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Tuesday, 7 December 1965


Mr KILLEN (Moreton) .- I move -

In sub-clause (1.), omit " if it thinks fit ".

I throw down the gauntlet to the Opposition to join with me in calling for a division on this amendment. This proposed amendment has been moved because there is not an appeal as of right to a court of law. Once again I put it to the Committee that it is completely wrong that a tribunal should have a discretion to cut short, in effect, the scope given to a party to refer a question of law to a court. It will be noted that in the second line of clause 66 the discretionary words are " if it thinks fit, on the application of a party, refer a question of law". That means, in effect, that if the Tribunal does not think fit, that is the end of it. There is no scope for a party to have a question of law referred to a court. This Bill is shot through with discretion. I do not recapitulate the arguments that I have advanced, but the measure makes it inordinately difficult for a person to seek an appeal to a court of law by way of prerogative writ. Not to give to a party to proceedings before the Tribunal a right to go before a court of law on a question of law is, I think, quite indefensible.

I now invite the Attorney-General or any other Government supporter to cite one authority - one will suffice - for the proposition that there should be no appeal to a court of law, as of right, on a question of law. For my part I stand on the authorities which I shall now refer to the Committee. I rely first on the Report of the Committee on administrative Tribunals and Enquiries, known as the Franks Committee, in which it is stated -

We are firmly of the opinion that all decisions of tribunals should be subject to review by the courts on points of law.

That is clear and explicit. There is no ambiguity about it whatever. Secondly, I refer the Committee to the report of the Donoughmore Committee on Ministers' Powers in which it was stated -

We have already expressed the opinion in paragraph 9 that quasi-judicial functions should normally be exercised by Ministers themselves. On the other hand, we have recommended that purely judicial functions should normally be left to Courts of Law and that they should only be exercised by Ministers or Ministerial Tribunals in exceptional cases. Where either judicial or quasijudicial functions are exercised by Ministers, or judicial functions by Ministerial Tribunals, the rule of law requires the following safeguards: -

(a)   (I) the maintenance of the jurisdiction of the High Court of Justice to review and, if necessary, to quash the proceedings on the ground that the Minister or the Ministerial Tribunal has exceeded the statutory powers and has therefore acted without jurisdiction;

(II)   the existence of a simple procedure for the purpose;

(b)   the vigilant observance by the Minister or the Ministerial Tribunal of the three principles of natural justice which we have enunciated in paragraph 3 above;--

I leave out (c) because it is not sharply relevant -

(d)   (I) the right of any party aggrieved by a judicial decision to appeal to the High

Court of Justice on any question oflaw within a short stated time, and

(II)   the existence of a simple procedure for the exercise of such right.

Is the Committee going to laugh off the Franks Committee report and the Donoughmore report? Possibly someone may be persuaded to dismiss the opinion given by Glanville Williams in "The Reform of the Law" in which he said, at page 46 -

There should always be a right of appeal with no restrictions when a point of law is in question.

The final authority I cite is the work prepared by Griffith and Street, " Principles of Administrative Law ", in which the following appears -

A right of appeal may be of considerable psychological importance: It reassures litigants and imbues tribunals wth a greater sense of responsibility. Although there are, then, good reasons why those aggrieved by administrative decisions should be able to take the case to a higher tribunal it will be remembered that the ordinary courts can quash all jurisdictional excesses. The main questions are whether there should be an appeal on matters of law, fact, and discretion, and whether the appeal should lie to the courts or to another administrative tribunal.

They conclude with the argument that there should be an appeal to an administrative tribunal in some circumstances. I would be very interested to know on what grounds precisely the Government advocates the proposition that it shall give no right of appeal to a court of law on a question of law. This afternoon the Attorney-General cited the judgment given by, I think it was, Lord Diplock. In that instance the AttorneyGeneral was citing what was said by the court of appeal about informal implied arrangements. I put it to my honorable and learned friend that in this instance a party cannot get beyond the Review Division on a question of what the interpretation of an informal implied arrangement may be. I put it to the honorable gentleman that this, again, does not shake this Bill to its foundations. It is completely in accord with every concept of reasonableness to assure that every party aggrieved on a question of law should be able to approach the court and should receive remedy and relief there.







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