By Evarist Baimu Nyaga Mawalla - Home

So once again one comes back to what I regard as the true view, that it is not justthe source of the power that matters, but also the nature of the duty. I can see nothing inReg. v. Criminal Injuries Compensation Board, Ex parte Lain (1967) 2 Q.B 864 whichcontradicts that view, or compels us to decide that, in non-statutory cases, judicial reviewis confined to bodies created under the prerogative, whether in the strict sense, or in thewider sense in which that word has now come to be used. Indeed, the passage fromDiplock L,J.’s judgment, at p. 884 which Sir John Donaldson M.R has already read,points in the opposite direction.But suppose I am wrong; suppose that the courts are indeed confined tot lookingat the source of the power as Mr. Alexander submits. Then I would accept Mr. Lever’ssubmission that the source of the power in the present case is indeed governmental atleast in part. Mr. Alexander argued that so far from the source of the power beinggovernmental this is a case where the government has deliberately abstained fromexercising power. Is do not take that view. I agree with Mr. Level when he says that therehas been an implied devolution of power. Power exercised behind the scenes is powernonetheless.The express powers conferred on inferior tribunals were of critical importance in theearly days when the sole or main ground for intervention by the courts was that theinferior tribunal has exceeded its powers. But those days are long since past. Havingregard to the way in which the panel came to be established the fact that the Governor ofthe Bank of England appoints both the chairman and the deputy chairman and the othermatters to which Sir John Donaldson M.R has referred. I am persuaded that the panel wasestablished “under authority of the Government,” to use the language of Diplock L.J inLain’s case. If in addition to looking at the source of the power we are entitled to look atthe nature of the power, as I believe we are, then the case is all the stronger.Before leaving Mr. Alexander’s second argument, I should mention one last point.The jurisdiction of the court to grant relief by way of judicial review is now, of courserecognized by section 31 of the Supreme Court Act 1981. section 31(1)(a) refersspecifically to the old prerogative writs, namely mandamus, prohibition and certiorari.Section 31(1)(b) and (2) provide that in an application for judicial review, the court maygrant a declaration or injunction if it is just or convenient to do so, having regard tovarious matters.I have already referred to the passage in Woolf J.s’ judgment in Reg. v. BritishBroadcasting Corporation, Expatre Lavelle (1983)1 W.L.R.23,31, in which he says thatapplications for judicial review under R.S.C., Ord. 53, r. 1(2) are not confined those caseswhere relief could be granted by way of prerogative order. As at present advised, I wouldagree with that observation. I would only add as a rider that section 31(1) of the SupremeCourt Act 1981 should not be treated as having put a stop to all further development ofthe law relating to the prerogative remedies, I do not accept Mr. Alexander’s submissionthat we are here extending the law. But if we were, I would not regard that as aninsuperable objection. The prerogative writs have always been a flexible instrument fordoing justice. In my judgment they should remain so.174