The Abuse of Powers and Its Control in English Administrative Law

Author(s): D. C. M. Yardley
Source: The American Journal of Comparative Law , Summer, 1970, Vol. 18, No. 3
(Summer, 1970), pp. 565-574
Published by: Oxford University Press

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 D. C. M. YARDLEY

The Abuse of Powers and Its Control

in English Administrative Law

The present topic for consideration is one peculiarly fitting in r

tion to English law, because the 1960s have seen rapid advances in t
development of English administrative law, and the past two years
have seen the courts come down decisively in favor of judicial control
of the abuse of powers. In traditional English legal theory the sover-
eignty of Parliament is undoubted, so that no court may question the
validity or the extent of any Act passed by Parliament, though there is
some academic dispute as to whether a court may question the manner
and form in which a statute has been enacted.' Accordingly if a statute
should grant an unfettered discretion to an administrative authority
no court should have the power to query the way in which such a
discretion may be discharged. Students of administrative law have
tended to compare this rigid English position with the more flexible
rules of France, where in particular de&ournemnent de pouvoir is an
important and distinctive ground for judicial review.2 The distin-
guished English author of the standard work upon judicial review,
Professor de Smith, has written, as late as 1968: "Unlike some foreign
systems, English law has not adopted a general principle that the
validity of administrative action is conditional upon its reasonable-
ness," 3 though his examination of some of the English cases upon the
problem of reasonableness leads him a few pages later to modify this
stark pronouncement by saying: "no longer is it to be dismissed as an
affirmation that the courts will hardly ever hold an administrative act
to be ultra vires for unreasonableness alone." 4 The purpose of this paper
is to seek to show that those who have been pessimistic about the
ability of English courts to control administrative abuse of powers need
not be so fearful, that writers like Professor de Smith have overstated
the obstacles in the way of effective judicial control, that it has always
been within the competence of the English courts to control abuse of
powers, and that recent decisions, particularly in the highest appellate
D. C. M. YARDLEY is Fellow of St. Edmund Hall, University of Oxford. The follow-
ing article was originally delivered at the Seventh International Symposium on Com-
parative Law, held at Ottawa in 1969 and is simultaneously presented in the Proceed-
ings of the Symposium (Ottawa, 1970) p. 137.
1 See e.g. D. C. M. Yardley, Introduction to British Constitutional Law (3rd ed.,
1969) pp. 27-34.
2 See L. Neville Brown and J. F. Garner, French Administrative Law (1967) pp.
122 et scq.
3 JItdicial Review of Administrative Action (2nd ed., 1968) p. 330.
4 Op. Cit. supra note 3, p. 337.

565

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566 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 18

court, the House of Lords, have proved that the courts are every
capable of maintaining the rule of law as is that magnificent
instrument, the French Conseil d'?tat.
At heart it should be stated that the pessimistic view of the p
of the English courts is based upon a misapprehension of the fu
of the ultra vires rule. There has never been any doubt that the
have been able to step in to declare void any activity of an admi
tive authority which is ultra vires, and it would be otiose he
rehearse any of the hundreds of examples to be found in th
reports of judicial control being exercised under this heading
the ground for control was that the authority concerned had acte
side its powers or in the plain absence of authority. Many write
analysed the different types of ultra vires activity,5 but it is p
enough here to suggest that there is no controversy in the cour
books or the journals concerning the power of the courts to qua
declare void some act of an authority which is either not permi
the enabling statute or else has been done in the wrong manner
a local authority which had power under a Housing Act to acquir
compulsorily for housing provided that it was not part of any "
garden or pleasure ground" was held to have acted ultra vires w
did in fact compulsorily acquire parkland.6 Similarly, the suspen
and dismissals of workers by a port manager were held to be
where it was shown that the London Dock Labour Board, wh
the power to suspend and dismiss, had wrongly delegated thi
to the port manager.7 What is contentious, however, is the exte
the capacity of the courts to question the activities of administ
authorities on the basis of a defect in motive, of unreasonablen
of bad faith. It is submitted that this is a strange state of affai
cause the case law contains a consistent thread showing the stre
judicial control in this area, but at least Professor H.W.R. W
seen the importance of these cases,8 and his work upon them is i
which contrasts markedly with that of Professor de Smith.
Let us just examine a few of the leading cases in this century.
of Education v. Rice in 1911 is representative of the old re

5 See e.g. de Smith, op. cit. supra note 3, Part Two; H.W.R. Wade, Admini
Law (2nd ed., 1967), chapter 3; Yardley, A Source Book of English Admin
Law (1970), chapter 4; J. F. Garner, Administrative Law (2nd ed., 1967), cha
J.A.G. Griffith and H. Street, Principles of Administrative Law (4th ed., 1967),
III; A. Rubinstein, Jurisdiction and Illegality (1965).
6 White and Collins v. Minister of Health, [1939] 2 K.B. 838.
7Barnard v. National Dock Labour Board, [1953] 2 Q.B. 18.
8 Op. cit. supra note 5, pp. 63-80; and see Yardley, A Source Book of En
ministrative Law, pp. 93 et seq. Professors Brown and Garner, French Admi
Law, at p. 124, misinterpret the major English cases upon control of abuse o
for they fail to pay any attention to repeated judicial statements concerning th
of judicial review.
9 [1911] A.C. 179.

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1970] YARDLEY: ABUSE OF POWER IN ENGLISH LAW 567

struggles which have now been eradicate

unhappily, not yet from Northern Irela
of the great religious struggles to reach
tion Act 1902, now long since repealed a
to place provided schools (i.e. non-church schools provided by local
authorities) and non-provided schools (i.e. independent schools set up
and run by religious bodies, usually the Church of England) in the
same position as regards standards, maintenance, efficiency, and rates
of pay for teachers; and the local education authorities under the Act
were bound by the Act to provide certain funds for the upkeep of non-
provided schools and for supplementing the salaries of their teachers.
Some local education authorities objected so strongly to what they con-
sidered an attempt to make them subsidise Church of England schools
that they took the extreme step of refusing to obey the Act, though
most of them later acquiesced in its observance. The strong non-
conformist elements of the Swansea Borough Council, however, per-
sisted in their refusal to obey the Act, and the Council refused to pay
salaries to teachers in non-provided schools at the same rate as it paid
to teachers in provided schools. Under section 7 of the 1902 Act, the
duty of maintaining and keeping efficient a non-provided school was a
matter which could be a "question" between the local education au-
thority concerned and the school managers, and such a question would
then be referred to the Board (later the Ministry) of Education for
decision. The managers of some non-provided schools complained
about the Swansea Borough Council's action, and the Board of Educa-
tion directed an inquiry, which reported that the local education au-
thority had failed to maintain the schools and keep them efficient.
Nevertheless the Board then gave its decision in a document which
failed to deal with the matters in issue, i.e. whether the authority had
determined reasonable salary rates for the teachers, and had discharged
its statutory duties under, the Act, and in any case did not adopt the
findings of the public inquiry which had been favorable to the man-
agers. The managers obtained from the Divisional Court a writ of
certiorari to remove the Board's decision into the court, and to quash it,
and also a writ of mandamus directing the Board to hear and determine
the questions which had arisen between the managers and the educa-
tion authority according to law. This decision was affirmed both by the
Court of Appeal and by the House of Lords.
In a case of 1948, which concerned the power of a local council,
under the Cinematograph Act 1909, to license Sunday opening of
cinemas "subject to such conditions as the authority think fit to im-
pose," the Master of the Rolls, Lord Greene, expounded the law with
great clarity:

"It is true that discretion must be exercised reasonably. Now what

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568 THE AMERICAN JOURNAL OF COMPARATIE LAW [Vol. 18

does that mean? Lawyers familiar with the phraseolog

used in relation to exercise of statutory discretions of
word 'unreasonable' in a rather comprehensive sens
quently been used and is frequently used as a general
of the things that must not be done. For instance,
trusted with a discretion must, so to speak, direct him
in law. He must call his own attention to the matters
bound to consider. He must exclude from his consider
which are irrelevant to what he has to consider. If
obey those rules, he may truly be said, and often is s
ing 'unreasonably.' Similarly, there may be someth
that no sensible person could ever dream that it la
powers of the authority. Warrington, L. J., in Short v
ration '" gave the example of the red-haired teacher,
cause she had red hair. That is unreasonable in
another sense it is taking into consideration extran
It is so unreasonable that it might almost be descr
done in bad faith; and, in fact, all these things r
another." "

Perhaps the most famous of all this line of cases is Rob

wood." In 1920 the Poplar Borough Council, wishing to se
as model socialist employers, introduced a minimum wee
all their employees of /4 for men and women alike.
minimum wage had been a little over /3 a week for m
/;2.10.0 for women. In 1921 and 1922, however, there
fall in the cost of living and of wages generally, but the
tained its own /4 minimum wage. Now the Council's stat
was to pay their servants "such salaries and wages as [th
fit," which would appear on its face to be a very wide
But the district auditor, who must make an annual inspe
government accounts, disallowed a proportion of the
paid to the employees, amounting to some /5000 in a
"item of account contrary to law," and he surcharg
councillors responsible, thus making them personally
the sum. The House of Lords unanimously upheld the dis
order, for they held that the legislature must have in
fixing wages the Council should have regard to the lab
acting, without regard to it, and for extraneous reaso
Atkinson colorfully described as "eccentric principles of s
thropy" and "feminist ambition," the Council had abused
and fixed wage rates wlhich were excessive.
10 [1926] Ch. 66, 90, 91.
11 Associated Provincial Picture Houses, Ltd. v. Wednesbury Corp
K.B. 223, 229.
1' [1925] A.C. 578.

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1970] YARDLEY: ABUSE OF POWER IN ENGLISH LAW 569

Since the Second World War the stream of case law has remained
fairly steady. In Prescott v. Birmingham Corporation," a scheme for
allowing free travel on the Corporation buses to old-age pensioners
came under fire. The Birmingham Council run their buses under Acts
which empower the Council to charge "such fares and charges as they
may think fit." In 1952 the Council resolved to allow free travel on their
transport services to all men aged 70 and over, and to all women aged
65 and over, who were resident in the city. The estimated annual cost
of the concession was /90,000, a cost which would fall on the rate-
payers. One of these ratepayers brought an action for a declaration that
the scheme was ultra vires and illegal, and the Court of Appeal held
that the declaration should be granted. The court held that a local
authority owed a fiduciary duty to their ratepayers, and that their
statutory authority to run the transport services was authority to run
them on commercial lines, even if at a loss, but that it did not entitle
them to give subsidies to one class of the community at the expense of
another merely for the sake of benevolence or philanthropy. The grant
of the concession was not a proper exercise of their discretionary power.
The court did suggest that free or cheap travel for children might be
perfectly legal, as there would probably be valid commercial reasons
for such concessions, but the Council were not at liberty to use the
ratepayers' money to inaugurate a new form of social subsidy under
the cloak of their transport service. It required the passage of a later
Act of Parliament specifically to authorise the granting of the kind
of concessions attempted so abortively by the Birmingham City
Council.
A case very reminiscent of Roberts v. Hopwood is Taylor v. Munrow
in 1960.'4 The local authority were under a statutory duty to review
from time to time the rents charged by landlords of premises which
had formerly been held under requisition by the authority, and to sub-
sidise tenants out of the general rate fund where it was considered that
the increased rents which the landlords were allowed to charge by law
would cause hardship to the tenants. The Rent Act 1957 permitted a
general increase in rents, and the Council concerned in this case, the
St. Pancras Borough Council, decided as a matter of policy, and without
looking at individual cases, to pay higher subsidies to the owners, thus
causing all the increased rents brought about by the 1957 Act to be paid
from the rates. The reason for the Council's decision was a dislike of
the Government policy underlying the 1957 Act, and it bore no direct
relationship to possible hardship upon tenants. The district auditor dis-
allowed the additional subsidies, and the court upheld his decision to
surcharge the councillors responsible with the amount of the increased

13 [1955] Ch. 210.

14 [1960] 1 W.L.R. 151.

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570 THE AMERICAN JOURNAL OF COMPARATIVE LAW [ Vol. 18

rents so arbitrarily paid by the Council. The Council had a duty

to the tenants and to the general body of ratepayers. Their stat
discretion to determine rents was not an absolute one, but one w
could only be discharged after due consideration of relevant fac
It would be possible to detail cases at some length, but of nece
this account must be kept brief, yet in the field of planning law
in a country so densely populated and so physically small as Eng
the courts have several times in the past decade set aside conditio
posed by local planning authorities when granting planning perm
sion on the ground that they were unreasonable.'5 And in Webb v.
Minister of Housing and Local Government,"6 where an Urban Dis-
trict Council, acting under statutory powers as a coast protection au-
thority, had made a scheme for the building of a sea wall, which in-
cluded the construction of a promenade behind the wall, and for
which land was to be compulsorily acquired, the scheme was held to
be invalid by the court because the land to be acquired was not
genuinely required for coast protection, and the compulsory purchase
order was quashed.
Now Professors Brown and Garner, in their book, French Adminis-
trative Lawv," cite the famous French case of Barel,'8 as a contrast to
the paucity of English law provisions for dealing with problems of the
abuse of powers. In Barel the Minister responsible had refused four
young men permission to sit the examination for entry to the Acole
Nationale d'Administration. It had been suggested in a national news-
paper that the Government had decided to refuse entry to the examina-
tion to any candidates who were communists, but a short time later
the Minister denied this categorically in a statement made in the Na-
tional Assembly. The young men concerned then referred the matter
to the Conseil d'Jtat, who quashed the Minister's refusal to allow them
to sit the examination because he would give no reasons justifying his
decision, and it was therefore presumed by the Conseil d1'1tat that
there were in fact no reasons which would justify such a use of his
discretion. If in fact it had been the case, and the Minister had admitted
it, that the candidates were refused entry because they were com-
munists, then the Conseil could have interfered with the exercise of the
Minister's discretion as a mistake of law, because he would have vio-
lated one of the general principles of French administrative law of
freedom of opinion and equal access to the civil service. But as it was,
the Conseil d'ttat decision was a clear case of control of the abuse of
powers, or perhaps, in English terms, review for unreasonableness.

"'E.g. Alixnam's Properties Ltd. v. Chertsey U.D.C., [1965] A.C. 735; Hall & Co.,
Ltd. v. Shorehain-by-Sea U.D.C., [1964] 1 W.L.R. 240.
16 [1965] 1 W.L.R. 755.
17 p. 128.
18 C.E. 28 May, 1954.

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1970] YARDLEY: ABUSE OF POWER IN ENGLISH LAW 571

It is submitted that the English cases already quoted in this paper

would be enough to show that the distinction drawn by Professors
Brown and Garner between English and French law is by no means as
sharp as they suggest. It is of course true and well-known that the
French droit administratif is a comprehensive body of rules and doc-
trine, worked out in their own separate system of administrative law
courts, whereas in England the ordinary courts have had to do the
work of fashioning and enforcing administrative law, and have had
to use the same writs and remedies as are employed in the general
field of our civil law. Perhaps also we have never quite recovered from
Dicey's famous assertion that administrative law did not exist in En-
gland, propagated in successive editions of his Introduction to the Study
of the Law of the Constitution, though it is now generally agreed that
he only meant that we did not have in England any separate droit
administratif, with separate administrative law courts. As late as 1964
one of the most forward-looking of the Lords of Appeal in the House
of Lords stated that "we do not have a developed system of adminis-
trative law," '9 though this same Law Lord has been in the van of
those judges who have been developing administrative law principles
with great rapidity. It may be suggested that the prime distinction
between England and France in this field lies not in the substantive
rules which can be enforced to control the abuse of powers, but in
the machinery, the adjective law, whereby these rules may be brought
into play.
A decision of very great modern importance is that of the House of
Lords in Padfield v. Minister of Agriculture, Fisheries and Food.20 The
Agricultural Marketing Act 1958 makes provision for the establishment
of a committee of investigation to consider complaints about the opera-
tion of marketing schemes "if the Minister in any case so directs." This
provision at first sight would seem to be as wide a subjective discre-
tionary power as one could possibly find in an Act of Parliament. The
particular scheme concerned in the case was a milk marketing scheme,
and under the scheme producers had to sell their milk to the Milk
Marketing Board, which fixed the different prices paid for it in each
of the eleven regions into which England and Wales were divided.
The differentials in these prices reflected the varying costs of transport-
ing the milk from the producers to the consumers, but the differentials
at the time in question had been fixed several years before, since when
transport costs had altered. The South-Eastern Region producers con-
tended that the differential between that region and the Far-Western
Region should have been altered in a way which would incidentally
have affected other regions. Since the constitution of the Milk Market-

'9 Lord Reid in Ridge v. Baldwin, [1964] A.C. 40, 72.

20 [1968] A.C. 997.

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572 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 18

ing Board, which consisted largely of members el

regions, made it impossible for the South-Easter
a majority for their proposals, they asked the M
to appoint a committee of investigation under
Had he agreed so to do, and if the committee we
favor, the Minister would have had power under
fit" to give mandatory directions to the Board.
The Minister, however, declined to refer the m
appointed under the terms of the Act. The letter
which explained his decision not to accede to the request contained
references to the wide issues affecting other regions, suggested that
the matter should be left to "the normal democratic machinery," stated
that the Minister owed no duty to any particular region, that he has to
bear in mind that he would be expected to give effect to the committee's
report, and that in any case he had an unfettered discretion whether
or not to refer the complaint. Thereupon the producers applied to the
court for a mandamus, and the House of Lords, by a majority of 4 to 1,
held that the order should be made, directing the Minister to consider
the complaint according to law. The Lords expressly held that Parlia-
ment had conferred a discretion upon the Minister so that it could be
used to promote the policy and objects of the Act which were to be
determined by the construction of the Act, and that this was a matter
of law for the court. Although there might be reasons which would
justify the Minister in refusing to refer a complaint, his discretion was
not unlimited, and, if it appeared that the effect of his refusal to ap-
point a committee of investigation was to frustrate the policy of the
Act, the court was entitled to interfere.
The real core of this decision is the rejection of the whole idea of an
unfettered discretion. Lord Reid said that it was wrong to suggest that
a Minister's decision could not be questioned if he gave no reasons, and
that any reasons he did give could in any case be examined by the court
because it was the duty of the Minister not to act so as to frustrate the
policy and objects of the Act. Lord Upjohn said that the introduction
of the adjective "unfettered" was an unauthorized gloss by the Minister,
and that it would probably not even make any difference to the powers
of the court if the word had been inserted into the Act by the drafts-
man! Lord Upjohn ended his speech with these words: 21
"[A] decision of the Minister stands on quite a different basis; he
is a public officer charged by Parliament with the discharge of a
public discretion affecting Her Majesty's subjects; if he does not
give any reason for his decision it may be, if circumstances warrant
it, that a court may be at liberty to come to the conclusion that he
had no good reason for reaching that conclusion and order a
prerogative writ to issue accordingly.
21 Ibid., 1062.

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1970] YARDLEY: ABUSE OF POWER IN ENGLISH LAW 573

The Minister in my opinion has not given a single valid reason

for refusing to order an inquiry into the legitimate complaint (be
it well founded or not) of the South-Eastern Region; all his dis-
closed reasons for refusing to do so are bad in law."

This is a very strong decision at the highest judicial level, but in fact it
does no more than reinforce and restate the powers of the courts which
they have always possessed and frequently expressed since the days of
Coke.22 Professor H. W. R. Wade has, in a comment upon Padfield,
said that "English law can now match the Conseil d'ttat's famous
decision in Barel," 23 and that "No Conseil d'Jtat, surely, could do better
than their Lordships on this occasion." 24
Padfield has already been followed in a later case,25 and it is very far
from being a solitary decision in the late 1960s. The Criminal Injuries
Compensation Board, first set up in 1964, was established to administer
a fund for the compensation of victims of crimes of violence, but,
unusually, it was not established by Act of Parliament, and instead
was created by simple executive act of the Home Secretary. It seems
likely that the purpose of this method of setting it up was in order to
avoid any later possibility of judicial review of awards and decisions
made by the Board, for there would be no statute against which a court
could measure the Board's activities. Yet in 1967 26 the Divisional
Court held that it was perfectly entitled to consider an application for
certiorari made by the widow of a police officer who had been shot by a
suspect whom he was about to question, and who, as a result of total
blindness in one eye, took his own life. Although the widow's applica-
tion was in the event dismissed because the Board had taken into
account the right factors in determining its award, and had acted
properly in the conduct of its hearings, the Lord Chief Justice
asserted: 27
"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, providing
always that it has a duty to act judicially."

And 1969 has seen the House of Lords hand down what must now be
regarded as the leading case upon the attitude of the English courts
towards privative clauses, Anisminic v. Foreign Compensation
Commission. 28

22 Rooke's Case (1598), 5 Co. Rep. 99b.

23 (1968) 84 L.Q.R. 168.
24 Ibid., p. 167.
25 British Oxygen Ltd. v. Board of Trade, [1968] 3 W.L.R. 1; later reversed on a
different point: [1969] 2 W.L.R. 877.
26 R. v. Criminal Inquiries Compensation Board, ex p. Lain, [1967] 2 Q.B. 864.
27 Ibid., 882.
28 [1969] 2 W.L.R. 163.

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574 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 18

In this last case the Foreign Compensation Commission, wh

established this time by Act of Parliament, had the duty to con
and determine applications made by persons, who had been
from or had had their property expropriated by foreign states
share in funds made available by those states for those suffe
their acts. The Commission operated under a statutory powe
included the phrase: "the determination by the Commission
application made to them under this Act shall not be called in q
in any court of law." It is clear that Parliament had intended tha
words should render the Commission's activities totally immun
the courts' scrutiny,29 and yet the House of Lords unanimously
that the privative clause did not prevent the possibility of j
review, and they clearly and roundly rejected a previous dec
the House to the contrary 3 as having been made without proper
to authorities. Furthermore, the House by a majority of 3 to 2
that the Commission had actually taken into account matter
it had no jurisdiction to consider, so that the determination com
of in this case, which it is perhaps not necessary here to discus
detail, was a nullity.
Enough has probably now been said to indicate the strong pro
and steady stream of authority in English law in favor of the
power to control or review the decisions or activities of admin
bodies acting in abuse of their powers. The pessimism of Profe
Smith is probably unjustified, and English law in its own pecul
is as capable of protecting the individual from such abuse as is t
concentrated and specialist droit administratif. It is essentia
upholding of the rule of law that the courts should mainta
authority in this field, and even though recent cases show t
practice, if not the theory, of the sovereignty of Parliament m
mately be in some jeopardy, lawyers should welcome the stand
the courts have taken, and be happier to place the final safegua
of the people's rights in the hands of the judges rather than in
elected politicians.

29 The House of Commons had been told by the Government at the ti

the Foreign Compensation Act 1950 was being debated as a Bill, that the C
would be concerned mainly with making ex gratia distributions, and tha
needed to know "how much of the cake was left" for distribution to cla
would be very difficult for the money ever to be distributed in reasonable tim
whole exercise could be held up by substantial claims being taken to the H
see H.W.R. Wade, "Constitutional and Administrative Aspects of the Anism
(1969) 85 L.Q.R. 198. In a later Foreign Compensation Bill 1969, the Gov
eventually and reluctantly accepted an amendment successfully moved in t
of Lords to allow a right of appeal to the Court of Appeal, but not to the
Lords, on any question concerning the Commission's jurisdiction. So it w
that the courts' efforts to enforce the rule of law are at last penetrating P
and the Government.
30 Smith v. East Elloe R.D.C., 1956 A.C. 736.

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