The Future of Certiorari

Abstract

Complaints have often been made about the pitfalls of certiorari as a remedy in administrative law. The reports of recent years have been rich in decisions on its scope, and some of them have brought welcome clarification. But others have been bewildering, so much so that the courts themselves have now begun to encourage litigants to abandon certiorari in favour of the action for a declaration. It is a little paradoxical that in 1932, when certiorari was less vexed with uncertainties than now, the Committee on Ministers' Powers proposed to abolish it, yet in 1957, when it had proved notably unequal to the needs of the times, the Franks Committee discharged it without a stain on its character—and, indeed, recommended that it be given a wider operation, as has now been provided in the Tribunals and Inquiries Act, 1958. The explanation lies not merely in the proclivity of the earlier Committee to embark upon difficult legal questions, which their successors wisely avoided, but in the different nature of the problems considered, some being of form and some of substance. What the Ministers' Powers Committee wanted to reform was the “archaic and in some ways cumbrous and inelastic ” procedure of the ancient prerogative writs of certiorari, prohibition and mandamus, for which they wished to substitute a general right of appeal to the High Court on a point of Law. The Franks Committee, on the other hand, did not address themselves to the defects in procedure—although they were pointed out in evidence —and they said singularly little about the proposals of 1932; they were concerned rather to protect certiorari against the operation of “judge-proof” clauses in Acts of Parliament, and to endorse the sound policy of the bench in giving such clauses a narrow construction.