error on the face of the law

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ERROR O F LAW ON TH E FACE OFAN ADMINISTRATIVE RECORD.In R. v Nor thumber land Compensa t ion Appeal Tr ibunal , ex

par te Shawl (herein called S h a w , the Court of Appeal (Singleton,Denning and Morris L.JJ. , confirming a Divisional Court GoddardL.C.J., Hilberry and Parker JJ.), held that on motion equivalent tothe common law writ of certiorari the decision of an administrativetribunal which was not a court of record could be quashed for errorof law appearing on the face of its record-equivalent; all six judgesagreed with the decision, which has also been accepted, with criti-cisms in detail, by three learned commentator^.^ In arriving at thisdecision, the Divisional Court as well as the Court of Appeal feltfree to overrule a very recent decision of a strong Court of Appeal(Greene M.R., MacKinnon and Goddard L.JJ.), namely, RacecourseBett ing C on trol Board v . Secretary for Air , 3 where Lord Greene saidof the doctrine now supported, No authority was quoted in supportof this proposition, and, in my opinion, it is wrong in prin~iple. ~thas been suggested that the view on certiorari expressed in the BettingControl Board Case was obiter, since the application was conceivedas a motion t o control arbitra toq5 but this seems an unduly technicalview; the Court of Appeal had ample power to treat the motion asone for certiorari, and there is no reason to doubt that it would havetaken this course if it had thought that the error of the tribunal inquestion could be so corrected. Hence the decision in S h a w can betreated as substantially overruling a decision of the Court of Appealsquarely in point. I n terms of authority, the Divisional Court andthe Court of Appeal relied on dicta of the House of Lords in O v e r -seers of W al sa ll v L o nd on N o rt h W e st er n R a il wa y C O . ~nd ofthe Privy Council in R . a. Nut Bell liquor^.^ These cases both con-cerned inferior courts in a strict sense, and courts of record, and

119511 1 K.B. 711 Div . Ct. , [I9521 1 K.B. 338 (C.A.) .2 S.A. de Smith. Cert iorar i and Speaking Orders , (1951) 14 MOD.L. REV.207-210. (1952) 15 MOD. L. REV. 217-219; D. M. Gordon. Quashzng onCrrt iorar i fo r Error ill Law 1951) 67 L.Q. REV 52-456; Ross Anderson,Certio rari to Qtcaslz Decisions fo r Er ro rs not going to Jzirisdict iow, (1951)1 QUEENSLAND.J. (3) 50-52, (1952) 2 QC EENSLAND.J. 63-64.[I9441 Ch. 114.4 Ihid.. at 120.De Smith in 14 MOD.L. REV.207-210, anticipating Denning L.J. in [I95211 K.B. 338. a t 351.(1874) 4 A.C. 30.7 [I9221 2 A.C. 128. T h e Nat is not sho rt for National as M r. D. M.Gordon seemed to think in 67 L.Q. REV. 452.


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The first shock one gets, on looking for the earlier authorities whichthe dicta of Scrutton and Denning L JJ would lead one to expect,is the discovery that the use of certiorari as a method of controllinginferior jurisdictions seems to have been entirely unknown between1300 .and 1640. There is no trace of certiorari to prevent inferiorcourts from exceeding their jurisdiction, leave alone to correct theirerrors of law, in any of the following reports of the Elizabethan andearly Stuart periods, namely, Plowden, Moore, Croke, Coke, Rolle,and Bulstrode. I n Coke s Fourth Institute, which gives a detailedaccount of the organisation of the courts in his day, including adescription of the principal methods by which decisions might bechallenged, directly or collaterally, there is no mention of certiorarifor such purposes.16 The Abridgements of Brooke 1586) and Fitz-herbert 1565) and the latter s New Natura Brevium 1588) arelikewise silent.17 The reference to certiorari in these authorities wouldlead one to believe that the writ was used solely for administrativepurposes, to procure the moving of a record from a tribunal or fromthe custody of an administrative officer either directly into the King sBench, or else into Chancery and then if necessary by mittimus intothe Common Pleas or the Exchequer, for some purpose controlled b ya proceeding other than the certiorari. For example, a writ of erroror of habeas corpus would often e accompanied by a writ of cer-tiorari, if the inferior tribunal lacked the machinery for supplying asatisfactory exemplification of its proceedings; * if an inferior tribunalcould not provide execution of its judgments, the.n by certiorari therecord could e removed into a superior court so that the latter sexecution might issue;l@f the process of an inferior court was liableto be tolled by failure of service, or by demise of the Crown, then theproceedings could e continued by removal on ~ertiorari;~~f a fairtrial could not e had in the inferior court, the indictment, etc., mighte removed elsewhere.*l

This writer s research went no further back than the Year Booksof Edward 11,22which produced a like result. But the research was16 In dealing with the King's Bench he mentions prohibition to keep othercourts within jurisdiction, but not certiorari: 4 INST.71.1 7 Fitzherbert has no title Certiorari, but analogous case s occur underCertification. . c8 Cro. Jac. 445, 538, 79 E.R. 381, 461; Cro. Car. 175, 79 E R 753; MarchN R o . 232, 82 E R 59; Style 98, 82 E.R. 560; 2 C r i o ~ ~ r o N sR CTICE329 1786).

19 2 INST. 23; Style 9, 82 E R 89.20 Y B 9 Hen. VI, 47 SELDEN OCIETY19.21 Chedley's Case, 1633) Cro. Car. 331, 79 E R 90.22 Published by the Selden Society for the period 1307-1319.


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carried further back by his learned friend Mr. J. A Iliffe, of theLaw School of the University of Tasmania, to whom is due the fol-lowing information. The characteristic feature of the Latin form ofthe writ was the phrase quibusdam certis de causis certiorari volumusand in this form the writ can be found in use in the time of Edward I,when the jurisdiction of King's Bench possessed a width and a flexibi-lity which was doubtless due to the frequent presence of the king inperson on the Bench. During that period, the plea rolls show manyexamples of what we would call both control of jurisdiction and re-view of questions of law carried out in association with the writ ofcertiorariza This occurred before English law had passed completelyunder the tyranny of the formulary system; hence it is not easy toassert with confidence that the King's Bench exercised a supervisoryand appellate control by virtue of the writ and it may be that theseearly examples rather illustrate the general and undefined authorityof a King's Bench which was still hardly distinct from the King'sCouncil. These discoveries in the coram rege rolls of Edward I makeeven more remarkable the silence of the centuries until about 1630,during which the formulary system was in full sway and the writof certiorari appears to have played a subordinate role.

The second shock which the history provides is that the case ofCommins v . Ma~sarn~~n 1643 in which Denning L.J. tells us willbe found the principles on which the Court acted in the case of theCommissioners of S e ~ e r s ' ' , ~ ~s actually an authority against the King'sBench presuming to interfere with the Commissioners on certiorari a tall. The case concerned the validity of an order of the Commissionerslevying a drainage rate on the prosecutor; the Commissioners and theprosecutor wished to get a point of law in issue settled by the King'sBench, and they entered into a recognisance to give effect to thejudgment of the Court: Mallet J. said that even by agreement certiorariwould not issue; Bramston C.J. thought that the Court would notnormally have power to interfere by certiorari, but that it could pro-ceed upon the agreement of the parties; Heath J. alone took a broadview of the Court's powers, saying, if they proceed where theyhave no jurisdiction, or without commission, or contrary to their commission, or not by jury, then they are to be corrected here. The23 57 S~LDENOCIETY1, 86, 123, 147, 161.4 March N R 196 (No. 241 , 82 E R 473. For the period, it is a clear andfull report, which in itself suggests that the procedure was novel.8 [I9521 1 K B 338, at 351. The Commissioners had by statute a mixedlegislative, judicial, and administrative authority to provide for the drainageof fen lands. They had existed at least since Hen. VI and probably earlier,and were a court of record.


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difficulties of the Chicf Justice and Mallet J . sound peculiar to modernears; they arose from the fact that the Commissioners, under 23 Hen.VIII, c. 5, rccordcd their proceedings in English, and as BramstonC.J. said, we cannot determine any thing upon English pro-ceedings. However, this technical difficulty may be re-expressed forour purposes as indicating a lack of desire to interfcre with administra-tive jurisdictions which followed procedures and rrasoning unfamiliarto the common law judges, and indeed Mallet J. almost said as muchby drawing attention to the fact that the writ of certiorari concludedquod faciamus quod de jure a t secundum legem, fuerit

faciendum. Even the proposition of Heath J., it will be noticed,asserts only the power to interfere on grounds of lack of jurisdictionor irregularity in procedure; this is confirmed by his view that cer-tiorari should be available in order to save putting the parties to anaction of trespass or replcvin, which would have been available onlyif thr decision werc entirely void for jurisdictional or procedural error.Perhaps Denning L.J. was relying more upon the assertion of Rram-ston C.J. that certiorari had lain to the Commissioners of Sewersbefore thr statute of 23 Hen. VII I ; Bramston cited no such cases, theAbridgements disclose none, and in any event one would need to seewhether such cases were examples of control of jurisdiction or fellwithin the administrative use of certiorari mentioned above.27 Onemight infer from the reference of Denning L.J. to Callis on Sewersz8that Callis's original Reading on thc Statutes of Sewers (1623) dealtwith control of the Commissioners by certiorari, but actually thereis no such reference in the original text; control by certiorari is firstmentioned by the 1685 editor of Callis, and the earliest case he citesis C o m m i n s v. M a s s a m . Hcnce Callis rather confirms the view thatthe development of ccrtiorari to control jurisdiction occurred after1623.

Similarly, in Ball v. P a t t r i d ~ e , 2 ~hc Court of King's Bench heldthat certiorari did not lie to Commissioners of Fens because they hada new jurisdiction , excess of which could be tested only by a col-lateral action of trespass or replevin, in which their decision, if without6 i.e.. according to lnzc- meaning common law (w riter s i talics) .7 I t would seem more likely that, when the Commissioners kept Latin records,

their decisions were corrected by w rit of e rror. as suggested by C LLIS t198.9 119521 1 K B 338, at 351, footnote 29. The fourth edition, to whichDenning L.J. referred, is in the Victorian Supreme Court Library; allreferences here are to that edition.9 (1666) 1 Sid. 296 82 E.R. 1116.


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lawful authority , could be treated as void.30 T h us a theory th at deci-sions of inf erior courts no t proceed ing in the course of the com monlaw might be attacked only collaterally can be seen developingthrough the middle years of the 17 th century. I t could be pu t in theform of a dilemma: If the lower court had jurisdiction, the commonlaw courts could not interfere because the lower court is not adminis-tering the system of the com mo n law ; whereas if the lower cou rt ha dno jurisdiction, its decision was void, could not justify any consequen-tial fines, imprisonments, etc., and provided nothing to quash.

Notwithstanding the theory just mentioned, there are many scat-tered references to the use of certiorari for the control of inferiorjurisdictions, including the Commissioners of Sewers, between 1640an d 1666; it is not easy to be certa in whether in these cases, as inommins v Massam the writ was obtained by agreement or not, andin all of them there is a strong flavour of ju risdictional ob jec tio n; bu t

it seems probable that to this period must be assigned the genesis ofthe modern law. One can only guess at the reasons for the develop-ment. Even in its administrative use, certiorari had been frequentlyassociated with review procedures; for example, when it accompaniederror and habeas corpus, or when on removal to procure executionof a judgment the King's Bench permitted exceptions to the judgmentto be taken on scire facias before allowing execution to issue.32 T h estatute 21 Jac. I , C. 8 w as passed to p rev en t t h ~bstruction of indict-ments by their removal from county general sessions on certiorari;such removal acted as a stay and put the prosecutor to the expenseof pursuing the case in London or obtaining there a pro edendo toenable the court of origin to proceed. The statute required onlysecurity for costs, but in working it out the courts showed a tendencyto develop its equity ,33 an d this may have forced partie s to givesome colour t o w ha t was still a, delaying device by alleging form alobjections to the indictment sought to be removed. Finally, as men-tioned later, the administration of the poor law invited central con-trol, an d the need increased a fter the disapp earanc e of the , conc iliarjurisdictions in 16 41 . T he first review of a bastardy ord er this w riterhas noticed is i n 1 6 4 8 , ~ ~nd of a se ttle me nt o rder in 1 6 4 9 . ~ ~: O To the like effect, Norfolk v Newcastle. (1666) 1 Sid. 296, 82 E.R. 1116,

c o ~ ~ c e r n i n ghe Eyr e of the For es t of Pick ering .March N .R . No. 115. 82 E .R . 418; Stvle 14, 27, 33, 46, 60, 86, 192, 211,82 E.R. 493, 503, 508, 518, 529, 551, 637, 653; 1 Sid. 222, 82 E . R . 1070.32 Style 9. 82 E.R. 489.(1641) March N.R. No. 118. 82 E.R. 419 cf. bfar ch N .R . No. 63, 82 E.R .396.4 Style 14. 82 E.R. 493.Style 168, 82 E.R. 617.


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The first case in which a confident statement that certiorariauthorises extensive control of inferior jurisdictions appears to beR . v P l o ~ r i g h t ~ ~n 1685, but this case proves either too little or toomuch. Certiorari was obtained to review a decision of justices on theassessment of chimney money. It was objected that under 16 Car. 11,C 3, the decision of the justices was final, and that this was for theprotection of poor men who might otherwise be harried throughhigher courts. The Court (Pemberton C.J., Jones, Dolben, and Ray-mond JJ.) referred to the frequency with which orders of justicesin bastardy cases had been removed into the Bench, and said that un-less certiorari is specifically abolished by statute,37 it must be assumedthat parliament intended it to be available; therefore the meaningof the Act must be, that the determinaflon of the justices of the peaceshall be final in matters of fact38 only; but the right of the dutyarising by virtue of this Act was never intended to be determined bythem. In the Ruis lip S ettl emen t C a ~ e 3 ~uch relied upon in Shawby both Courts, Rokeby J went even further and said that decisionsof justices might be examined in the King's Bench on the merits,meaning (it appears) on questions of fact as well as of law. Thesecases suggest a view, not subsequently upheld, that the King's Benchhas a general supervisory authority over inferior tribunals on allquestions of law and possibly of factual inference, or a t least that ithad such an authority over the summary jurisdiction of justices ofthe peace. The latter construction is very possible, since from 1648onwards it is in relation to justices of the peace that cases on cer-tiorari multiply rapidly; by far the commonest examples relate tobastardy and pauper settlement orders, and as Holdsworth shows itwas in this area that control by the central courts was imperative,since local politics of a particularly unsavoury kind were apt to in-fluence decisions of the country gentlemen on the commission ofthe pea~e.4~

From the time of Holt C.J. onwards, cases are very numerous,and as D M Gordon points out,4l at least the dicta in many of them6 3 Mod. 94, 87 E.R . 60.A practice already frequent.5 Italics in the original.

39 As reported i l l Ld. Raym. 425. 91 E.R. 1182. The name is variouslyspelled in thc reports, viz., Ryslip and Ricelip. In Shaw the reference wasto 5 Mod. 417 87 E. R . 739).4 6 HOLDSIVORTH,IS T O RYF EEN ;I.ISH- . ~ \ I ~51-35-7: 10, 258 et seq. Th eRuislip Case is a good example; as Holt C.J. tartly observed 5 Mod. 41 8) ,the unfortunate pauper was being made a vagrant as well, by order of thejustices who were shuttling him from parish to parish.4 1 67 L.Q. REV . 452.


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and probably some decisions as well justify the error on the face ofthe record rule. However, even through this period one cannot saydogmatically that the rule was beyond question clearly establishedin the wide form that would provide review of all questions of lawappearing in the material which was either formally recorded orspecially stated. There are two considerations which make it neces-

sary to read the cases with care. Firstly, there is always the possibilitythat, as in the foundation case of Commins v Massam, the opinionof the King's Bench was sought by consent. This procedure, whichjustices of the peace freely used instead of consulting with the judgesof Assize as required by their commissions, was referred to in theWalsall Case, and its history given at considerable length in Reg. vChantrell.42 ndeed, there is some reason for thinking that the RuislipSettlement Case which Goddard L.C.J. 3and Denning L .Jj4 reliedon in Shaw was itself an example of this procedure. Shower, movingthe order to quash, said, This matter comes here upon the whole forthe opinion of the Co~r t. 4~ olt C.J. said, . the meaning herewas, to have the judgment of the court upon the whole where theman was legally settled, and the design of this order was to lay allmatters before us. 46 I t is mentioned in Chantrell's Case that thispractice was disapproved by Holt C.J. in 1 6 9 9 , ~ ~ut it had certainlybeen used earlier without objection48 and was resumed later as des-cr ibed in Ch~ntrel l .~~he second point about these cases is that theoverwhelming majority relate either to excess of jurisdiction in a nar-row sense of jurisdiction , or else to irregularities in procedure which,as D. M. Gordon sorrowfully observes,50 English judges have oftentended to equate with lack of jurisdiction. Of the eleven cases afterPlowright from 1698until 1892which Mr. Gordon cites as illustratingthe wider doctrine, all with the possible exception of R. u ]ameP14 1875) L R 10 Q B 587.3 119.511 1 K B 711, at 720.

4 4 [I9521 1 K B 338, at 349.sa 5 Mod. 416, at 417; 87 E.R. 739, at 740.6 Ibid at 418.

47 In 2 Salk. 486, 91 E R 417.8 For example, in 1696) 2 Salk. 475. 91 E.R. 408.4Verhaps in this procedure can be found the origin of the principle that aninferior court, while not bound to state reasons for decision, may have itsderision quashed if it gives reasons and they are wrong he theory of the

speaking order expounded in the Walsall and Nat Bell Liquor cases. Ifthe view of the dicta in the Ruislip case given above is correct, then thefirst statement of the speaking order principle is to be found not therebut in R. v. Audly, 1701) 2 Salk. 526. 91 E R 448, though that also mighthave been a case specially stated.6 In 67 L Q REV. 452, at 455.5 1814) 2 M. S. 321, 105 E.R. 401.


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(and R . v . G l y d e noted to that decision) can be treated as relatingto matters of form rather than of substance. The point is well illus-trated by another decision on which much reliance was placed inS h a w , namely, Groenwelt v Burwell. Certiorari was sought to quashthe imposition of a fine by the College of Physicians for malpracticein physic; the Physicians were a court of record since they had statu-tory power to fine. Certiorari was denied, and the proceedings on thatpart of the case are very scrappily reported. But the plaintiff thenattacked the Physicians colla.terally in an action for trespass, and ont lose proceedings, which arc very fully reported, Holt C.J. and hisbrothers discussed at length the control of inferior courts of record.The function of certiorari was referred to in several passages of thetrespass case, and according to some of the reports was stated invery general terms; but Leach's Report expresses the matter"We do take it, that wherc a Court in its nature is a Court of Record,a certiorari will lie to it, by reason of the great superiority of thisCourt; which may command them to send their proceedings beforethem up hither, that it may be seen whether they confine themselvesto their jurisdiction; which if they exceed, this Court may correctthem And the Cour t is to exa mine , as far as appea rs on record,that they have not exceeded their authori ty and if the y have-, ornot pursued the Act , to quash the pr~c eed in g. ~'This likewise seemsto put the stress on irregularity of procedure rather than on errorof law in gencral. Mr. S. A de Smith has showd5 that in some of theearly examples of rcview of law cited in S h a w , the authority to dothis was derived from statute. I t is possible that the control overfines imposed by the Commissioners of Sewers, referred to by DenningL.J.,"O was based on thc reservation of those fines to the Crown in 5Hen. VIII, c. 5;-j7 the special responsibility of the King?s Courts forthe revenuo was also mentioned in the Chimney Money Case .B8

The abovc considerations considerably reduce one's surprise atthe doctrine of error of law on the record having been so persistentlyz 1698) 1 Salk. 145. 01 E.R. 34: Holt 184. 90 E.R. 1000; 1 Ld. Raym. 45401 E.R. 1202: 12 Xlod. 386. 88 E.R. 1398.; 2 Llod. 386. at 390; 88 E.R. 1398, at 1400.

714 \Vritcr's italics. T h e omissiorl is occupied in th e te xt by not, an obviousslip.In 14 MOD . REV 07.[I9521 1 K.B. 338, a t 350.

57 See the comment by Rramston C J n Commins v. hlassam, March N.R.196, at 202; the passage is ambiguous, but the punctuation given in 82 E ng-lish Reports at 475 suggests that the power t o modify fines was attr ibutedto the statutes.s 3 Mod. 94; 87 E.R. 60, slr 1~0111 he King v. P lowright .


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ignored, as far as administrative tribunals are concerned, after thescope of certiorari was extended to courts not of record. They alsoreduce one's puzzlement at the silences and the contradictions of thepractice writers, referred to by Mr. Gordon. One would not expecta well defined doctrine of great age to ha~re emained buried in thereports until the publication of the first edition of Halsbury s La wsof England in 1909, which Mr. Gordon gives as the first confidentstatement of the true doctrine. But if the history of certiorari onthese matters is as modern and as confused as the above accountsuggests, then the situation becomes plainer. We have had a develop-ment of the law along familiar lines of advance and retreat, withexplanation varying from a general politico-constitutional doctrine(the supreme function of the King's Courts) to nice points of wordingin a writ (the precise phrases of the certiorari), finishing up with anapplication of this form of control to types of tribunal which on theoriginal definition of the scope of the writ were quite beyond itsprovenance.

Viewed in this light, the decision in Shaw does mark a significantstep in development, and not merely the self-evident application of awell-established rule. I t would be ,convenient to be able to criticisethat step wholly in terms of public policy, and the lines of such acriticism might run as follows. It is desirable in the contemporarycollectivist and social service state that the discretionary functions ofadministrators should be subject to a reasonable degree of control bysome central judicial authority, which can sustain traditions of scru-pulously fair hearing and a more or less standardised technique ofinterpretation, and can relate administrative action to the generallegal system. Since the English legal system lacks any other instrumentfor this purpose, the judges show a healthy sense of their responsibilitiesby developing appropriate controls on their own initiative. Such deve-lopments are likely to be more flexible, cautious, and organically soundthan legislatively designed control systems. Against this: Administra-tive discretions have been designed inter alia to achieve speed, flexibi-lity, and cheapness; all these will be endangered if judicial reviewis extended. Review confined to error on a pseudo-record will belimited and capricious in its operation. Administrators will often betempted to keep as much out of the record as possible, and to refuseto give reasons for decision. At this date, a satisfactory system of con-trol of administrative decisions can be carried out only by legislation,in which provision is made not only for appeals but also for the reorganisation of the administrative bodies giving initial decisions alongthe lines of the United States Administrative Procedure Act 1946.


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Although some of these policy considerations were at least men-tioned by both courts in Shaw reasoning based on definitions andprecedents was, in the English manner, given first place. Along thisline, there is similarly a conflict of arguments. For the decision, it c nbe said simply that certiorari has for a long time been available tocorrect error of law on the face of a record at least to the extentpursued in this case, and that the extension of certiorari to courts notof record having already been carried out, the court must now seekthe equivalent of a record in the lower tribunal and apply the estab-lished doctrine. Against this, it can be said that previous failure tomention such a possibility in the cases dealing with administrativetribunals not of record was no oversight, but a logical development ofthe pre-existing position,6O as follows. When certiorari was used only inrelation to courts of record, it was well established doctrine that youcould go outside the record, by means of affidavit evidence, only if youalleged failure of jurisdiction; otherwise you were confined to whatthe record disclosed. A tribunal not of record cannot in a technicalsense possess a record; therefore its decisions can be attacked only byreference to material proved by affidavit evidence; applying the olderdoctrine, this can refer only to matters suggesting excess of jurisdiction.The analytical reasoning is therefore not conclusive.

A subsidiary question which gives constant difficulty in the hand-ling of certiorari cases, and has some bearing on the policy problem,is the scope of the concept of jurisdiction. In Reg. v. Bolton el LordDenman attempted to put this matter on a basis of pure logic: Thequestion of jurisdiction does not depend on the truth or falsehood ofthe charge, but upon its nature; it is determinable at the commence-ment, not at the conclusion, of the inquiry ; Mr. D. M. Gordon hasin many articles attempted to restrict the concept of jurisdiction to 'a similar rational basis.%*But the common law judges have neveraccepted so restricted a concept, and it is plain enough that thequestion is at bottom one of policy, not of logic. Jurisdiction fallsto be defined here in order to delimit the function of superior courts

T he question hat documents constitute the rec ord ? as discussed byDenning T .J. in Shaw, [I9521 K.B. 338, a t 352, 354, and by Mr. Ander sonin 1951) QUFXNSLANT).J. 3 ) a t 51. I t is suggested with respect thatDenning L.J. was over-optimistic in his view that the initiating document,the pleadings and the adjudic ation, would have disclosed th e er ro r inS h aw ; tha t could appe ar only from reasons for decision o r evidence.

6 I t is not suggested that any court actually so reasoned.6 1841) 1 Q.B. 66, 113 E.R. 1054.62 Tl te Relation of Fa cts to Jtrrisdiction 1929) 45 L Q REV. 459 ; T h eO b s e n ~ a n c e f L a w as a Co ndi tio n of Jlcrisdiction 1931) 47 L Q REV. 386,557; and his notes mentioned nlpra


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when controlling inferior courts; in its broadest statement, keepingthe inferior tribunal within its jurisdiction may be equated withcompelling the inferior tribunal to observe the law , i.e., what thesuperior tribunal considers the law to be. The objection to so wide aconcept is not logical, but practical; it is usually desired, for reasonsof expediency, to give the inferior decision some degree of finality,or, as is often said, some jurisdiction to go wrong. But it is almostnever the case that the sovereign power is content to define only thenature of the dispute which the tribunal is to decide-the thresholdquestion. It usually requircs also that the tribunal should be restrictedto solutions arrived at within a certain range, by reference to certainstandards of judgment, or for certain purposes. The limits of thecontrol to be exercised can vary in many ways, and whether youchoose to describe the types of limitation separately or include themall within the term jurisdiction is a semantic, not a logical, problem.It would be a help if we could abandon the disputed term juris-diction and speak instead of authority to decide. The inveteratetendency of the common law judges is to use jurisdiction in a broadsense, as is well illustrated by the classic judgment of Lord Sumner inR. v Nut Bell Liquors he begins the relevant part of the opinion byasserting that the function of certiorari is to keep the lower courtwithin jurisdiction,B3 and concludes by saying:%* Supervision goesto two points: one is the area of the inferior jurisdiction and the quali-fications and conditions of its exercise; the other is the observance ofthe law in the course of its exercise. I t does not appear that he con-sidered the latter any less a matter of jurisdiction than the former.66Along these lines, jurisdictional control has come to include fairhearing, acting on relevant considerations and pursuing authorisedpurposes, and these matters are tested not on the whimsical basis ofwhat reaches a record, but on the full facts, shown by affidavit. Thismay be as ample a control as is consistent with other purposes ofadministrative decision.

In this writer's view, the tendency of Shaw is on the whole un-fortunate, and effective control of administrative discretion now requires legislative action.66 I t is true that none of the major political6 [I9221 A.C. 128, at 154-155. hav ing just cited the passage from Reg. v.Bolton above.6 Ibid. at 156.65 It becomes important to consider sub-types of jurisdictional control whenapplying statutory provisions which take away certiorari. Lord Denman sconception may then he adopted; see per Latham C.J. in Boulus r BrokenHill Theatres Pty. Ltd., (1949) 78 Commonwealth L.R. 177, at 192.66 Perhaps Singleton L.J. felt likewise in Shaw, where he suggested legislativeprovision fo r appeal on poin ts of law [I9521 K.B. 338, at 346).


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parties show great interest in the matter. The socialist parties have anaive belief in vesting unnecessarily large discretions in the Executive,particularly in Ministers, and a traditional distrust of control devicessuggested by lawyers. The anti-socialist parties are lukewarm aboutmaking collectivism work better, since in principle they are committedto restricting it, if not destroying it. n such circumstances, the courtscan hardly be blamed for wanting to remedy the situation themselves.But there seems little likelihood of administrative officials gladly co-operating in this effort, and to the extent tha.t they resist the courtsthe ultimate situation is likely to be worse; yet the attempt of thecourts may be taken by the politicians as further evidence that theyneed not intervene. At this writing, haw does not seem to have beendirectly applied in any of the common law jurisdiction~,6~ut it isas yet too early to draw any conclusions from this; perhaps the ad-ministrators have been lying low, or perhaps they have been behavingin an examplary fashion, or perhaps litigants have not had a sufficientmonetary inducement to follow the procedure in Shazu-which, itmust be remembered, was the very model of that sort of hard casesthat tend to create new law.

GEOFFREY SAWER.

i One might have expected the doctrine to have been mentioned in the opinionof the Privy Council in Seereelall Jhuggroo v. Central Arbitration and Con-trol Board, 19531 A.C. 151. where cer t iorar i was sought to correc t analleged er ro r in assessment by an administrative board. Sh aw was cite d;nevertheless their Lordships said (at 161). "the question is not . . whetherthe board was wrong ll the exercise of its discretion, nor even whether itmisconsfrtred t he zc~ord s of the Ord ina~ lce (writer's italics) "but whetherit took into consideration mat ters outside the ambit of its jurisdiction . .Probah y no er ro r appeared on the "record," but the point is not m entionedin the opinion.B.A., L1L.M. Melb .) ; Professor of Law, and Dean of the Research Schoolof Sooicrl Sciences, Australian National University.


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AN HISTORICAL ADDENDUM

This note is concerned with the earl ier history of cert iorari onlya n d is mainly directed to th e prev ention of too hasty assumptionsthat there is no direct , discernible l ink between cert iorari as used inShaw a n d its use in the c rea tive period of Eng lish 1a.w. F o r thisreason I d o not think th at i t is qu i te enoug h to say1 tha t combinedresearch so far under taken in this pa pe r goes back to Ed wa rd IFor my own par t , I have done no more than look at the bas ic equip-ment of research, as i t were, and have not consulted the black-let teredit ions nor even the Rolls series . Again, the most careful examina-t ion would be incomplete if i t lacked ac qu ain tan ce ~ v i th he confinesof the Public Record Office. In this respect I feel sure that the useof cert iorari cannot have been entirely abandoned during the yaars130 0 to 160 0 as a m ean s of control l ing cou rts of inferior jurisdict iona n d have becn relegate? to the posi tion of assis tant to o the r wri ts . Iam fortified in this vie\?. by Jenks's treatment of h a b e a s c o r p u s c u mcausa ad a mere adju nct to two impo r tant writ s Or ig ina l, the wr itof Certiorari and the writ of Privilege in th e fifteenth crn tur)..? Againthere is the view of Putnanl in P ~ o c e e d i n g s e jo l e J u st ic es of t h e P e a c eE d w a r d I IP t o R i c h a r d 111 3 uh cr e she t r ea ts cer t iorar i a? serv ing

much the same purpose as the wr i t of r r ror . I t mu st also be reme m-bered :hat both Putnam's work a n d volum e 57 of thr Selden Societycontain only selected cases.

Such reflections as these incline me to the view that ProfessorSaw er himself m a,y be un de r the tyrann y of th e formu lary system. 'As was impl ied by Lord Goddard in S h d ~ ~he writ of error replacedcert iorari in dealing ~ i t h our ts of record, a n d the assumpt ion inProfessor Sawer's paper that certiorari is a novelty in the field oferror implies th at the l t r i t of erro r was the tyran t in such a f ieldand t ha t any o t he r wr i t uou l d h a \ - c h w n i ~ n p r o p e r .My own viewof the prerogative writs--a view strength ened by the epith et 'prero-gative'-is th at th ere S nothing as tonishing in a par t icular exampleof their use being al lowed to fal l dormant though never into obsoles-cense by non-ure. I t is not therefore unt i l the late T u d o r per iod tha tsuch a use need ed revival-if indeed this is th e co rrec t wo rd to use.

See p 27, slipra.2 Edward Jenks, T h e Story of Habeas Corpus (1902) 18 L.Q. Rev. 64 at 69.3 Published by T he Ames Foun dation (1938) see lxiv, Ixxii, 57, 99-100.4 See p. 27, supra.5 [I9511 1 K.B. 711, at 715.


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Furthermore, the acknowledgment of the king's presencc in proceedingscoram rege temp. Edward I, and indeed the frequency of Teste meipso on the writs so far discovered, seem to me to point direct, nonobst nte th Judicature Act, to the present status of the Queen'sBench Division on its crown side. I n conclusion, therefore, I feelthat the exercise of extreme caution is necessary before concludingthat certiorari necessarily played a subordinate role until 1600.~

JOHN ILIFFE*

6 See for example. Brook's Kew Cases 31, 73 E.R. 860; is this to be readas making certicrari of subsidiary importance or merely as an explanationof the correct machinery involved in its use? See also Prine v. Allington,(1602) Moore K.B. 677 72 E.R. 833, for a note on the distinction betweenacts judicial and ministerial and the liability of justices of the peace foracts done after receipt of a certiorari.M.A. B.C.L. Oron.); Lecturer in Lam University o Tatmania, 1952

error on the face of the law

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