Letter of the Law
Ipsos Custodes
By R. A. CLINE
Doiis the English system of law afford any better protection to the victims of oppressive administration than continental systems such as the ever vigilant French Conseil d'etat? The un- committed will probably have deferred making up their minds in order to see whether the new Council (which was set up on the recommenda- tion of Sir Oliver Franks to hear grievances) is effective. At this moment the Council has before it Major Aubrey Buxton's now celebrated com- plaint. It will be remembered that, after an un- happy battle in the Courts (described in this column many, many legal ,terms ago), Major Buxton managed to persuade a town-planning inspector that a neighbouring gravel-pit could not be worked without damaging his land. The inspector accordingly reported to his Minister that permission ought not to be granted for the gravel-pit to be worked. But the Minister thought otherwise and Major Buxton now alleges that the Minister had been taking advice from one of his more knowing colleagues and that he, Major Buxton, was therefore improperly deprived of the right to challenge what passed between them.
On the rights and wrongs of the case no com- ment need yet be made and in any case someone will be saying that the matter is sub judice! But what does give rise to anxiety about our system is the enormous role played by sheer luck. For if only the Departments of State and of Local Government play their cards skilfully enough and there are no leaks, there is nothing the victim can do about it, nothing to report to the Franks Council. The processes of legal con- trol only operate effectively if there is full and frank disclosure by all parties.
Unfortunately such disclosure is not in the least obligatory under the law as it stands. A recent case in the High Court shows very clearly how utterly fortuitous is the way in which facts may come to light, facts which are the very springboard for judicial protection of administra- tive victims, without which the judges are power- less to intervene and which could so easily have remained in obscurity.
In 1958 the London County Council turned its corporate attention to a block of flats in Camber- well and made a compulsory purchase order. The leaseholders of the block, who had a ninety-nine- year lease, were keen to convert the premises but the LCC refused them planning permission. So they consulted with the freeholders who owned the building and both parties decided to fight the LCC order. They lodged their objections and the usual public inquiry was ordered to be held. But then an odd thing happened. A few days before the inquiry the freeholders quite sud- denly withdrew their objections and pulled out of the inquiry. The leaseholders found them- selves left to go it alone. The inquiry duly came on and in the course of cross-examination of an LCC witness the reason for the freeholders' ‘.■lth- drawal became all too intelligible. The I.C( and the freeholders had entered into an arrangement
with each other, the effect of which was shortly this: if the LCC got their order confirmed, then the freeholders undertook to pay £2,000 towards the cost of rehousing the tenants in the block; the LCC lin its part would buy out the lease- holders, hand over the building to the freeholders and not proceed with compulsory purchase at all! This would leave the field free to the free- holders who would be able to develop the block to their heart's content Which on the face of it was pretty cool Notwithstanding these revela- tions, the inspector came down in favour of the LCC. He recommended that the compulsory purchase order (which the LCC were not going to use) be confirmed and the Minister duly did so..
Now by the purest piece of luck the whole of this remarkable arrangement was set out in a letter from the LCC to the freeholders, making it clear beyond doubt that a firm and final agree- ment had been reached. By a further piece of good fortune, counsel/ elicited the actual letter by his cross-examination. Fhe letter was vital, but until that moment it had never been disclosed. Without it the Court's power to interfere was questionable. With it Mr. Justice Ashworth found himself able to hold that the LCC's de- clared intention to acquire something compul- sorily and then to give it away again was ultra vires and he quashed the order. Describing the
letter as a vital piece of ammunition, thc Judge expressed surprise that 'the Minister with all those who advise him and are fully acquainted with the complex housing provisions which prevail today' should have thought fit to confirm the order.
Heart-warming though it is to know that the executive can still be controlled by the judiciary, the conviction remains that there is something a little too chancy about the whole business, that the terms of trade are still running'harcrin favour of the administrators, and will continue to do so until disclosure of relevant documents on the .widest possible scale is made obligatory.
*
In a recent article which appeared in these columns on the English Bar there was a brief comment on the connection between politics and the Bench.' The appointment by the Labour Government of large numbers of justices of the peace solely on their political connections and activities was cited as an example. Many corre- spondents have objected that this was an unfair example on the grounds (a) that there are local advisory panels whose members recommend the Lord Chancellor on these appointments and (b) that the Labour Government merely redressed the balance finding that Tories had come to out- number Socialists in the local courts. But the fact is that these advisory, panels are themselves largely staffed by political people from both parties; their recomprndations are naturally in- fluenced by their political associations. As for the second ground, this would appear to show conclusively that the example was a good one. Why appoint politicians of any colour to these tribunals where they will be required to adjudi- cate upon issues such as town-planning applica- tions, issues in which a Left- or Right-wing attitude could make it hard indeed for a magistrate to remember his oath?
Previous page
