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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
  16. Chapter fifteen: Challenging governmental decisions: the process
    1. Barnard and Others v National Dock Labour Board and Another [1953] 1 All ER 1113
    2. RULES OF THE SUPREME COURT ORDER 53 rule 1
    3. Heywood v Hull Prison Board of Visitors and another [1980] 3 All ER 594
    4. Supreme Court Act 1981
    5. O'Reilly v Mackman and others and other cases [1982] 3 All ER 1124
    6. Wandsworth London Borough Council v Winder [1984] 3 All ER 976
    7. Law v National Greyhound Racing Club Ltd [1983] 3 All ER 300
    8. R v East Berkshire Health Authority, ex parte Walsh [1984] 3 All ER 425
    9. R v Secretary of State for the Home Department, ex parte Benwell [1984] 3 All ER 854
    10. R v Panel on Take-overs and Mergers, ex parte Datafin plc and another (Norton Opax plc and another intervening) [1987] 1 All ER 564
    11. Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 All ER 705
    12. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
    13. Boddington v British Transport Police [1998] 2 All ER 203
  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

Barnard and Others v National Dock Labour Board and Another [1953] 1 All ER 1113

SINGLETON LJ:....I now come to the last question. It was raised as a preliminary point at the trial, namely, that the action does not lie. It is submitted on behalf of the National Dock Labour Board that in the order of 1947 there is a complete code on matters of discipline, and that the only way in which decisions of the board can be questioned is by writ of certiorari. There is great force in this submission, and there is a body of authority to support it. It cannot be right to say that whenever a tribunal such as the local board or the appeal tribunal makes a mistake the court can grant such a declaration as is sought in the present case. That would lead to endless confusion. The courts have, however, power to grant a declaration or an injunction in certain cases to prevent an injustice.

In Cooper v Wilson this court granted relief to a police officer who had been dismissed by the watch committee of the Liverpool City Council. In that case a question of jurisdiction arose. The plaintiff said that he had resigned from the police force, and that he was 'dismissed' afterwards. He brought an action against the chief constable and the watch committee claiming a declaration that he had duly resigned, and was, therefore, entitled to be paid the rateable deduction which had been made from his pay. It was held, Macnaghten J dissenting: (i) that in a borough the right to dismiss a police constable was vested solely in the watch committee, but that in that case that committee had no power to dismiss the plaintiff, who had already terminated his service by due notice of resignation, and there was no power ex post facto to treat him as dismissed from a date prior to the hearing by them of an application to confirm the purported dismissal by the chief constable; ....and, therefore, (iv) that he was entitled to the declarations claimed. The opinion was expressed that the proceedings before the watch committee were contrary to natural justice owing to the presence of the chief constable during the committee's deliberations on the plaintiff's appeal, and it was held that where a statutory body is alleged to have acted without jurisdiction its decision could properly be questioned in an action for a declaration that the decision was null and void....

Greer LJ said ([1937] 2 All ER 731):

"It seems to me clear that the watch committee have no power to dismiss a constable who has already terminated his service by due notice, nor can they ex post facto decide that they would treat him as dismissed as from a date prior to the hearing of an application to confirm the decision of the chief constable. It would be idle for a plaintiff who is alleging that he has never been dismissed to appeal to the Secretary of State, nor do I think that the fact that that is a remedy which he could take prohibits his access to the court for a declaration that his dismissal was invalid, nor do I think that the power which he undoubtedly possessed of obtaining a writ of certiorari to quash the order for his dismissal prevents his application to the court for a declaration as to the invalidity of the order of dismissal".....

In the present case....[t]he local board had no jurisdiction to delegate; the port manager had no jurisdiction to adjudicate; each purported so to do; and, as in Cooper v Wilson, a writ of certiorari was of no use. It could be of no use to the plaintiffs in this case because they did not know of the illegality which gives rise to the preliminary point until long after the time for taking out the writ had expired, and the question which has been argued before us was not before the appeal tribunal at all. In the circumstances, I am of opinion that the court has power to grant to the plaintiffs a declaration that their suspension was wrongful.....

DENNING LJ:.... Finally, counsel for the defendants said that these courts have no right to interfere with the decisions of statutory tribunals except by the historical method of certiorari. He drew an alarming picture of what might happen if once the court intervened by way of declaration and injunction. It meant, he said, that anyone who was dissatisfied with the decision of a tribunal could start an action in the courts for a declaration that it was bad, and thus, by a side-wind, you could get an appeal to the courts in cases where Parliament intended there should be none. I think there is much force in that contention ( so much so that I am sure in the vast majority of cases the courts will not seek to interfere with the decisions of statutory tribunals ( but I do not doubt that there is power to do so, not only by certiorari, but also by way of declaration. I know of no limit to the power of the court to grant a declaration except such limit as it may in its discretion impose on itself, and the court should not, I think, tie its hands in this matter of statutory tribunals. It is axiomatic that when a statutory tribunal sits to administer justice, it must act in accordance with the law. Parliament clearly so intended. If the tribunal does not observe the law, what is to be done? The remedy by certiorari is hedged round by limitations and may not be available. Why, then, should not the court intervene by declaration and injunction? If it cannot so intervene, it would mean that the tribunal could disregard the law.

The authorities show clearly that the courts can intervene..... An instance of the remedy by declaration is Cooper v Wilson, where a watch committee, set up under statute, had dismissed a police sergeant when they had no power in law to do so, and had also acted in a way contrary to natural justice. Greer and Scott LJJ held that on both grounds the sergeant was entitled to a declaration that the order of the watch committee was invalid....

This is not, however, the occasion to lay down the bounds of the jurisdiction. We have to consider here two decisions: first, the decision to suspend the plaintiffs; secondly, the decision of the appeal tribunal. So far as the decision to suspend is concerned, as I see it, we are not asked to interfere with the decision of a statutory tribunal, but we are asked to interfere with the position of a usurper. Mr Hogger, the port manager, is in the position of a usurper. He acted in good faith on the authority of the board, but, nevertheless, he had assumed a mantle which was not his, but that of another. This is not a case of a tribunal which has a lawful jurisdiction and exercises it; it is a case of a man acting as a tribunal when he was no right to do so. These courts have always had jurisdiction to deal with such a case. The common law courts had a regular course of proceeding by which they commanded such a person to show by what warrant quo warranto he acted. Discovery could be had against him, and, if he had no valid warrant, they ousted him by judgment of ouster. In modern times proceedings by quo warranto have been abolished and replaced by a declaration and injunction: see s 9 of the Administration of Justice (Miscellaneous Provisions) Act, 1938. Side by side with the common law jurisdiction of quo warranto the courts of equity have always had power to declare the orders of a usurper to be invalid and to set them aside. So, at the present day we can do likewise. We can declare that the suspension ordered by Mr Hogger, the port manager, was unlawful and void; we can declare it to be the nullity which in law it was. So far as the decision of the appeal tribunal is concerned, it seems to me that, once Mr Hogger's order is found to be a nullity, it follows that the order of the appeal tribunal is also a nullity. The appeal tribunal has no original jurisdiction of its own; it cannot itself make a suspension order; it can only affirm or disaffirm a suspension order which has already been made...

In the course of the argument counsel was compelled to admit that, if the plaintiffs had no remedy by way of declaration, they had no remedy at all. He agreed that the plaintiffs could not have obtained redress by certiorari for the simple reason that they did not know the facts. In certiorari there is no discovery, whereas in an action for a declaration there is. The plaintiffs only discovered the true position shortly before the trial, about two and a half years after the suspension. That shows that, but for these proceedings, the truth would never have been known. Mr Hogger could have gone on indefinitely assuming a jurisdiction which did not belong to him, and the men would be subjected to penal orders which were null and void, and would have had no redress. I should be sorry to think that these courts were powerless to put right such a situation. The plaintiffs felt that they had not been treated justly, and they sought redress in the Queen's courts, which, it is said by the board, have no power to interfere. Let us take that argument into account by all means, but let us also remember that, if the plaintiffs cannot get redress here, they cannot get it anywhere else. I think they are entitled to redress, and I agree with my Lord that we should declare that the suspension was unlawful.