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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
  15. Chapter fourteen: Procedural grounds of judicial review
    1. Cooper v Wandsworth Board of Works [1863] 143 ER 414
    2. R v Metropolitan Police Commissioner, ex parte Parker [1953] 2 All ER 717
    3. Ridge v Baldwin and others [1963] 2 All ER 66
    4. Re K (H) (an infant) [1967] 1 All ER 226
    5. Schmidt and Another v Secretary of State For Home Affairs [1969] 1 All ER 904
    6. McInnes v Onslow Fane and another [1978] 3 All ER 211
    7. R v Hull Prison Board of Visitors, ex parte St Germain and others (No 2) [1979] 3 All ER 545
    8. Attorney-General of Hong Kong v Ng Yuen Shiu (Privy Council) [1983] 2 W.L.R. 735; [1983] 2 A.C. 629
    9. R v Secretary of State for the Home Department, ex parte Khan [1985] 1 All ER 40
    10. R v North East Devon Health Authority, ex parte Coughlan [2000] 3 All ER 850
    11. Regina v Secretary of State for Education and Employment, ex parte Begbie (CA) [2000] 1 W.L.R. 1115
    12. R (on the application of Bibi) v London Borough of Newham; [2001] EWCA Civ 607; [2002] 1 WLR 237 (CA).
    13. R v East Sussex County Council, ex p Reprotech (Pebsham) Ltd (HL) [2002] UKHL 8; 2002] 4 All ER 58.
    14. Metropolitan Properties Co (F G C) Ltd v Lannon and Others [1968] 3 All ER 304
    15. R v Gough [1993] 2 All ER 724
    16. R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte (No 2) [1999] 1 All ER 577
    17. Taylor v Lawrence [2003] QB 528
  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

Ridge v Baldwin and others [1963] 2 All ER 66

LORD REID:..... The appellant's case is that in proceeding under the Act of 1882 the watch committee were bound to observe what are commonly called the principles of natural justice, that before attempting to reach any decision they were bound to inform him of the grounds on which they proposed to act and to give him a fair opportunity of being heard in his own defence. The authorities on the applicability of the principles of natural justice are in some confusion and so I find it necessary to examine this matter in some detail. The principle audi alteram partem goes back many centuries in our law and appears in a multitude of judgments of judges of the highest authority. In modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighted or measured therefore it does not exist. The idea of negligence is equally insusceptible of exact definition but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligence in particular circumstances are equally capable of serving as tests in law, and natural justice as it had been interpreted in the courts is much more definite than that. It appears to me that one reason why the authorities on natural justice have been found difficult to reconcile is that insufficient attention has been paid to the great difference between various kinds of cases in which it has been sought to apply the principle. What a minister ought to do in considering objections to a scheme may be very different from what a watch committee ought to do in considering whether to dismiss a chief constable. So I shall deal first with cases of dismissal. These appear to fall into three classes, dismissal of a servant by his master, dismissal from an office held during pleasure, and dismissal from an office where there must be something against a man to warrant his dismissal.

The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them. The present case does not fall within this class because a chief constable is not the servant of the watch committee or indeed of anyone else.

Then there are many cases where a man holds an office at pleasure. Apart from judges and others whose tenure of office is governed by statute, all servants and officers of the Crown hold office at pleasure and this has even been held to apply to a colonial judge (Terrell v Secretary of State). It has always been held, I think rightly, that such an officer has no right to be heard before he is dismissed and the reason is clear. As the person having the power of dismissal need not have anything against the officer, he need not give any reason....

So I come to the third class which includes the present case. There I find an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation. An early example is Bagg's case though it is more properly deprivation of the privilege of being a burgess of Plymouth. R v Gaskin arose out of the dismissal of a parish clerk and Lord Kenyon CJ ((1799), 8 Term Rep at p 210), referred to audi alteram partem as one of the first principles of justice. R v Smith was another case of dismissal of a parish clerk and Lord Denman CJ ((1844), 5 QB at pp 622, 623), held that even personal knowledge of the offence was no substitute for hearing the officer: his explanation might disprove criminal motive or intent and bring forward other facts in mitigation, and in any event delaying to hear him would prevent yielding too hastily to first impressions. Ex parte Ramshay is important. It dealt with the removal from office of a county court judge and the form of the legislation which authorised the Lord Chancellor to act is hardly distinguishable from the form of s 191 which confers powers on the watch committee. The Lord Chancellor was empowered if he should think fit to remove on the ground of inability or misbehaviour but Lord Campbell CJ ((1852), 18 QB at p 190), said that this was 'only on the implied condition prescribed by the principles of eternal justice'....

That citation of authority might seem sufficient but I had better proceed further. In Fisher v Jackson, three vicars had power to remove the master of an endowed school. But unlike the Darlington case the trust deed set out the grounds on which he could be removed(briefly, inefficiency or failing to set a good example(and it was held that they could not remove him without affording him an opportunity of being heard in his own defence. Only two other cases of this class were cited in argument, Cooper v Wilson and Hogg v Scott. Both dealt with the dismissal of police officers and both were complicated by consideration of regulations made under the Police Acts. In the former the majority at least recognised that the principles of natural justice applied and in deciding the latter Cassels J ([1947] 1 All ER at p 792; [1947] KB at p 767), in deciding that a chief constable could dismiss without hearing him an officer who had been convicted of felony, appears to have proceeded on a construction of the regulations....

Stopping there I would think that authority was wholly in favour of the appellant, but the watch committee's argument was mainly based on what has been said in a number of fairly recent cases dealing with different subject-matter. Those cases deal with decisions by ministers, officials and bodies of various kinds which adversely affected property rights or privileges of persons who had had no opportunity or no proper opportunity of presenting their cases before the decisions were given. And it is necessary to examine those cases for another reason. The question which was or ought to have been considered by the watch committee on 7 March 1958, was not a simple question whether or not the appellant should be dismissed. There were three possible courses open to the watch committee(reinstating the appellant as chief constable, dismissing him, or requiring him to resign. The difference between the latter two is that dismissal involved forfeiture of pension rights whereas requiring him to resign did not. Indeed, it is now clear that the appellant's real interest in this appeal is to try to save his pension rights.....

I would start an examination of the authorities dealing with property rights and privileges with Cooper v Wandsworth Board of Works....

This was followed in Hopkins v Smethwick Local Board of Health. Wills J ((1890), 24 QBD at pp 714, 715), said:

In condemning a man to have his house pulled down a judicial act is as much implied as in fining him 5: and as the local board is the only tribunal that can make such an order its act must be a judicial act and the party to be affected should have a notice given him".

In the Court of Appeal ((1890), 24 QBD at pp 716, 717) Lord Esher MR in dismissing an appeal expressly approved the principles laid down in Cooper's case....

I shall now turn to a different class of case(deprivation of membership of a professional or social body. In Wood v Woad, the committee purported to expel a member of a mutual insurance society without hearing him and it was held that their action was void and so he was still a member. Kelly CB said of audi alteram partem ((1874), LR 9 Exch at p 196)

this rule is not confined to the conduct of strictly legal tribunals but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals".

This was expressly approved by Lord Macnaghten giving the judgment of the Board in Lapointe v L'association de Bienfaisance etc ([1906] AC 535 at p 540). In that case the board of directors of the association had to decide whether to give a pension to a dismissed constable(the very point the watch committee had to decide in this case(and it was held that they had to observe 'the elementary principles of justice'.....

I shall not at present advert to the various trade union cases because I am deliberately considering the state of the law before difficulties were introduced by statements in various fairly recent cases. It appears to me that if the present case had arisen thirty or forty years ago the courts would have had no difficulty in deciding this issue in favour of the appellant on the authorities which I have cited. So far as I am aware none of these authorities has ever been disapproved or even doubted. Yet the Court of Appeal have decided this issue against the appellant on more recent authorities which apparently justify that result. How has this come about?...

In cases of the kind with which I have been dealing the Board of Works or the governor or the club committee was dealing with a single isolated case. It was not deciding, like a judge in a lawsuit, what were the rights of the person before it. But it was deciding how he should be treated(something analogous to a judge's duty in imposing a penalty. No doubt policy would play some part in the decision(but so it might when a judge is imposing a sentence. So it was easy to say that such a body is performing a quasi judicial task in considering and deciding such a matter and to require it to observe the essentials of all proceedings of a judicial character(the principles of natural justice. Sometimes the functions of a minister or department may also be of that character and then the rules of natural justice can apply in much the same way. But more often their functions are of a very different character. If a minister is considering whether to make a scheme for say an important new road, his primary concern will not be with the damage which its construction will do to the rights of individual owners of land. He will have to consider all manner of questions of public interest and, it may be, a number of alternative schemes. He cannot be prevented from attaching more importance to the fulfilment of his policy than to the fate of individual objectors and it would be quite wrong for the courts to say that the minister should or could act in the same kind of way as a board of works deciding whether a house should be pulled down. And there is another important difference. As explained in Local Government Board v Arlidge a minister cannot do everything himself. His officers will have to gather and sift all the facts including objections by individuals and no individual can complain if the ordinary accepted methods of carrying on public business do not give him as good protection as would be given by the principles of natural justice in a different kind of case.

We do not have a developed system of administrative law ( perhaps because until fairly recently we did not need it. So it is not surprising that in dealing with new types of cases the courts have had to grope for solutions, and have found that old powers, rules and procedure are largely inapplicable to cases which they were never designed or intended to deal with. But I see nothing in that to justify our thinking that our old methods are any less applicable today than ever they were to the older types of case. And, if there are any dicta in modern authorities which point in that direction, then in my judgment they should not be followed.

And now I must say something regarding war-time legislation. The older authorities clearly show how the courts engrafted the principles of natural justice on to a host of provisions authorising administrative interference with private rights. Parliament knew quite well that the courts had an inveterate habit of doing that and must therefore be held to have authorised them to do it unless a particular Act showed a contrary intention. And such an intention could appear as a reasonable inference as well as from express words. It seems to me to be a reasonable and almost an inevitable inference from the circumstances in which defence regulations were made and from their subject-matter that at least in many cases the intention must have been to exclude the principles of natural justice. War-time secrecy alone would often require that and the need for speed and general pressure of work were other factors. But it was not to be expected that anyone would state in so many words that a temporary abandonment of the rules of natural justice was one of the sacrifices which war conditions required(that would have been almost calculated to create the alarm and despondency against which one of the regulations was specifically directed. And I would draw the same conclusion from another fact. In many regulations there was set out an alternative safeguard more practicable in war time(the objective test that the officer must have reasonable cause to believe whatever was the crucial matter. (I leave out of account the very peculiar decision of this House in Liversidge v Anderson.) So I would not think that any decision that the rules of natural justice were excluded from war-time legislation should be regarded as of any great weight in dealing with a case such as this case which is of the older type, and which involves the interpretation of an Act passed long before modern modifications of the principles of natural justice became necessary, and at a time when, as Parliament was well aware, the courts habitually applied the principles of natural justice to provisions like s 191(4) of the Municipal Corporations Act, 1882....

The authority chiefly relied on by the Court of Appeal in holding that the watch committee were not bound to observe the principles of natural justice was Nakkuda Ali v M F de S Jayaratne. In that case the Controller of Textiles in Ceylon made an order cancelling the appellant''s licence to act as a dealer, and the appellant sought to have that order quashed. The controller acted under a defence regulation, which empowered him to cancel a licence (where the controller has reasonable grounds to believe that any dealer is unfit to be allowed to continue as a dealer. The Privy Council regarded that as ([1951] AC at p 77); "imposing a condition that there must in fact exist such reasonable grounds known to the controller before he can validly exercise the power of cancellation".

But according to their judgment certiorari did not lie and no other means was suggested whereby the appellant or anyone else in his position could obtain redress even if the controller acted without a shred of evidence. It is quite true that the judgment went on, admittedly unnecessarily, to find that the controller had reasonable grounds and did observe the principles of natural justice, but the result would have been just the same if he had not. This House is not bound by decisions of the Privy Council and for my own part nothing short of a decision of this House directly in point would induce me to accept the position that, although an enactment expressly requires an official to have reasonable grounds for his decision, our law is so defective that a subject cannot bring up such a decision for review however seriously he may be affected and however obvious it may be that the official acted in breach of his statutory obligation. The judgment proceeds ([1951] AC at p 77):

But it does not seem to follow necessarily from this that the controller must be acting judicially in exercising the power. Can one not act reasonably without acting judicially? It is not difficult to think of circumstances in which the controller might in any ordinary sense of the word have reasonable grounds of belief without having ever confronted the licence holder with the information which is the source of his belief. It is a long step in the argument to say that because a man is enjoined that he must not take action unless he has reasonable grounds for believing something he can only arrive at that belief by a course of conduct analagous to the judicial process. And yet unless that proposition is valid there is really no ground for holding that the controller is acting judicially or quasi-judicially when he acts under this regulation. If he is not under a duty so to act then it would not be according to law that his decision should be amenable to review and if necessary to avoidance by the procedure of certiorari".

I would agree that in this and other defence regulation cases the legislator has substituted an obligation not to act without reasonable grounds for the ordinary obligation to afford to the person affected an opportunity to submit his defence. It is not necessary in this case to consider whether by so doing he has deprived the courts of the power to intervene if the officer acts contrary to his duty. The question in the present case is not whether Parliament substituted a different safeguard for that afforded by natural justice, but whether in the Municipal Corporations Act, 1882, it excluded the safeguard of natural justice and put nothing in its place.... No case older than 1911 was cited in Nakkuda Ali v M F de S Jayaratne on this question, and this question was only one of several difficult questions which were argued and decided. So I am forced to the conclusion that this part of the judgment in Nakkuda's case was given under a serious misapprehension of the effect of the older authorities and therefore cannot be regarded as authoritative.

I would sum up my opinion in this way. Between 1882 and the making of police regulations in 1920, s 191(4) of the Municipal Corporations Act, 1882, had to be applied to every kind of case. The respondents' contention is that, even where there was a doubtful question whether a constable was guilty of a particular act of misconduct, the watch committee were under no obligation to hear his defence before dismissing him. In my judgment it is abundantly clear from the authorities that I have quoted that at that time the courts would have rejected any such contention. In later cases dealing with different subject-matter opinions have been expressed in wide terms so as to appear to conflict with those earlier authorities. But learned judges who expressed those opinions generally had no power to overrule those authorities, and in any event it is a salutary rule that a judge is not to be assumed to have intended to overrule or disapprove of an authority which has not been cited to him and which he does not even mention. So I would hold that the power of dismissal in the Act of 1882 could not then have been exercised and cannot now be exercised until the watch committee have informed the constable of the grounds on which they propose to proceed and have given him a proper opportunity to present his case in defence.

Next comes the question whether the respondents' failure to follow the rules of natural justice on 7 March was made good by the meeting on 18 March. I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh after affording to the person affected a proper opportunity to present his case then its later decision will be valid. An example is De Verteuil v Knaggs. But here the appellant's solicitor was not fully informed of the charges against the appellant and the watch committee did not annul the decision which they had already published and proceed to make a new decision. In my judgment what was done on that day was a very inadequate substitute for a full rehearing. Even so three members of the committee changed their minds, and it is impossible to say what the decision of the committee would have been if there had been a full hearing after disclosure to the appellant of the whole case against him. I agree with those of your lordships who hold that this meeting of 18 March cannot affect the result of this appeal.