¹ Cooper v. Wandsworth Board of Works (1863) 14 C.B. (n.s.) 180 (Keir and Lawson, Cases on Constitutional Law, 194) is a good example. In most of the modern cases there has been a special procedure prescribed by statute. The most familiar example is found in the ‘slum clearance’ provisions of the Housing Act, 1936 (substantially similar to those in the Act of 1930). By ss. 25–6, where the local authority is satisfied that an area of buildings ought to be demolished, they are required to make, publish and submit to the Minister of Health a ‘clearance order’ (unless they elect to proceed by purchasing the land and clearing it themselves). By the Third Schedule the Minister ‘may, if he thinks fit, confirm the order’, but before doing so he must, if any objection has been made ‘cause a public local inquiry to be held’ and ‘consider any objection not withdrawn and the report of the person who held the inquiry’. Corresponding provisions apply to compulsory purchases (First Schedule). This type of enactment is now very common, e.g., Restriction of Ribbon Development Act, 1935, ss. 1, 7; Trunk Roads Acts, 1936, s. 10, 1946, 2nd Schedule; New Towns Act, 1946, 1st Schedule; Civil Aviation Act, 1946, 3rd Schedule; Acquisition of Land (Authorisation Procedure) Act, 1946, 1st Schedule; National Health Service Act, 1946, 2nd Schedule; Agriculture Act, 1947, ss. 12, 14, 16, 17, 84, 2nd and 5th Schedules; Transport Act, 1947, 8th Schedule; Town and Country Planning Act, 1947, ss. 10, 16, 19, 26, 49, 6th and 11th Schedules; River Boards Act, 1948, 1st Schedule; Agricultural Holdings Act, 1948, ss. 27, 28, 50, 68, 75.

² Swift, J. [1936] L.J.K.B. at p. 129.Google Scholar

³ Lord Greene, M.R. [1947] K.B. at p. 715Google Scholar; cf. his similar remarks [1947] 2 All E.R. at p. 400.

⁴ Jennings, , The Law and the Constitution (3rd ed.), Appendix I (referred to in subsequent footnotes as ‘Jennings’).Google Scholar

⁵ Robson, Justice and Administrative Law, 2nd ed., pp. 401–3 (referred to in subsequent footnotes as ‘Robson’. See also de Smith, Mr. in 1948 Mod.L.R. at pp. 307–10 for similar views.Google Scholar Mr. D. M. Gordon, k.c., has described the expression ‘quasi-judicial’ as ‘not only vagne, but misleading too’: 49 L.Q.R. at p. 95.

⁶ Cushman, The Independent Regulatory Commissions, 8 (quoted in 64 L.Q.R. at p. 525).

⁷ Allen, Bureaucracy Triumphant, 88.

⁸ Robson, 509.

⁹ Professor Goodhart, A. L., K.C., in a letter to The Times, March 3, 1947.Google Scholar

¹⁰ Described by Dr. Bernard Schwartz in 63 L.Q.R. 43.

¹¹ [1932] Cmd. 4060 (referred to in subsequent footnotes as M.P.R.).

¹² Cooper v. Wilson [1937] 2 K.B. 309 at p. 340; Blackpool Corporation v. Locker [1948] 1 K.B. 349 at p. 367.

¹³ See, for example, Wade and Phillips, Constitutional Law, Pt. II, Chap. 1; and references given in Robson, pp. 13–19.

¹⁴ M.P.R. 4.

¹⁵ Jennings, 283; Robson, 12, 374–5. Their opinions are reflected in Jackson's, Dr. R. M.The Machinery of Justice in England, 282–7.Google Scholar

¹⁶ ‘Administrative Tribunals and the Courts’, 49 L.Q.R. 94, 419. In these articles (to which, as will be seen, I am much indebted), Mr. Gordon considers numerous cases in which distinctions between judicial and administrative powers have been material, and he exposes the weaknesses of several judicial attempts at analysis. It is of interest now to note that the Crown Proceedings Act, 1947, s. 2 (5), assumes that ‘judicial’ functions are definable; the Crown is exempted from liability in tort for anything done in discharge or purported discharge of ‘responsibilities of a judicial nature’ or in the execution of ‘judicial process’. It may well be that this provision will give trouble to the courts. Will the Crown, for example, be liable if a Ministry of Health inspector conducting a public inquiry into a slum clearance scheme maliciously slanders one of the parties?

¹⁷ For some suggested principles see M.P.R., 116; Jennings, 281; Robson, 500.

¹⁸ For examples see Robson, 19, 23.

¹⁹ Robson, 34.

²⁰ Jennings, 283.

²¹ Aristotle, Politica, iv, 14.

²² 49 L.Q.R. 106.

²³ 49 L.Q.R. 112. Cf., however, M.P.R. 19. ‘It is indeed difficult in theory and impossible in practice to draw a precise dividing line between the legislative on the one hand and the purely administrative on the other; administrative action so often partakes of both legislative and executive characteristics’. Cf. also M.P.R. 28. But a working distinction can be made between the making of general rules and special rules—see Jennings 274. The Statutory-Instruments Act, 1946, makes no attempt to define legislative instruments as such. In Blackpool Corporation V. Locker [1948] 1 K.B. 349, the Court of Appeal's decision turned on the question whether certain instructions in a Ministry of Health circular to a local authority were legislative (so as to limit delegated powers) or merely executive directions. Here there is an important legal distinction, on which depends the issue of ultra vires as well as that of publicity. See Evershed L.J. at pp. 385–6.

²⁴ 49 L.Q.R, 113.

²⁵ For examples see 49 L.Q.R, 108–10.

²⁶ M.P.R. 74.

²⁷ Robson, 336. For his evidence, see p. 326. At p. 333 he gives a rather less confident opinion: ‘In my view one can distinguish “policy” from “law” only in theory, and even then the distinction is doubtful’. Fo r this opinion ho is criticised by Allen, Dr., Law and Orders, 170–2.Google Scholar Dr. Allen, on the other hand, appears to be concerned only with ministerial ‘judicial’ decisions (ibid. 168), i.e., decisions which might be entrusted to the ordinary courts (ibid. 172). He does not, therefore, directly face the most difficult issue, which is how to control decisions which must inevitably embody ‘policy’.

²⁸ Jennings, 269, 275. At p. 270 he classifies as ‘pure policy’ decisions those ‘which do not immediately interfere with private rights’ (as in foreign affairs). Tha t is quite a different an d novel usage.

²⁹ Common law (including, for this purpose, equity) of course exists independently of this process. This is possible because it professes not to be based on contemporary ‘policy’ at all. The expression ‘public policy’ in its common law sense is defined by a legal standard and is, in fact, a strictly technical term.

³⁰ Jennings, 275.

³¹ Cf. Robson, 35. He takes as an example the history of equity. But historical development may carry a power from one category to the other without upsetting the classification; cf. also Prof. Friedmann in 22 Australian L.J. at pp. 169–70. Gordon, 49 L.Q.R. p. 107, n. 33, questions whether the old Court of Chancery was not judicial even in early times. He contrasts the Star Chamber, ‘a court of politicians enforcing a policy, not a court of judges administering the law’: Maitland, Constitutional History, 263. Maitland also emphasised the difference between iegal and political power in a well known passage about justices of the peace: ‘Even if a discretionary power was allowed him, it was none the less to be exercised with a “judicial discretion”; it was not expected of him that he should have any “policy”; rather it was expected of him that he should not have any “policy”’. Collected Papers, i. 478.

³² Administrative duties are often described as ‘ministerial acts’: see Robson, 394, and Gordon in 49 L.Q.R. 98 seq. Mr. Gordon states (at p. 105) that ministerial acts occasionally involve discretion, citing Hetherington v. Security Export Co., Ltd. [1924] A.C. 988 (P.C.), where certiorari was refused for reviewing a tax distress warrant even though the official who issued it had a discretion to proceed alternatively by action. I should prefer to say that ministerial duties are sometimes accompanied by liberties or powers (as analysed by Hohfeld—see Salmond, Jurisprudence, 10th ed., ss. 78–9). Both admit discretion, but only the latter admits judicial control, and then only where a judicial or quasi-judicial power is in question.

³³ See 49 L.Q.R. 107 n. 34.

³⁴ This general sense of the expression is very common, and more correct than Dicey's formulæ (The Law of the Constitution, 9th ed., 202–3). See, for example, Re Kendrick's Agreement [1948] 2 All E.R. at p. 103, where Harman J. said that as regards notices to quit agricultural holdings ‘tenants are now at the mercy of the Minister rather than under the rule of the law as they used to be’.

³⁵ 55 L.Q.R. at p. 587. Hence Holdsworth concludes that ‘the concept of the rule of law is a true juridical concept: it is no mere “principle of political action”. Dr. Jennings‘ statement to the contrary is the exact opposite of the truth’. This again is precisely the issue.

³⁶ This is, as I understand him, denied by Prof. Friedmann, ‘The Planned State and the Rule of Law’, 22 Australian L.J. at p. 169. But he appears to treat the rule of law as satisfied if the ministerial powers have good social objects and are subject to parliamentary criticism. H e thus exposes himself to the charge laid by Jennings against Dicey of treating the rule of law as a principle of political action, not a juridical principle (Jennings, 288).

³⁷ Wade, Cf. and Phillips, , Constitutional Law (3rd ed.), 55–6.Google Scholar

³⁸ 49 L.Q.R. 116. A model example is Cooper v. Wilson [1937] 2 K.B. 309, where Scott L.J. (at pp. 340–1) found difficulty in applying the M.P.R. analysis to a borough watch committee's power to dismiss a police constable. Both Jennings (p. 280) and Robson (pp. 402–3) treat this as evidence that there is no clear or useful line of division between ‘judicial’ and ‘quasi-judicial’ (that is to say, administrative) powers. In fact it was merely a borderline case. By the Municipal Corporations Act, 1882, s. 191 (4), the watch committee was given a general power to dismiss constables. This could, one presumes, be exercised on grounds of ‘policy’, i.e., quite arbitrarily. But by the Police Regulations made under the Police Act, 1919, s. 4 (1), watch committees were required to exercise their powers in a particular manner. It was arguable that this required them, thenceforward, to reach objective decisions, at any rate in disciplinary cases. Both Greer and Scott L.JJ. contemplated this question but did not decide it. It was immaterial, because in either case equally the rules of natural justice had to be observed. Admittedly, Scott L.J. cited the M.P.R. definitions based on procedure, which by themselves obscure the distinction between ‘law’ and ‘policy’, although they are based upon it (see next paragraph and note 42).

³⁹ M.P.R. 81.

⁴⁰ M.P.R. 93.

⁴¹ Note 26, above.

⁴² M.P.R. 73. The passage is as follows: ‘A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites: (1) the presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi-judicial decision equally pre-supposes an existing dispute between two or more parties and involves (1) and (2), but does not necessarily involve (3), and never involves (4). The place of (4) is in fact taken by administrative action, the character of which is determined by the Minister's free choice’.

⁴³ See note 1, above.

⁴⁴ M.P.R. 90–2.

⁴⁵ This is clearly stated by Maugham, L.J. in Errington v. Minister of Health [1935] 1 K.B. at p. 273Google Scholar: ‘My conclusion is that although the act of affirming a clearance order is an administrative act, the consideration which must precede the doing of that act is of the nature of a quasi-judicial consideration ….’ Professor Robson (394) adopts Sir I. Jennings‘ view that this shows the absurdity of the language used to describe the powers given by administrative law. According to the analysis which I prefer to follow, it is one of the most helpful judicial statements in the reports. There are now two others, no less clear, (i) in Robinson v. Minister of Town and Country Planning [1947] K.B. at p. 716, where Lord Greene M.R. said: ‘To say that in coming to his decision he (the Minister) is in any sense acting in a quasi-judicial capacity is to misunderstand the nature of the process altogether. I am not concerned to dispute that the inquiry itself must be conducted on quasi-judicial principles. But this is quite a different thing from saying that any such principles are applicable to the doing of the executive act itself, that is, the making of the order. The inquiry is only a step in the process which leads to that result …’; (ii) in Johnson & Co. v. Minister of Health [1947] 2 All E.R. at p. 400, where Lord Greene M.R. repeated the substance of what is quoted above.

⁴⁶ For the rules of natural justice see Wade and Phillips, Constitutional Law, 3rd ed., 274–7; M.P.R. 75 seq.

⁴⁷ See note 42 above (‘the Minister's free choice’). It follows that the decision need bear no relation to the evidence given at the public inquiry, and cannot be attacked on the ground that no sufficient evidence was put forward: Robinson v. Minister of Town and Country Planning [1947] K.B. 702 (C.A.). The decision of Henn Collins J. in Phænix Assurance Co. v. Minister of Town, and Country Planning [1947] 1 All E.R. 454 must now be regarded as wrong.

⁴⁸ Local Government Board v. Arlidge [1915] A.C. 120.

⁴⁹ Re The Trunk Roads Act, 1936 [1939] 2 K.B. 515; Franklin v. Minister of Town and Country Planning [1948] A.C. 87.

⁵⁰ Local Government Board v. Arlidge [1915] A.C. 120; Denby (William) & Son v. Minister of Health [1936] 1 K.B. 337; Robinson v. Minister of Town and Country Planning [1947] K.B. 702 (C.A.) Cf. M.P.R. 102–3.

⁵¹ Robinson v. Minister of Town and Country Planning [1947] K.B. 702 (C.A.)

⁵² This is due to the statutory direction in each case.

⁵³ But he may be entitled to elaborate them later so as to present his case in adequate form: Stafford v. Minister of Health [1946] K.B. 621.

⁵⁴ M.P.R. 100. The committee's proposals were approximately followed in the Restriction of Ribbon Development Act, 1935, s. 7 (4), but not in later statutes.

⁵⁵ See Lord Greene, M.R. in Robinson v. Minister of Town and Country Planning [1947] K.B. at p. 717Google Scholar: ‘How can this Minister, who is entrusted by Parliament with the power to make or not to make an executive order according to his judgment and acts bona fide (as he must be assumed to do in the absence of evidence to the contrary), be called upon to justify his decision by proving that he had before him materials sufficient to support it? Such justification, if it is to be called for, must be called for by Parliament and not by the courts, and I can see no ground in the language of the Act, in principle, or in authority for thinking otherwise’. And see Lord Greene's similar remarks in Johnson & Co. v. Minister of Health [1947] 2 All E.R. at p. 400: ‘In a nutshell, the decision of the Minister is a thing for which he must be answerable in Parliament and his actions cannot be controlled by the courts’.

⁵⁶ See Carr, Sir C. T., Concerning Administrative Law, 123Google Scholar: ‘Perhaps it does not necessarily follow that non-judicial tribunals must give reasons. The grant or refusal of a licence need not be made the occasion for a full-dress statement of policy by the licensing body’.

⁵⁷ Schwartz in 63 L.Q.R. at p. 57.

⁵⁸ Schwartz in 64 L.Q.R. at p. 525.

⁵⁹ The new Monopolies and Restrictive Practices Commission is in some ways comparable to the American administrative agencies. Under the Monopolies and Restrictive Practices (Enquiry and Control) Act, 1948, the Commission may be asked to report whether certain facts ‘may be expected to operate against the public interest’ (s. 6 (1) (b)). This is a very broad standard but presumably an objective one (although no such activities become unlawful until so declared by ministerial order approved by resolution of both Houses of Parliament (s. 10)). It is notable that the Commission is required to state its reasons fully (s. 7 (1)) and that any report extending to ‘public interest’ must be published unless public interest itself requires the contrary (s. 9).

⁶⁰ Ibid, at p. 528. The absence of administrative policy in the American type of case underlies the following significant contrast. The principle advocated in America is that ‘the one who decides must hear’, and the Federal Administrative Procedure Act contains provisions which aim at this (see 63 L.Q.R. 52–5). This is of course modelled upon the practice of the courts. The M.P.R., however, recommended that, where the final decision is one of policy, the one who decides should not hear, i.e., that the fact-finding process should be performed by an independent tribunal not concerned with policy: see M.P.R. 78–9, 94, 116. Thus it is thought right that American ‘hearing officers’ should take a decision upon the whole issue. In England, in quasi-judicial cases, it would be wrong in principle for inspectors holding public inquiries to reach any decision on the whole issue (see M.P.R. 93), for this is the minister's personal responsibility. Another contrast due to the same cause is that the American tribunals are required to decide on ‘substantial evidence’ (s. 10 (e) of the American Act), while in England there is no necessary connection between the evidence and the final decision—see below, p. 236.

⁶¹ M.P.R. 97; Jennings, 281 seq.; Robson, 439 seq.

⁶² The principle is a very wide one and is often stated in unrestricted terms: ‘a duty lying upon everyone who decides anything’ (Lord Loreburn L.C. in Board of Education v. Rice [1911] A.C. at p. 182, and cited in many later cases). But a ‘decision’ may be purely subjective, as in Liversidge v. Anderson [1942] A.C. 206, and so involve no inquiry to which natural justice would apply. Decisions under the New Towns and Town and Country Planning Acts might possibly fall into this class were it not for the statutory provision for inquiry, since the conditions for exercising the powers are merely ‘if the Minister is satisfied’. The minister's duty to observe natural justice arises rather where his powers ‘rest on something other than the state of his own mind, namely, the existence apart from his opinion of a state of things’ (Henn Collins J. in Franklin v. Minister of Town and Country Planning [1947] 1 All E.R. at p. 398).

⁶³ M.P.R. 81.

⁶⁴ British Nationality and Status of Aliens Act, 1914, s. 2 (3). See now British Nationality Act, 1948, sS. 10, 26. For other absolute powers affecting aliena see Ex p. Venicoff [1920] 3 K.B. 72 (deportation) and R. v. Bottrill, Ex p. Kuechenmeister [1947] K.B. 41 (C.A.) (internment).

⁶⁵ In General Medical Council v. Spackman [1943] A.C. at p. 640, Lord Wright appears to treat ‘ultra vires’ and ‘natural justice’ as two separate principles. But he proceeds to quote with approval some remarks of Lord Selborne, L.C. in Spackman v. Plumstead District Board of Works (1885) 10Google Scholar App.Cas. 229, which clearly attribute the latter to the former: ‘there would be no decision within the meaning of the statute if there were anything … done contrary to the essence of justice’. Similar reasoning was used in Errington v. Minister of Health [1935]Google Scholar 1 K.B. at pp. 268, 279, by Greer and Maugham L.J.J. respectively.

⁶⁶ See note 1, above.

⁶⁷ For example, the Town and Country Planning Act, 1947, s. 10 (3) enables the Minister to disregard the decision in Errington v. Minister of Health [1935]Google Scholar 1 K.B. 249.

⁶⁸ As in Errington v. Minister of Health [1935] 1 K.B. 249, where further consultation between the ministry and the local authority, after the inquiry had been held but not in the presence of the objectors, was held to violate natural justice although the specific requirements of the Act had been fully met. A contrasting decision, though based upon the same principle, is Horn v. Minister of Health [1937] 1 K.B. 64 (C.A.).

⁶⁹ Franklin v. Minister of Town and Country Planning [1948]Google Scholar A.C. 87.

⁷⁰ [1947] 1 All E.R, 396.

⁷¹ Ibid. 612.

⁷² Ibid, at p. 399. At p. 398 the learned judge used the expression ‘quasi-judicial’, but said that it would reduce the inquiry to an absurdity if ‘when all has been said and done, the Minister could disregard the whole proceedings and do just as he pleased’. But if the minister were bound to decide according to the evidence, his decision would of course be judicial, not quasi-judicial, in the ordinary sense of these terms.

⁷³ See notes 40 and 42, above.

⁷⁴ See notes 42, 45 and (especially) 55, above.

⁷⁵ This is why the M.P.R. suggested the separation of the two stages (see note 60, above). ‘But now the Committee on Ministers’ Powers has discovered a new kind of bias, namely, the interest that an enthusiastic minister might have in his official work’. Carr, Sir C. T., Concerning English Administrative Law, 121.Google Scholar

⁷⁶ [1947] 1 All E.R. at p. 618.

⁷⁷ [1948] A.C. at pp. 102–3.

⁷⁸ M.P.R. 73. By way of contrast, Lord Loreburn's reference to an arbitrator in Board of Education v. Rice [1911]Google Scholar A.C. at p. 182 is treated by Lord Greene M.R., as indicating a true judicial issue, i.e., a ‘lis inter partes’ in the proper sense: Johnson & Co. v. Minister of Health [1947]Google Scholar 2 All E.R. at p. 405.

⁷⁹ It is often said that there is also a lis in quasi-judicial cases where, as in the Housing Acts cases, the issue is put forward as one between the local authority and the objectors. But this is misleading, for it implies that the minister's decision must be given according to the evidence disclosed by the two ‘parties’, whereas in truth it is a matter of policy. The fallacy of the lis concept in ‘policy’ cases is pointed out by Lord, Haldane in Local Government Board v. Arlidge [1915] A.C. at p. 134Google Scholar; by Lord Greene, M.R. in Johnson & Co. v. Minister of Health [1947] 2 All E.R. at p. 399Google Scholar; and by Mr. Gordon in 49 L.Q.R. at p. 111. It is confusing, moreover, to find the term ‘lis’ used in a quite different sense for the stage when the rules of natural justice apply: Errington v. Minister of Health [1935] 1 K.B. 249; Frost v. Minister of Health [1935] 1 K.B. 286; Offer v. Minister of Health [1936] 1 K.B. 40; Stafford v. Minister of Health [1946] K.B. 621; Miller v. Minister of Health [1946] K.B. 626; Price v. Minister of Health [1947] 1 All E.R. 47.

⁸⁰ Errington v. Minister of Health [1935]Google Scholar 1 K.B. 249, and Stafford v. Minister of Health [1946]Google Scholar K.B. 621. Board of Education v. Rice [1911]Google Scholar A.C. 179 and Marriott v. Minister of Health [1937]Google Scholar1 K.B. 128, were not ‘natural justice’ cases.

⁸¹ [1911] A.C. 179.

⁸² [1915] A.C. 120.

⁸³ Lord Haldane [1915] A.C. at p. 132.

⁸⁴ Lord Loreburn L.C. [1911] A.C. at p. 182.

⁸⁵ Charles J. [1946] K.B. at p. 624.

⁸⁶ See note 79, above.

⁸⁷ Maugham L.J. [1935] 1 K.B. at p. 280.