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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

R v East Berkshire Health Authority, ex parte Walsh [1984] 3 All ER 425

SIR JOHN DONALDSON MR: Mr Walsh was employed by the East Berkshire Area Health Authority and its predecessor as a senior nursing officer at Wexham Park Hospital. Action was taken in September 1982 with a view to terminating his employment and he sought relief by way of judicial review. The health authority raised, as a preliminary point, the question of whether such proceedings were appropriate and Hodgson J ruled against the authority. The authority now appeals. Practitioners will at once recognise that this raises issues of general interest and importance since the authority is seeking to establish what might be described as the obverse of the decision of the House of Lords in O'Reilly v Mackman....

During Mr Walsh's service at Wexham Park Hospital relations between the medical and nursing staff became strained and the regional health authority set up an independent committee of inquiry under the chairmanship of Mr Camp, the chairman of the Wycombe Health Authority....

In August 1982 an incident occurred at Wexham Park Hospital involving a patient, Mr Walsh and Miss Cooper, the district nursing officer. The details and the merits of the dispute are a matter of controversy, but happily are irrelevant for present purposes. Suffice it is to say that on or about 25 August 1982 Miss Cooper suspended Mr Walsh from duty. Miss Cooper was senior to Mr Walsh, the nursing hierarchy in descending order being district nursing officer, divisional nursing officer and senior nursing officer.

At about the same time the Camp committee reported. It was concerned with much wider issues than those affecting Mr Walsh, but its findings were critical of him and recommended, inter alia, that

"We are nevertheless firmly of the opinion that Mr Walsh's conduct makes his further employment in any capacity in East Berkshire undesirable and fully justifies his dismissal"...

[B]y a letter dated 27 September 1982 Miss Cooper purported to terminate Mr Walsh's employment.... [T]he appeal committee of the health authority affirmed Miss Cooper's decision and the regional health authority declined to entertain any further appeal.

During the course of these appeals Mr Walsh did two things. First in point of time, he applied to an industrial tribunal alleging that he had been unfairly dismissed and seeking compensation. Second, he applied for judicial review.... because he or his advisers took the view that the quashing of the dismissal would leave his contract of employment intact and entitle him to full pay unless and until there was a further and valid dismissal....

I now return to the main issue, namely whether Mr Walsh's complaints give rise to any right to judicial review. They all relate to his employment by the health authority and the purported termination of his employment and of his contract of employment. ...As the health authority seeks to have the proceedings dismissed in limine, if it is to succeed it can only do so on the basis that, accepting all Mr Walsh's complaints as valid, the remedy of judicial review is nevertheless wholly inappropriate and the continuance of the application for judicial review would involve a misuse (the term 'abuse' has offensive overtones) of the procedure of the court under RSC Ord 53.

The remedy of judicial review is only available where an issue of 'public law' is involved, but, as Lord Wilberforce pointed out in Davy v Spelthorne BC [1983] 3 All ER 278 at 285, [1984] AC 262 at 276, the expressions 'public law' and 'private law'.... must be used with caution, since English law traditionally fastens not so much on principles as on remedies....

Hodgson J referred carefully and fully to Vine v National Dock Labour Board [1956] 3 All ER 939, [1957] AC 488, Ridge v Baldwin [1963] 2 All ER 66, [1964] AC 40 and Malloch v Aberdeen Corp [1971] 2 All ER 1278, [1971] 1 WLR 1578. He seems to have accepted that there was no 'public law' element in an 'ordinary' relationship of master and servant and that accordingly in such a case judicial review would not be available. However, he held, on the basis of these three cases and in particular Malloch's case, that Mr Walsh's relationship to the health authority was not 'ordinary'. He said:

"The public may have no interest in the relationship between servant and master in an 'ordinary' case, but where the servant holds office in a great public service the public is properly concerned to see that the authority employing him acts towards him lawfully and fairly. It is not a pure question of contract. The public is concerned that the nurses who serve the public should be treated lawfully and fairly by the public authority employing them ( It follows that, if in the exercise of my discretion I conclude that the remedy of certiorari is appropriate, it can properly go against the respondent authority"....

None of the three decisions of the House of Lords to which I have referred was directly concerned with the scope of judicial review under Ord 53....

I have therefore to consider whether and to what extent Mr Walsh's complaints involve an element of public law sufficient to attract public law remedies, whether in the form of certiorari or a declaration. That he had the benefit of the general employment legislation is clear, but it was not contended that this was sufficient to attract administrative law remedies. What is relied on are statutory restrictions on the freedom of the authority to employ senior and other nursing officers on what terms it thought fit. This restriction is contained in the National Health Service (Remuneration and Conditions of Service) Regulations 1974, SI 1974/296, reg 3(2), which provides:

Where conditions of service, other than conditions with respect to remuneration, of any class of officers have been the subject of negotiations by a negotiating body and have been approved by the Secretary of State after considering the result of those negotiations, the conditions of service of any officer belonging to that class shall include the conditions so approved".

The conditions of service of, inter alios, senior nursing officers were the subject of negotiations by a negotiating body, namely the Whitley Council for the Health Service (Great Britain), and the resulting agreement was approved by the Secretary of State. It follows, as I think, that if Mr Walsh's conditions of service had differed from those approved conditions he would have had an administrative law remedy by way of judicial review enabling him to require the authority to amend the terms of service contained in his contract of employment. But that is not the position. His notification of employment dated 12 May 1975, which is a memorandum of his contract of employment, expressly adopted the Whitley council regulations and conditions of service.

When analysed, Mr Walsh's complaint is different. It is that under those conditions of service Miss Cooper had no right to dismiss him and that under those conditions he was entitled to a bundle of rights which can be collectively classified as 'natural justice'. Thus he says, and I have to assume for present purposes that he is correct, that under section XXXIV of the General Council's agreement on conditions of service, his position as a senior nursing officer is such that his employment can only be terminated by a decision of the full employing authority and that this power of dismissal cannot be delegated to any officer or committee of officers. I do not think that he relies on any express provision of those conditions when claiming the right to natural justice, but if he has such a right, apart from the wider right not to be unfairly dismissed which includes the right to natural justice, it clearly arises out of those conditions and is implicit in them.

The ordinary employer is free to act in breach of his contracts of employment and if he does so his employee will acquire certain private law rights and remedies in damages for wrongful dismissal, compensation for unfair dismissal, an order for reinstatement or re-engagement and so on. Parliament can underpin the position of public authority employees by directly restricting the freedom of the public authority to dismiss, thus giving the employee (public law' rights and at least making him a potential candidate for administrative law remedies. Alternatively, it can require the authority to contract with its employees on specified terms with a view to the employee acquiring 'private law' rights under the terms of the contract of employment. If the authority fails or refuses thus to create 'private law' rights for the employee, the employee will have 'public law' rights to compel compliance, the remedy being mandamus requiring the authority so to contract or a declaration that the employee has those rights. If, however, the authority gives the employee the required contractual protection, a breach of that contract is not a matter of (public law' and gives rise to no administrative law remedies....

I therefore conclude that there is no 'public law' element in Mr Walsh's complaints which could give rise to any entitlement to administrative law remedies. I confess that I am not sorry to have been led to this conclusion, since a contrary conclusion would have enabled all national health service employees to whom Whitley council conditions of service apply to seek judicial review. While it is true that the judge seems to have thought that this right would be confined to senior employees, I see no grounds for any such restriction in principle. The most that can be said is that only senior employees could complain of having been dismissed in the exercise of delegated authority, because it is only senior employees who are protected from such dismissal. All employees would however have other rights based on the fact that Parliament had intervened to specify and, on this view, protect those conditions of service as a matter of 'public law'.