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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
    1. Godden v Hales (1686) 11 St Tr 1165
    2. The Bill of Rights 1689
    3. Attorney-General v De Keyser's Royal Hotel [1920] All ER 80; [1920] AC 508
    4. Laker Airways Ltd v Department of Trade [1977] 2 All ER 182; [1977] QB 643.
    5. R v Secretary of State for the Home Department, ex parte Fire Brigades Union and Others [1995] 2 AC 513; [1995] 2 WLR 464.
    6. R v Allen (1862) 121 ER 929
    7. China Navigation Company Ltd v Attorney-General [1932] 2 KB 197
    8. R v Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 All ER 770; [1967] 2 QB 864
    9. Hanratty and Another v Lord Butler of Saffron Walden (1971) SJ 382
    10. Gouriet v Union of Post Office Workers and others [1977] 3 All ER 70; [1978] AC 435.
    11. Council of Civil Service Unions and others v Minister for the Civil Service [1984] 3 All ER 935; [1985] AC 374.
    12. R v Foreign Secretary, ex parte Everett [1989] 2 WLR 224
    13. R v Secretary of State for the Home Department, ex parte Bentley [1993] 4 All 442
  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 Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 All ER 770; [1967] 2 QB 864

LORD PARKER CJ:....The applicant in this case is the widow of a police constable who...was shot in the face by a suspect whom he was about to question, as a result of which he developed a sudden total blindness of the left eye. He applied to the board for compensation and, the prognosis for the recovery of sight in the left eye being uncertain, he was offered and accepted an interim award of (300. About a week later he was found dead in his home from gun shot wounds and it is conceded that his death at his own hand was directly attributable to the original injury. The applicant being solely entitled to the deceased's estate thereupon became entitled to the (300 interim award and she further, as she was entitled to do under the scheme, applied in her own right and on behalf of the children for compensation....

[C]ounsel for the applicant now submits that the decision of the three members discloses errors of law on the face of their decision and asks that an order of certiorari should issue to quash the decision.

Logically the first question is whether the board are a body of persons amenable to the supervisory jurisdiction of this court....

I can see no reason either in principle or in authority why a board, set up as this board were set up, should not be a body of persons amenable to the jurisdiction of this court. True the board are not set up by statute but the fact that they are set up by executive government, ie, under the prerogative, does not render their acts any the less lawful. Indeed, the writ of certiorari has been issued not only to courts set up by statute but also to courts whose authority was derived, inter alia, from the prerogative. Once the jurisdiction is extended, as it clearly has been, to tribunals as opposed to courts, there is no reason why the remedy by way of certiorari cannot be invoked to a body of persons set up under the prerogative. Moreover the board...had in fact the recognition of Parliament in debate and Parliament provided the money to satisfy the board's awards....

The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been, and ought not to be, specifically defined. They have varied from time to time, being extended to meet changing conditions. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word, but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that the body concerned was under a duty to act judicially and that it was performing a public duty....

We have, as it seems to me, reached the position when the ambit of certiorari can be said to cover every case in which a body of persons, of a public as opposed to a purely private or domestic character, has to determine matters affecting subjects provided always that it has a duty to act judicially. Looked at in this way the board in my judgment comes fairly and squarely within the jurisdiction of this court. The board are, as counsel for the board said, 'a servant of the Crown charged by the Crown, by executive instruction, with the duty of distributing the bounty of the Crown'. The board are clearly, therefore, performing public duties. Moreover the board are quite clearly under a duty to act judicially, and indeed no argument to the contrary has been presented. They are to consist of a chairman of wide legal experience and five other members who are legally qualified....It is charged with assessing compensation on the basis of common law damages save as varied by the scheme....Its procedure involves the examination and cross-examination of witnesses, and it is provided that the burden is on the applicant to make out his case and that the decision shall be arrived at solely in the light of the evidence brought out at the hearing....

DIPLOCK LJ. The question of jurisdiction raised by this application is one of novelty and importance....

The jurisdiction of the High Court as successor of the court of Queen's Bench to supervise the exercise of their jurisdiction by inferior tribunals has not in the past been dependent on the source of the tribunal's authority to decide issues submitted to its determination....The earlier history of the writ of certiorari shows that it was issued to courts whose authority was derived from the prerogative, from royal charter, from franchise or custom, as well as from Act of Parliament. Its recent history shows that as new kinds of tribunals have been created, orders of certiorari have been extended to them too and to all persons who under authority of government have exercised quasi-judicial functions. True, since the victory of Parliament in the constitutional struggles of the seventeenth century, authority has been generally if not invariably conferred on new kinds of tribunals by or under Act of Parliament and there has been no recent occasion for the High Court to exercise supervisory jurisdiction over persons whose ultimate authority to decide matters is derived from any other source. I see no other reason, however, for holding that the ancient jurisdiction of the court of Queen's Bench has been narrowed merely because there has been no occasion to exercise it....

In the present case we are concerned with an inferior tribunal lawfully constituted in time of peace by an act of government. It may be a novel development in constitutional practice to govern by public statement of intention made by the executive government instead of by legislation. This is no more, however, than a reversion to the ancient practice of government by royal proclamation, although it is now subject to the limitations imposed on that practice by the development of constitutional law in the seventeenth century. The relevant limitation is that, save within the narrow field still left to the prerogative legislative power (for example, declaration of war or blockade), a proclamation cannot deprive any subject of any rights to which he is entitled at common law or by statute, or grant to him any immunities to which he is not so entitled. The only limitation, however, on the power of the executive government to confer benefits on subjects by way of money payments is a practical one, to wit, the necessity to obtain from Parliament a grant aid for that purpose. Such a grant was obtained in the present case and confirmed by the annual Appropriation Acts. True it is that having obtained the grant the executive government was not under any obligation enforceable by the courts to distribute any part of it to any particular subject or at all. It could have withheld or made payments in accordance with its unfettered and arbitrary executive discretion. It chose, however, to adopt the method of appointing a board on which it conferred two distinct functions, one judicial in character, the other administrative. The judicial function was to determine in accordance with specified principles whether any particular applicant should be offered any money payment and, if so, how much....'The Scheme' not only constituted and defined the authority of the board to make such payments but also, as published to applicants, was a lawful proclamation stating the conditions required to be satisfied by subjects seeking payments of compensation and requiring them as a condition precedent to the receipt of any payment to submit their claims to adjudication by the board in the exercise of the board's judicial functions. It was on the faith of the proclamation that the application to the board with which the present case is concerned was made....

I see no reason in principle why the fact that no authority from Parliament is required by the executive government to entitle it to decide what shall be the form of the administrative process under which compensation for crimes of violence is paid, should exempt the board from the supervisory control by the High Court over that part of its functions which are judicial in character. No authority has been cited which in my view compels us to decline jurisdiction....