P ART 3: J UDICIAL R EVIEW , U LTRA V IRES AND N ATURAL
10.3 Judicial and Administrative Functions
The distinction between ‘judicial’ and ‘administrative’ functions has been of fundamental importance in determining whether natural justice applies in any particular case. However, in restricting the rules to ‘judicial’ or ‘quasi-judicial’
functions, the common law has perhaps failed to do justice in cases where an individual’s rights and interests may be affected, albeit incidentally, in the con- text of what seems to be an administrative function. The possibility that such a situation could arise is in itself an indictment of this rather nebulous distinction between judicial and administrative functions. Nevertheless, it will be seen sub- sequently that it is a distinction which is still used by the court from time to time, in which case there will probably be reliance on the leading statement of principle from the House of Lords in Ridge v Baldwin (1963). In this case Ridge, the Chief Constable of Brighton, had been acquitted of a conspiracy to obstruct the course of justice but two officers from the Brighton police force had been convicted. The judge, in passing sentence, referred to an absence of professional and moral leadership on the part of their Chief Constable. Following Ridge’s acquittal, the Brighton Watch Committee (as the police authority) dismissed him from office without notice and without hearing any case he may have wanted to present. Subsequently, Ridge’s solicitor was allowed to appear before the Committee but the dismissal was confirmed. The Home Secretary later dis- missed an appeal by Ridge against the decision of the Watch Committee.
Thereafter, Ridge, being anxious to protect his pension rights in the police ser- vice, sought a declaration from the court that he had been wrongfully dis- missed. The House of Lords granted the declaration on the basis that natural justice applied to the Watch Committee’s function and that Ridge had no ade- quate opportunity of knowing the case against him so that he had no reasonable opportunity to put his case against dismissal. The important statement of princi- ple is that a ‘judicial’ function arises wherever action is taken by any body or persons having legal authority to determine questions affecting the rights of subjects (per Atkin LJ in R v Electricity Commissioners (1924)). Such a function presupposes a dispute between the parties where they present their respective cases, perhaps by adducing evidence on disputed facts and/or by advancing legal argument on disputed points of law, as a result of which a decision finally disposes of the case. By contrast, the quasi-judicial function involves a decision on the parties’ cases but also covers other matters such as policy and the public interest.
10.3.1 The duty to act judicially
The duty to act judicially applies to trade union disciplinary committees (Taylor v National Union of Seamen (1967)), academic institutions exercising disciplinary functions (Glynn v Keele University(1971)), and various other domestic organisa- tions (John v Rees(1969)), among others. Prior to these modern cases it had been decided in Cooper v Wandsworth Board of Works(1863) that the Board of Works, a statutory body, was not empowered to demolish property without affording the owner an opportunity of putting his case against such action. In contemporary times, many statutes empowering action to be taken by an administration agency like a local authority will prescribe the terms on which any representa- tions may be made. For example, the Housing Act 1985 ss 264 (as substituted by Schedule 9 of the Local Government and Housing Act 1989), 268 and 275 (as amended), require a local authority to provide an opportunity for an owner to discuss the condition of a house before a demolition order is executed so that the authority can then be satisfied that the premises are unfit for human habita- tion and incapable of repair at reasonable expense. Because there is a statutory prescription expressly applying a relevant aspect of natural justice in these cir- cumstances, it may be argued that no common law right to a hearing can be implied into a statutory power enabling a local authority to take emergency action to demolish any structure which is regarded as being dangerous.
Accordingly, the need to identify judicial functions may now often be overrid- den by the express or implied terms of specific statutory provisions either limit- ing or excluding natural justice. Nevertheless, in some areas the definition of judicial and administrative functions may still be important in determining whether there has been a breach of natural justice, for example, in cases like Gunnell(above) and on the part of a minister in the statutory context of deciding whether a compulsory purchase order submitted by a local authority should be confirmed. This area of activity has produced some of the leading cases on the identification of judicial and administrative functions where a minister is often charged with making a policy decision. Such a ‘policy’ decision frequently requires the minister to consider all manner of questions relating to the public interest and in law, he cannot be prevented from attaching more importance to the fulfilment of his policy than to the fate of individual objectors.
Against this background it was stated by Greer LJ in Errington v Minister of Health (1934) that a minister, in dealing with objections to a compulsory pur- chase order, was ‘exercising quasi-judicial functions’ because ‘the decision of the minister is a decision relating to the rights of the objecting parties’. In another of the leading cases, B Johnson & Co (Builders) Ltd v Minister of Health (1947), it was found that natural justice did not apply to require a minister, in considering whether to confirm a compulsory purchase order, to divulge infor- mation put before him before he considered objections, that is, before he assumed a quasi-judicial role. Lord Greene MR observed that the ‘administra- tive’ process in the present context:
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... may begin in all sorts of manners – the collection of information, the ascer- tainment of facts, and the consideration of representations from all sorts of quarters ... long before any question of objections can arise under the proce- dure laid down by the Act ... The administrative character in which [the min- ister] acts reappears at a later stage because, after considering the objections, which may be regarded as the culminating point of his quasi-judicial func- tions, there follows something which again ... is purely administrative, viz the decision whether or not to confirm the order. That decision must be an administrative decision, because it is not based purely on the view that he forms of the objections vis-à-visthe desires of the local authority, but is to be guided by his view as to the policy which in the circumstances he ought to pursue ...
10.3.2 Reliance on the distinction between functions
The distinction has been relied on in a number of important cases but not with- out considerable criticism in some instances. In Franklin v Minister of Town and Country Planning (1947) the minister was responsible for making orders desig- nating sites for new towns. At a public meeting preceding a proposal to desig- nate Stevenage as a new town, the minister insisted that he would discharge his statutory duty in this context despite any obstructive behaviour by the public.
When an order was subsequently made under the New Towns Act 1946, an attempt was made to quash it on the ground that the minister had been acting unlawfully in breach of natural justice as a judge in his own cause. The House of Lords decided that there was no breach of the rule against bias: the minister’s responsibilities were administrative: to appoint a person to hold a public inquiry and to consider that person’s report. In Nakkuda Ali v Jayaratna (1951) the Controller of Textiles in Ceylon was empowered by statute to cancel textile licences where he had reasonable grounds to believe that any dealer was unfit to be allowed to continue as a dealer. The Controller dealt with some objections to a proposed licence cancellation by correspondence but it was decided that the Controller’s function here were administrative, not judicial, so that he was not obliged to afford a hearing prior to revoking the licence. The facts of the third case, R v Metropolitan Police Commissioner, ex p Parker (1953) are similar to those of Nakkuda Ali, and involved the Commissioner’s statutory power to revoke taxi licences. It was decided that Parker, whose licence was subject to revocation, was not entitled to produce witnesses to make representations on his behalf before the Commissioner prior to the decision being made. Finally, in Essex County Council v Minister of Housing and Local Government(1968) it was decided there was no right to be heard before the minister in respect of the making of a statutory Special Development Order designating Stansted Airport as the third London airport on the ground that a legislative function was involved.
The decision in Franklin emphasises the nebulous basis for the distinction between administrative and judicial functions. However, the decision together with those in Nakkuda Aliand Parker may be explained by the courts’ post-War
reluctance to question the legality of many exercises of executive power. A more satisfactory basis for the decision in Franklin would have been the statutory
‘authorisation’ for the minister’s actions, recognising that by the very scheme of things he would be ‘judge in his own cause’. Nevertheless it was suggested in the Report of the Committee on Ministers’ Powers (1932) that a strong and per- haps sincere conviction as to public policy of the sort that seems to have per- vaded the situation in Franklin may operate as a more serious disqualification than some pecuniary interest in a decision. More recently, in R v Secretary of the Environment, ex p Brent London Borough Council & Others(1981) it was held that a policy formulated by the Secretary of State by which he would reduce the rate support grant payable to councils which had overspent was unlawful, not on the ground of bias, but because he refused to hear representations from councils whose financial rights would be affected by a reduction in grant. Finally, the facts and decision in Nakkuda Aliand Parkerwould no doubt be seen in a differ- ent light if they had occurred more recently. In view of the legal recognition of rights in relation to the renewal and revocation of licences from cases like McInnes v Onslow-Fane, there can be little doubt that in both cases the court would have decided that there was a judicial function being exercised, attract- ing at least the right for the licensee to be heard.
Although reliance on the definition of administrative and judicial functions has declined for the purposes of natural justice, it can be seen that it has not been abandoned entirely. In Hibernian Property Co Ltd v Secretary of State for the Environment(1974) the court expressed its approval of the decision in Errington in quashing the Secretary of State’s decision to confirm a compulsory purchase order on the ground of a breach of natural justice. The breach occurred when an inspector conducted a site visit following the close of the inquiry in the absence of any representative of one of the chief objectors to the order and when the res- idents of certain houses expressed their views about whether their houses should be demolished or improved. The court was willing to quash the decision because there was a risk that the transaction might have prejudiced the chief objector’s interests. In R v Barnsley Metropolitan Borough Council, ex p Hook(1976) the court was concerned with the revocation of a market trader’s licence origi- nally granted by the local authority. An allegation of misconduct and a breach of market rules was made by the market manager who was also present while Hook was excluded on the two occasions when the case was adjudicated by committees of the local authority. This was found to be a breach of both rules of natural justice by virtue of the fact that the trader’s legal rights to use the market were subject to adjudication, a clear case of a judicial function, even though the local authority’s control of the licensing of market stalls was essentially in other respects an administrative function. More recently, the House of Lords was con- cerned with the legality of the Secretary of State’s order approving a motorway scheme in Bushell v Secretary of State for the Environment (1980). It was decided that objectors could not make representations on new traffic flow criteria adopted by the Department of the Environment following the close of the
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inquiry when the Secretary of State’s function was essentially administrative.
Not long before it had been decided that the Secretary of State was obliged to act fairly to the extent that he should have allowed representations from objec- tors in relation to evidence obtained by an inspector following the close of an inquiry into a compulsory purchase order for slum clearance (Fairmount Investments Ltd v Secretary of State for the Environment (1976)). In this latter case there was no reference to the distinction between administrative and judicial functions.
It is very difficult if not impossible to reconcile the foregoing decisions although a great deal does seem to depend on the judicial policy of the court in relation to the facts of each case. Consequently, the court’s reluctance to admit the rules of natural justice into the final stages of a minister’s decision, particu- larly where it seems to involve significant areas of government policy, may explain the decision in Bushell. The facts in Fairmount, on the other hand, could have confronted the court with a dilemma if the definition of administrative and judicial functions from the other leading cases on compulsory purchase orders had been adopted. Had the definition of functions from Errington and Johnson been adopted, the ‘post-inquiry’ stage might have been seen as the administra- tive function which excludes natural justice in a case where the rights of the landowner were clearly still in issue. The decision in Hibernian Property may be reconciled with the function definition of the earlier cases by saying that the site visit following the inquiry is still very much the focus of the objectors’ rights, as is the inquiry itself. From the foregoing discussion it can be appreciated how rigid the definition of functions can be in many cases, eg in failing to recognise that even in what may have been seen to be an administrative function rights may be at issue. Such difficulties may now be largely avoided through the adoption of the more flexible duty to act ‘fairly’ which is examined in the next section. It may be argued, therefore, that the definition of functions as the basis for natural justice tends to be used wherever the court is anxious to exclude nat- ural justice, perhaps as a matter of ‘judicial policy’, as in Bushell or Gunnell, where the court is confronted by a clearly defined judicial or quasi-judicial func- tion as in Hook, or where the case in hand involves the rule against bias which can only arise in the context of a judicial function.