. 130
( 155 .)


rooted in a profound distrust of all executive power and it tends to equate progress “ the
onward march of liberty “ with the growth in the number of administrative decisions which
are subjected to review by the courts. Courts are special primarily because they are the repos-
itories of certain customary values. What underpins this Whig view, then, is the belief in the
common law as ˜the golden metwand™ which maintains a balance between the individual
and the state. Within this image, law is not to be seen as a theoretical science founded on
reason but is based on ˜artificial reason™ which is rooted in experience. The common law “
our customary inheritance “ embodies immutable ideas of right and justice which the judi-
ciary, in oracular fashion, are called upon to proclaim.
Throughout this century, this traditional view has been subjected to challenge. The pace
of social change, the great extension of the sphere of influence of the executive, and the
changing character of law all serve to undermine the view that the judiciary, through their
access to the accumulated wisdom of the common law, possess a unique appreciation of
how the business of government ought to be conducted. The challengers to the Whig
701 The courts: judicial review and liability

view may, rather crudely, be placed into two broad camps; the de-mythologisers and the
modernisers “ the radicals and the reformers. The radical challenge seeks to undermine
the Whig view largely by exposing the sham and hypocrisy of legal rhetoric; in effect,
they seek to strip the mask of justice from the face of power. Law, in this radical view, is
essentially an expression of power relations in society: ˜laws are merely statements of a
power relationship and nothing more™ (Griffith [˜The Political Constitution™ (1979) 42 MLR 1],
p 18). In a reversal of the Whig view, the de-mythologisers see the courts, not as the
guardians of liberty, but as the bastions of privilege. The values of the common law are the
values of an old order which, with the emergence of democracy, must change. Our courts,
being absorbed in the culture of the common law, do not provide a solution to the quest for
administrative justice but, far from it, must be viewed as part of the problem. [Reference is
made here to, inter alios, JAG Griffith, The Politics of the Judicary (4th edn 1991; see now
5th edn 1997).]
Aspects of the radical critique can also be identified in the analysis of the reformers. The
reformers recognise that the foundations of a modern legal order cannot be rooted simply
in the acceptance of the authority of the judiciary as carriers of traditional wisdom. The pace
of social, economic and technological change has been such as to devalue much of that cus-
tomary wisdom. The reformist solution, however, is to seek to modernise the common law
tradition; to reinterpret that tradition in the language of rights. Rights rather than remedies,
principles not precedents are what is required. The modernisers reject the radical claim; they
believe that reason “ not power “ lies at the heart of law. Law is based on principle not policy.
Above all, the reform or modernising movement is a rationalising movement; it seeks to
expose the skeleton of rights enmeshed within the corpus of the common law. [Reference
is made here to, inter alios, R Dworkin, Law™s Empire (1986) and TRS Allan: see his Law,
Liberty, and Justice (1993) and Constitutional Justice (2001).]

The growth of judicial activism and the deeper penetration of review since the
1960s may be attributed to a continual accrual of broad statutory powers to the
executive, together with an increasingly powerful judicial perception of the lim-
itations of ministerial responsibility to Parliament. In R v Secretary of State for
the Home Department, ex p Fire Brigades Union [1995] 2 AC 513, 567, Lord
Mustill drew attention to the latter of these factors:

In recent years . . . the employment in practice of . . . specifically Parliamentary remedies has
on occasion been perceived as falling short, and sometimes well short, of what was needed
to bring the performance of the executive into line with the law, and with the minimum stan-
dards of fairness implicit in every Parliamentary delegation of a decision-making function. To
avoid a vacuum in which the citizen would be left without protection against a misuse of exec-
utive powers the courts have had no option but to occupy the dead ground in a manner, and
in areas of public life, which could not have been foreseen 30 years ago.

For a defence of the continuing importance and e¬ectiveness of ministerial
responsibility to Parliament, see A Tomkins, Public Law (2003), ch 5.
702 British Government and the Constitution

The awakening from ˜the long sleep of public law™ (Lord Justice Sedley,
Freedom, Law and Justice (1999), p 11) and the increasingly interventionist
temper of the judges in matters of public administration have attracted a variety
of responses. The question raised is a fundamental one of the role of the judges
in the constitution and their relation to Parliament and the executive. On this
question see, for example, Sedley, ˜The sound of silence: constitutional law
without a constitution™ (1994) 110 LQR 270; Woolf, ˜Droit public “ English style™
[1995] PL 57; Laws, ˜Law and democracy™ [1995] PL 72; Jowell, ˜Restraining the
state: politics, principle and judicial review™ (1997) 50 CLP 189; Steyn, ˜The
weakest and least dangerous department of government™ [1997] PL 84; JAG
Gri¬th, The Politics of the Judiciary (5th edn 1997).
Nevil Johnson is among those who have misgivings about an activist judi-
ciary (˜The judicial dimension in British politics™ (1998) 21 West European
Politics 148, 164):

The wider the judicial role becomes, the more likely it is that the judges will be drawn into
determining political questions, no matter what intellectual contortions may be performed
in trying to deny this. Yet, it is the accountability of elected politicians that has been at the
heart of modern British theories of government, and it is that theory, along with the author-
ity of Parliament, which will be in competition with the judicialisation of politics.

5 Liability of the Crown
We move now from matters of judicial review to matters of liability. As we
saw above, the principal purpose of judicial review is not to allow claimants
to sue public authorities for damages: rather, it is to allow the courts to review
the legality of the exercise of public powers. While judicial review is now
the most signi¬cant court procedure in public law, it is not the only one.
From time to time litigants will wish not merely to seek a review of the legal-
ity of government actions and decisions, but will desire remedies in private
law “ remedies which will often include damages. Where a litigant claims
that the government or another public authority has acted in breach of
contract or has acted negligently, for example, it will not be judicial review
procedure that the litigant needs to employ. Rather, the litigant will wish to
sue, arguing that the government or public authority is liable in the law of
contract or tort.
Questions of liability in public law are divided into two: ¬rst we consider the
special position of the Crown. This will generally be relevant when a litigant
wishes to proceed against a department or minister of central government. In
the next section we will examine the principles of liability against other public
authorities “ especially local authorities. As we shall see, there has been sub-
stantial and signi¬cant case law in recent years on the liability of public author-
ities in negligence.
703 The courts: judicial review and liability

There is one further complicating feature that needs to be borne in mind when
considering proceedings against, and the liability of, the Crown: this is one of the
areas of public law that is most di¬erent as between English and Scots law.
English law was traditionally more protective of the Crown than was Scots
law. However, two factors have conspired to dilute the di¬erences at the expense,
unfortunately, of the integrity and former advantages that were enjoyed by
litigants in Scots law. The ¬rst is that, in a variety of cases, Scots law has been
re-interpreted to bring it into line with English law, meaning that litigants
wishing to proceed against the Crown in Scots law have found fresh hurdles
placed in their way (see eg, Macgregor v Lord Advocate 1921 SC 847 (relying on
English authorities to hold that the Crown could not be sued in tort, despite
Scots authorities to the contrary) and Lord Advocate v Dumbarton District
Council 1988 SLT 546 (IH), [1990] 2 AC 580 (HL), with the House of Lords over-
ruling the Inner House of the Court of Session on the extent of the Crown™s
immunity from statute). The second is that, when the English law of Crown pro-
ceedings was reformed by the Crown Proceedings Act 1947, the legislation, some
of which applied to Scotland as well as to England, was written in such a way as
to ignore the di¬erences that had existed between English and Scots law in this
area, making the Scots law position both more complex and more protective of
the Crown than it had formerly been. The Crown Proceedings Act 1947 was
designed to make it easier to proceed against the Crown, yet its e¬ect in Scotland
was in a number of respects precisely the opposite “ in particular as regards the
(non-) availability of interdict (ie, injunction) against the Crown (see McDonald
v Secretary of State for Scotland 1994 SC 234). Only in 2005 did the House of
Lords move to remedy this problem (see Davidson v Scottish Ministers [2005]
UKHL 74, 2006 SC (HL) 41; see in greater detail, Tomkins, ˜The Crown in Scots
law™, in A McHarg and T Mullen (eds), Public Law in Scotland (2006), ch 13).
As far as English law is concerned, until 1947 the citizen was under many
disabilities, both procedural and substantive, as a litigant against the Crown. The
procedural disabilities were associated with the archaic mode of proceeding by
petition of right. A claim by petition of right required the leave of the Crown,
granted by the Sovereign on the advice of the Attorney General, and the Crown
bene¬ted from an array of procedural privileges. The most serious defect in the
substantive law was the Crown™s immunity from liability in tort (˜the King can
do no wrong™), and it was the need to remedy this defect that led to the enact-
ment of the Crown Proceedings Act 1947. The Act e¬ected a broader reform of
the law, abolishing (with limited exceptions) the procedure of petition of right
(s 13), removing most of the disabilities of the private litigant, and approximat-
ing Crown proceedings to ordinary civil proceedings between citizens. Despite
these far-reaching reforms of the law and procedure, some rules remain that are
peculiar to Crown liability, while actions by and against the Crown retain certain
distinctive features. (The petition of right procedure was unknown in Scots law “
see the Crown Suits (Scotland) Act 1857 “ and Scots law, unlike English law, did
not traditionally consider that ˜the King can do no wrong™.)
704 British Government and the Constitution

Under the Crown Proceedings Act 1947 the court may, in general, make any
such order against the Crown as it has power to make ˜in proceedings between
subjects™ (s 21(1)) and in particular may award a sum of money (whether a debt
due or damages). Although there can be no order for execution of judgment
against the Crown, the court will issue a certi¬cate of any order made by it and
the appropriate government department is required to pay to the claimant the
sum certi¬ed as being payable (s 25).
Section 21(1) of the Crown Proceedings Act preserves the immunity which
the Crown enjoyed at English common law from injunctions and orders of
speci¬c performance, but provides that in lieu of such orders the court may
grant a declaratory order (declaration). The crucial di¬erence between the two
remedies, however, is that, unlike injunctions, there is no such thing as an
interim declaration. Section 21 extends to Scotland. In Scotland, however, until
1947 the Crown did not enjoy an immunity from interdict “ this is one of the
respects in which the 1947 Act failed adequately to take the di¬erences between
English and Scots law into account. Section 21(1) applies only to ˜civil proceed-
ings™. This phrase has now been interpreted in both English and Scots law as
excluding judicial review proceedings: thus, notwithstanding section 21(1),
injunctions are available against the Crown in judicial review (see M v Home
O¬ce [1994] 1 AC 377 and Davidson v Scottish Ministers [2005] UKHL 74, 2006
SC (HL) 41).
Section 21(2) of the Act provides that the court shall not grant any injunc-
tion or other order against an o¬cer of the Crown (including a minister and
any Crown servant) if the e¬ect would be ˜to give any relief against the Crown
which could not have been obtained in proceedings against the Crown™. This
provision was for a time understood to disallow the grant of an injunction
against a minister in any case in which he or she had acted in an o¬cial capac-
ity (see Merricks v Heathcoat-Amory [1955] Ch 567; R v Secretary of State for
Transport, ex p Factortame Ltd [1990] 2 AC 85, 146“8). Fortunately this view
was repudiated by the House of Lords in M v Home O¬ce (above). Scots law
was brought into line with M v Home O¬ce in Davidson v Scottish Ministers
The restrictions on remedies imposed by section 21 must give way in appro-
priate cases to European Community law, which requires that e¬ective protec-
tion should be given to Community rights. This was made clear by the
European Court of Justice in its ruling in Case C-213/89, R v Secretary of State
for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603, 644, in which it was
held that:

a national court which, in a case before it concerning Community law, considers that the sole
obstacle which precludes it from granting interim relief is a rule of national law must set
aside that rule.
705 The courts: judicial review and liability

(a) Contractual liability
Section 1 of the Crown Proceedings Act 1947 provides:

Where any person has a claim against the Crown after the commencement of this Act, and,
if this Act had not been passed, the claim might have been enforced, subject to the grant of
His Majesty™s fiat, by petition of right, . . . then, subject to the provisions of this Act, the claim
may be enforced as of right, and without the fiat of His Majesty, by proceedings taken against
the Crown for that purpose in accordance with the provisions of this Act.

The government is di¬erent from private contracting parties by reason of its
responsibilities for the public interest “ a di¬erence which is expressed in
certain rules a¬ecting its capacity to bind itself by contract. In particular the
government “ like other public authorities “ may not contract in such a way as
to fetter the exercise of its public powers or the discharge of its public duties.
This rule most commonly applies to discretionary powers conferred by statute
and was crisply expressed in relation to the Crown by Woolf J in R v IRC, ex p
Preston [1983] 2 All ER 300, 306:

the Crown cannot put itself in a position where it is prevented from performing its public
duty. . . . If it seeks to make an agreement which has that consequence, that agreement is
of no effect.

(This proposition was upheld in the House of Lords: [1985] AC 835, 862.) On
the other hand the making of a contract, so far from being an unlawful fetter-
ing of discretionary powers, is normally a legitimate exercise of discretion: it is
only if a contract is incompatible with the purposes for which a power was given
that it o¬ends against the rule.
The rule against fettering of discretion is not limited, in its application to the
Crown, to statutory discretionary powers. The Crown has an ultimate respon-
sibility for the public welfare which may demand the exercise of its prerogative
or common law powers, even though such necessary action runs counter to
speci¬c contractual undertakings previously given. How is this con¬‚ict of
public and private interests to be resolved?

Rederiaktiebolaget Amphitrite v The King [1921] 3 KB 500 (Rowlatt J)
During the First World War the British Government was operating a ˜ship for
ship™ policy, by which neutral ships were not allowed to leave British ports unless
replaced by other ships of the same tonnage. The suppliants in a petition of right
were a Swedish steamship company which had sought and been given an express
assurance that if their ship, the Amphitrite, brought a cargo of approved goods
to a British port, she would be allowed to leave, notwithstanding the ˜ship for
706 British Government and the Constitution

ship™ policy. The Amphitrite discharged her cargo of approved goods at Hull but,
despite the undertaking given, was detained. The company, having sold the ship
to avoid further loss, claimed damages from the Crown for breach of contract.
Rowlatt J gave judgment for the Crown:

Rowlatt J: . . . I have not to consider whether there was anything of which complaint might
be made outside a Court, whether that is to say what the Government did was morally wrong
or arbitrary; that would be altogether outside my province. All I have got to say is whether
there was an enforceable contract, and I am of opinion that there was not. No doubt the
Government can bind itself through its officers by a commercial contract, and if it does so
it must perform it like anybody else or pay damages for the breach. But this was not a
commercial contract; it was an arrangement whereby the Government purported to give an
assurance as to what its executive action would be in the future in relation to a particular
ship in the event of her coming to this country with a particular kind of cargo. And that is,
to my mind, not a contract for the breach of which damages can be sued for in a Court of
law. It was merely an expression of intention to act in a particular way in a certain event.
My main reason for so thinking is that it is not competent for the Government to fetter its
future executive action, which must necessarily be determined by the needs of the commu-
nity when the question arises. It cannot by contract hamper its freedom of action in matters


. 130
( 155 .)