'. In s 20(3) are the words 'the Minister shall refer'. If Parliament had intended to impose a duty on the Minister to refer any and every complaint, or even any and every complaint of a particular nature, it would have been so easy to impose such a duty in plain terms. I cannot read the words in s 19(3) as imposing a positive duty on the Minister to refer every complaint as to the operation of every scheme. Such was the appellants' contention, though they modified it by suggesting that the duty would not exist in the case of trivial or frivolous or repetitive complaints. In support of their revived contention the appellants submitted that in some circumstances a duty exists to exercise a power. So in the present case it was argued that a power was deposited in the Minister, that the power was given for the benefit of particular persons, that in the Act of 1958 they were specifically designated (eg, persons complaining as to the operation of a scheme) and that in the Act of 1958 the circumstances in which there is entitlement to the exercise of the power are defined (ie that there should be a complaint to the Minister as to the operation of the scheme being a complaint which could not be considered by a consumers' committee). Reliance was placed on a passage in the speech of Earl Cairns LC in Julius v Lord Bishop of Oxford. Lord Cairns said that the cases decided ([1874(80] All ER Rep at p 49; ):

"that where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the court will require it to be exercised".

In my view this passage does not avail the appellants. I can see no provision in the Act of 1958 showing that the appellants or others who might make a complaint similar to theirs were 'entitled' to call on the Minister to exercise the power given to him. At most their entitlement was that the Minister should consider and should decide whether or not in the exercise of his discretion he would refer a complaint. It would have to be shown that the Act of 1958 gave the appellants a 'right' to have their complaint sent to the committee before the power in the Minister could be held to be one that he was bound to exercise.