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GAZETTE
JANUARY/FEBRUARY 1978
BOOK REVIEWS
ADMINISTRATIVE LAW
BAILEY, S.H., C.A. Cross and J.F. Garner, Cases and
materials in Administrative Law. London: Sweet &
Maxwell, 1977. xxxix, 635p. Paperback, £12.75.
Professor Garner of Nottingham is a well-known expert
on Administrative Law. The fact that he has allowed his
name to be associated with that of his lecturer, Mr.
Bailey, and with that of Mr. Cross, the barrister author of
an authentic textbook on English Local Government
Law, should ensure authority for the contents of this
volume.
Part 1 (152 pages) deals with English Administrative
procedures, particularly the relevant parts of the Franks
Committee Report of July, 1957, and the Town and
Country Planning (Inquiries Procedure) Rules, 1974, the
Reports of the Council on Tribunals with an article by
Professor Garner, the Parliamentary Commissioner Act,
1967, setting up an Ombudsman, and the Report of the
Donoughrnore Committee on Ministers Powers (1932).
The case of
R.
v.
Customs Commissioners Ex Parte
Cook,
[1970] 1A11 E.R. 1068, in which the applicant
bookmakers moved for an order of
Mandamus
requiring
the Commissioners of Customs to issue licenses only to
such applicants as had paid the bookmaker's duty by
monthly instalments in accordance with arrangements
made under the Finance Act, 1969, as opposed to those
who had paid the whole duty in advance; this was refused.
The judgments in other recent English cases relating to
such matters as absolute privilege in defamation,
dismissal of appeal against surcharge by auditor,
disclosure of interest by members, and rights of the public
to attend Council meetings are also dealt with.
By far the greater part of the work deals with material
relating to Judicial Review.
The first subject dealt with is
Want of Power.
Many of
the cases relate to rent restriction and could doubtless be
compared to similar Irish cases. An instance would be
White and Collins
v.
Minister of Health
(1939) 2 K.B.
838. In this case Ripon Borough Council made an order
for the compulsory purchase of 23 acres forming part of
the grounds of "Highfield" containing 35 acres in all.
These 23 acres were then let for grazing. The various
owners objected that the land was part of a park and
required for the amenity of the house. The owners
unsuccessfully applied to the High Court for the order to
be quashed, but they succeeded in the Court of Appeal;
this resembles somewhat the Irish case of
Geraghty
v.
The
Minister for Local Government
(1976) I.R. 153. The
most famous case relating to
excess of jurisdiction
was
the famous House of Lords decision in die
Anisminic
case
— (1969) 2 A.C. 147. Before the Suez incident in 1956,
the plaintiff English company owned property in Egypt
which was sequestrated in 1956 by the Egyptian
organisation, T.E.D.O. In 1959, the plaintiffs made an
application to the British Foreign Compensation
Commission claiming they were persons entitled to
participate in the Egyptian Compensation Fund in respect
of this property. The Commission decided provisionally
that they had failed to establish a claim. The plaintiffs
claimed that this provisional order was void, as the
Commission had misconstrued the order in finding that
T.E.D.O. was their successor in title. This contention was
upheld by the House of Lords, as the Commission had
24
misconstrued their functions, and accordingly the
Company was entitled to participate in the Compensation
Fund. A rather similar case is
Lavender
v.
the Minister of
Housing
(1970) 1 W.L.R. 1231, where the High Court
reversed the Minister's finding that land at Walton-on-
Thames, although high quality agricultural land, was
suitable for housing purposes. A similar case was
Robertson v. Minister for Pensions
(1949) 1 K.B. 227,
where Denning J. held that a War Office letter stating that
the plaintiffs disability was attributable to military service
superseded a decision of the Ministry of Pensions that this
disability had been due to a train accident in 1927.
Another famous case where there was manifest abuse
of discretion was that of
Pacffteld v. Minister of
Agriculture
(1968) A.C. 997, where the House of Lords
granted a
Mandamus
against the Minister on the ground
that he should either have referred a complaint to the
relevant Committee or dealt effectively with the
complaints on relevant considerations. The leading case
of auditors surcharging a local authority —
Roberts
v.
Hopwood(
1925) A.C. 578 — is also included, as is that
of the
Secretary of State for Education
v.
Tameside
(1976) 3 All E.R. 665, where the Minister endeavoured
unsuccessfully to compel the local authority to adopt a
system of comprehensive education.
In
Howard
v.
Secretary of State for the Environment
(1975) Q.B. 235, the Court of Appeal rejected the
Minister's contention that an appeal to him could not be
made under the Town Planning Act, 1968, because it was
allegedly a few days late, and granted the appellant a
declaration to appeal. On the basis that one of the tenets
of Natural Justice is the duty to act fairly, the famous
cases of
Errington v. Minister of Health
(1935) 1 K.B.
249, and
Ridge v. Baldwin
(1964) A.C. 40, are fully
dealt with, as is the case of
R. v. Gaming Board, Ex P.
Benaim,
(1970) 2 Q.B. where the Board refused to give
the directors of Crockford's gaming club a certificate, and
would not give reasons for their refusal; the applicants
obtained a
Certiorari
to quash the refusal, and a
Mandamus
to compel the Board to enable them to answer
a case against them. In
Re Godden (1911)
3 All E.R. 20,
orders of prohibition and
Mandamus
were granted by the
Court of Appeal against the Kent Police Authority for
dismissing the appellant police officer by fabricated
evidence that he was insane. In
Colleen Properties v.
Minister of Housing
(1971) 1 W.L.R. 443, a
departmental inspector was appointed to determine
whether Clark House, the property of the plaintiffs, was
suitable as a clearance area for new housing, and he
reported that it was not; nevertheless the Minister
confirmed the clearance order; the owners applied
successfully to the Court to quash the Minister's order.
Finally in
Attorney-General (McWhirter) v. Independent
Broadcasting Authority
(1973) 1 Q.B. 629, the
complainant's attempt to obtain an injunction to stop a
film from being shown on television by defendants on the
ground of indecency was upheld.
These examples will have shown that, particularly in
the last 15 years, the English Court of Appeal and House
of Lords have attempted more forceably to apply
principles of Natural Justice. The fact that this volume
contains no less than 635 pages has ensured that the
learned authors have covered all the relevant material
with ample notes. The fact that a paperback can now cost
as much as £12.75 shows how much the cost of printing
and production have risen within the last year, but this
volume is absolutely indispensable for all local authority
solicitors.