also Vine v National Dock Labour Board

December 5. Viscount Kinmurr L.C. My Lords, the appeal
and cross-appeal in this matter are brought by leave of your
Lordships' House from a judgment of the Court of Appeal dis-
missing an appeal from, but varying the judgment of, Ormerod J.
The judge had granted a declaration that the purported dismissal
by the National Dock Labour Board (whom I shall call "' the
'""National Board'') of Mr. Vine (whom I shall call "' the
'* plaintiff '') was illegal, ultra vires and invalid and had awarded
him £250 damages. The Court of Appeal, by a majority, struck
out the declaration.

As a result of the appeal and cross-appeal your Lordships.
have now to decide whether that purported dismissal was invalid.
whether the majority of the Court of Appeal were right in
striking out the declaration and whether the award of £250
damages should stand.

[ His Lordship stated the facts and continued: ] On these facts
and provisions of the scheme Mr. Harold Brown submitted that
the National Board had an independent power, under clause 17
of the scheme, which they could and did exercise through the
disciplinary committee, who acted on their behalf. I do not
think that it is necessary to decide whether they could exercise
a power independent of that of the local board under clause 16,
because I am quite certain that they did no such thing. The
happenings that I have set out above occurred as the result of
the procedure laid down by clauses 15 (4) and 16 (2) being put
into operation by the disciplinary committee on behalf of the
local board. Mr. Brown's first submission is as unreal ag it is
ingenious and therefore fails.

I now turn to the contention that the local board could
delegate its functions to the disciplinary committee. I have had

13,177 L.T. 455, 463. 14 [1951] A.C. 66.

A.C. AND PRIVY COUNCIL.

the advantage of seeing in print the opinion which my noble and
learned friend, Lord Somervell of Harrow, is about to express
and, on this part of the case, I find myself in complete agree-
ment with it. It was urged that the very idea was negatived by
the fact that this was a quasi-judicial act. I am not prepared
to lay down that no quasi-judicial function can be delegated,
because the presence of the qualifying word '' quasi '' means that
the functions so described can vary from those which are almost
entirely judicial to those in which the judicial constituent is small
indeed (see Cooper v. Wilson,! per Scott L.J.). As so much has
been said on this point I think it is right to say that there is a
judicial element here in the sense discussed by Donovan J. in
Rex v. Metropolitan Police Commissioner, Ex parte Parker.?

Nevertheless, that is not the end of the matter. It is neces-
sary to consider the importance of the duty which is delegated
and the people who delegate. In this case the duty is to
consider whether a man will be outlawed from the occupation of
@ lifetime. The scheme will not work unless discipline is main-
tained by the wise use of that power. I do not make any
reflection on the ability or sense of justice of the pairs of
gentlemen who from time to time form the committee. I notice
that the pair would always consist of one representative of the
employers and one of the workers, but my view is that this duty
in this scheme is too important to delegate unless there is an
express power.

I reach the same conclusion when I consider this from the
aspect of who may delegate. The duty is placed on the local
board. It is obviously possible that cases may occur in which
not only the man but his trade union and employers may want a
decision of the whole board. Again, I think that they are
entitled to have it unless the scheme says otherwise. Further,
as was mentioned in the argument, if one allows the principle of
delegation, it would then be possible, although neither probable
nor practicable, for the board to delegate its functions to a
committee which was not a microcosm of itself but a body on
which employers and employed were no longer equally repre-
sented.

For all these reasons, I do not think that delegation was
possible. The decision of the disciplinary committee was there-
fore a nullity which, it is conceded, cannot be cured by appeal.

I now turn %o the striking "out" of the declaration made by

1 [1937] 2 K.B. 309, 341; 53 2 [1953] 1 W.L.R. 1150, 1157;
T.L.R. 623; [1937] 2 All E.R. 726. [1953] 2 All E.R. 717.

499

H. L. (£.)
1956

VINE
0.
NATIONAL
Dock
Lazour
Boarp.

Viscount
Kilmuir L.c.

500

H. L. (B)
1956

VINE
0.
NATIONAL
Dock
LABOUR
Boarp.

Viscount
Kilmuir L.C.

HOUSE OF LORDS [1957 |

Ormerod J. The granting of a declaration is a matter of
discretion, and, in view of the opinions expressed by the majority
of the Court of Appeal, I have considered what was said on this
subject in your Lordships' House in Russian Commercial and
Industrial Bank v. British Bank for Foreign Trade Ltd.* In
that case Lord Finlay said, in the course of his dissenting
opinion: '' The question in what cases the jurisdiction to give a
' declaratory judgment should be exercised has been considered
''in a number of cases which were called to our attention by
''Mr. Hogg.'' Lord Finlay then cited the expressions used in
those earlier cases: ''sparingly,'' '' with great care and
''jealousy,'' '' with extreme caution.'' I agree that the dis-
cretion should not be exercised save for good reason. On the
other hand, I find helpful the Scottish tests set out in that case
by Lord Dunedin, who said*: '' The question must be a real
'and not a theoretical question; the person raising it must have
'"a real interest to raise it; he must be able to secure a proper
'* contradictor, that is to say, someone presently existing who has
'' a true interest to oppose the declaration sought.'' It seems to
me that, however "' cautiously '' or "' sparingly '' the discretion
is to be exercised, this is a case in which the judge was right to
grant a declaration.

I should, on this point, be content to leave the matter as stated
by Jenkins L.J., with whose judgment I am in entire agreement,
but as I am differing from the majority of the Court of Appeal
I think it right to summarize my reasons. First, it follows from
the fact that the plaintiff's dismissal was invalid that his name
was never validly removed from the register and he continued
in the employ of the National Board. This is an entirely
different situation from the ordinary master and servant case;
there, if the master wrongfully dismisses the servant, either
summarily or by giving insufficient notice, the employment is
effectively terminated, albeit in breach of contract. Here, the
removal of the plaintiff's name from the register being, in law,
a nullity, he continued to have the right to be treated as a
registered dock worker with all the benefits which, by statute,
that status conferred on him. It is therefore right that, with the
background of this scheme, the court should declare his rights.

Secondly, it was said that the grant of a declaration would
lead to further litigation; I cannot believe that the National
Board would do other than comply with the declaration, and, in

SE PLO2I 2 ALC. 7438s (Seale es 4 [1921] 2 A.C. 488, 445.
O19" 5 Thid. 448.

A.C. AND PRIVY COUNCIL.

501

that case, I do not see why there should be further litigation. H. L. (B.)

Thirdly, for the reasons given by Jenkins L.J., I find it difficult
to see that damages would be an adequate remedy. Nor can I
see that the conduct of the plaintiff as a result of the board's
action, or the form of his pleadings, should be a bar to his
obtaining the remedy he asks for.

Although doubts have been expressed on the quantum of the
damages, I cannot see such an error of principle as calls for the
interference of your Lordships' House.

I would, therefore, allow the plaintiff's appeal and dismiss
the cross-appeal.

Lorp Morton or Henryton. My Lords, as there is a cross-
appeal in this case, I find it convenient to refer to Mr. Vine as
'* the plaintiff '' and to the respondents as '' the National Board."'

Three questions arise for determination: (1) Was the
purported dismissal of the plaintiff, as from November 22, 1952,
effective or invalid? (2) If it was invalid, was the Court of
Appeal right in reversing, by a majority, the decision of
Ormerod J. to make a declaration to that effect? (8) Should the
learned judge's award of £250 damages to the plaintiff be altered ?

As to the first question, Mr. Brown, for the National Board,
submitted that the dismissal was an act of that board under
clause 17 (1) (b) of the Dock Workers (Regulation of Employ-
ment) Order, 1947. That clause and the other relevant clauses
have already been read, and I need not repeat them. Mr. Brown
submits that this sub-clause conferred a power upon the National
Board which was quite independent of the power conferred on
the local board by clause 16 (2) of the scheme; and that the
giving of notice to the plaintiff was an administrative act rightly
carried out on behalf of the National Board by its delegate the
disciplinary committee. Alternatively, he submits that if the
act of dismissal could be carried out only by the local board,
it was in fact carried out by the local board.

My Lords, I am prepared to assume, without expressing any
opinion on the point, that clause 17 (1) (b) of the scheme confers
an independent power upon the National Board, but in my view
it is plain from the course of events, as set out in the judgment
of Ormerod J., that the whole matter was dealt with by the
disciplinary committee, purporting to act as the delegate of the
local board and following the procedure laid down in clauses 15 (4)
and 16 (2) of the scheme. Neither the local board nor the National
Board at any time considered the written report given by

A.C. 1957. 33

1956

VINE
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NATIONAL
Doox
Lasour
BoarpD.

Viscount
Kilmuir L.C.

502 HOUSE OF LORDS [1957 |

H. L. (E.) Messrs. J. Rose & Co. Ltd. or investigated the matter; nor did
either of them at any time arrive at any decision on the penalty
which should be imposed on the plaintiff. Thus the question
vee arises whether the giving of notice to the plaintiff was an adminis-
NATIONAL trative act which could be delegated and was properly delegated
Doox
Lasour by the local board.
gs I do not find it surprising, my Lords, that the local board
Lt ae ah thought they could delegate their duties under clauses 15 (4)
— and 16 (2) of the scheme to a disciplinary committee, especially
as they were careful to provide that the committee was to con-
sist of ''one member representing the dock workers and one
'' member representing the employers.'' The question whether
these duties could or could not be delegated has been argued at
length in this House, and I have found it difficult to arrive at a
conclusion upon it. I add that if delegation was permissible
at all, the selected delegate, the disciplinary committee, appears
to me to have acted with perfect propriety throughout; but if
delegation was not permissible, the dismissal of the plaintiff
was a nullity and this House must so hold, however unfortunate
may be the result to the National Board in the discharge of its
heavy and important duties. The learned judge and the Court
of Appeal, following the ease of Barnard v. National Dock
Labour Board,® unanimously took the view that the duties and
powers assigned to the local board by clauses 15 (4) and 16 (2)
of the scheme could not be delegated, and I have arrived at the
conclusion that they were right.

1956

Action under these clauses arises when a written report is
made to the local board that a worker has been guilty of the
conduct described in sub-clause (2) or sub-clause (3) of clause 15
of the scheme. The sequence of events is, then, as follows,
under clause 15 (4):—First, '' the local board shall consider "'
the written report. Then it must '' investigate the matter '' and
form an opinion as to whether the worker has committed the
offence alleged in the employer's report. If the local board is
"satisfied '' that he has, it must then consider (a) whether the
worker has any valid excuse for his conduct and (b) which, if
any, of the penalties mentioned in clause 16 (2) of the scheme
should be imposed upon him.

These duties, viewed as a whole, are, in my opinion, duties of
a judicial character, and the decision of the local board may be
of vital importance to the worker, as it may involve dismissal.

6 [1958] 2 Q.B. 18; [1953] 1 All E.R. 1118.

A.C. AND PRIVY COUNCIL.

If, in an ordinary contract of service, a man is dismissed by his
employer, it is open to him to seek and obtain employment in the
same or another line of work with another employer; but the
result of dismissal from employment under this scheme is wholly
to remove the man from employment as a dock worker. Further,
it must be borne in mind that if the local board could delegate
these duties at all, they could be delegated to any person or
body of persons. In my opinion, the true meaning and intent
of the scheme is that these duties shall only be carried out by
the carefully balanced body to which they are directly entrusted
under the scheme, the local board. I do not doubt that many
of the numerous duties imposed upon the local board by the
scheme can be delegated, and an express power of delegating
certain duties to a registration committee is given by clause 5
(7) (a); but the duties imposed by clauses 15 (4) and 16 (2) are
on a special footing, for the reasons I have given. I add that
much of the argument centred round clauses 17 and 18 of the
scheme, and I think that it is by no means clear what is the
precise relationship between clause 17 and clause 16 and what
exactly are the rights of appeal conferred by clause 18. I have
not found it necessary to form an opinion on these matters, but
I think that these clauses might well be reconsidered and clarified
by amendment.

Next, Mr. Brown submitted that if the act of dismissal was
wrongful, the plaintiff elected to accept the act of the board as
a repudiation of the contract, so that an award of damages was
the only relief open to him. On this point I need only say that,
in agreement with Ormerod J. and the Court of Appeal, I
cannot find any such election by the plaintiff, either in his
conduct after November 22, 1952, when the notice of dismissal
took effect, or in the statement of claim delivered on January
12, 1954, or in any subsequent pleading.

My Lords, I now come to the question whether the Court
of Appeal was right in reversing, by a majority, the decision
of the learned judge to make a declaration that the purported
dismissal was invalid. Mr. Brown submitted that the only
remedy open to the plainitiff was an award of damages and,
alternatively, that if the court had power to grant a declaration,
no declaration should have been made in the circumstances of
the present case.

My Lords, I hope I shall not be thought wanting in respect
to the judgments of the majority of the Court of Appeal, with
which I have so far agreed, if I say that on this point I find

503

H. L. (E#.)

VINE
0.
NATIONAL
Dock
LABOUR
Boarp.

Lord Morten
of Henryton.

504

H. L. (B.)

1956
VINE
0.
NATIONAL
Dock
LABOUR
BoarpD.

Lord Morton
of Henryton.

HOUSE OF LORDS [1957 |

myself entirely in agreement with the judgment of Jenkins L.J.
I am content to adopt, without qualification, everything that he
said on the point, and I would only add this. If your Lordships
agree with the views which I have stated, the result is that the
purported dismissal of the plaintiff is a nullity. To give him an
award of money, as the learned judge did, for the damage he
suffered up to the date of the judgment is only to give him part
of the relief which he ought to have. The declaration granted
by the learned judge was properly made, in my view, so as to
make it clear to all the world what was the plaintiff's position
in the eyes of the law.

Lastly comes the question whether the learned judge's award
of £250 damages should be altered. It is, I think, clear that the
learned judge assessed damages only up to the date of his
judgment, and I do not see any sufficient ground for interfering
with his award.

For these reasons I would allow the plaintiff's appeal and
dismiss the cross-appeal of the National Board.

Lorp Conen. My Lords, I need not repeat the citations your
Lordships have made from the scheme scheduled to the Dock
Workers (Regulation of Employment) Order, 1947. The proper
construction of that scheme is a matter of considerable difficulty.
Thus it is far from clear whether the provisions of clause 17 (1)
are intended to confer a power of terminating the contract estab-
lished between the National Dock Labour Board and a registered
dock worker in the reserve pool by clause 8 (2) of the scheme and
to prescribe how and in what cases that power is to be exercised
or whether, at any rate, so far as sub-paragraphs (a) and (b) are
concerned, they are intended merely to qualify the exercise of
powers conferred on the local board by clause 16 (2) (c) and (d).

I do not find it necessary to reach a conclusion on this point
since it is, 1 think, reasonably clear from the terms of the notice
given to the appellant that in dismissing him the local board,
acting by its disciplinary committee, purported to act under the
powers conferred upon the local board by clause 16 (2) in any
case where a registered dock worker fails to comply with a
provision of the scheme.

Mr. Brown submitted that the dismissal was merely an
administrative act taken in pursuance of the power which he said
the respondents, like any other employer, had to dismiss a work-
man on seven days' notice. I do not think that the respondents
are in the position of an ordinary employer. The objects of the

A.C. AND PRIVY COUNCIL.

505

scheme are stated in clause 1 (2) as being to ensure greater H. L. (E.)

regularity of employment for dock workers and to secure that an
adequate number of dock workers is available for the efficient
performance of dock work. The scheme contains elaborate pro-
visions for its operation, and it seems to me clear that it would
defeat the object of the scheme if the respondents could remove
a dock worker from the register except for reasons recognized
expressly or impliedly as valid by the scheme. The language of
clause 18, which confers a right of appeal to an appeal tribunal
constituted under the scheme on a registered dock worker
aggrieved by action taken under certain paragraphs of clauses
15, 16 and 17, is, I think, inconsistent with the existence of any
such wide power as that for which Mr. Brown contends.

He also submitted that clause 18 did not confer any right of
appeal on a workman aggrieved by the termination of his contract
under clause 16 (2) (c). It would be strange indeed if this
argument were well founded. I think, however, the answer to
it is that the right of appeal arises either because the effect of
the termination is to disentitle the worker to payment under
clause 14 and, therefore, clause 18 (1) (a) applies, or because,
the notice of determination having been given in writing, the
ease falls within clause 18 (1) (e). It is not, I think, material to
decide under which of these subclauses the case falls.

These matters are merely subsidiary to the real issue, which
is whether the decision to determine the contract, having been
taken not by the local board but by a disciplinary committee
appointed pursuant to the resolution of the local board passed
on October 2, 1947, was valid or was, as Ormerod J. declared,
illegal, ultra vires and invalid.

Mr. Brown says that it was an administrative act and, like
any other such act, could be delegated by the board. I doubt
whether the mere fact that it was an administrative act would
be conclusive of the matter, but I need not go further into this
since I am satisfied that in exercising their powers under clause
16 (2) the local board were acting in a judicial capacity. I reach
this conclusion from the language of clauses 15, 16, 17 and 18
read together. The significant language is, I think, as follows:

(a) In clause 15 (1) and (2) the words '' without adequate
'** eause.'" The determination of whether there is adequate cause
seems essentially a proper matter for decision judicially.

(b) A worker who "' without adequate cause '' fails to comply
with certain provisions of the scheme is to be reported in writing
to the local board (see clause 15 (2) ).

1956

VINE
0.
NATIONAL
Dock
LABOUR
BOoOarD.

Lord Cohen.

506 HOUSE OF LORDS [1957 |

H. L. (B.) (c) Similarly, a worker whose engagement is terminated by an

1956 employer and who is returned to the reserve pool is also to be

reported in writing to the local board.

(d) Under clause 15 (4) the local board are to consider any
eee such written report and to investigate the matter and are
Lasoux empowered, if they are satisfied that the worker is at fault in
BoaRD- the respect alleged, to disentitle him, in whole or in part, to
Lord Cohen. payment under clause 14 for the week in which the fault was

nah committed.

(e) Clause 16 (2) enables action to be taken "'in addition
'and without prejudice to the powers conferred by clause 15 "'
in case of failure to comply with any of the provisions of the
scheme. The reference to clause 15 satisfies me that the local
board, if it acts under clause 16, must investigate the matter
and be satisfied that the default is proved in the same way as it
must under clause 15.

(f) The provisions of clause 18 requiring, as I think, that if
there is an appeal the local board must state the grounds on which
they acted, reinforces my view that in all the decisions taken
under clauses 15, 16 and 17 (1) the local board must act in a
judicial manner. If this be so, it was not, I think, disputed that
the local board as such must exercise the power and cannot
delegate it to a committee.

I would add that the constitution of the local board which
was so devised as to secure equal representation for employer
and employed seems to support the view that the power conferred
by clause 16 cannot be delegated. For if delegation were per-
missible there is nothing to control the selection of the persons
to whom the power is to be delegated.

For these reasons I agree with the unanimous decision of the
Court of Appeal and with your Lordships that the delegation to
the disciplinary committee of the power to terminate the employ-
ment of a registered dock worker was invalid. In reaching this
conclusion I am assisted by the decision of the Court of Appeal
in Barnard v. National Dock Labour Board.* The correctness
of that decision was challenged by Mr. Brown, but in my opinion
his criticism is not valid.

The question next arises whether the majority of the Court of
Appeal were right in refusing to the appellant the declaration
that had been made by the order of Ormerod J. The appellant's
right to this declaration was challenged on two grounds. First,

6 [1953] 2 Q.B. 18.

A.C. AND PRIVY COUNCIL.

507

it was said that he had elected to treat himself as wrongfully H. L. (#.)

dismissed and to sue for damages and was thus debarred from
claiming to be still in the employment of the respondents.
Secondly, it was said that the power to make such a declaration
should be sparingly used and that this was not an appropriate
case for its exercise.

I am unable to accept either of these arguments. I cannot
attach importance to the fact that the appellant sought other
employment. As Ormerod J. said, he was prevented from
following his employment by the act of the respondents and was
left with no alternative but to try and find other employment in
order to earn a living, at least until the dispute between the
parties could be decided one way or the other. Mr. Brown relied
also on the form of the original statement of claim in this action.
On this point I agree with Jenkins L.J. that no fair reading of
the pleading could be read as an election not to ask for
reinstatement.

I also agree with Ormerod J. and Jenkins L.J. that this is
not a case in which damages would be an adequate remedy, and
I cannot usefully add anything to the reasons given by them
and by your Lordships for reaching this conclusion.

Finally, Mr. Brown by way of cross-appeal urged that, if a
declaration were made, the damages awarded were excessive. My
Lords, I am unable to see that the trial judge erred in principle
in assessing the damage, nor can I say that the amount he
awarded is so excessive that an appellate tribunal would be
justified in interfering with his assessment.

For these reasons I would allow the appeal and restore the
judgment of the trial judge, and would dismiss the cross-appeal.

Lorp Keita or AvonHotm. My Lords, agreeing as I do with
the conclusions reached by your Lordships, I have little to add
to what has been said.

This is not a straightforward relationship of master and
servant. Normally, and apart from the intervention of statute,
there would never be a nullity in terminating an ordinary contract
of master and servant. Dismissal might be in breach of contract
and so unlawful but could only sound in damages.

Here we are concerned with a statutory scheme of employ-
ment. One of its objects was to do away with the evils of casual
employment at the docks. Another was to secure a regular
supply of labour for the shipping and unshipping of merchandise.
These objects are concisely stated in the scheme, echoing the

1956
VIN

0.
NATIONAL

Lord Cohen.

508

H. L. (B)
1956

VINE
0.
NATIONAL
Docx
LABouR
BoarD.

Lord Keith
of Avonholm.

HOUSE OF LORDS [1957 |

words of the statute, to be ''to ensure greater regularity of
'' employment for dock workers and to secure that an adequate
'* number of dock workers is available for the efficient performance
'' of dock work.'' No employer can engage labour at the docks
unless he is registered under the scheme and no dock worker can
be employed at the docks 'unless he also is registered under the
scheme. To be registered as a dock worker is, therefore, the
first step to getting employment. Further, having been registered
the worker comes on to the pay roll of the National Dock Labour
Board, unless he is in the employ of a registered dock employer
on a contract by the week or longer, whether there is work for
him or not. He is in what the scheme calls the reserve pool and
while in the reserve pool is in the employment of the National
Dock Labour Board. While in the reserve pool a man has to be
at call unless he is excused for illness or otherwise. When
allocated for work at the docks he comes for the time being into
the employment of the particular registered employer requiring
his services, and when this employment is finished he falls back
again into the reserve pool. The worker employed by a registered
employer on a week's notice or longer does not properly come
within the scheme apart from the fact that he must be registered.
He is paid by his particular employer and is subject to his orders
and control. But if he were dismissed by his employer it would
seem that, as a registered dock worker, he would fall into the
reserve pool and be in the employment of the National Board and
subject to the directions of the local board. It is impossible, in
my opinion, to equate the position of a registered dock worker in
relation to the National Dock Labour Board with that of an
employee under an ordinary contract of service. It is being in
the scheme with all the advantages that pertain thereto that is
important to the dock worker, and it is significant that the scheme
places the dock worker and the employer on the same plane in
this matter. Clause 11 provides: '' (1) The scheme shall cease
"'to apply to a registered dock worker when his name has been
'""removed from the register or record in accordance with the
"' provisions of the scheme. (2) The scheme shall cease to apply
"to a registered employer when his name has been removed from
"the employers' register in accordance with the provisions of the
""scheme.'' The scheme gives the dock worker a status. Unless
registered he is deprived of the opportunity of carrying on what
may have been his lifelong employment as a dock worker, and
he has a right and interest to challenge any unlawful act that
interferes with this status. If the actings here complained of were

A.C. AND PRIVY COUNCIL.

a nullity, the plaintiff, in my opinion, has a clear right to have
that fact declared by the court.

I find it difficult to correlate the provisions of clauses 15, 16,
17 and 18 and to be satisfied in my mind on how they are intended
to interact as between one another. But that does not, in my
view, affect the fundamental question with which this appeal is
concerned. It is, in my opinion, plain that the disciplinary
committee acted under clause 16. I agree that such a committee
had no authority to exercise the whole powers of disciplinary
action conferred by that clause. The scheme committed these
powers to the local board, and the local board at no stage took
any part in investigating, or considering any report on, the
conduct of the plaintiff, or in terminating his employment. It
had no power to commit ail its functions under clause 16 to any
committee of its own number, or to anyone else. I do not find
it necessary to consider in what respects, or to what extent, the
local board would have to act in a judicial manner or to pay
regard to judicial models of procedure in operating the powers
of this clause. In this matter I would associate myself with the
observations to be made by my noble and learned friend, Lord
Somervell of Harrow, whose speech I have had the advantage of
reading.

I agree that in the circumstances of this case the purported
termination of the plaintiff's employment was a nullity.

Lorp SomerveLL or Harrow. My Lords, in Barnard v.
National Dock Labour Board ® the plaintiffs claimed that notices
of suspension given under clause 16 of the scheme were invalid
in that they had not been given by the local board and that the
local board had no power to delegate as it purported to do. The
plaintiffs claimed a declaration. The board submitted, as a pre-
liminary point, that the claim for a declaration was incompetent;
that the only remedy was by certiorari. The Court of Appeal
held it was a proper case for a declaration, relying on a
decision of its own in Cooper v. Wilson' and referring to a
decision of this House in Andrews v. Mitchell.2 The remedy
there sought was not a declaration but a writ of prohibition.

The principle laid down in Cooper v. Wilson® is, I think,
accurately stated in the headnote: '' Where a statutory body is
'alleged to have acted without jurisdiction its decision can

8 [1953] 2 Q.B. 18. 8 [1905] A.C. 78.
7 [1937] 2 K.B. 309. 9 [1937] 2 K.B. 309.

509

H. L. (2)
1956

VINE
0.
NATIONAL
Doox
LABOUR
Boarp.

Lord Keith
of Avonholm.

510

Hy Li. (BE)

NATIONAL

1956

VINE
0.

Doox

LABOUR
Boarp.

Lord Somervell
Harrow.

of

HOUSE OF LORDS [1957 |

'properly be questioned in an action for a declaration that the
'decision is null and void.'' In Andrews v. Mitchell? the
remedy sought was not a declaration but a writ of prohibition.
It concerned a dispute between a member and a friendly society.
Under the Friendly Societies Act, 1896, such disputes were to
be determined in a manner directed by the rules of the society
and such decisions were to be final. Lord Halsbury referred
to the inconvenience of having such disputes reinvestigated in a
court of law. The courts, he said,!! '' must not insist upon a
''too minute observance of the regularity of forms . . . ; on the
'other hand, there are some principles of justice which it is
'impossible to disregard.'' In that case the man expelled had
never received a charge as provided by the rules. This went, as
Lord Davey expressed it,!? '' to the root of the jurisdiction."'

The Court of Appeal held, I think rightly, that action taken
by a delegated authority when there was no power to delegate
went to the root of the jurisdiction and the circumstances
entitled the court, in its discretion, to grant a declaration. I
agree, for the reasons that have been given by my noble and
learned friend, Lord Morton of Henryton, that the disciplinary
committee in the present case were purporting to act as the
delegate of the local board under clauses 15 and 16 of the
scheme.

In Barnard's case,'* as in the present case, the functions
of a local board under these provisions have been said to be
judicial or quasi-judicial and this has been regarded as con-
clusive on the question whether the functions could be delegated.

I would like, in the first place, to associate myself with
the critical observations made by Lord Greene M.R. on the
expression '' quasi-judicial '' in B. Johnson & Co. (Builders)
Ltd. v. Minister of Health. It is not to be found in the
statements made in this House and normally cited on this
topic. I will not set them out, but I have in mind the Earl
of Selborne L.C.'s opinion in Spackman v. Plumstead District
Board of Works,® Lord Loreburn L.C.'s opinion in Board
of Education v. Rice,® and that of Viscount Haldane L.C.

10 [1905] A.C. 78. 15 (1885) 10 App.Cas. 229, 240; 1
11 Ibid. 80, T.L.R. 818.

12 Tbid. 83, 16 [1911] A.C. 179, 182; 27 T.L.R.
13 [1953] 2 Q.B. 18. 378.

TA \(194 ALT sire 455; Maen
[1947] 2 All E.R. 395.

A.C. AND PRIVY COUNCIL.

in Local Government Board v. Arlidge.'7 The phrase '' quasi-
"judicial '' suggests that there is a well-marked category of
activities to which certain judicial requirements attach. An
examination of the cases shows, I think, that this is not so.
The court has to consider whether a Minister, tribunal or board
has to act "' judicially '' in some respect and has failed to do so.
The respect in which he has to observe judicial procedure will
depend on the statutory or other provisions under which the
matter arises. In Rice's case1® the question was whether the
board had determined '' questions '' which, on the decision, it
was their duty to determine. In Arlidge's case}? one question
was whether the board was entitled to withhold from the
appellant the report made by its inspector after the local inquiry.
Although the case was one in which it was the duty of the board
to act judicially—in some respects—the proceedings were not
vitiated by the fact that the official who decided the appeal saw
and considered a report which was not available to the appellant.
In Errington v. Minister of Health?® the subject-matter was
a clearance order made by a local authority. The owners had
objected and the Minister had to hold a public inquiry and
confirm or not confirm the order. This was done and the order
was confirmed. The officials of the Minister had, after the
inquiry, received statements from and viewed the property with
representatives of the local authority in the absence of and
without communicating with the owners. This vitiated the
proceedings and the order was quashed.

As Lord Greene M.R. pointed out in the passage to which
I have referred, the administrative and quasi-judicial functions
are closely intermingled. The last two examples I have given
show that in one case a document may properly be withheld
from the '' other side,'' while in another, withholding a docu-
ment or conversation or its purport may vitiate the whole
proceedings. The expression is "'sadly lacking in precision,''
as Hamilton L.J. (as he then was) said of the expression
'"'natural justice '' (Rex v. Local Government Board, Ex parte
Arlidge ?7).

The question in the present case is not whether the board
failed to act judicially in some respect in which the rules of

17 [1915] A.C. 120, 182; 30 T.L.R. 20 [1935] 1 K.B. 249; 51 T.L.R.
672. 44,
18 [1911] A.C. 179. 21 [1914] 1 K.B. 160, 199; 380

19 [1915] A.C. 120. - fr Hie Os

511

H. L. (B.)
1956

VINE
v.
NATIONAL
Dock
LABour
BoarpD.

Lord Somervell
of Harrow,

512

H. L. (£.)
1956

VINE
v.
NATIONAL
Dock
LABOUR
BoarbD.

Lord Somervell
of Harrow.

HOUSE OF LORDS [1957 |

judicial procedure would apply to them. They failed to act at
all unless they had power to delegate.

In deciding whether a '' person'' has power to delegate one
has to consider the nature of the duty and the character of the
person. Judicial authority normally cannot, of course, be
delegated, though no one doubted in Arlidge's case ?? that the
Local Government Board, which consisted of the President, the
Lord President of the Council, the Secretaries of State, the
Lord Privy Seal and the Chancellor of the Exchequer (Local
Government Board Act, 1871), could act by officials duly deputed
for the purpose, whether or not the act to be done had judicial
ingredients. There are, on the other hand, many administrative
duties which cannot be delegated. Appointment to an office or
position is plainly an administrative act. If under a statute a
duty to appoint is placed on the holder of an office, whether
under the Crown or not, he would, normally, have no authority
to delegate. He could take advice, of course, but he could not
by a minute authorize someone else to make the appointment
without further reference to him. I do not, therefore, find it
necessary to consider what judicial requirements might be held
implicit in the local board's proceedings under clause 16. I am,
however, clear that the disciplinary powers, whether '' judicial "'
or not, cannot be delegated. The non-entitlement to pay, the
suspension, the notice or the dismissal must be a step taken by
the board and not by a delegate. The penalties, in some cases,
may be slight but, in some cases, very great. A man who has
worked all his life in the docks may find himself precluded
altogether from doing so. Today it may be easy for him to get
other work, but that has not always been so. | The constitution
of the board also supports the conclusion. It is clearly con-
stituted so as to inspire confidence and weigh fairly the interests
of employers and employed. The purported delegation in the
present case was to a representative of each side, but it is
impossible to imply a limited right of delegation. Osgood v.
Nelson * decides that in somewhat similar circumstances the
appointment of a committee to take evidence and report is not
in itself a delegation of authority. If there are administrative ©
difficulties, this may be an answer to them.

On the questions whether the plaintiff had elected, whether
the majority of the Court of Appeal were right in refusing a

22 [1915] A.C. 120. 23 (1872) L.R. 5 H.L. 636.

A.C. AND PRIVY COUNCIL. 513

declaration, and whether the damages should be interfered with, H. L. (@.)
I have nothing I wish to add to the opinion just delivered by my 1956

noble and learned friend, Lord Morton of Henryton.
VINE

]

Appeal dismissed. Order varied. NATIONAL
Dock

LaBour