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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Ridge v Baldwin (No 1) [1963] UKHL 2 (14 March 1963) URL: http://www.bailii.org/uk/cases/UKHL/1963/2.html Cite as: [1964] AC 40, [1963] UKHL 2 |
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Parliamentary Archives, HL/PO/JU/4/3/1111
HOUSE OF LORDS
RIDGE (A.P.) v.
BALDWIN and others
Lord Reid
14th March 1963.
Lord Reid Lord Evershed Lord Morris of Borth-y-Gest LordHodson LordDevlin
My Lords,
The Appellant, Mr. Ridge, became Chief Constable of the County Borough of Brighton in 1956, after serving in the Brighton Police Force for some thirty-three years. At a meeting of the Watch Committee, the police authority, on 7th March, 1958, it was resolved that he should be dismissed, and he now maintains that that resolution was void and of no effect because he had no notice of the grounds on which the Committee proposed to act and no opportunity to be heard in his own defence.
The Appellant had been arrested on 25th October, 1957, and subsequently tried on a charge of conspiring with the senior members of his force and others to obstruct the course of justice, and had been suspended from duty on 26th October. He was acquitted on 28th February, but the other two members of the force were convicted and in sentencing them the trial Judge, Donovan, J., made a statement which included grave reflections on the Appellant's conduct. He was then indicted on a charge of corruption and was on 6th March acquitted, no evidence having been offered against him. On this occasion Donovan, J. made a further statement. On the day following that statement the Watch Committee met and summarily dismissed the Appellant. I shall not deal further with these matters because my noble and learned friend, Lord Morris of Borth-y-Gest, intends to do so.
The power of dismissal is contained in section 191 (4) of the Municipal Corporations Act, 1882. So far as I am aware that subsection is the only statutory provision regarding dismissal, and the Respondents purported to act under it. It is in these terms :
" The
watch committee, or any two justices having jurisdiction in
" the borough,
may at any time suspend, and the watch committee
" may at any time dismiss,
any borough constable whom they think
" negligent in the discharge of his
duty, or otherwise unfit for the same."
The Appellant maintains that the Watch Committee ought to have pro- ceeded in accordance with regulations made under the Police Act, 1919, section 4 (1), which authorised the Secretary of State to make regulations as to, inter alia, the conditions of service of the members of all police forces in England and Wales. Regulations were duly made, but the Respondents maintain that they do not apply to this case. For the moment I shall assume in their favour that that is so and consider whether the Act of 1882 taken by itself authorised them to do as they did.
The Appellant's case is that in proceeding under the Act of 1882 the Watch Committee were bound to observe what are commonly called the principles of natural justice. Before attempting to reach any decision they were bound to inform him of the grounds on which they proposed to act and give him a fair opportunity of being heard in his own defence. The authorities on the applicability of the principles of natural justice are in some confusion, and so I find it necessary to examine this matter in some detail. The principle audi alteram partem goes back many centuries in our law and appears in a multitude of judgments of judges of the highest authority. In modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured there- fore it does not exist. The idea of negligence is equally insusceptible of exact definition, but what a reasonable man would regard as fair procedure in particular circumstances and what he would regard as negligence in
2
particular circumstances are equally capable of serving as tests in law, and natural justice as it has been interpreted in the Courts is much more definite than that. It appears to me that one reason why the authorities on natural justice have been found difficult to reconcile is that insufficient attention has been paid to the great difference between various kinds of cases in which it has been sought to apply the principle. What a Minister ought to do in considering objections to a scheme may be very different from what a Watch Committee ought to do in considering whether to dismiss a Chief Constable. So I shall deal first with cases of dismissal. These appear to fall into three classes, dismissal of a servant by his master, dismissal from an office held during pleasure, and dismissal from an office where there must be something against a man to warrant his dismissal.
The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them. The present case does not fall within this class because a Chief Constable is not the servant of the Watch Committee or indeed of anyone else.
Then there are many cases where a man holds an office at pleasure. Apart from judges and others whose tenure of office is governed by statute, all servants and officers of the Crown hold office at pleasure, and this has even been held to apply to a colonial judge (Terrell v. Secretary of State for the Colonies and Another [1953] 2 Q.B. 482). It has always been held, I think rightly, that such an officer has no right to be heard before he is dismissed, and the reason is clear. As the person having the power of dismissal need not have anything against the officer, he need not give any reason. That was stated as long ago as 1670 in Rex v. Mayor of Stratford, 1 Lev. 291, where the Corporation dismissed a Town Clerk who held office durante bene placito. The leading case on this matter appears to be the Darlington School case (1844) 6 Q.B. 682, although that decision was doubted by Lord Hatherley, L.C. in Dean v. Bennett, 6 Ch. App. 489, and distinguished on narrow grounds in Willis v. Childe, 13 B. 117. I fully accept that where an office is simply held at pleasure the person having power of dismissal cannot be bound to disclose his reasons. No doubt he would in many cases tell the officer and hear his explanation before deciding to dismiss him. But if he is not bound to disclose his reason and does not do so, then, if the Court cannot require him to do so, it cannot determine whether it would be fair to hear the officer's case before taking action. But again that is not this case. In this case the 1882 Act only permits the Watch Committee to take action on the grounds of negligence or unfitness. Let me illustrate the difference by supposing that a Watch Committee who had no complaint against their present Chief Constable heard of a man with quite outstanding qualifications who would like to be appointed. They might think it in the public interest to make the change, but they would have no right to do it. But there could be no legal objection to dismissal of an officer holding office at pleasure in order to put a better man in his place.
So I come to the third class, which includes the present case. There I find an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation. An early example is Bagg's case (1615) 11 Co. Rep. 93b, though it is more properly deprivation of the privilege of being a burgess of Plymouth. Rex v. Gaskin (1799) 8 Durn & East 209, arose out of the dismissal of a Parish Clerk, and Lord Kenyon, C.J. referred to audi alteram partem as one of the first principles of justice. Reg. v. Smith (1844) 5 Q.B. 614 was another case of dismissal of a Parish Clerk, and Lord
3
Denman,
C.J. held that even personal knowledge of the offence was no sub- stitute
for hearing the officer: his explanation might disprove criminal motive or
intent and bring forward other facts in mitigation, and in any
event delaying to hear him would prevent yielding too hastily to first
impressions. Ex pane Ramshay (1852) 21 L.J. 238 is important. It
dealt with the removal from office of a county court judge, and the form of
the legislation which authorised the Lord Chancellor to act is hardly
distinguishable from the form of section 191 which confers powers on the
Watch Committee. The Lord Chancellor was empowered if he should think fit
to remove on the ground of inability or misbehaviour, but Lord Campbell,
C.J. said that this was " only
" on the implied condition prescribed by the
principles of eternal justice ".
In Osgood v. Nelson, L.R. 5
H.L. 636, objection was taken to the way in which the Corporation of the
City of London had removed the Clerk to the Sheriff's Court, and Lord
Hatherley, L.C. said (p. 649):
" I apprehend, my Lords, that,
" as has been
stated by the learned Baron who has delivered, in the name of
" the Judges,
their unanimous opinion, the Court of Queen's Bench has always
" considered
that it has been open to that Court, as in this case it appears to
" have
considered, to correct any Court, or tribunal, or body of men who may
"
have a power of this description, a power of removing from office, if it
"
should be found that such persons have disregarded any of the essentials
"
of justice in the course of their enquiry, before making that removal, or
"
if it should be found that in the place of reasonable cause those persons
"
have acted obviously upon mere individual caprice ".
That citation of authority might seem sufficient, but I had better proceed further. In Fisher v. Jackson [1891] 2 Ch. 84, three vicars had power to remove the Master of an endowed school. But, unlike the Darlington case (cit. sup.) the trust deed set out the grounds on which he could be removed —briefly, inefficiency or failing to set a good example. So it was held that they could not remove him without affording him an opportunity of being heard in his own defence. Only two other cases of this class were cited in argument, Cooper v. Wilson and Others [1937] 2 K.B. 309, and Hogg v. Scon [1947] K.B. 759. Both dealt with the dismissal of police officers and both were complicated by consideration of regulations made under the Police Acts. In the former the majority at least recognised that the principles of natural justice applied, and in deciding the latter Cassels, J., in deciding that a Chief Constable could dismiss without hearing him an officer who had been convicted of felony, appears to have proceeded on a construction of the regulations. Of course, if the regulations authorised him to do that and were intra vires in doing so, there would be no more to be said. I do not think it necessary to consider whether the learned judge rightly construed the regulations, for he did not expressly or, I think, by implication question the general principle that a man is not to be dismissed for misconduct without being heard.
Stopping there, I would think that authority was wholly in favour of the Appellant, but the Respondent's argument was mainly based on what has been said in a number of fairly recent cases dealing with different subject matter. Those cases deal with decisions by Ministers, officials and bodies of various kinds which adversely affected property rights or privileges of persons who had had no opportunity or no proper opportunity of presenting their cases before the decisions were given. And it is necessary to examine those cases for another reason. The question which was or ought to have been considered by the Watch Committee on 7th March, 1958, was not a simple question whether or not the Appellant should be dismissed. There were three possible courses open to the Watch Committee—reinstating the Appellant as Chief Constable, dismissing him, or requiring him to resign. The difference between the latter two is that dismissal involved forfeiture of pension rights, whereas requiring him to resign did not. Indeed, it is now clear that the Appellant's real interest in this appeal is to try to save his pension rights.
It may be convenient at this point to deal with an argument that, even if as a general rule a Watch Committee must hear a constable in his own defence before dismissing him, this case was so clear that nothing that the Appellant could have said could have made any difference. It is at least
4
very doubtful whether that could be accepted as an excuse. But even if it could, the Respondents would, in my view, fail on the facts. It may well be that no reasonable body of men could have reinstated the Appellant. But as between the other two courses open to the Watch Committee the case is not so clear. Certainly on the facts as we know them the Watch Com- mittee could reasonably have decided to forfeit the Appellant's pension rights, but I could not hold that they would have acted wrongly or wholly unreasonably if they had in the exercise of their discretion decided to take a more lenient course.
I would
start an examination of the authorities dealing with property rights and
privileges with Cooper v. Wandsworth Board of Works (1863)
14 C.B.N.S. 180. Where an owner had failed to give proper notice to
the Board they had under an Act of 1855 authority to demolish any
building he had erected and recover the cost from him. This action was
brought against the Board because they had used that power without giving
the owner an opportunity of being heard. The Board maintained that
their discretion to order demolition was not a judicial discretion and that
any appeal should have been to the Metropolitan Board of Works. But
the Court decided unanimously in favour of the owner. Erie, C.J. held
that the power was subject to a qualification repeatedly recognised that no
man is to be deprived of his property without his having an opportunity
of being heard and that this had been applied to
" many exercises of
power
" which in common understanding would not be at all a more
judicial
" proceeding than would be the act of the district board in
ordering a
" house to be pulled down ". Willes, J. said that the rule was "
of universal
" application and founded upon the plainest principles of
justice", and Byles, J. said that " although there are no positive words in
a statute
" requiring that the party shall be heard yet the justice of the
common
" law will supply the omission of the legislature
".
This
was followed in Hopkins and Another v. Smethwick Local Board
of Health, 24 Q.B.D. 712. Willes, J. said:
" In condemning a man to
have his
" house pulled down, a judicial act is as much implied as in
fining him £5 ;
" and as the local board is the only tribunal that can make
such an order its
" act must be a judicial act, and the party to be
affected should have a notice
" given him. . . . The judgment of Willes,
J." (in Cooper's case) " goes far
" more upon the nature of the thing done
by the board than on the
" phraseology of the Act itself. It deals with the
case on principle; from
" the nature of the thing done it must be a
judicial act, and justice requires
" that the man should be heard". In the
Court of Appeal Lord Esher, M.R. in dismissing an appeal expressly approved
the principles laid down in Cooper's case.
The
principle was applied in different circumstances in Smith v. The
Queen, 3 App. Cas. 614. That was an action of ejectment on the
alleged forfeiture of a Crown lease in Queensland. The Governor was
entitled to forfeit the lease if it had been proved to the satisfaction of
a Commissioner that the lessee had abandoned or ceased to reside on the
land. The Com- missioner did not disclose to the lessee the case against
him so that he had no opportunity to meet it, and therefore his decision
could not stand. The Commissioner was not bound by any rules as to
procedure or evidence but he had to conduct his enquiry
"according to the
requirements of substantial justice ".
In De Verteuil v. Knaggs
and Another [1918] A.C. 557, the Governor of Trinidad was entitled to
remove immigrants from an estate
" on sufficient ground shewn to his
satisfaction ". Lord Parmoor said that
" the acting Governor was not called
upon to give a decision on an appeal
" between parties, and it is not
suggested that he holds the position of
" a judge or that the appellant is
entitled to insist on the forms used in
" ordinary judicial procedure ",
but he had " a duty of giving to any person
" against whom the complaint is
made a fair opportunity to make any
" relevant statement which he may
desire to bring forward and a fair oppor-
" tunity to correct or controvert
any relevant statement brought forward
" to his prejudice ". The duty of an
official architect in fixing a building
5
line was stated in somewhat similar terms in Spackman v, Plumstead District Board of Works, 10 App. Cas. 229.
I shall
now turn to a different class of case—deprivation of membership of a
professional or social body. In Wood v. Woad, L.R. 9 Ex. 190,
the Committee purported to expel a member of a mutual insurance
society without hearing him, and it was held that their action was void and
so he was still a member. Kelly. C.B. said of audi alteram partem:
"
This rule is
" not confined to the conduct of strictly legal tribunals,
but is applicable
" to every tribunal or body of persons invested with
authority to adjudicate
" upon matters involving civil consequences to
individuals".
This was expressly approved by Lord Macnaghten giving the
judgment of the Board in Lapointe v. L'Association de
Bienfaisance et de Retraite de la Police de Montreal [1906] A.C. 535.
In that case the board of directors of the associa- tion had to decide
whether to give a pension to a dismissed constable—the very point the Watch
Committee had to decide in this case—and it was held that they had to
observe " the elementary principles of justice ".
Then
there are the club cases, Fisher v. Keane, 11 Ch. D. 353,
and Dawkins v. Antrobus, 17 Ch. D. 615. In the former Lord
Jessel, M.R., said
" clubs, or by any other body of persons who decide upon
the conduct of
" ordinary rules by which justice should be administered by
committees of of the Committee: " They ought not, as I understand it,
according to the
" others, to blast a man's reputation for ever—perhaps to
ruin his prospects
" for life, without giving him an opportunity of either
defending or palliating
" his conduct" (p. 363).
In the latter case it was
held that nothing had been done contrary to natural justice. In
Weinberger v. Inglis and Others {19191 A.C. 606 a member of enemy
birth was excluded from the Stock Exchange, and it was held that the
Committee had heard him before acting. Lord Birkenhead, L.C. said :
" If I
took the view that the appellant was condemned
" upon grounds never brought
to his notice, I should not assent to the
" legality of this course, unless
compelled by authority" (p. 616).
He said this although the rule under
which the Committee acted was in the widest possible terms—that the
Committee should each year re-elect such members as they should deem
eligible as members of the Stock Exchange.
I shall not at present advert to the various trade union cases because I am deliberately considering the state of the law before difficulties were introduced by statements in various fairly recent cases. It appears to me that if the present case had arisen thirty or forty years ago the Courts would have had no difficulty in deciding this issue in favour of the Appellant on the authorities which I have cited. So far as I am aware none of these authorities has ever been disapproved or even doubted. Yet the Court of Appeal have decided this issue against the Appellant on more recent authorities which apparently justify that result. How has this come about?
At least three things appear to me to have contributed. In the first place there have been many cases where it has been sought to apply the principles of natural justice to the wider duties imposed on Ministers and other organs of government by modern legislation. For reasons which I shall attempt to state in a moment it has been held that those principles have a limited application in such cases and those limitations have tended to be reflected in other decisions on matters to which in principle they do not appear to me to apply. Secondly, again for reasons which I shall attempt to state, those principles have been held to have a limited applica- tion in cases arising out of war-time legislation ; and again such limitations have tended to be reflected in other cases. And thirdly, there has I think been a misunderstanding of the judgment of Atkin, LJ. in Rex v. Electricity Commissioners. Ex parte London Electricity Joint Committee Company (1920), Limited, and Others [1924] 1 K.B. 171.
In cases of the kind I have been dealing with the Board of Works or the Governor or the Club Committee was dealing with a single isolated case. It was not deciding, like a judge in a lawsuit, what were the rights of the person before it. But it was deciding how he should be treated—something analogous to a judge's duty in imposing a penalty. No doubt policy would play some part in the decision—but so it might when a judge is imposing
30600
6
a sentence. So it was easy to say that such a body is performing a quasi judicial task in considering and deciding such a matter and to require it to observe the essentials of all proceedings of a judicial character—the principles of natural justice.
Sometimes the functions of a Minister or Department may also be of that character, and then the rules of natural justice can apply in much the same way. But more often their functions are of a very different character. If a Minister is considering whether to make a scheme for, say, an important new road, his primary concern will not be with the damage which its con- struction will do to the rights of individual owners of land. He will have to consider all manner of questions of public interest and, it may be, a number of alternative schemes. He cannot be prevented from attaching more importance to the fulfilment of his policy than to the fate of individual objectors, and it would be quite wrong for the courts to say that the Minister should or could act in the same kind of way as a board of works deciding whether a house should be pulled down. And there is another important difference. As explained in Local Government Board v. Arlidge [1915] A.C. 120, a Minister cannot do everything himself. His officers will have to gather and sift all the facts, including objections by individuals, and no individual can complain if the ordinary accepted methods of carrying on public business do not give him as good protection as would be given by the principles of natural justice in a different kind of case.
We do not have a developed system of administrative law—perhaps because until fairly recently we did not need it. So it is not surprising that in dealing with new types of cases the courts have had to grope for solutions, and have found that old powers, rules and procedure are largely inapplicable to cases which they were never designed or intended to deal with. But I see nothing in that to justify our thinking that our old methods are any less applicable today than ever they were to the older types of case. And if there are any dicta in modern authorities which point in that direction, then in my judgment they should not be followed.
And now I must say something regarding war-time legislation. The older authorities clearly shew how the courts engrafted the principles of natural justice on to a host of provisions authorising administrative interference with private rights. Parliament knew quite well that the courts had an inveterate habit of doing that and must therefore be held to have authorised them to do it unless a particular Act shewed a contrary intention. And such an intention could appear as a reasonable inference as well as from express words. It seems to me to be a reasonable and almost an inevitable inference from the circumstances in which Defence Regulations were made and from their subject-matter that at least in many cases the intention must have been to exclude the principles of natural justice. War-time secrecy alone would often require that, and the need for speed and general pressure of work were other factors. But it was not to be expected that anyone would state in so many words that a temporary abandonment of the rules of natural justice was one of the sacrifices which war conditions required —that would have been almost calculated to create the alarm and despon- dency against which one of the Regulations was specifically directed. And I would draw the same conclusion from another fact. In many Regula- tions there was set out an alternative safeguard more practicable in war time—the objective test that the officer must have reasonable cause to believe whatever was the crucial matter. (I leave out of account the very peculiar decision of this House in Liversidge v. Sir John Anderson and Another [1942] A.C. 206.) So I would not think that any decision that the rules of natural justice were excluded from war-time legislation should be regarded as of any great weight in dealing with a case such as this case which is of the older type, and which involves the interpretation of an Act passed long before modern modifications of the principles of natural justice became necessary, and at a time when, as Parliament was well aware, the courts habitually applied the principles of natural justice to provisions like section 191 (4) of the 1882 Act.
7
The
matter has been further complicated by what I believe to be
a misunderstanding of a much quoted passage in the judgment of Atkin,
L.J. in Rex v. Electricity Commissioners [1924] 1 K.B. 171. He said
(at p. 205):
" The operation of the writs [of prohibition and certiorari]
has extended to
" control the proceedings of bodies which do not claim to
be, and would not
" be recognised as, Courts of Justice. Wherever any body
of persons having
" legal authority to determine questions affecting the
rights of subjects, and
" having the duty to act judicially, act in excess
of their legal authority, they
" are subject to the controlling
jurisdiction of the King's Bench Division
" exercised in these
writs."
A gloss
was put on this by Lord Hewart, CJ. in Rex v. Legislative Com- mittee of
the Church Assembly. Ex parte Haynes-Smith [1928] 1 K.B. 411. There it
was sought to prohibit the Assembly from proceeding further with the Prayer
Book Measure, 1927. That seems to me to have no resemblance to a question
whether a person should be deprived of his rights or privileges, and the
case was decided on the ground that this was a deliberative or legislative
body and not a judicial body. Salter, J. put it in a few lines (p. 419):
"
The person or body to whom these writs are to go must be a
" judicial body
in this sense that it has power to determine and to decide;
" and the power
carries with it, of necessity, the duty to act judicially. I
" think that
the Church Assembly has no such power, and therefore no such duty."
But
Lord Hewart said, having quoted the passage from Lord Justice Atkin's
judgment:
" The question, therefore, which we have to ask
" ourselves in
this case is whether it is true to say in this matter, either of
" the
Church Assembly as a whole, or of the Legislative Committee of the
" Church
Assembly, that it is a body of persons having legal authority to
"
determine questions affecting the rights of subjects, and having the duty
to
" act judicially. It is to be observed that in the last sentence which I
have
" quoted from the judgment of Atkin, L.J. the word is not ' or' but '
and '.
" In order that a body may satisfy the required test it is not
enough that it
" should have legal authority to determine questions
affecting the rights of
" subjects; there must be superadded to that
characteristic the further
" characteristic that the body has the duty to
act judicially. The duty to
" act judicially is an ingredient which, if the
test is to be satisfied, must be
" present. As these writs in the earlier
days were issued only to bodies
" which without any harshness of
construction could be called, and naturally
" would be called Courts, so
also today these writs do not issue except to
" bodies which act or are
under the duty to act in a judicial capacity."
I have quoted the whole of this passage because it is typical of what has been said in several subsequent cases. If Lord Hewart meant that it is never enough that a body simply has a duty to determine what the rights of an individual should be, but that there must always be something more to impose on it a duty to act judicially before it can be found to observe the principles of natural justice, then that appears to me impossible to reconcile with the earlier authorities. I could not reconcile it with what Lord Denman, C.J. said in Reg. v. Smith or what Lord Campbell, C.J. said in Ex parte Ramshay, or what Lord Hatherley, L.C. said in Osgood v. Nelson, or what was decided in Cooper v. Wandsworth Board of Works or Hopkins v. Smethwick Local Board of Health, or what Lord Parmoor said in De Verteuil v. Knaggs, or what Kelly, C.B. said, with the subsequent approval of Lord Macnaghten, in Wood v. Woad, or what Lord Jessel. M.R. said in Fisher v. Keane, or what Lord Birkenhead, L.C. said in Weinberger v. Inglis, and that is only a selection of the earlier authorities. And, as I shall try to shew, it cannot be what Lord Justice Atkin meant.
In
Rex v. Electricity Commissioners the Commissioners had a
statutory duty to make schemes with regard to electricity districts and to
hold local enquiries before making them. They made a draft scheme which in
effect allocated duties to one body which the Act required should be
allocated to a different kind of body. This was held to be ultra vires,
and the question was whether prohibition would lie. It was argued that
the proceedings of the Commissioners were purely executive and controllable
by Parliament alone. Bankes, L.J. said:
" On principle and on authority it
is in my opinion
" open to this Court to hold, and I consider that it
should hold, that powers
8
" so
far reaching, affecting as they do individuals as well as property, are
"
powers to be exercised judicially, and not ministerially or merely, to
use
" the language of Palles, C.B., as proceedings towards legislation ".
So he inferred the judicial element from the nature of the power. And I
think that Atkin, L.J. did the same. Immediately after the passage which I
said has been misunderstood, he cited a variety of cases and in most of
them I can see nothing " superadded " (to use Lord Hewart's word) to the
duty itself. Certainly Lord Justice Atkin did not say that anything was
superadded. And a later passage in his judgment convinces me that he, like
Bankes, L.J., inferred the judicial character of the duty from the nature
of the duty itself. Although it is long I am afraid I must quote it. (P.
206):
" In the present
" case the Electricity Commissioners have to decide
whether they will con-
" stitute a joint authority in a district in
accordance with law, and with what
" power they will invest that body. The
question necessarily involves the
" withdrawal from existing bodies of
undertakers of some of their existing
" rights, and imposing upon them of
new duties, including their subjection
" to the control of the new body,
and new financial obligations. It also
" provides in the new body a person
to whom may be transferred rights
" of purchase which at present are vested
in another authority. The Com-
" missioners are proposing to create such a
new body in violation of 'the Act
" of Parliament, and are proposing to
hold a possibly long and expensive
" inquiry into the expediency of such a
scheme, in respect of which they
" have the power to compel representatives
of the prosecutors to attend and
" produce papers. I think that in deciding
upon the scheme, and in holding
" the inquiry, they are acting judicially
in the sense of the authorities I
" have cited."
There is not a word in Lord Atkin's judgment to suggest disapproval of the earlier line of authority which I have cited. On the contrary, he goes further than those authorities. I have already stated my view that it is more difficult for the courts to control an exercise of power on a large scale where the treatment to be meted out to a particular individual is only one of many matters to be considered. This was a case of that kind, and, if Lord Atkin was prepared to infer a judicial element from the nature of the power in this case, he could hardly disapprove such an inference when the power relates solely to the treatment of a particular individual.
The authority chiefly relied on by the Court of Appeal in holding that the Watch Committee were not bound to observe the principles of natural justice was Nakkuda Ali v. M. F. De S. Jayaratne [1951] A.C. 66. In that case the Controller of Textiles in Ceylon made an order cancelling the Appellant's licence to act as a dealer, and the Appellant sought to have that order quashed. The Controller acted under a Defence Regulation which empowered him to cancel a licence " where the Controller has reasonable grounds to believe that any dealer is unfit to be allowed to continue as a dealer ".
The
Privy Council regarded that as
" imposing a condition that there
" must in
fact exist such reasonable grounds, known to the Controller, before
" he
can validly exercise the power of cancellation ".
But according to
their judgment certiorari did not lie, and no other means was suggested
whereby the appellant or anyone else in his position could obtain redress
even if the Controller acted without a shred of evidence. It is quite true
that the judgment went on, admittedly unnecessarily, to find that the
Controller had reasonable grounds and did observe the principles of natural
justice, but the result would have been just the same if he had not. This
House is not bound by decisions of the Privy Council, and for my own part
nothing short of a decision of this House directly in point would induce me
to accept the position that, although an enactment expressly requires an
official to have reasonable grounds for his decision, our law is so
defective that a subject cannot bring up such a decision for review however
seriously he may be affected and however obvious it may be that the
official acted in breach of his statutory obligation.
The
judgment proceeds:
" But it does not seem to follow necessarily from
" this
that the Controller must be acting judicially in exercising the
power.
9
" Can
one not act reasonably without acting judicially? It is not difficult
" to
think of circumstances in which the Controller might, in any ordinary
"
sense of the word, have reasonable grounds of belief without having ever
"
confronted the licence holder with the information which is the source of
his
" belief. It is a long step in the argument to say that because a man
is
" enjoined that he must not take action unless he has reasonable ground
for
" believing something he can only arrive at that belief by a course
of
" conduct analagous to the judicial process. And yet, unless that
proposition
" is valid, there is really no ground for holding that the
Controller is acting
" judicially or quasi judicially when he acts under
this regulation. If he
" is not under a duty so to act then it would not be
according to law
" that his decision should be amenable to review and, if
necessary, to avoid-
" ance by the procedure of
certiorari."
I would agree that in this and other Defence Regulation cases the Legisla- ture has substituted an obligation not to act without reasonable grounds for the ordinary obligation to afford to the person affected an opportunity to submit his defence. It is not necessary in this case to consider whether by so doing he has deprived the Courts of the power to intervene if the officer acts contrary to his duty. The question in the present case is not whether Parliament substituted a different safeguard for that afforded by natural justice, but whether in the 1882 Act it excluded the safeguard of natural justice and put nothing in its place.
So far
there is nothing in the judgment of the Privy Council directly relevant to
the present case. It is the next paragraph which causes the difficulty and
I must quote the crucial passage.
" But the basis of the
" jurisdiction of
the Courts by way of certiorari has been so exhaustively
" analysed in
recent years that individual- instances are now only of
" importance as
illustrating a general principle that is beyond dispute. That
" principle
is most precisely stated in the words of Atkin, L.J. in Rex v.
"
Electricity Commissioners"
—and then follows the passage with
which I have already dealt at length. And then there follows the quotation
from Lord Hewart which I have already commented on ending with the
words —
" there must be superadded to that characteristic the further
characteristic
" that the body has the duty to act judicially ". And then
it is pointed out:
" It is that characteristic that the Controller lacks in
acting under Regulation
" 62 ".
Of course, if it were right to say that Lord Hewart's gloss on Lord Justice Atkin stated " a general principle that is beyond dispute ", the rest would follow. But I have given my reasons for holding that it does no such thing, and in my judgment the older cases certainly do not " illustrate " any such general principle—they contradict it. No case older than 1911 was cited in Nakkuda's case on this question, and this question was only one of several difficult questions which were argued and decided. So I am forced to the conclusion that this part of the judgment in Nakkuda's case was given under a serious misapprehension of the effect of the older authorities and therefore cannot be regarded as authoritative.
I would sum up my opinion in this way. Between 1882 and the making of police regulations in 1920 section 191 (4) had to be applied to every kind of case. The Respondents' contention is that, even where there was a doubtful question whether a constable was guilty of a particular act of misconduct, the Watch Committee were under no obligation to hear his defence before dismissing him. In my judgment it is abundantly clear from the authorities I have quoted that at that time the courts would have rejected any such contention. In later cases dealing with different subject- matter opinions have been expressed in wide terms so as to appear to con- flict with those earlier authorities. But learned judges who expressed those opinions generally had no power to overrule those authorities, and in any event it is a salutary rule that a judge is not to be assumed to have intended to overrule or disapprove of an authority which has not been cited to him and which he does not even mention. So I would hold that the power of dismissal in the 1882 Act could not then have been exercised and cannot
10
now be exercised until the Watch Committee have informed the constable of the grounds on which they propose to proceed and have given him a proper opportunity to present his case in defence.
Next comes the question whether the Respondents' failure to follow the rules of natural justice on 7th March was made good by the meeting on 18th March. I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh after affording to the person affected a proper opportunity to present his case then its later decision will be valid. An example is De Verteuil's case. But here the Appellant's solicitor was not fully informed of the charges against the Appellant and the Watch Committee did not annul the decision which they had already published and proceed to make a new decision. In my judgment what was done on that day was a very inadequate substitute for a full rehearing. Even so, three members of the Committee changed their minds and it is impossible to say what the decision of the Committee would have been if there had been a full hearing after disclosure to the Appellant of the whole case against him. I agree with those of your Lordships who hold that this meeting of 18th March cannot affect the result of this appeal.
The other ground on which some of your Lordships prefer to proceed is the Respondents' failure to act in accordance with the police regula- tions. I have had an opportunity of reading the speech about to be delivered by my noble and learned friend, Lord Morris of Borth-y-Gest, and I agree with his views about this. I will only add that the circumstances in which the 1919 Act was passed, and the consequent regulations were made, shew that the regulations must have been intended to have a very wide application, and I see nothing unreasonable in applying them to this case. Dismissing a Chief Constable who has not been convicted of any criminal offence is not a thing to be done lightly. If the whole of the matters against him are disclosed to him and he refuses to admit some or all of them, it seems to me perfectly proper that there should be such an enquiry as the regulations require. In particular, to exclude this case from the ambit of the regulations because the Watch Committee did not proceed on any report or allegation is a very narrow interpretation of the regulations and it would lead to a strange result. Counsel for the Respondents was constrained to admit—he could not reasonably have done otherwise—that if some busybody had formally reported to the Watch Committee the observations of Donovan, J. and required them to deal with these allegations, then the Watch Committee would have been bound to apply the regula- tions. But it would be absurd if the substantive rights of the Appellant were to depend on whether or not someone happened to have made a formal report or allegation to the Watch Committee before they proceeded to deal with the case.
Then there was considerable argument whether in the result the Watch Committee's decision is void or merely voidable. Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void, and that was expressly decided in Wood v. Woad. I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case.
Finally, there is the question whether by appealing to the Secretary of State the Appellant is in some way prevented from now asserting the nullity of the Respondents' decision. A person may be prevented from asserting the truth by estoppel, but it is not seriously argued that that doctrine applies here. Then it is said that the Appellant elected to go to the Secretary of State and thereby waived his right to come to the court. That appears to me to be an attempt to set up what is in effect estoppel where the essential elements for estoppel are not present. There are many cases where two remedies are open to an aggrieved person, but there is no general rule that by going to some other tribunal he puts it out of his power thereafter to assert his rights in court; and there was no express waiver because in appealing to the Secretary of State the Appellant reserved his right to maintain that the decision was a nullity.
11
But then it was argued that this case is special because by statute the decision of the Secretary of State is made final and binding. I need not consider what the result would have been if the Secretary of State had heard the case for the Appellant and then given his own independent decision that the Appellant should be dismissed. But the Secretary of State did not do that. He merely decided " that there was sufficient material on which the Watch Committee could properly exercise their power of dismissal under section 191 (4)". So the only operative decision is that of the Watch Committee, and if it was a nullity, I do not see how this statement by the Secretary of State can make it valid.
Accordingly, in my judgment this appeal must be allowed. There appears to have been no discussion in the courts below as to remedies which may now be open to the Appellant, and I do not think that this House should do more than declare that the dismissal of the Appellant is null and void and remit the case to the Queen's Bench Division for further procedure. But it is right to put on record that the Appellant does not seek to be reinstated as Chief Constable: his whole concern is to avoid the serious financial consequences involved in dismissal as against being required or allowed to resign.
Lord Evershed
MY LORDS,
Upon the difficult problem presented by this appeal I regret to find myself differing from your Lordships; but I have felt myself constrained to agree with the conclusions reached by Streatfeild, J. at the trial and by all the members of the Court of Appeal.
It will be logical for me to deal first with the question whether the Watch Committee of the Brighton Corporation were bound to observe the requirements of what I will compendiously call the Police (Discipline) Regulations of 1952 before purporting to exercise, as regards the Appellant, the jurisdiction now admittedly vested in them by section 191 (4) of the Muni- cipal Corporations Act, 1882 ; for if they were so bound, then, in the absence of such observance, it may be said—and was so contended on the Appellant's part—that the Watch Committee had in truth no jurisdiction to reach their decision for the Appellant's dismissal. By " the Police (Discipline) Regulations of 1952" I refer compendiously to the two Statutory Instruments, namely, (1) The Police (Discipline) Regulations, 1952, Statutory Instrument No. 1705 of 1952, and (2) the Police (Discipline) (Deputy Chief Constables, Assistant Chief Constables and Chief Constables) Regulations 1952, Statutory Instrument No. 1706 of 1952; as respectively amended by the two Regula- tions, Statutory Instruments 1687 and 1688 of 1954, being Regulations of the same respective titles as those of 1952 already mentioned. The two Instru- ments of 1952 were both made on the 17th September, 1952, and came into operation on the 1st October, 1952. Similarly the two amending Instruments of 1954 were both made on the 17th December, 1954, and came into opera- tion on the 1st January, 1955. The several Instruments clearly form together a single code. I shall have to make some references to them hereafter and I shall then refer to them respectively as " Statutory Instrument 1705 " and " Statutory Instrument 1706 ", the references being in each case intended to comprehend the amendments made in 1954.
I have been unable to accept the argument that every case of indiscipline or of incapacity of any police officer, whether a Chief Constable or any other member of a police force (save only cases of incapacity arising from mental or physical illness), falls or was intended to fall within the scope of the Regulations. For my part I accept the view propounded by Mr. Faulks (as he then was) which appealed to the learned Judge at the trial, that " dis-creditable conduct" and "neglect of duty ", which constitute the first and fourth headings in the Discipline Code set out in the First Schedule to Statutory Instrument 1705, should be construed as limited to the kinds of conduct specified in those headings, each of which, be it observed, begins
12
with the words " that is to say ". In the present case the substance and gravamen of the Appellant's incapacity as chief constable, upon which the Watch Committee proceeded to act, was that expressed by Donovan, J. (as he then was), after presiding at a trial, lasting nineteen days, of the Appel- lant and others charged with conspiring to obstruct the course of public justice, namely, that the Appellant had not, in that learned and experienced Judge's view, the " professional" or " moral" qualities requisite for one hold- ing the office of Chief Constable. Although, therefore, the Appellant was himself acquitted of the charge, the learned Judge thought it right to treat the Appellant's limitations which he had expressed as justifying remission of the sentences appropriate to be passed upon his two subordinate officers whom the jury had convicted. As I understand the language of Donovan, J. (and as, I doubt not, the Watch Committee also understood it) the Appellant had been shown not to possess a sense of probity or of responsibility suffi- cient for the office which he held, and so had been unable to provide the essential leadership and example to the police force under his control which his office properly required.
The first of the relevant headings in the Discipline Code, " Discreditable conduct" is thus defined: " that is to say, if a member of a police force" acts in a disorderly manner or any manner prejudicial to discipline or " reasonably likely to bring discredit on the reputation of the force or of the police service." I will not take time by reciting the more detailed expansion of the second heading, " Neglect of duty ", but I cannot (as could not the learned Judge in the first Court) hold that the shortcomings of the Appellant as Chief Constable, described by Donovan, J., fall within either of the respective headings as expanded by their definitions. I add only that the two headings in question, being part of the Code specified in Statutory Instrument 1705. should be construed with regard to the fact that they were originally intended to apply to members of a police force of lower rank than Chief Constables or Deputy or Assistant Chief Constables, though it is true to say that by Statutory Instrument 1706 they were made applicable also to Chief Constables and Deputy and Assistant Chief Constables.
My
Lords, it follows, in my opinion, that the Watch Committee were entitled to
exercise their residual powers under section 191 (4) of the Act of 1882
without observance of the Police (Discipline) Regulations. I do not forget
the terms of paragraph (1) (f) of the Watch Committee's
resolution of the 7th March, 1958. It is said that the subject-matter of
this paragraph was that mentioned in paragraph (c) of the Watch
Committee's answer to the Appellant's appeal to the Secretary of State,
namely, the suggestion that the Appellant had given false evidence at the
trial before Donovan, J.; and that such a charge was in terms within
paragraph (b) of the heading numbered 5 in the Discipline Code,
namely,
" Falsehood or prevarication, that is to
" say, if a member of a
police force . . . wilfully . . . makes any false . . .
" statement ".
But,
assuming the premise, it is nevertheless, in my opinion, still clear that
the reference was but to an incident in the trial upon the conclusion of
which the Watch Committee were manifestly founding them- selves ; and must
have been so understood. I cannot think that such an incidental reference
can sensibly have the startling result of making the Watch Committee's
jurisdiction dependent upon a strict application of the Police (Discipline)
Regulation. It follows, if I am right in thinking that the case against the
Appellant did not fall under any of the provisions of the Discipline Code,
that is, was not brought within the regulations by clause 11 of Statutory
Instrument 1706.
I also find myself in agreement with all the learned Judges below in thinking that in any event this was not a case of there having been a " report or allegation " to the Watch Committee as contemplated by the Regulations. I have, for my part, been unable to accept Mr. Ackner's argument that any deliberation by the Watch Committee necessarily supposes the presence of a " report or allegation " by someone. I do not attempt any definition of the phrase; but, in my opinion, the context of the Regulations suggests neces- sarily something in the nature of an accusation as distinct from a conclusion reached after proper enquiry; and cannot sensibly be said to include a judicial conclusion after the protracted investigation of a trial. If this view
13
be wrong I would ask your Lordships to observe the consequences. If Mr. Ackner's submission be accepted, it must follow (as Mr. Ackner indeed conceded) that the Regulations were or would be equally applicable to any disciplinary action taken by the Watch Committee in regard to Detective Sergeant Heath and Detective Inspector Hammersley, each found guilty at the trial and sentenced to terms of imprisonment. If the argument submitted be correct, it must follow that the Watch Committee's duty must be or have been (notwithstanding the conclusion of their trial) to refer the cases of these two officers to an " Investigating Officer " under Statutory Instrument 1705 who would " report to the chief constable " (sic), the officers having a right of appeal to the Watch Committee. And so, on this view, it was the Watch Committee's duty, as regards the Appellant, under Statutory Instru- ment 1706 first to instruct a solicitor to formulate the case against him; and then to appoint a tribunal (which might consist of five members of the Watch Committee itself) whose duty it would be to report to the Watch Committee. My Lords, I cannot think it right to accept an argument involv- ing results which appear to me so manifestly absurd. In the present case the conduct of the Appellant had been the subject of a public trial lasting nine- teen days; and if the observations of Donovan, J. can sensibly be called a " report" at all they were equivalent to the " report " of the investigating tribunal to the Watch Committee contemplated by Statutory Instrument 1706. In this respect 'the situation after the conclusion of the trial was to my mind wholly different from that at the time when Mr. Ridge was first charged and when, therefore, as it seems to me, the Watch Committee rightly felt itself bound to act in accordance with the Regulations in ordering Mr. Ridge's suspension. My Lords, any other view, in my opinion, makes the Regulations gravely offend against common sense. I agree, therefore, with the view of the Court of Appeal—and particularly with that of Holroyd Pearce, L.J. (as he then was)—that this was a special and entirely excep- tional case, outside the scope of the Regulations, and as a matter of public notoriety, requiring instant action by the Watch Committee. The extent of the public notoriety can fairly be gauged from the letter written by the Appellant's solicitor explaining the remarkable request for his client's rein- statement as Chief Constable by reference to the telephone calls and offers of rewards by newspapers to which he had been incessantly subjected.
I turn accordingly to what have appeared to me to be the most difficult questions raised in this appeal; that is to say, first, whether the exercise of the statutory jurisdiction by the Watch Committee, which in my opinion was vested in them without regard to the Regulations, required the observance by the Watch Committee of what are called the principles of natural justice; and, second, if so, whether on the facts of this case such principles were in fact observed.
It has
been said many times that the exact requirements in any case of the
so-called principles of natural justice cannot be precisely defined ;
that they depend in each case upon the circumstances of that case.
According to Sir Frederick Pollock, the meaning of the phrase " natural
justice " is
" the ultimate principle of fitness with regard to the nature
of man as a rational and social being " ;
and he went on to point out
that the origin of the principles could be traced to Aristotle and the
Roman Jurists. Your Lordships were, therefore, not unnaturally referred to
a great many cases, but as I believe that your Lordships agree, it is by no
means easy to treat these decisions as entirely uniform and still less easy
to be able to extract from them the means of propounding a precise
statement of the circumstances or of the cases in which the principles can
be invoked before the Courts. I am, however, content to assume that the
invocation should not be limited to cases where the body concerned, whether
a domestic committee or some body established by a statute, is one which is
exercising judicial or quasi- judicial functions strictly so called; but
that such invocation may also be had in cases where the body concerned can
properly be described as administrative—so long as it can be said, in Sir
Frederick Pollock's language, that the invocation is required in order to
conform to the ultimate principle of fitness with regard to the nature of
man as a rational and social being.
On the other hand, it is (as I venture to think) no less plain now that Parliament may by appropriate language in a statute make it clear that the
14
activity or discretion of the body constituted by the statute is not to be subject to any control or interference by the Courts.
At this stage I venture to make two points. First, since there is no question here of bias or any suggestion that the Watch Committee acted otherwise than entirely in good faith, the only principle of natural justice here involved is that enshrined in the Latin phrase " audi alteram partem ". Second, I for my part conclude that if the principles of natural justice can properly be invoked in this case and if it should be held that such principles were not observed, then the decision of the Watch Committee was not void but voidable only.
Upon this second question (whether the decision afterwards impugned can be said to be void or voidable only) the cases provide, as I think, no certain answer; nor have I found one in the text-books. Indeed, in the vast majority of circumstances, it does not in the end matter whether the decision challenged is void or only voidable; for if the Court does decide to quash a decision or otherwise set it aside, then the effect is in general the same whether such decision be considered as void or only voidable. For my part, however, I have come to the conclusion that in a case where a body is acting within its jurisdiction but of which the Courts will say that it has failed to do sub- stantial justice in accordance with the principles of natural justice, then the decision is only voidable and cannot properly be described as a nullity.
Though
I am in this respect anticipating what later follows, I refer first to the
extremely wide and general terms of the relevant subsection of the Act of
1882:
" The watch committee. . . . may at any time dismiss any borough
"
constable whom they think negligent in the discharge of his duty, or
other-
" wise unfit for the same ".
My Lords, in my opinion it is
impossible to accept the suggestion put forward on the Appellant's part
that the final words of the subsection, " otherwise unfit for the same ",
must be regarded as ejusdem generis with what has gone before ; that
is to say, that they are intended only to refer to some kind of negligence.
I know of no authority in a case of this kind, where the jurisdiction of
the body in question is expressed in two alternatives, for supposing that
the second of the alternatives does not mean what it says but is somehow
limited by the terms of the first alternative. Put in other words, where,
may I ask, is the genus to be found of which the second part of the
alternative is said to be but a part? As I interpret the language used, the
second part of the power conferred is, as the language inevitably imports,
intended to cover the case of someone who is regarded as unfit for his
position for reasons other than negligence.
I observe again that there is, as I think, no question here of the Watch Committee's jurisdiction. If I had taken a different view on the first ques- tion, namely, whether the exercise of the jurisdiction had to be subject to compliance with the regulations, then my answer might have been different. Upon that assumption it is unnecessary for me to express any concluded opinion and I do not do so. But, if I am right in thinking that there was here no question of compliance with the regulations, the only question for your Lordships is whether, admitting the jurisdiction of the Watch Com- mittee, it was properly exercised having regard to any application of the principles of natural justice to which the exercise of the jurisdiction was subject. I observe further than the plaintiff in his action seeks a declaration. There was some discussion before your Lordships concerning the office of a declaration as contrasted with that of an order for certiorari. In my judg- ment, it must be accepted as tolerably clear that (subject to what follows) the granting of a declaration in a case of this kind must prima facie be discretionary: and if that is so it must equally follow that the question whether the decision of the Watch Committee is such that the Court can quash it or otherwise interfere with it involves the conclusion that such decision was voidable and not void. If the decision was a complete nullity (for example, on the ground that the Watch Committee never had any juris- diction), then no doubt it would follow that the Court would have to say so in some form or other. But this is not, in my judgment, such a case. My Lords, I have in mind upon this matter decisions such as that of the Privy Council in the recent case of Anna Munthodo v. Oilfields Workers' Trade Union reported in [1961] A.C. 945, where the plaintiff had been expelled
15
from the Union and the Board thought that the expulsion was wholly invalid. In fact, however, in that case the plaintiff had been charged under one rule but was later expelled under another. It is also to be noted that the case was dealing not with powers conferred by Act of Parliament but with a domestic tribunal; the point submitted (but rejected) was that the appeal which the plaintiff had taken under the rules of the Union constituted an affirmance of the jurisdiction of the Council which had dismissed him. I have also in mind the case of Wood v. Woad, 9 Ex. Cas. 190. My noble friend, Lord Reid, has stated in his Opinion that in this case the Court of Exchequer Chamber expressly decided that a decision by a body acting in a quasi-judicial capacity which failed to have due regard to the principle of natural justice audi alteram partem is void and not merely voidable. With all respect to my noble friend, I am unable to agree with this conclusion.
My Lords, it is, I think, necessary to have in mind what was the nature of the plaintiff's claim in Wood v. Woad. The plaintiff alleged that be had been a member of a mutual marine insurance association and, as such mem- ber, having paid to the Treasurer the appropriate deposit, had therefore been entitled to recover from the association the amount of loss incurred by him in respect of a particular ship ; that in the Committee of the association was vested by its rules the whole power of the management of its affairs and also the power, if they deemed the conduct of any member to be suspicious or that he was for any other reason unworthy of remaining in the association, to exclude such member by appropriate notice from further participation in it; but that the Committee had " wrongfully, collusively and improperly " expelled the plaintiff from the association without any just reason or probable cause; so that the plaintiff had been deprived of his right to the sum of money in respect of the damage done to his ship and that he was accordingly entitled to recover as damages from the members of the Committee the amount of such loss. This being the nature of the claim, the Court decided upon demurrer that the plaintiff could have, upon his allegations, no cause of action for damages at law against the members of the Committee. I emphasise the important fact that the claim formulated was for damages at law against the members of the Committee (not all of whom in fact were or need have been members of the association).
It is
clear from the headnote to the case that the learned Barons of the Court of
Exchequer Chamber did not arrive for entirely the same reasons at
the conclusion that the plaintiff could not succeed in his action. It is
true that certain language in the judgment of Kelly, C.B. appears to
support the view that in his opinion the Committee's failure to give to the
plaintiff any oppor- tunity of answering the charge made by the Committee
against him rendered the Committee's decision " void and a nullity ". See,
for example, the Chief Baron's citation of the decision in Blisset
v. Daniel, 10 Hare 493. But if so, it was, in my judgment,
because in the view of the Chief Baron there was
" enough ... to show a
collusive and unlawful exercise of powers on the part
" of the committee "
(see p. 198 of the Report)
—in other words, not a true exercise of the power
at all or, at best, an exercise of the power of the exceptional kind to
which I later refer in the case of Osgood v. Nelson. It is
essential to have in mind the nature of the plaintiffs claim as
formulated by him which the Court of Exchequer Chamber rejected. On the one
hand (as Kelly, C.B. pointed out at p. 196 of the Report) if the discretion
of the Committee was absolute and if the Committee in fact exercised their
power under the rules, the plaintiff could not question it. On the other
hand, if, as the plaintiff in his declaration alleged, the Committee's act
was collusive and unlawful and therefore ineffective, then the plaintiff
remained a member of the association and (whatever might be his rights or
remedies in a court of equity) he therefore could have no claim for damages
in law against the Committee.
" The claim in this action is for damages
sustained by reason
" of the expulsion of the plaintiff from the
association; but in law the
" plaintiff has sustained no damage at all, for
whatever rights he may have
" possessed before he possesses still, as if no
act had been done calculated
" to deprive him of them ". (Page 198 of the
Report.)
Cleasby, B. put his conclusion on somewhat different grounds: "
Now, we may suppose either
" that the committee expelled the plaintiff
without just cause and without
16
"
giving him notice, or that they expelled him without just cause but did
give
" him notice; and the declaration is framed so as to comprehend in
the
" breach both modes of wrongful expulsion." (pp. 199-200.)
After
pointing out that by the rules the Committee had absolute discretion, the
learned Baron concluded his judgment by saying that the allegation not
having made fraud the basis of the claim the declaration sought could not
be sustained. Pollock, B's judgment was to the same effect—particularly in
respect of the absence of any claim based in terms of fraud. The
learned Baron went on to observe that the plaintiff's declaration having
alleged that the Com- mittee's actions were a nullity it was not upon this
premise possible for him to formulate a cause of action at law against the
Committee members.
Finally, Amphlett, B. posed the matter thus at p. 204 of the
Report:
" Now, according to the allegations in the declaration, the
defendants never
" gave the plaintiff that opportunity, and I cannot
entertain a doubt that if
" this allegation were proved, the plaintiff
would, by filing a bill in a court
" of equity, be restored to the
enjoyment of his rights. But if so, what is his
" damage? He has not ceased
to be a member of the society ; he has not
" lost the rights of a member.
He is to recover damages for what? For an
" attempt to
expel."
I have attempted at some length to analyse the reasons for the judgments of the Court of Exchequer Chamber in Wood v. Woad. It is, as I have more than once observed, of the essence of the matter in that case that the plaintiff was claiming damages personally against the members of the Com- mittee. In such circumstances it is, as I venture to think, clear that the question whether the purported exclusion from the association by the Com- mittee was " void " or " voidable " was not essential nor indeed material to his claim made in the action by the plaintiff for damages against the members of the Committee. Certainly in my judgment it cannot be asserted that the judgments in the case cited, or indeed any of them, support or involve the proposition that where a body, such as the Watch Committee in the present case, is invested by the express terms of a statute with a power of expulsion of any member of the police force and purport in good faith to exercise such power, a failure on their part to observe the principle of natural justice audi alteram partem has the result that the decision is not merely voidable by the Court but is wholly void and a nullity.
My
Lords, I have, for any part, upon this question, derived the
greatest assistance from the case of Osgood v. Nelson, L.R.5
H.L.636, in which Baron Martin gave to your Lordships' House the opinion of
the Judges. The case was concerned with the removal of the Chief Clerk or
Registrar of the Sheriffs Court in the City of London. By the Act 15 and 16
Vict. c. LXXVII power had been given to
" the Mayor, Aldermen, and Commons,
in Common
" Council assembled . . . for inability or misbehaviour, or for
any other cause
" which may appear reasonable to the Mayor and Council, to
remove " a person in the position of the Chief Clerk or Registrar. It was
the unanimous opinion of the Judges expressed by Baron Martin that there
was no doubt
" that the Courts of law in this country would take care that
any proceeding
" of this kind should be conducted in a proper manner " —that
is, by giving to the person whose removal was in question every opportunity
of defending himself. "
If ", continued the learned Baron,
" your Lordships
were satisfied
" that there was any real substantial miscarriage of
justice, . . . your Lordships
" would not permit this amotion to remain."
(See p. 646 of the Report.)
Again,
" we also think it possible, although
there is no necessity for giving any
" judgment upon it, that if a man was
removed from an office of this kind
" for any frivolous or futile cause . .
. you would in all probability be
" inclined to treat the removal as a
nullity " (see p. 649).
Lord Hatherley, L.C., in adopting the view so
expressed of the Judges, said (at p. 647):
" The Court of Queen's Bench has
always considered that it has been open
" to that Court, as in this case it
appears to have considered, to correct " any Court, or
tribunal, or body of men who may have a power of this
" description ... if
it should be found that such persons have disregarded
" any of the
essentials of justice ".
17
From these citations I deduce the conclusion that, save in the case where the "tribunal or body of men" have acted upon "frivolous or futile" grounds (in which case the Court may treat not merely the decision but the whole proceeding as a nullity) the power of the Court is to " correct" the decision if, in the Court's view, there "has been real substantial mis- carriage of justice ". In other words, I think that, save in the excepted cases (of which the present cannot be said to be one) the right or duty of the Court is to correct, that is, to set aside or otherwise restrain, the impugned decision if satisfied that there has been a " real substantial miscarriage of "justice"; a view which, if well-founded, must mean that (save in the excepted cases) the decision is voidable and not void.
My Lords, it is perhaps useful and necessary to equire what in truth is meant by saying that a decision such as that of the Watch Committee in the present case is " void " or " a nullity ". Is it thereby intended that, though the proceedings up to the pronouncement of the decision were proper and effective, the decision itself was a nullity? Or is it intended that the whole proceedings ab initio were irregular and ineffective so that the decision was similarly and of necessity also of no effect? My Lords, the latter must in my judgment be the true analysis. In the first place, it does not to my mind appear correct or indeed sensible to say that the decision reached was a "nullity" although the proceedings leading up to the decision were in order. Second, I observe, as I have earlier stated, that in cases of this kind it is not the function of the Court to impugn the decision as such—still less to substitute its own—but to examine the steps taken in reaching the decision and to decide whether, in the course of those steps, there was " a real substantial miscarriage of justice".
In the vast majority of cases it matters not in the result whether the decision is said to be void or voidable but avoided. It is sufficient for the Court to say that the decision cannot stand. In truth, as Sir Frederick Pollock pointed out (see Pollock on Contract, 13th Edition, page 48), the words " void " and " voidable " are imprecise and apt to mislead. And so it is, as I venture to think, that language such as that used by Kelly, C.B. in Wood v. Woad ought not to be strictly construed—it was, indeed, for reasons which I have attempted to give, in any case obiter having regard to the nature of the claim in that case.
I do not doubt that in some cases the proper conclusion will be that the entire proceeding of the body or tribunal in question (including there- fore its decision) will properly be found to be wholly irregular and ineffective from first to last. The obvious case is where the body or tribunal is shown to have been acting in excess of its jurisdiction. In this category no doubt will fall the class of case mentioned by Martin, B. in Osgood v. Nelson, where the body concerned has acted upon " a futile or frivolous cause " ; for in such case it could truthfully be said that the invocation by the body of its power was a pretence and its proceedings no more than a sham. It may indeed well be that Kelly, C.B. so regarded the performance of the Committee in Wood v. Woad. But save in those cases, as I think, upon true analysis the function and duty of the Court is to " correct", that is to say, to set aside or quash the decision where it is shown that there has been some " real substantial miscarriage of justice " in the steps taken by the body or tribunal in question in arriving at its decision in exercise of the powers vested in it.
My Lords, I do not wish unduly to prolong this Opinion, but upon this highly important matter it seems to me that useful analogy may be found in the practice of the Criminal Courts. Thus, the Court of Criminal Appeal in the exercise of its powers under the Criminal Appeal Act of 1907 may quash a conviction and substitute a verdict of acquittal, and may do so where there has at the trial been what is regarded in effect as a failure to observe the principles of natural justice, for example, where the jury has been told that it must return with its verdict in ten minutes or where the jury was allowed after retirement under the bailiff's control to depart from the Court for luncheon. In these cases it is essential that there should have been an effective trial at least up to the point when the departure
30600 A9
18
from the principles of natural justice occurred; for otherwise the Appeal Court could not have ordered the prisoner's acquittal. If in truth the prisoner had never been really tried at all, he would be liable to be tried again for the same offence and the Appeal Court could have issued a venire de novo. The second of the examples above given (that is, where the jury had been allowed to leave the Court for luncheon) was involved in the case before the Court of Criminal Appeal of Rex v. Neal (1949] 2 K.B. 590. and the point with which I am concerned was in terms dealt with by Lord Goddard C.J. at pp. 597 ff. I would also refer your Lordships to the judg- ment of the Privy Council delivered by Lord Sumner in the case of Rex v. Nat Bell Liquors, Ltd. [1922] A.C. 128 at pp. 152, 153.
I only add that, as I apprehend, the same principles apply to an order for certiorari which has been held to be available, but at the direction of the Court, by way of declaration and an injunction in cases of decisions by statutory tribunals where the persons affected would otherwise be without remedy. (See Barnard v. National Dock Labour Board (19531 2 Q.B. 18 C.A. following Andrews v. Mitchell (1905] A.C. 78.) On the other hand, it has also been held that certiorari will not be granted where the proceedings in the inferior tribunal are not merely voidable but altogether void—for example, where the person purporting to act in a judicial capacity had in truth no authority so to do (see In re Daws, 8 Ad. & E. 936).
Finally, I venture to pose to your Lordships the question, what would have been the situation had the Secretary of State allowed Mr. Ridge's appeal and held that he should be reinstated as Chief Constable? Would it have been open to the Corporation to refuse to give effect to such decision on the ground that the proceedings or the decision before or by the Watch Committee had been a nullity?
I
return accordingly to the first of the above-mentioned points, namely, the
question whether the Watch Committee in exercising its powers under the
relevant section of the Act of 1882 was in the present circumstances bound
to give to the Appellant an opportunity of putting forward his case and
arguments before the Committee. I have already said that the terms of the
discretion vested in the Watch Committee by the Act of Parliament have
seemed to me to be of the widest. They are, as I think, much wider than the
phrase appearing in the case to which I shall later refer of De Verteuil
v. Knaggs, where the relevant language was " If it appears to
the Governor on sufficient grounds shown to his satisfaction". I also think
that the language in the 1882 Act was at least as wide as, if not
wider than, the relevant language in the case of Nakkuda Ali v.
M.F. De S. Jayaratne [1951] A.C. 66, upon which the Court of Appeal
considerably relied, namely
" where the Controller has reasonable grounds
to believe
" that any dealer is unfit to be allowed to continue as a dealer
".
I understand that some of your Lordships feel disposed to say that the
decision of the Privy Council in that case ought not to be followed. I
must respectfully dissent from that view. It seems to me that on the
language of the enactment there in question there was in truth conferred
upon the Governor an unfettered discretion. I am aware that it is sometimes
said that a different result may be appropriate where there is in question
the grant or withdrawal of a licence as distinct from the taking away of
some right or proprietary interest. There is no doubt force in this
argument and it has been supported by our Court of Criminal Appeal in the
case of Reg. v. Metropolitan Police Commissioner. Ex parte Parker
[1953] 1 W.L.R. 1150. At the same time I would observe that though the
withdrawal of a licence, which can be described as the removal of a
privilege, is in some respects different in character from the taking away
of vested rights or proprietary interests, nevertheless the withdrawal of a
licence from the person from whom it is withdrawn may in fact mean the
destruction of his means of livelihood.
My Lords, if the only question which was here involved was whether the Appellant should have ceased in March, 1958, to be Chief Constable and whether, therefore, the Watch Committee was entitled without more so to decide, I would, for my part, say that there was in the circumstances no call
19
for the Watch Committee to observe the so-called rule audi alteram partem. As I have already observed, the Appellant had been subjected to a trial lasting nineteen days, and it was as a result of the evidence in that trial that Donovan, J. (as he then was) expressed the view that the Appellant was in fact no longer fitted to act as Chief Constable. It would seem to me, frankly, somewhat absurd that the Watch Committee should invite the Appellant to state his points again after he had put forward a case before the trial Judge for so long a period. Moreover, as Holroyd Pearce, L.J. (as he then was) pointed out (and as I have earlier noted), there was here a case of extreme urgency. The trial had attracted the greatest possible notoriety, as had also the observations in regard to the Appellant of the trial Judge. In my judg- ment the Watch Committee had a duty—a duty not only to the Corporation of which they were the Committee but also to the citizens of Brighton—to act and to act at once so as to give effect to what the trial Judge had after so long a hearing in effect determined.
But my difficulty in the present case arises over the question of the Appel- lant's pension. For assuming it to be right that the Appellant would have to cease to be Chief Constable—and I add in regard to that matter the not unimportant fact that his learned Counsel has not before your Lordships suggested that he should have been retained as Chief Constable—then there were two ways in which his appointment might be determined. First, he might have been required to resign, in which case, though he would have had so to resign, he would under the terms of the Pension Regulations of 1952 have been entitled to receive the pension which by that date had accrued in his favour. The alternative was the Appellant's summary dismissal, which was the course adopted ; though I do observe that in the Watch Committee's minute of 7th March, 1958, it is recorded that they had paid regard to the length of the Appellant's service.
It is undoubtedly a striking fact that the Appellant had at the date when he had been suspended from his office of Chief Constable served some thirty- three and a half years and had risen from the rank of police constable through the various intervening ranks to that of Chief Constable. During this long period of service it does not appear that there had ever been any criticism of his work in the police force. Moreover, in March, 1958, he had attained the age of fifty-eight years and ten months—in other words, he was within fourteen months of the age on which he would have been entitled to retire voluntarily with full pension. In these circumstances I cannot conceal from myself that (unless the words of the statute deny it) there is shown an obvious case for giving to the Appellant an opportunity to put forward his argument for the first of the two alternatives, namely, that he should be required to resign and not be summarily dismissed.
As I have said, I feel very great difficulty on this matter. I do not wish at all to denigrate the principles of natural justice or of their proper invoca- tion in the Courts. On the other hand, we have, as I have already many times pointed out, the very wide terms of the Act of Parliament here in question, and the body in which was invested this wide discretion was an entirely responsible body. To insist, as I venture to think, on the invocation of these principles whenever anyone is discharged from some office seems to me to involve a danger of usurpation of power on the part of the Courts and under the pretext of having regard to the principles of natural justice to invoke what may often be in truth little more than sentiment; and upon occasions when the Courts, though having necessarily far less knowledge of all the relevant circumstances, may be inclined to think that, had the decision rested with them, they would have decided differently from the body in question. Yet I do observe again that it is not the decision as such which is liable to review ; it is only the circumstances in which the decision was reached, and particularly in such a case as the present the need for giving to the party dismissed an opportunity for putting his case.
I should, therefore, for my part have been inclined to accept the view of the learned Lords Justices in the Court of Appeal. But since, as I under- stand that your Lordships take a different view and having read the exhaustive opinion of my noble and learned friend, Lord Reid, I will upon this matter
20
express no concluded opinion of my own. I am ready to assume that the Appellant should have been given an opportunity at any rate to put his case for being required to resign rather than being summarily dismissed. If this assumption be made, then the second question arises—Was justice done in all the circumstances of this case?
My Lords, having considered the whole matter with the greatest care of which I am capable, I conclude that justice was here done—or, at least, that there was no " real substantial miscarriage of justice ". I have already observed that in their minutes of the 7th March, 1958, the Watch Committee (against whose good faith no kind of charge is made) stated that they had paid due regard to the length of the Appellant's service. But at once after the receipt of notice of that resolution the Appellant's solicitor, Mr. Bosley, asked the Watch Committee to reconsider the matter and to hear observa- tions that might be put forward upon it. In acceding to this request it is to my mind plain that the Watch Committee (and the Corporation) thereupon decided that, notwithstanding their resolution of the 7th March, the matter of the Appellant's dismissal should be held in suspense—and indeed after they had been informed of the Appellant's appeal to the Secretary of State they also clearly decided that the operation of their previous resolution should be suspended pending the result of that appeal.
It is
clear that on the 12th March the Town Clerk informed the
Appellant's solicitor that the Watch Committee would reconsider their
decision with regard to the Appellant's pension and further told him that a
meeting would be held on the 18th March at which the Committee would
consider such representations as might then be made by or on behalf of the
Appellant
" either orally or in writing, or both, as may be preferred
".
Thereupon Mr. Bosley sent to the Town Clerk his written observations dated the same day in which in fourteen numbered paragraphs he set out the heads of his client's complaints; and in paragraph 15 he asked, first, that the Appellant should be allowed to retire on full pension forthwith. Mr. Bosley also sent to the Town Clerk a copy of his notice of appeal to the Secretary of State, a lengthy document in which every kind of complaint made on the Appellant's behalf was enumerated, though I would observe that nowhere in that document was any specific claim made that the Appellant's case really was that of his being summarily dismissed instead of being requested to resign with the consequent right to receive his pension. As a result there was a further special meeting of the Watch Committee held on the 18th March. An extract from the minutes of that meeting was duly sent to Mr. Bosley, and from the minute it is clear that the Watch Committee had given to Mr. Bosley the fullest opportunity to make such representations as he should think fit; and it is also recorded that the Committee, having heard all that Mr. Bosley had to say and con- sidered also his written representations and the notice of appeal to the Home Secretary, had decided to adhere to their previous decision; though it is noted that there were three dissentients on this occasion.
My Lords, having regard to all the circumstances, I have formed the view that your Lordships ought not now to say that a sufficient opportunity was not given to the Appellant by himself or through his adviser to put before the Watch Committee such points as he had and in particular to put before the Watch Committee the request that he should be required to resign rather than be summarily dismissed. I therefore respectfully agree upon this matter with the conclusion of Streatfeild, J. at the trial of the present proceedings and also with what I understand and believe to have been the view of Harman, L.J. as reported at page 735 of [1962] W.L.R. (though the language as there recorded does not contain, as I think from a reading it should have contained, a negative). In reaching this con- clusion I have derived support from the case of De Verteuil v. Knaggs above referred to and reported [1918] A.C. 557. In that case the Governor of Trinidad had acted in emergency with promptitude but without giving to the person concerned any opportunity for a hearing. In the circumstances it was pointed out by Lord Parmoor (see page 561) that this might well be justified provided that there was opportunity given afterwards when the
21
original decision might be reviewed (see page 562). Similarly, in my view the present case was indeed one of grave emergency calling for the greatest promptitude of action. But for reasons which I have attempted to state I think that assuming in the first place there was any failure to observe the principles of natural justice by giving to the Appellant an opportunity of being heard, this defect was remedied afterwards when the original decision was suspended and an opportunity given to the Appellant or his adviser or both to make to the Watch Committee such representations as they wished.
But if
I were wrong upon the point last mentioned, still in my opinion
the Appellant fails in the end upon another point, namely, by reason of
the consequences of his appeal to the Secretary of State. This matter
was also dealt with by the learned Judges of the Court of Appeal who
similarly concluded that in any event the appeal to the Secretary of State
barred the Appellant from claiming relief now. The case appears then to
have been put upon the basis of estoppel or election. For my part I prefer
to rest my conclusion simply upon the terms of the relevant section in
the Act itself. The Act is the Police (Appeals) Act of 1927—a date, be it
noted, eight years later than the date of the Act (1919) under which
were promulgated the Statutory Instruments 1705 and 1706. By section 1
(1) of the Act: " A member of a police force who after the passing of "
this Act is dismissed . . . ." was given the right to appeal to
the Secretary of State. It is also by the Act provided that the Secretary
of State is not bound to entertain the appeal by way of hearing oral
evidence if it appears to him that the case is of such a nature that it can
properly be determined without such evidence. This was in fact the course
adopted by the Secretary of State in the present circumstances. By his
Order of the 5th July, 1958, after reciting that an appeal had been made
against the Watch Committee's decision of the previous March, it is
recorded that the Secretary of State
" having decided that the case is of
such a nature that
" it can properly be determined without taking oral
evidence, hereby order
" as follows " ; and then, in paragraph (1), occurs
the language:
" I dismiss
" the appeal".
It was
not, as I followed the argument, suggested that the Secretary of State was
acting otherwise than within the jurisdiction conferred upon him by the Act
of Parliament in deciding to dispose of the appeal as he did upon the
written material before him and without hearing oral argument. Indeed,
section 2 (2) of the Act provides thus:
"The Secretary of State
" after
considering the notice of appeal and any other documents submitted
" to him
by the appellant and the respondent . . . and the report (if any)
" of the
person or persons holding the inquiry shall by order either—
" (a) allow the
appeal; or
" (b) dismiss the appeal; or
" (c) vary the
punishment ..."
As it seems to me, the action taken by the Secretary of State was in strict compliance with his powers and duties under the Act and, with all respect to those who may take a contrary view, I cannot see how it can be said that the order of the Secretary of State is ex facie unsustainable. What, then, is the result? By section 2, subsection 3, of the Act it is provided that the decision upon such appeal by the Secretary of State is to be " final and binding upon all parties ". I agree that if it had been made out that the pro- ceedings of the Watch Committee were a nullity, then the appeal and the result of the appeal might well be regarded equally as a nullity. But for reasons which I have endeavoured to justify it is in my opinion not true to say that the decision of the Watch Committee was a nullity even if there was a failure on their part to obey the rules of natural justice by their omission to give to the Appellant proper opportunity to be heard. Their decision was voidable only. This being so, then the Appellant having invoked his right under the statute to appeal to the Secretary of State must, as I conceive, be bound by the result which Parliament has enjoined: and that result is that
22
after such an appeal the Secretary of State's decision shall be final and binding as between himself and the Watch Committee. I cannot imagine any language more explicit. Nor does it seem to me that the result can be avoided because both in his original letter to the Secretary of State and in the document stating his grounds of appeal itself the Appellant's solicitor stated that his invocation of the power to appeal was without prejudice to his right there- after to maintain that the Watch Committee's decision was in some way " wrong in law ". In my judgment the Appellant invoked his right to appeal to the Secretary of State under the Act and, having done so, cannot escape the consequences which, as it seems to me, Parliament has stated in the plainest terms.
In follows, therefore, that, whatever might be the right answers to the difficult questions involved in regard to the application of the rules of natural justice, the Appellant by proceeding as he did under the Police (Appeals) Act, 1927, to appeal to the Secretary of State cannot now say other than that the conclusion of the Secretary of State, which was entirely in accordance with his statutory powers, was a final and binding conclusion which put an end to any right that the Appellant might otherwise have had to invite the Court in the exercise of its discretion to set aside or otherwise interfere with the Watch Committee's decision.
My conclusion, therefore, with all respect to your Lordships who take a different view, is, first, that there was in the present case no requirement that the Watch Committee should observe the terms of the Police Discipline Regulations of 1952 and therefore that the jurisdiction lay under section 191 (4) of the Municipal Corporation Act, 1882, with the Watch Committee; that therefore (second) the most that could be said against the Watch Committee's decision was that by failing to observe the rules of natural justice it was liable to be challenged and impugned in the Courts; but (third) for reasons given, that assuming that there was a failure to comply with the rules of nat