Rex v Electricity Commissioners, ex parte London Electricity Joint Committee Co (1920) Ltd: CA 1923

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. An objection was made that an inquiry was ultra vires.
Held: This was held to be ultra vires, and the question was whether prohibition would lie. Since the cost of the inquiry would have been wholly wasted if, thereafter, the Minister and Parliament had approved the scheme only to be told at that late stage that the scheme was ultra vires, the courts could examine the issue. Where some administrative order or regulation is required by statute to be approved by resolution of both Houses of Parliament, the court can in an appropriate case intervene by way of judicial review before the Houses have given their approval.
Younger LJ said: ‘the interference of the Court in such a case as this, and at this stage, so far from being even in the most diluted sense of the words a challenge to its supremacy, will be an assistance to Parliament.’
Lord Atkin observed at a very early stage in the development of public law that he knew of ‘no authority which compels me to hold that a proceeding cannot be a judicial proceeding subject to prohibition or certiorari because it is subject to confirmation or approval, even where the approval has to be that of the Houses of Parliament.’
Atkin LJ described the scope of the prerogative writs of prohibition and certiorari: ‘both writs deal with questions of excessive jurisdiction, and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Court of Justice. But the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would not be recognized 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.’ and ‘ In the present case the Electricity Commissioners have to decide whether they will constitute 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.’
Bankes LJ 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 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’.
Younger LJ, Lord Atkin LJ, Bankes LJ
[1924] 1 KB 171, (1923) 205 CA 13, (1923) 130 LT 164, [1923] All ER 150
England and Wales
Cited by:
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Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.258760