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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
    1. Entick v Carrington (1765) 19 St. Tr. 1030
    2. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
    3. Liversidge v Anderson and Another [1942] AC 207; [1941] 3 All ER 338
    4. London Tramway Co. v London County Council [1898] AC 375
    5. Harris v Minister of the Interior (no.2) (1952) 4 SA 769; in the Appellate Division of the Supreme Court of South Africa
    6. Collins v Minister of the Interior [1957] 1 SA 552 (AD); in the Appellate Division of the Supreme Court of South Africa.
    7. R v Inland Revenue Commissioners and others, ex parte Rossminster Ltd (CA) [1980] AC 952; [1979] 3 All ER 385
    8. R v Medical Appeal Tribunal, ex parte Gilmore [1957] 1 QB 574 (CA)
    9. Anisminic v Foreign Compensation Commission [1969] 2 AC 147; [1969] 1 All ER 208
    10. Practice Direction - Judicial Precedent [1966] 3 All ER 77 (HL)
    11. R v R (Rape: marital exemption) [1991] 4 All ER 481
    12. R v C [2004] EWCA Crim 292: [2004] 3 All ER 1: [2004] 1 WLR 2098 (CA).
    13. Re Spectrum Plus Ltd [2005] UKHL 41; [2005] 4 All ER 209
  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
  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 Medical Appeal Tribunal, ex parte Gilmore [1957] 1 QB 574 (CA)

DENNING LJ : This is an application by Robert Gilmore for an order of certiorari to remove into this court a decision of a medical appeal tribunal for the purpose of quashing it. It involves the correct application of regulation 2 (5) of the National Insurance (Industrial Injuries) (Benefit) Regulations, 1948. That regulation deals with an injury to one of two "paired organs," as they are called, such as eyes, legs, and so forth. If a man with two good eyes loses the sight of one of them in an industrial accident, his disablement is assessed at 30 per cent. But if a one-eyed man (who lost the sight of an eye many years ago) should lose the sight of his remaining good eye in an industrial accident, then regulation 2 (5) says that his disablement must be assessed as if the blindness in his bad eye was itself the result of losing his good eye. In other words, the blindness in both eyes is deemed to be due to the accident. His disablement benefit is therefore to be assessed not at 30 per cent. but at 100 per cent.....

The second point is the effect of section 36 (3) of the Act of 1946 which provides that "any decision of a claim or question ... shall be final." Do those words preclude the Court of Queen's Bench from issuing a certiorari to bring up the decision?

This ie a question which we did not discuss in R v Northumberland Compensation Appeal Tribunal, ex parte Shaw ([1952] 1 KB 338)..... It does arise here, and on looking again into the old books I find it very well settled that the remedy by certiorari is never to be taken away by any statute except by the most clear and explicit words. The word "final" is not enough. That only means "without appeal." It does not mean "without recourse to certiorari." It makes the decision final on the facts, but not final on the law. Notwithstanding that the decision is by a statute made "final," certiorari can still issue for excess of jurisdiction or for error of law on the face of the record.....

Kelynge C.J. gave the train an impetus in 1670 when an order of the Commissioners of Sewers was brought before him. It was pointed out that the statute enacted "that they should not be compelled to certify or return their proceedings" and "that they shall not be reversed but by other Commissioners" ((1615) II Co. Rep 56b, 64b). Kelynge C.J. disposed of the objection by saying: "Yet it never was doubted, but that this court might question the legality of their orders notwithstanding: and you cannot oust the jurisdiction of this court without particular words in Acts of Parliament. There is no jurisdiction that is uncontrollable by this court": see R v Smith ((1670) 1 Mod 44)...

A few years later, in 1686, the Court of King's Bench had a case where the collectors of the tax on chimneys had distrained on the landlord of a cottage. The Act said that "If any question shall arise about the taking of any distress, the same shall be heard and finally determined by one or more justices. ..." The justices made a determination which was erroneous in law on its face in that it did not state sufficient grounds for making the landlord liable. The court issued a certiorari to quash their determination and said: "The statute doth not mention any certiorari, which shows that the intention of the law-makers was, that a certiorari might be brought, otherwise they would have enacted, as they have done by several other statutes, that no certiorari shall lie. Therefore the meaning of the Act must be, that the determination of the justices of the peace shall be final in matters of fact only": R v Plowright (1686) 3 Mod. 94, 95.

In 1697, in the famous case of the College of Physicians, Lord Holt gave the full weight of his authority to those decisions, especially mentioning the case of the Commissioners of Sewers: see Groenvelt v Burwell ((1697) 1 Ld. Raym 454 at 469). In 1760 Lord Mansfield was faced with the Conventicle Act which said "that no other court whatsoever shall intermeddle with any cause or causes of appeal upon this Act: but they shall be finally determined in the quarter sessions only. " Nevertheless Lord Mansfield ordered certiorari to issue, saying: "The jurisdiction of this court is not taken away, unless there be express words to take it away: this is a point settled": see Rex v. Moreley. ((1760) 2 Bur. 1041 at 1043).

In 1800 a conviction by justices was erroneous on the face of the record, because it did not exclude a possible defence. When the defendant moved to have it quashed, the prosecutor objected "that the defendant having elected to appeal to the sessions, the certiorari was in effect taken away by the Act, because it is said that the determination of the sessions should be final": but Lord Kenyon C.J. said: "That would be against all authority; for the certiorari being a beneficial writ for the subject, could not be taken away Without express words": see R v Jukes ((1800) * term Rep 542 at 544). Joseph Chitty, commenting on this case, said that the words "finally determine" merely prohibit a re-investigation of the facts: see Chitty's Practice, Vol. II, p. 219. Finally, in 1823 the Court of King's Bench in its golden age presided over by Abbott C.J. summed up the whole matter by saying that "certiorari always lies, unless it is expressly taken away, and an appeal never lies unless it is expressly given by the statute": see R v Cashiobury Hundred Justices ((1823) 3 Dow. & Ry. 35)....

I venture therefore to use in this case the words I used in the recent case of Taylor (formerly Kraupl) v National Assistance Board ([1957] 1 All ER 183).... "The remedy is not excluded by the fact that the determination of the board is by statute made ' final.' Parliament only gives the impress of finality to the decisions of the tribunal on the condition that they are reached in accordance with the law."

In my opinion, therefore, notwithstanding the fact that the statute says that the decision of the medical appeal tribunal is to be final, it is open to this court to issue a certiorari to quash it for error of law on the face of the record.