LORDS DECISIONSLORDS DECISIONS >>LORD JUSTICE-CLERK (WHEATLEY).—THE PURSUER RAISED THIS ACTION IN THE SHERIFF COURT AT HAMILTON. THE CRAVES WERE INITIALLY IN THESE TERMS: (1) TO FIND AND DECLARE THAT HE IS A HOMELESS PERSON WITH A PRIORITY NEED AND ENTITLED TO LOOK TO THE DEFENDERS FOR ACCOMMODATION ALL IN TERMS OF THE HOUSING (HOMELESS PERSONS) ACT 1977: AND (2) UPON SO FINDING TO ORDAIN THE DEFENDERS TO PROVIDE HIM WITH SUITABLE ACCOMMODATION IN TERMS OF SAID ACT. THE DEFENDERS TABLED PLEAS TO "COMPETENCY," "NO JURISDICTION" AND "RELEVANCY." THE SHERIFF REPELLED THE PLEAS TO "COMPETENCY" AND "NO JURISDICTION" AND CONTINUED THE CASE TO THE PROCEDURE ROLL. HE GRANTED LEAVE TO APPEAL AND THE DEFENDERS APPEALED TO THIS COURT. DURING THE FIRST HEARING OF THE APPEAL IT BECAME CLEAR THAT THE PLEADINGS WERE FAR FROM COMPLETE. THE SHERIFF HAD NOTED THIS IN HIS JUDGMENT, BUT SINCE THE PLEAS ARGUED BEFORE HIM RELATED ONLY TO COMPETENCY AND JURISDICTION HE ALLOWED THE DEBATE BEFORE HIM TO PROCEED ON THE UNDERSTANDING THAT IF THESE PLEAS WERE REPELLED THE PLEADINGS WOULD HAVE TO BE AMPLIFIED. AS THAT FIRST HEARING OF THE APPEAL HAD TO BE CONTINUED FOR A GOOD AND SUFFICIENT REASON WE INDICATED TO COUNSEL THAT ADVANTAGE SHOULD BE TAKEN OF THE CONTINUATION TO AMPLIFY THE PLEADINGS AND THIS HAS BEEN DONE. IN THE RESULT THERE HAVE BEEN CONSIDERABLE CHANGES EFFECTED. THE CRAVES NOW READ:SHERIFF COURT IS A COMPETENT FORUM IN WHICH TO CHALLENGE A DECISION OF A LOCAL AUTHORITY CARRYING OUT ITS STATUTORY FUNCTIONS IN TERMS OF SECTIONS 1 TO 4 OF THE HOUSING (HOMELESS PERSONS) ACT 1977 (HEREINAFTER REFERRED TO AS THE ACT). THIS WAS THE FIRST BROAD CHAPTER OF THE DEFENDERS' CHALLENGE TO THE PURSUER'S CASE. THE SECOND CHAPTER WAS WHETHER, ASSUMING IT WAS COMPETENT, THE SHERIFF COURT COULD PROVIDE THE REMEDY REQUISITE TO SUSTAIN THE PURSUER'S CHALLENGE. THE THIRD CHAPTER WAS WHETHER, IF THE FIRST TWO BROAD ISSUES WERE ANSWERED IN FAVOUR OF THE PURSUER, HIS AVERMENTS WERE RELEVANT.SHERIFF COURT COULD NOT ENTERTAIN SUCH AN ACTION SINCE IT INVOLVED A REDUCTION OF THE DECISION COMPLAINED OF, AND AN ACTION OF REDUCTION IS NOT COMPETENT IN THE SHERIFF COURT. THE INSTANT ACTION, WHICH WAS INITIATED IN THE SHERIFF COURT, WAS ACCORDINGLY INCOMPETENT.LORD GREENE (M.R.) IN ASSOCIATED PROVINCIAL PICTURE HOUSES LIMITED V. WEDNESBURY CORPORATION [1948] 1 KB 223 AT P. 228 ET SEQ. DEALING WITH DISCRETIONARY POWERS GIVEN BY STATUTE TO LOCAL AUTHORITIES (AND WHEN SOMETHING HAS TO BE DONE BY A LOCAL AUTHORITY IF THEY ARE SATISFIED ABOUT CERTAIN MATTERS THIS CONNOTES THE CONFERMENT OF DISCRETIONARY POWERS), LORD GREENE SAID:LORD DENNING (M.R.) IN SECRETARY OF STATE FOR EMPLOYMENT V. ASSOCIATED SOCIETY OF LOCOMOTIVE ENGINEERS AND FIREMEN (NO. 2) [1972] 2 Q.B. 455 AT 493, A STATEMENT OF THE LAW WHICH WAS ENDORSED BY LORD WILBERFORCE IN THE HOUSE OF LORDS IN SECRETARY OF STATE FOR EDUCATION AND SCIENCE V. TAMESIDE METROPOLITAN BOROUGH COUNCIL [1977] AC 1014 AT PP. 1024–5 AND LORD WIDGERY C.J. IN REGINA V. BRISTOL CITY COUNCIL, EX PARTE BROWNE [1979] 1 W.L.R. 1437. LORD DENNING SAID:LORD WILBERFORCE SAID:LORD WILBERFORCE SAID:SHERIFF COURT, THE FIRST QUESTION CANVASSED, AS PREVIOUSLY NOTED, WAS WHETHER IT WAS COMPETENT TO HAVE THE FINDING OF THE LOCAL AUTHORITY REVIEWED IN THE SHERIFF COURT. ON THAT APPROACH, IT WAS ONLY IF THAT QUESTION WAS ANSWERED IN FAVOUR OF THE PURSUER WOULD IT BE NECESSARY TO CONSIDER WHETHER THE PURSUER HAD RELEVANTLY AVERRED HIS WAY INTO COURT AT ALL. EVEN IF HE FAILED TO CLEAR THESE HURDLES OR EITHER OF THEM IN RELATION TO THE FIRST THREE CRAVES, THE PURSUER MAINTAINED THAT HE STILL HAD A RELEVANT CLAIM FOR DAMAGES UNDER CRAVE 4 WHICH COULD COMPETENTLY BE DEALT WITH IN THE SHERIFF COURT.SHERIFF COURT, SINCE SUCH A JUDICIAL REVIEW COULD ONLY BE CARRIED OUT IN THE COURT OF SESSION THROUGH THE EXERCISE OF THAT COURT'S SUPEREMINENT JURISDICTION; AND (2) THE ACTION, HOWEVER FRAMED, WAS IN EFFECT AN ACTION TO REDUCE THE DECISION OF THE LOCAL AUTHORITY AND AN ACTION OF REDUCTION WAS NOT COMPETENT IN THE SHERIFF COURT, BEING COMPETENT ONLY IN THE COURT OF SESSION.LORD PRESIDENT INGLIS IN FORBES V. UNDERWOOD (1886) 13 R. 465. THAT WAS A CASE RAISED IN THE SHERIFF COURT WHERE THE COURT WAS ASKED TO ORDAIN AN ARBITER TO DISCHARGE THE LEGAL DUTY HE HAD UNDERTAKEN AS AN ARBITER. THE LORD PRESIDENT SAID AT PP. 467–8:COMMISSIONERS, WHO ARE UNDER AN OBLIGATION TO EXERCISE THEIR FUNCTIONS FOR THE BENEFIT OF THE PARTIES FOR WHOSE BENEFIT THESE FUNCTIONS ARE ENTRUSTED TO THEM, AND IF THEY CAPRICIOUSLY AND WITHOUT JUST CAUSE REFUSE TO PERFORM THEIR DUTY, THEY WILL BE ORDAINED TO DO SO BY DECREE OF THIS COURT, AND FAILING THEIR PERFORMANCE WILL, IN LIKE MANNER, BE COMMITTED TO PRISON. NOW ALL THIS BELONGS TO THE COURT OF SESSION AS THE SUPREME CIVIL COURT OF THIS COUNTRY IN THE EXERCISE OF WHAT IS CALLED, VERY PROPERLY, ITS SUPEREMINENT JURISDICTION. IT IS NOT OF VERY MUCH CONSEQUENCE TO DETERMINE WHETHER IT IS IN THE EXERCISE OF ITS HIGH EQUITABLE JURISDICTION, OR IN THE PERFORMANCE OF WHAT IS SOMETIMES CALLED ITS NOBILE OFFICIUM. BUT OF ONE THING THERE CAN BE NO DOUBT, THAT IN MAKING SUCH ORDERS AGAINST INFERIOR JUDGES, OR STATUTORY TRUSTEES, OR COMMISSIONERS, OR THE LIKE, THIS COURT IS EXERCISING AN EXCLUSIVE JURISDICTION—A JURISDICTION WHICH CANNOT POSSIBLY BELONG TO ANY OTHER COURT IN THIS COUNTRY. IT IS ENOUGH TO SUGGEST THE IDEA, THAT AN INFERIOR JUDGE SHOULD BE CALLED UPON TO ORDAIN ANOTHER INFERIOR JUDGE TO PERFORM HIS DUTY—THE VERY IDEA CARRIES ABSURDITY WITH IT. IT CAN BE ONLY THE SUPREME COURT OF THE COUNTRY THAT CAN POSSIBLY EXERCISE SUCH JURISDICTION."COMMISSIONERS REFERRED TO IN THE DICTUM OF LORD PRESIDENT INGLIS. I FIND IT UNNECESSARY TO CONSIDER THE CASES, THE INSTITUTIONAL WRITERS OR THE TEXTBOOKS CITED TO US IN CONNECTION WITH THE SUPEREMINENCE OF THE COURT OF SESSION AS SPOKEN TO BY LORD PRESIDENT INGLIS. THE QUESTION IS WHETHER THE DEFENDERS IN CARRYING OUT THEIR STATUTORY DUTIES HERE FELL WITHIN THE CATEGORIES OF BODIES TO WHOM THAT DOCTRINE APPLIES. I REFER TO THE PURPOSES OF THE ACT AND THE DUTIES AND RESPONSIBILITIES IMPOSED ON THE LOCAL AUTHORITIES TO EFFECT THESE PURPOSES. THEY ARE THE ADMINISTRATORS OF THE POLICY. THEY HAVE TO CARRY OUT CERTAIN INQUIRIES, THEY HAVE TO BE SATISFIED ON CERTAIN MATTERS AND THEY HAVE TO DO CERTAIN THINGS DEPENDING ON WHETHER THEY ARE SATISFIED OR NOT SATISFIED ABOUT THESE MATTERS FOLLOWING UPON THEIR INQUIRIES. ON THE FACE OF IT THERE IS NOTHING JUDICIAL OR QUASI-JUDICIAL ABOUT THIS EXERCISE. IN CERTAIN GIVEN CIRCUMSTANCES THE LOCAL AUTHORITY COULD BE "SATISFIED" AS A RESULT OF INQUIRIES MADE ONLY OF THEIR OWN OFFICIALS, AND, PROVIDED THEY DID NOT TRANSGRESS IN ONE OR MORE OF THE WAYS CONSIDERED BY LORD GREENE, LORD DENNING AND LORD WILBERFORCE, THE POINT ON WHICH THEY WERE SATISFIED COULD NOT BE IMPUGNED IN A COURT OF LAW. I CAN SEE NOTHING JUDICIAL OR QUASI-JUDICIAL IN ALL THIS. IT SEEMS TO ME THAT THIS FUNCTION IS PURELY ADMINISTRATIVE AND NOTHING MORE. I DO NOT CONSIDER THAT IN THE EXECUTION OF THEIR DUTIES UNDER SECTIONS 3 AND 4 OF THE ACT A LOCAL AUTHORITY CAN BE SAID TO BE ACTING IN A QUASI-JUDICIAL CAPACITY OR TO BE EQUIPARATED TO THE BODIES WHOSE DECISIONS WERE BEING CONSIDERED IN SUCH CASES AS THE HERITORS OF CORSTORPHINE V. DANIEL RAMSAY 10TH MARCH 1812 F.C. AT P. 544 OR HUNTER V. SCHOOL BOARD OF LOCHGILPHEAD (1886) 14 R. 135 OR INDEED IN ANY OF THE OTHER CASES CITED TO US. THE ACT CONFERRED RIGHTS ON INDIVIDUAL CITIZENS WHO QUALIFIED FOR THEM AND RESPONSIBILITY ON THE LOCAL AUTHORITY TO SEE WHETHER AN INDIVIDUAL APPLICANT QUALIFIED ACCORDING TO THE TESTS LAID DOWN. IF THE LOCAL AUTHORITY TRANSGRESSED IN THE EXECUTION OF THEIR DUTY IN ONE OR OTHER OF THE LIMITED GROUNDS HEREINBEFORE SET OUT, SO THAT THE COMPLAINING APPLICANT HAS LEGITIMATE RECOURSE TO THE COURTS OF LAW, THEN PRIMA FACIE HE CAN GO TO ANY COURT WHICH HAS THE JURISDICTIONAL POWER TO GRANT HIM THE REMEDY WHICH HE SEEKS. IN DE FALCO SUPRALORD DENNING SAID AT P. 672:SHERIFF COURT HAS THE JURISDICTIONAL POWER TO GRANT THE PURSUER THE TYPE OF REMEDY OR REMEDIES WHICH HE SEEKS THERE IS NO REASON WHY HE SHOULD NOT HAVE RECOURSE TO THAT COURT FOR HIS REMEDIES. THE REMEDIES SOUGHT, NAMELY (1) DECREES OF DECLARATOR, (2) DECREES ORDAINING THE DEFENDERS TO CARRY OUT THEIR LEGAL DUTIES AND (3) A DECREE FOR DAMAGES ARE ALL EX FACIE REMEDIES WHICH THE SHERIFF COURT CAN PROVIDE. IF THE REMEDY SOUGHT CAN BE ACHIEVED BY A FORM OF ACTION WITHIN THE JURISDICTION OF THE SHERIFF COURT AS WELL AS THAT OF THE COURT OF SESSION, THEN THERE IS NO NEED FOR ANY SPECIFIC MENTION OF A MODE OF APPEAL OR REVIEW IN THE STATUTE. REFERENCE WAS MADE TO SECTION 39 (1) OF THE LICENSING (SCOTLAND) ACT 1976 TO SUPPORT THE DEFENDERS' CONTENTION THAT A STATUTORY POWER OF APPEAL OR REVIEW IS REQUIRED TO MAKE THE SHERIFF COURT A COMPETENT FORUM TO NULLIFY A DECISION OF ANY LOCAL AUTHORITY BODY CARRYING OUT COMPARABLE DUTIES AND MAKING COMPARABLE DECISIONS. EACH TYPE OF BODY HAS TO BE EXAMINED WITH REFERENCE TO ITS INDIVIDUAL POWERS AND DUTIES TO SEE WHETHER OR NOT IT FALLS WITHIN OR OUTWITH THE DICTUM OF LORD PRESIDENT INGLIS. FOR PRESENT PURPOSES I FIND IT SUFFICES TO SAY THAT SINCE IN MY VIEW THE LOCAL AUTHORITY HERE WAS ACTING NOT IN A QUASI-JUDICIAL CAPACITY BUT IN AN ADMINISTRATIVE OR EXECUTORIAL CAPACITY, REVIEW BY THE SUPEREMINENT JURISDICTION OF THE COURT OF SESSION ALONE IS NOT IMPOSED. I AM ACCORDINGLY OF THE OPINION THAT THE DEFENDERS' FIRST SUBMISSION ON COMPETENCY IS NOT WELL FOUNDED.SHERIFF COURT. MR EDWARD DESCRIBED THIS AS A COVERT ACTION OF REDUCTION. IT WAS NOT IN DISPUTE THAT AN ACTION OF REDUCTION IS NOT COMPETENT IN THE SHERIFF COURT. TO DETERMINE WHETHER THIS IS IN EFFECT AN ACTION OF REDUCTION IT IS NECESSARY TO CONSIDER ONCE AGAIN AND IN MORE DETAIL WHAT THE PURSUER IS SEEKING TO DO AND WHETHER THERE IS A COMPETENT PROCESS (OR PROCESSES) IN THE SHERIFF COURT TO ENABLE HIM TO ACHIEVE THAT END WITHOUT RESORTING TO AN ACTION OF REDUCTION. THE PURSUER'S BASIC PURPOSE IS TO HAVE THE COURT DECIDE AND DECLARE THAT THE DEFENDERS' DECISION ON "INTENTIONALLY HOMELESS" WAS ILLEGAL AND OF NO VALID EFFECT. IF THAT IS ESTABLISHED THERE IS NO LEGAL BARRIER TO THE DEFENDERS BEING CALLED UPON TO DISCHARGE THEIR LEGAL DUTIES UNDER THE ACT INSOFAR AS THEY HAVE NOT BEEN DISCHARGED LEGALLY. WHAT THEN, IS HE ASKING THE COURT TO DO? THE FIRST CRAVE IS IN THE FORM OF AN ACTION OF DECLARATOR (WHICH IS COMPETENT IN THE SHERIFF COURT—SHERIFF COURTS (SCOTLAND) ACT 1907, SECTION 5) ASKING THE COURT TO FIND AND DECLARE THAT THE PURPORTED DECISION OF THE DEFENDERS THAT THE PURSUER HAD BECOME HOMELESS INTENTIONALLY WAS NOT A DECISION WHICH THE DEFENDERS WERE ENTITLED TO REACH. PROPERLY FRAMED, THE CRAVE SHOULD HAVE INCLUDED THE WORDS "IN THE CIRCUMSTANCES" AT THE END. IT DOES NOT EX FACIE SEEK A DECLARATION THAT THE DECISION WAS NOT VALIDLY MADE OR WAS NULL AND VOID, BUT WHEN IT IS COUPLED WITH THE PURSUER'S FIRST PLEA-IN-LAW THE FULL NATURE OF THE PURSUER'S COMPLAINT BECOMES APPARENT. THAT PLEA-IN-LAW IS IN THE FOLLOWING TERMS:JUSTICE, ET SEPARATIM MADE WITHOUT REGARD TO THE GUIDANCE ISSUED BY THE SECRETARY OF STATE, DECREE SHOULD BE PRONOUNCED IN TERMS OF THE FIRST CRAVE."SHERIFF COURT—CF. WALKER ON CIVIL REMEDIES, P. 269. SUCH AN ACTION IN RELATION TO THIS STATUTE WOULD BE COMPETENT IN THE SHERIFF COURT, SINCE FOR THE REASONS I HAVE ALREADY GIVEN, THIS IS NOT THE TYPE OF SITUATION TO WHICH THE RULE OF SUPEREMINENT JURISDICTION APPLIES. SECTION 91 OF THE COURT OF SESSION ACT 1868 INSOFAR AS IT RELATES TO THIS TOPIC IS PROCEDURAL AND NOT REGULATORY OF THAT COURT'S PRIVATIVE JURISDICTION. IN ANY EVENT, IN SUCH A SITUATION AT THAT STAGE THE PURSUER COULD CHOOSE THE COURT OF SESSION AS A FORUM FOR HIS REMEDY.LORD JUSTICE-CLERK BOYLE IN AITCHISON V. MAGISTRATES OF DUNBAR (1836) 14 S. 421 AT 425.LORD FRASER SAID AT P. 110 IN RELATION TO A CONCLUSION FOR A DECLARATOR WHICH WAS LEFT STANDING BY ITSELF:LORD JUSTICE-CLERK THOMSON IN MACNAUGHTON V. MACNAUGHTON'S TRS . 1953 S.C. 387 AT P. 392:SHERIFF COURT HAS JURISDICTION FOR JUDICIAL REVIEW OF CONTROVERSIES OF THIS NATURE UNDER THE ACT. HAVING REGARD TO THE ADMINISTRATIVE NATURE OF THE PROCEDURE, THE TYPE AND NATURE OF THE DECISION WHICH FALLS TO BE REVIEWED JUDICIALLY BY THE COURT IN ITS SUPERVISORY CAPACITY AND THE CONVENIENCE OF ALL CONCERNED THROUGHOUT THE LENGTH AND BREADTH OF SCOTLAND, THE SHERIFF COURT IS APPROPRIATELY SUITED FOR THE PURPOSE. TO REQUIRE THE COURT OF SESSION TO FIND TIME TO DETERMINE THE KIND OF ISSUE LIKELY TO BE INVOLVED IS SOMEWHAT AKIN TO TAKING A SLEDGE-HAMMER TO CRACK A NUT, AND UNLESS, CONTRARY TO MY VIEW, THE LAW REQUIRES SUCH CASES TO GO TO THE COURT OF SESSION, WHERE THEY COULD GO IN ANY EVENT, IT SEEMS TO ME DESIRABLE THAT THEY SHOULD GO TO THE SHERIFF COURT OR AT LEAST BE CAPABLE OF GOING THERE FOR RESOLUTION.LORD GREENE AND THE OTHERS TO WARRANT THE CASE BEING IN THE COURTS OF LAW AT ALL? I NEED NOT GO INTO THE RESPECTIVE AVERMENTS IN FULL DETAIL. A NUMBER OF THE AVERMENTS OF THE DEFENDERS ARE ADMITTED BY THE PURSUER, BUT HIS AVERMENTS ON THE CLOSED RECORD FROM PAGE 6C TO PAGE 8C ARE CONTENTIOUS. THE PRINCIPAL POINTS IN THE DEFENDERS' AVERMENTS ARE: (1) THAT THE PURSUER'S WIFE AND THEN THE PURSUER RECEIVED A RENT ALLOWANCE OF FIVE POUNDS PER WEEK FROM D.H.S.S. AS PART OF THEIR SUPPLEMENTARY BENEFIT (EVEN THOUGH THE PURSUER'S WIFE AND NOT THE PURSUER WAS THE TENANT) AND THIS RENT ALLOWANCE WAS NOT PAID TO THE DEFENDERS. IF THIS RENT ALLOWANCE HAD BEEN PAID TO THE DEFENDERS BY THE PURSUER'S WIFE AND THE PURSUER NO FURTHER PAYMENT WOULD HAVE BEEN DUE BY THEM. THIS IS ADMITTED BY THE PURSUER: (2) THAT FOLLOWING THE PURSUER MAKING HIS APPLICATION FOR ACCOMMODATION TO THE DEFENDERS' HOUSING OFFICER ON OR ABOUT 5TH DECEMBER 1978 THE LATTER MADE INQUIRIES. HE ASKED THE PURSUER CERTAIN QUESTIONS HAVING FIRST OF ALL EXPLAINED TO THE PURSUER THE RELEVANT PROVISIONS OF THE ACT. THE PURSUER SIGNED A DECLARATION TO THIS EFFECT AND ALSO TO THE EFFECT THAT HE UNDERSTOOD THE CONSEQUENCES OF SUPPLYING FALSE INFORMATION OR OF FAILURE TO SUPPLY RELEVANT INFORMATION. THE ANSWERS WHICH THE PURSUER GAVE TO THE QUESTIONS WERE ENTERED BY THE HOMELESS OFFICER ON TWO FORMS, EACH OF WHICH AND THE DECLARATION WERE SIGNED BY THE PURSUER. THESE DOCUMENTS ARE PRODUCED AND REFERRED TO FOR THEIR TERMS: (3) THAT THE LONG HISTORY OF THE FAILURE BY THE PURSUER'S WIFE (WHO WAS THE LEGAL TENANT) TO PAY THE RENT, DESPITE VARIOUS INDULGENCES GRANTED BY THE DEFENDERS WHICH ARE FULLY SET OUT, WARRANTED THE EVICTION OF THE PURSUER'S WIFE AND THE PURSUER. THIS LONG HISTORY WAS SUMMARISED TO THE HOMELESS OFFICER BY AN OFFICIAL OF THE HOUSING DEPARTMENT IN THE PRESENCE OF THE PURSUER, WHO NEITHER DISPUTED NOR CONTRADICTED ANY OF IT: (4) THAT IN THE CIRCUMSTANCES THE DEFENDERS WERE ENTITLED TO BE SATISFIED THAT THE PURSUER HAD BECOME INTENTIONALLY HOMELESS IN TERMS OF SECTION 17 OF THE ACT: (5) THAT THE HOMELESS OFFICER TOLD THE PURSUER THAT HE CONSIDERED HIM TO BE "INTENTIONALLY HOMELESS" AND ADVISED HIM TO SEEK ACCOMMODATION WITH RELATIVES OR FRIENDS, THERE BEING NO OTHER ADVICE OR ASSISTANCE HE COULD OFFER: AND (6) THAT AS THE PURSUER HAD STATED THAT HE HAD TEMPORARY ACCOMMODATION AT 36 CAITHNESS STREET IT WAS UNNECESSARY TO FIND HIM ACCOMMODATION IN TERMS OF SECTION 3 (4) OF THE ACT. IN MARCH 1980, HOWEVER, UNDER AN ORDER FROM THE SHERIFF THE DEFENDERS WERE OBLIGED TO PROVIDE THE PURSUER WITH A HOUSE, WHICH HE AND HIS WIFE STILL INHABIT.LORD DENNING IN DE FALCO SUPRA AT P. 673. IN THE CIRCUMSTANCES, NO REASONABLE HOUSING AUTHORITY COULD HAVE BEEN SATISFIED THAT ALL NECESSARY INQUIRIES HAD BEEN CARRIED OUT OR THAT THE PURSUER WAS "INTENTIONALLY HOMELESS"; (4) HAD THE DEFENDERS CARRIED OUT FURTHER ENQUIRIES AS THEY OUGHT TO HAVE DONE, THEY WOULD HAVE DISCOVERED THAT THE PURSUER AND HIS WIFE HAD AT ALL RELEVANT TIMES BEEN IN DIRE POVERTY AND SOLELY DEPENDENT FOR THEIR INCOME ON SUPPLEMENTARY BENEFIT; THAT THE PURSUER'S WIFE HAD FOR A PERIOD BELIEVED HERSELF, MISTAKENLY BUT IN GOOD FAITH, NOT TO BE LIABLE TO PAY RENT TO THE DEFENDERS UNDER HER SAID TENANCY; THAT THE DEFENDERS' HOUSING DEPARTMENT HAD CONSISTENTLY REFUSED TO MAKE ANY REASONABLE ARRANGEMENT WITH THE PURSUER'S WIFE FOR THE PAYMENT OF RENT ARREARS; THAT THE DEFENDERS DID NOT REQUEST THE DEPARTMENT OF HEALTH AND SOCIAL SECURITY TO HAVE THE PURSUER PLACED ON THE "RENT DIRECT" SCHEME MADE UNDER SECTION 14 (3) OF THE SUPPLEMENTARY BENEFIT ACT 1976; AND THAT THE PURSUER, NEVER HAVING BEEN THE TENANT OF THE HOUSE AT 16 WELSH DRIVE, HAD BEEN UNDER NO LEGAL OBLIGATION TO MAINTAIN A TENANCY THEREOF; AND (5) IN THESE CIRCUMSTANCES THE DEFENDERS COULD NOT HAVE BEEN SATISFIED THAT THE PURSUER WAS INTENTIONALLY HOMELESS IN RESPECT OF FAILURE TO MAKE ANY ATTEMPT TO PAY RENT OR MAINTAIN THE TENANCY OF THE HOUSE. THAT BEING THE STATE OF THE PLEADINGS IN BROAD TERMS, HOW DO THEY STAND ON THE QUESTION OF RELEVANCY IN RELATION TO THE CRAVES WHICH ARE STILL ALIVE? SO FAR AS THE FIRST CRAVE IS CONCERNED, THE PURSUER'S CONTENTION IS CONTAINED IN HIS FIRST PLEA-IN-LAW READ IN CONJUNCTION WITH THE AVERMENTS TO WHICH I HAVE JUST REFERRED. AS A RECORD HAS TO BE READ AS A UNUM QUID IT IS COMPETENT TO HAVE REGARD TO THE PLEAS-IN-LAW AS WELL AS THE AVERMENTS WHEN CONSIDERING MATTERS OF RELEVANCY. SO READ, I HAVE COME TO THE CONCLUSION, NOT WITHOUT DIFFICULTY, THAT THE PURSUER'S PLEADINGS, BARE AS THEY ARE IN SOME RESPECTS, ARE SUFFICIENT TO WARRANT A PROOF BEFORE ANSWER ON THE QUESTION WHETHER THE ELEMENTS OR AT LEAST ONE OR MORE OF THEM CONTAINED IN THE DICTUM OF LORD GREENE HAVE BEEN SUFFICIENTLY AVERRED TO BRING THE REVIEW OF THE LOCAL AUTHORITY'S DECISION WITHIN THE AMBIT OF THE COURT'S JURISDICTION. HIS AVERMENTS ON THE BASIS OF WHICH HE ALLEGES THE PROCEDURE CARRIED OUT WAS UNFAIR AND CONTRARY TO NATURAL JUSTICE CANNOT BE REGARDED AS SO INSUFFICIENT THAT, IF THEY WERE ESTABLISHED BEFORE A REASONABLE TRIBUNAL OF FACT, THAT TRIBUNAL WOULD STILL HAVE TO FIND THAT THE LOCAL AUTHORITY WAS ENTITLED TO BE SATISFIED THAT THE PURSUER BECAME INTENTIONALLY HOMELESS. APART FROM ALL THE OTHER CONSIDERATIONS, THE FACT IS THAT, HOWEVER THE PURSUER MAY HAVE CONTRIBUTED TO THE NON-PAYMENT OF RENT WHICH WAS THE REASON FOR THE EVICTION FROM THE HOUSE AT 16 WELSH DRIVE AND WHICH OCCASIONED HIM TO BE HOMELESS, HIS WIFE WAS THE TENANT AND IT WAS AGAINST HIS WIFE THAT THE EVICTION ORDER WAS OBTAINED. THAT IS A CONSIDERATION WHICH HAS TO BE TAKEN INTO ACCOUNT. WHAT WEIGHT SHOULD BE GIVEN TO IT IS ANOTHER MATTER. THESE ARE ALL MATTERS WHICH, ACCORDING TO THE PURSUER, OUGHT TO HAVE BEEN TAKEN INTO ACCOUNT BUT WERE NOT.LORD ROBERTSON .—THE LONG AND COMPLICATED HISTORY OF THIS ACTION HAS BEEN VERY FULLY SET OUT BY YOUR LORDSHIP, AND I DO NOT REQUIRE TO REPEAT IT IN DETAIL. THE PLEADINGS AND THE ISSUES ARE VERY DIFFERENT FROM THOSE INITIALLY SET OUT. THE SHERIFF ORIGINALLY REPELLED THE DEFENDERS' PLEAS TO THE COMPETENCY, JURISDICTION AND RELEVANCY OF THE PURSUER'S CASE AND CONTINUED IT TO THE PROCEDURE ROLL, AND AGAINST THIS DECISION THE APPEAL TO THIS COURT WAS TAKEN. AFTER SUNDRY PROCEDURE AND EXTENSIVE AMENDMENT TO THE PLEADINGS THE APPEAL CAME BEFORE THIS COURT FOR THE THIRD TIME ON 30TH SEPTEMBER 1981 AND FOLLOWING DAYS.SHERIFF COURT FOR TWO REASONS, VIDELICET—(A) IT SEEKS TO ACHIEVE BY ACTION OF DECLARATOR WHAT CANNOT BE ACHIEVED BY THAT TYPE OF ACTION AND CAN ONLY BE ACHIEVED BY ACTION OF REDUCTION, WHICH IS COMPETENT ONLY IN THE COURT OF SESSION; AND (B) EVEN IF THE DESIRED RESULT COULD BE ACHIEVED BY ACTION OF DECLARATOR, THE DECLARATION OF THE TYPE SOUGHT IN THIS CASE COULD ONLY BE GRANTED IN THE COURT OF SESSION. (2) THE ACTION IS IRRELEVANT BECAUSE THE PURSUER'S AVERMENTS READ TOGETHER WITH HIS ADMISSIONS WOULD NOT ENTITLE HIM TO THE REMEDY SOUGHT. (3) THE PURSUER'S CLAIM THAT, EVEN IF HE CANNOT PROCEED WITH THE ACTION UNDER THE FIRST THREE CRAVES, HE IS STILL ENTITLED TO PROCEED IN THE SHERIFF COURT FOR DAMAGES IN THE ACTION, IS UNSOUND.LORDSHIP AND I DO NOT REQUIRE TO REPEAT THEM. THESE DUTIES ARE PRECISE AND EXTENSIVE. THE LOCAL AUTHORITY HAS TO MAKE INQUIRIES, CARRY OUT CERTAIN PROCEDURES, AND MAKE DECISIONS ON THE BASIS OF BEING SATISFIED FOLLOWING UPON THESE INQUIRIES. THE ACT MAKES NO PROVISION FOR APPEALS FROM THE DECISIONS OF THE LOCAL AUTHORITY UPON THESE MATTERS EITHER ON A QUESTION OF FACT OR OF LAW. IN THESE CIRCUMSTANCES THE PRELIMINARY QUESTION ARISES AS TO THE PRINCIPLES UPON WHICH THE COURTS MAY INTERFERE AND SCRUTINISE THE DECISION OF A LOCAL AUTHORITY IN SUCH A MATTER. THE PRINCIPLES IN ENGLAND ARE SUMMARISED BY LORD GREENE M.R. IN ASSOCIATED PROVINCIAL PICTURE HOUSES LIMITED V. WEDNESBURY CORPORATION [1948] 1 KB 223 AT 228 ET SEQ. THIS PASSAGE, QUOTED BY YOUR LORDSHIP, SETS OUT THE CIRCUMSTANCES IN WHICH A COURT MAY INTERFERE WITH AN EXECUTIVE ACT BY A LOCAL AUTHORITY WITHIN ITS DISCRETION. THE COURT MUST NOT SUBSTITUTE ITSELF FOR THE AUTHORITY. THE COURT MAY INTERFERE ONLY WHEN IT IS ALLEGED THAT THE LOCAL AUTHORITY HAS CONTRAVENED THE LAW. THE CIRCUMSTANCES IN WHICH SUCH INTERFERENCE MAY BE JUSTIFIED ARE SET OUT BY LORD GREENE (SEE ALSO SECRETARY OF STATE FOR EMPLOYMENT V. ASLEF (NO. 2) [1972] 2 Q.B. 455, LORD DENNING M.R. AT 493; SECRETARY OF STATE FOR EDUCATION AND SCIENCE V. TAMESIDE METROPOLITAN BOROUGH COUNCIL [1977] AC 1014, LORD WILBERFORCE AT 1024;REGINA V. BRISTOL CITY COUNCIL [1979] 1 W.L.R. 1437). PROVIDED THAT THE LOCAL AUTHORITY'S DISCRETION HAS BEEN EXERCISED PROPERLY AND WITHOUT INFRINGING ANY PRINCIPLES OF LAW, THEN IT CANNOT BE REVIEWED BY THE COURT, IF THE POWER OF THE LOCAL AUTHORITY IS EXECUTIVE AND NOT JUDICIAL OR QUASI-JUDICIAL. ACCORDINGLY IT IS INCUMBENT UPON A PURSUER IN SUCH A CASE RELEVANTLY TO AVER THAT THE LOCAL AUTHORITY HAS BY ITS DECISION INFRINGED THESE PRINCIPLES AND CONTRAVENED THE LAW.SHERIFF COURT.LORD PRESIDENT INGLIS AT P. 467. THERE THE LORD PRESIDENT SETS OUT THE PRE-EMINENCE OF THE COURT OF SESSION, AND ITS SUPEREMINENT JURISDICTION, IN CONTROLLING THE EXERCISE OF THESE POWERS BY INFERIOR JUDGES. "THERE IS NO DOUBT WHATEVER," THE LORD PRESIDENT SAYS AT P. 467, "THAT WHENEVER AN INFERIOR JUDGE, NO MATTER OF WHAT KIND, FAILS TO PERFORM HIS DUTY, OR TRANSGRESSES HIS DUTY, EITHER BY GOING BEYOND HIS JURISDICTION, OR BY FAILURE TO EXERCISE HIS JURISDICTION WHEN CALLED UPON TO DO SO BY A PARTY ENTITLED TO COME BEFORE HIM, THERE IS A REMEDY IN THIS COURT… THE SAME RULE APPLIES TO A VARIETY OF OTHER PUBLIC OFFICERS, SUCH AS STATUTORY TRUSTEES OR COMMISSIONERS… BUT OF ONE THING THERE CAN BE NO DOUBT, THAT IN MAKING SUCH ORDERS AGAINST INFERIOR JUDGES, OR STATUTORY TRUSTEES OR COMMISSIONERS, OR THE LIKE, THIS COURT IS EXERCISING AN EXCLUSIVE JURISDICTION—A JURISDICTION WHICH CANNOT FORMALLY BELONG TO ANY OTHER COURT IN THIS COUNTRY. IT IS ENOUGH TO SUGGEST THE IDEA, THAT AN INFERIOR JUDGE SHOULD BE CALLED UPON TO ORDAIN ANOTHER INFERIOR JUDGE TO PERFORM HIS DUTY—THE VERY IDEA CARRIES ABSURDITY WITH IT. IT CAN ONLY BE THE SUPREME COURT OF THE COUNTRY THAT CAN POSSIBLY EXERCISE SUCH JURISDICTION."LORD PRESIDENT WAS CONFINING HIS REMARKS TO SUBORDINATE JUDGES WHO ARE ACTING IN A JUDICIAL OR AT LEAST QUASI-JUDICIAL CAPACITY—IN FORBES V. UNDERWOOD IT WAS AN ARBITER. LOCAL AUTHORITIES ARE NOT ACTING IN A JUDICIAL CAPACITY IN CARRYING OUT EXECUTIVE FUNCTIONS UNDER THE HOUSING (HOMELESS PERSONS) ACT, NOR IN MY OPINION ARE THEY CARRYING OUT QUASI-JUDICIAL FUNCTIONS. THEY ARE SIMPLY ACTING AS ADMINISTRATORS OF EXECUTIVE FUNCTIONS PLACED UPON THEM BY THE ACT (CF. DE FALCO V. CRAWLEY BOROUGH COUNCIL 1980 Q.B. 460, DENNING M.R. AT 476, LORD JUSTICE BRIDGE AT 479). SO THE CITIZEN AGGRIEVED BY THE ACT OF SUCH AN AUTHORITY CARRYING OUT THESE FUNCTIONS IS NOT AFFECTED IN MY OPINION BY THE RESTRICTIONS SET OUT BY LORD PRESIDENT INGLIS. IF HE CAN COMPETENTLY RAISE AN ACTION IN THE SHERIFF COURT HE IS ENTITLED TO DO SO. I DO NOT THINK THAT THE COURT OF SESSION ALONE HAS JURISDICTION IN SUCH A MATTER FOR THE REASONS GIVEN IN FORBES V. UNDERWOOD .SHERIFF COURT FOR ANOTHER REASON, VIDELICET—IT WAS NOT A TRUE ACTION OF DECLARATOR BUT WAS IN REALITY A DISGUISED OR COVERT ACTION OF REDUCTION. ACTIONS OF REDUCTION ARE NOT COMPETENT IN THE SHERIFF COURT; THIS IS NOT DISPUTED. BUT JURISDICTION IN ACTIONS OF DECLARATOR WAS EXTENDED TO THE SHERIFF COURT IN 1907. SECTION 5 OF THE SHERIFF COURTS (SCOTLAND) ACT 1907, UNDER THE HEADING "EXTENSION OF JURISDICTION," READS AS FOLLOWS, VIDELICET—"5. NOTHING HEREIN CONTAINED SHALL DEROGATE FROM ANY JURISDICTION, POWERS, OR AUTHORITY PRESENTLY POSSESSED, OR IN USE, TO BE EXERCISED BY THE SHERIFFS OF SCOTLAND, AND SUCH JURISDICTION SHALL EXTEND TO AND INCLUDE—(1) ACTIONS OF DECLARATOR (EXCEPT DECLARATORS OF MARRIAGE OR NULLITY OF MARRIAGE, AND ACTIONS… TO DETERMINE THE PERSONAL STATUS OF INDIVIDUALS…)."LORD FRASER OF TULLYBELTON AT 110). AND ONCE THIS QUESTION, LYING "AT THE ROOT OF THE CONTROVERSY BETWEEN THE PARTIES" (LORD JUSTICE-CLERK THOMSON'S WORDS IN MACNAUGHTON'S TRS. CIT. SUP.), WAS DECIDED, FURTHER ACTION COULD BE EASILY TAKEN, IF NECESSARY.LORDSHIP THAT THE VARIOUS CRAVES THEREIN ARE CLEARLY PREMATURE AND DO NOT ARISE AT PRESENT. IF THE PURSUER WERE SUCCESSFUL IN HIS FIRST CRAVE IT WOULD NOT FOLLOW THAT THE DUTIES ADUMBRATED IN THE SECOND AND THIRD CRAVES ENSUE. A VALID DECISION IN HIS FAVOUR IN TERMS OF SECTION 17 OF THE ACT WOULD STILL BE A NECESSARY PRELIMINARY. I THEREFORE AGREE THAT THE FOURTH PLEA-IN-LAW FOR THE DEFENDERS SHOULD BE SUSTAINED QUOAD THE PURSUER'S CRAVES 2 AND 3.LORDSHIP HAS REFERRED TO THE PURSUER'S AVERMENTS IN CONSIDERABLE DETAIL AND I DO NOT THINK THAT I CAN ADD ANYTHING USEFUL ON THIS BRANCH OF THE CASE. THE AVERMENTS HAVE TO BE MEASURED AND CONSIDERED WITHIN THE FRAMEWORK, AND WITH THE BACKGROUND, OF THE DICTA OF LORD GREENE M.R. ALREADY REFERRED TO. SO CONSIDERING THEM I AGREE WITH SOME HESITATION WITH YOUR LORDSHIP THAT A PROOF BEFORE ANSWER SHOULD BE ALLOWED UPON CRAVE 1.SHERIFF) IN MARCH 1980.LORDSHIP THAT, ON THE ASSUMPTION THAT THE PURSUER WAS ENTITLED TO DECREE UNDER HIS FIRST CRAVE, THE DEFENDERS HAD A DUTY TO PROVIDE HIM AND HIS FAMILY WITH REASONABLE ACCOMMODATION. HE AVERS THAT THEIR FAILURE TO DO SO CAUSED HIM GREAT DISTRESS AND INCONVENIENCE. IN THESE CIRCUMSTANCES I AGREE, WITH SOME HESITATION, THAT HIS AVERMENTS ARE SUFFICIENT TO ENTITLE HIM TO A PROOF ON DAMAGES LIMITED AS SET OUT BY YOUR LORDSHIP. IT ALSO APPEARS THAT HE MAY ALSO BE ABLE TO CONSTITUTE A CLAIM FOR DAMAGES UPON THESE AVERMENTS UNDER SECTION 3 (4), EVEN IF HE FAILS UNDER HIS FIRST CRAVE. I HAVE NO DOUBT THAT, APART FROM THE AVERMENTS I HAVE MENTIONED, THE PURSUER'S REMAINING AVERMENTS RELATING TO DAMAGES ARE WHOLLY LACKING IN SPECIFICATION AND IRRELEVANT.LORDSHIP.LORD DUNPARK .—THE PRINCIPAL ISSUE IN THIS APPEAL IS WHETHER THE SHERIFF COURT HAS A SUPERVISORY JURISDICTION TO REVIEW AND DECLARE NULL THE DECISION OF HAMILTON DISTRICT COUNCIL (THE APPELLANTS) MADE AS THE HOUSING AUTHORITY UNDER THE HOUSING (HOMELESS PERSONS) ACT 1977 (HEREINAFTER REFERRED TO AS "THE ACT") THAT THE RESPONDENT BECAME HOMELESS INTENTIONALLY. THE RESPONDENT, WHO HAD APPLIED TO THE APPELLANTS UNDER THE ACT FOR ACCOMMODATION AS A HOMELESS PERSON, CONTESTED THIS DECISION BY RAISING, WHAT IS IN EFFECT, AN ACTION OF DECLARATOR OF NULLITY IN THE SHERIFF COURT. THE APPELLANTS PLEADED THAT THE ACTION WAS INCOMPETENT IN THE SHERIFF COURT INTER ALIAFOR WANT OF JURISDICTION. THE SHERIFF REPELLED THE APPELLANTS' PLEAS TO COMPETENCY AND HELD THAT THE ACTION WAS COMPETENT IN THE SHERIFF COURT. AGAINST THIS DECISION THE DISTRICT COUNCIL HAS APPEALED.SHERIFF COURT HAS NO JURISDICTION TO REVIEW AND QUASH DECISIONS OF INFERIOR COURTS, BUT THEY SUBMITTED THAT IT DOES HAVE POWER TO REVIEW DECISIONS OF ADMINISTRATIVE BODIES AND IN EFFECT TO QUASH THEM, BUT ONLY BY DECLARING THEM TO BE NULL—NOT BY DECREE OF REDUCTION WHICH, IT WAS NECESSARILY CONCEDED, IS THE PREROGATIVE OF THE COURT OF SESSION. IF THIS WAS AN ADMINISTRATIVE DECISION AND THE SHERIFF COURT HAS THE POWER TO DECLARE IT NULL, THEN THIS ACTION IS, IN MY OPINION, COMPETENT IN THE SHERIFF COURT; IF IT DOES NOT HAVE THIS POWER, THE ACTION MUST BE INCOMPETENT.JUSTICE, ET SEPARATIM MADE WITHOUT REGARD TO THE GUIDANCE ISSUED BY THE SECRETARY OF STATE, DECREE SHOULD BE PRONOUNCED IN TERMS OF THE FIRST CRAVE."JUSTICE. WHAT IN EFFECT THE RESPONDENT ASKS THE SHERIFF TO DO IS TO QUASH THE DECISION BY DECLARING THAT THE APPELLANTS WERE NOT ENTITLED TO MAKE IT.SHERIFF COURTS (SCOTLAND) ACT 1907 THERE WAS NO SHERIFF COURT PROCEDURE WHICH ENABLED THAT COURT TO QUASH A DECISION OF OTHER BODIES. THE ONLY JUDICIAL DECREES WHICH CAN ACHIEVE THAT RESULT ARE REDUCTION AND DECLARATOR OF NULLITY. AN ACTION OF REDUCTION WAS, AND STILL IS, INCOMPETENT IN THE SHERIFF COURT, ALTHOUGH SECTION 11 OF THE SHERIFF COURTS (SCOTLAND) ACT 1877 (NOW RULE 50 OF THE FIRST SCHEDULE OF THE 1907 ACT) PROVIDED FOR REDUCTION OPE EXCEPTIONIS; BUT THIS RULE DOES NOT ENABLE THE SHERIFF TO SET ASIDE A DOCUMENT WHICH FORMS THE BASIS OF A PARTY'S ALLEGED RIGHT OF ACTION OR THE BASIS OF A DEFENCE AGAINST AN ATTACK ON TITLE (SEE DONALD V. DONALD, 1913 S.C. 274). SECTION 8 OF THE 1877 ACT EXPRESSLY EXTENDED THE JURISDICTION OF SHERIFFS TO INCLUDE (1) ACTIONS OF DECLARATOR RELATING TO QUESTIONS OF HERITABLE RIGHT OR TITLE, SUBJECT TO A MONETARY LIMIT, AND (2) ACTIONS OF DECLARATOR FOR THE PURPOSE OF DETERMINING ANY QUESTION RELATING TO THE PROPERTY IN, OR RIGHT OF SUCCESSION TO, MOVEABLES SUBJECT AGAIN TO A MONETARY LIMIT. THIS ACT WAS REPEALED BY THE SHERIFF COURTS (SCOTLAND) ACT 1907, AND THE JURISDICTION OF THE SHERIFF WAS EXTENDED BY SECTION 5 (1) TO INCLUDE "ACTIONS OF DECLARATOR (EXCEPT DECLARATORS OF MARRIAGE OR NULLITY OF MARRIAGE AND ACTIONS THE DIRECT OR MAIN OBJECT OF WHICH IS TO DETERMINE THE PERSONAL STATUS OF INDIVIDUALS)."SHERIFF BY IMPLICATION TO INCLUDE THE POWER TO REVIEW ADMINISTRATIVE DECISIONS OF STATUTORY BODIES BY ACTIONS OF DECLARATOR. THE SHERIFF SEEMS TO HAVE TAKEN SECTION 5 (1) AT ITS FACE VALUE AND TO HAVE HELD THAT THIS ACTION OF DECLARATOR WAS INCLUDED IN THE SECTION BECAUSE IT WAS NOT EXPRESSLY EXCLUDED. HE DOES NOT SEEM TO HAVE BEEN FAVOURED WITH THE WEIGHTY ARGUMENTS WHICH WE HEARD ANENT THE EXTENT OF THE RESPECTIVE JURISDICTIONS OF THE COURT OF SESSION AND OF THE SHERIFF COURT BEFORE 1907 IN RELATION TO THE POWER TO REVIEW AND QUASH DECISIONS OF INFERIOR COURTS AND OTHER BODIES, NOR DOES HE SEEM TO HAVE BEEN REFERRED TO ANY OF THE LARGE NUMBER OF AUTHORITIES WHICH WERE CITED TO US AS RELEVANT TO THIS POINT. IT SEEMS TO ME TO FOLLOW FROM THE SHERIFF'S DECISION THAT IT IS TO BE ASSUMED THAT PARLIAMENT DECIDED THAT IT WAS NOT NECESSARY TO INSERT IN THE HOUSING (HOMELESS PERSONS) ACT 1977 AN EXPRESS POWER TO REVIEW DECISIONS MADE UNDER THE ACT BECAUSE IT KNEW THAT SHERIFFS ALREADY HAD THIS POWER. I AM NOT PREPARED TO ACCEPT THIS SPECULATIVE ASSUMPTION. ONE POSSIBLE ALTERNATIVE IS THAT PARLIAMENT DELIBERATELY REFRAINED FROM CONFERRING THIS POWER BECAUSE IT INTENDED THAT THERE SHOULD BE NO APPEAL AGAINST SUCH DECISIONS AND KNEW THAT THE COURT OF SESSION ALONE HAD THE POWER TO REDUCE SUCH DECISIONS UNDER THE HOUSING (HOMELESS PERSONS) ACT 1977 AS WERE DEMONSTRATED TO BE NULL.SHERIFF HAS NOW POWER TO REVIEW ADMINISTRATIVE DECISIONS. THIS PROCEDURE HAS SO FAR BEEN USED IN SEVERAL CASES UNDER THE HOUSING (HOMELESS PERSONS) ACT 1977. WHILE EXPRESSING NO OPINION AS TO THE COMPETENCY OF A SUMMARY PETITION WHICH INVOLVES REVIEW BY THE COURT OF SESSION OF THE VALIDITY OF A DECISION MADE UNDER THIS ACT, I OBSERVE THAT IT IS SINGULARLY ILL-SUITED FOR THIS PURPOSE.SHERIFF COURT HAD EXPRESSLY BEEN GIVEN THE POWER TO REVIEW AND QUASH THE DECISION IN QUESTION. COUNSEL FOR THE RESPONDENT, ON THE OTHER HAND, SUBMITTED THAT THERE WAS NOTHING JUDICIAL IN THE NATURE OF THIS DECISION. STANDING THEIR CONCESSION THAT AN ACTION OF DECLARATOR OF NULLITY IN THE SHERIFF COURT WAS NOT A COMPETENT PROCESS FOR REVIEW OF JUDICIAL OR QUASI-JUDICIAL DECISIONS, IT IS AN ESSENTIAL PREREQUISITE OF THEIR ARGUMENT THAT THIS ACTION WAS COMPETENTLY BROUGHT IN THE SHERIFF COURT THAT THE RELEVANT DECISION OF THE APPELLANTS IN THIS CASE MUST PROPERLY BE CLASSIFIED AS AN ADMINISTRATIVE ONE—ALTERNATIVELY, THAT IT CANNOT BE CLASSIFIED AS A DECISION "OF A JUDICIAL NATURE."LORD PRESIDENT INGLIS IN FORBES V. UNDERWOOD (1886) 13 R. 465, AT PP. 467–8:—SHERIFF HAS JURISDICTION IN SUCH A CASE IS, I THINK, ONE OF VERY GREAT IMPORTANCE. THE POSITION OF AN ARBITER IS VERY MUCH LIKE THAT OF A JUDGE IN MANY RESPECTS, AND THERE IS NO DOUBT WHATEVER THAT WHENEVER AN INFERIOR JUDGE, NO MATTER OF WHAT KIND, FAILS TO PERFORM HIS DUTY, OR TRANSGRESSES HIS DUTY, EITHER BY GOING BEYOND HIS JURISDICTION, OR BY FAILING TO EXERCISE HIS JURISDICTION WHEN CALLED UPON TO DO SO BY A PARTY ENTITLED TO COME BEFORE HIM, THERE IS A REMEDY IN THIS COURT, AND THE INFERIOR JUDGE, IF IT TURNS OUT THAT HE IS WRONG, MAY BE ORDERED BY THIS COURT TO GO ON AND PERFORM HIS DUTY, AND IF HE FAILS TO DO SO HE WILL BE LIABLE TO IMPRISONMENT AS UPON A DECREE AD FACTUM PRAESTANDUM. THE SAME RULE APPLIES TO A VARIETY OF OTHER PUBLIC OFFICERS, SUCH AS STATUTORY TRUSTEES AND COMMISSIONERS, WHO ARE UNDER AN OBLIGATION TO EXERCISE THEIR FUNCTIONS FOR THE BENEFIT OF THE PARTIES FOR WHOSE BENEFIT THESE FUNCTIONS ARE ENTRUSTED TO THEM, AND IF THEY CAPRICIOUSLY AND WITHOUT JUST CAUSE REFUSE TO PERFORM THEIR DUTY THEY WILL BE ORDAINED TO DO SO BY DECREE OF THIS COURT, AND FAILING THEIR PERFORMANCE WILL, IN LIKE MANNER, BE COMMITTED TO PRISON. NOW, ALL THIS BELONGS TO THE COURT OF SESSION AS THE SUPREME CIVIL COURT OF THIS COUNTRY IN THE EXERCISE OF WHAT IS CALLED, VERY PROPERLY, ITS SUPEREMINENT JURISDICTION. IT IS NOT OF VERY MUCH CONSEQUENCE TO DETERMINE WHETHER IT IS IN THE EXERCISE OF ITS HIGH EQUITABLE JURISDICTION, OR IN THE PERFORMANCE OF WHAT IS SOMETIMES CALLED ITS NOBILE OFFICIUM.BUT OF ONE THING THERE CAN BE NO DOUBT, THAT IN MAKING SUCH ORDERS AGAINST INFERIOR JUDGES, OR STATUTORY TRUSTEES, OR COMMISSIONERS, OR THE LIKE, THIS COURT IS EXERCISING AN EXCLUSIVE JURISDICTION—A JURISDICTION WHICH CANNOT POSSIBLY BELONG TO ANY OTHER COURT IN THE COUNTRY. IT IS ENOUGH TO SUGGEST THE IDEA, THAT AN INFERIOR JUDGE SHOULD BE CALLED UPON TO ORDAIN ANOTHER INFERIOR JUDGE TO PERFORM HIS DUTY—THE VERY IDEA CARRIES ABSURDITY WITH IT. IT CAN BE ONLY THE SUPREME COURT OF THE COUNTRY THAT CAN POSSIBLY EXERCISE SUCH JURISDICTION."SHERIFF COURT WHICH ENABLED THAT COURT TO REVIEW AND QUASH DECISIONS OF ANY KIND UPON THE GROUND THAT THEY WERE ULTRA VIRES OR THAT THE PRINCIPLES OF NATURAL JUSTICE HAD BEEN BREACHED. HOWEVER, I INFER FROM THE OPINION OF THE LORD PRESIDENT THAT HE WOULD NEVER HAVE CONCLUDED THAT THE SHERIFF COURT HAD JURISDICTION TO REVIEW DECISIONS OF A JUDICIAL OR QUASI-JUDICIAL NATURE, UNLESS THAT POWER HAD BEEN GRANTED BY STATUTE IN PLAIN AND UNEQUIVOCAL TERMS.LORD REID AND LORD SALMOND IN SUTCLIFFE V. THACKRAH [1974] A.C. 727, AT PP. 735 AND 737, AND 759 RESPECTIVELY. THE ISSUE IN THAT CASE WAS WHETHER OR NOT ARCHITECTS, IN ISSUING INTERIM CERTIFICATES UNDER A BUILDING CONTRACT, WERE ACTING IN A JUDICIAL CAPACITY. ALTHOUGH THE FACTS WERE FAR REMOVED FROM THOSE IN THIS CASE, LORD SALMOND DID SAY THAT THE DESCRIPTION "‘QUASI-JUDICIAL FUNCTIONS’ … CANNOT MEAN MORE THAN IN MUCH THE SAME POSITION AS AN ARBITRATOR OR JUDGE."SHERIFF COURT.SHERIFF COURT HAD EXPRESSLY BEEN GIVEN THE POWER TO REVIEW AND QUASH THE DECISION IN QUESTION. COUNSEL FOR THE RESPONDENT, ON THE OTHER HAND, REFERRED TO MACKAY'S MANUAL OF PRACTICE, P. 94, AND SUBMITTED THAT THE COURT OF SESSION AND THE SHERIFF COURT EXERCISE A CONCURRENT JURISDICTION EXCEPT UPON THE GROUNDS WHICH ARE EXCLUSIVE TO THE COURT OF SESSION, AS NARRATED BY MACKAY IN HIS PREVIOUS CHAPTER ON "PRIVATIVE JURISDICTION." COUNSEL SUBMITTED THAT, SINCE NO REFERENCE WAS MADE TO THE COURT OF SESSION HAVING PRIVATIVE JURISDICTION TO REVIEW THE DECISIONS OF THE ADMINISTRATIVE BODIES, THERE MUST BE CONCURRENT JURISDICTION. THEY FURTHER FOUNDED ON THE FACT THAT THERE WAS A TOTAL ABSENCE OF AUTHORITATIVE SUPPORT FOR THE APPELLANTS' CONTENTION THAT THIS JURISDICTION WAS EXCLUSIVE TO THE COURT OF SESSION. THE SHORT ANSWER TO THIS POINT IS THAT THERE IS NO AUTHORITATIVE SUPPORT FOR THE VIEW THAT THE SHERIFF COURT HAS A GENERAL SUPERVISORY JURISDICTION OVER ANY DECISIONS OF STATUTORY BODIES.LORD JUSTICE-CLERK BOYLE SAID:—SHERIFF COURT, AND I UNDERSTOOD THE SUGGESTION TO BE THAT THESE CASES WERE INCONSISTENT WITH THE LORD JUSTICE-CLERK'S STATEMENT OF THE LAW. THE THREE CASES WERE:—MACLEAN V. DONALD (1840) 2 D. 528, TRAINER V. RENFREWSHIRE U.D.C . 1907 S.C. 1117 AND THE SECRETARY OF STATE FOR SCOTLAND V. FIFE COUNTY COUNCIL 1953 S.C. 257. IN NONE OF THESE CASES, HOWEVER, WAS THERE A CRAVE FOR REDUCTION OR DECLARATOR OF NULLITY. THE LAST WAS A PETITORY ACTION, AND THE REMEDY SOUGHT IN TRAINER WAS INTERDICT.SHERIFF HAS JURISDICTION TO INTERDICT A WRONGDOER, HE MUST HAVE JURISDICTION TO ADJUDICATE ON THE ILLEGALITY OF ACTS AND, THEREFORE, IF A PERSON SOUGHT TO INTERDICT A STATUTORY BODY FROM ACTING ILLEGALLY, HE MIGHT PREFACE THE INTERDICT CRAVE WITH A DECLARATORY ONE IN THE SHERIFF COURT. THIS GENERALITY DOES NOT, IN MY OPINION, ASSIST THE RESPONDENT IN THIS CASE. THE REMEDY WHICH THIS RESPONDENT SEEKS IS NOT THE PROHIBITION OF AN ILLEGAL ACT, BUT A DECLARATION THAT THE DECISION IN QUESTION WAS NOT ONE WHICH THE DEFENDERS WERE ENTITLED TO REACH. THIS DECLARATION CANNOT BE GRANTED UNLESS THE COURT, AFTER REVIEWING THE FACTS UPON WHICH THE DECISION WAS BASED AND THE PROCEDURE BY WHICH IT WAS REACHED, CONCLUDES EITHER THAT THE DECISION WAS ULTRA VIRES IN RESPECT THAT THE APPELLANTS FAILED TO TAKE INTO ACCOUNT FACTS WHICH THE ACT REQUIRED THEM TO ASCERTAIN, OR THAT THEY BROKE THE RULES OF NATURAL JUSTICE, OR THAT THE DECISION WAS ONE WHICH NO REASONABLE AUTHORITY COULD HAVE MADE. IT CERTAINLY DOES NOT FOLLOW FROM THE FACT THAT SHERIFFS MAY COMPETENTLY INTERDICT STATUTORY AUTHORITIES FROM PERFORMING CERTAIN ILLEGAL ACTS, OR FROM THE FACT THAT SHERIFFS MAY GRANT DECREES WHICH ORDER THE PERFORMANCE OF SOME STATUTORY DUTIES, THAT THEY HAVE JURISDICTION TO REVIEW AND QUASH DECISIONS OF HOUSING AUTHORITIES MADE UNDER THIS ACT IN THE ABSENCE OF EXPRESS STATUTORY POWER TO DO SO.SHERIFF COURT. THE FIRST OF THESE—M'GOWAN V. CITY OF GLASGOW FRIENDLY SOCIETY 1913 S.C. 991—MAY BE READ AS AUTHORITY FOR THE PROPOSITION THAT IN CERTAIN CIRCUMSTANCES DECREE OF DECLARATOR OF NULLITY BY A SHERIFF IS A COMPETENT ALTERNATIVE TO A COURT OF SESSION DECREE OF REDUCTION, BUT I AM OF OPINION THAT IT CANNOT POSSIBLY BE READ AS LENDING SUPPORT TO THE PROPOSITION THAT THE SHERIFF COURT HAS JURISDICTION TO REVIEW AND QUASH ULTRA VIRES DECISIONS OF ANY BODY WHICH IS NOT A COURT. THE ELECTION OF A MEMBER OF THE SOCIETY TO ITS BOARD OF MANAGEMENT WAS CHALLENGED IN THE SHERIFF COURT ON THE GROUND OF THE INELIGIBILITY OF THAT MEMBER TO SERVE ON THE BOARD. ALTHOUGH THE FIRST CRAVE WAS FOR DECLARATOR THAT HIS ELECTION WAS VOID, THAT CRAVE WAS DEPARTED FROM IN THE COURT OF SESSION BY COUNSEL FOR THE APPELLANT (SEE P. 994), AND THE ONLY REMEDY SOUGHT WAS INTERDICT. THE POINT WHICH ARISES IN THIS CASE DID NOT ARISE, AND THERE IS NOT A WHISPER IN THE REPORT OF THE LENGTHY DEBATE WHICH WE HAVE HEARD IN THE PRESENT CASE ON THIS POINT.COMMISSIONERS OF CALEDONIAN CANAL (1876) 3 R. 412. AGAIN I AM OF OPINION THAT IT DOES NOT SUPPORT COUNSELS' PROPOSITION. AS I READ IT, THE DECISION RESTED PRIMARILY UPON THE CONSTRUCTION OF SECTION 88 OF THE POOR LAW (SCOTLAND) ACT 1845, WHICH ENABLED PAROCHIAL BOARDS TO RECOVER POOR-RATES IN THE SMALL DEBT COURT. THE COURT OF SESSION HELD THAT IT WAS COMPETENT TO RECOVER POOR-RATES BY WAY OF ORDINARY ACTION IN THE SHERIFF COURT AND THAT THE SHERIFF HAD JURISDICTION TO ADJUDICATE UPON ANY RELEVANT DEFENCE TO A PETITORY CLAIM. COUNSEL FOUNDED ON THE STATEMENT OF LORD DEAS AT P. 415 IN M'TAVISH THAT "NO INFERIOR COURT CAN REVIEW THE DECISIONS OF ANOTHER INFERIOR COURT" AS NOT EXCLUDING THE SHRIEVAL POWER TO REVIEW DECISIONS OF A NON-JUDICIAL NATURE; BUT AT THAT TIME THERE WAS NO FORM OF PROCESS IN THE SHERIFF COURT WHICH ENABLED THAT COURT TO REVIEW DECISIONS OF ANY KIND.JUSTICE IN 1532 TO TAKE OVER THE JUDICIAL DUTIES OF THE KING'S COUNCIL. THE LORDS OF COUNCIL AND SESSION WERE GIVEN, AS ERSKINE SAYS IN HIS INSTITUTE (I, 3, 18), A JURISDICTION IN CIVIL MATTERS "FIRST, UNIVERSAL AS TO EXTENT; AND SECONDLY, SUPREME IN DEGREE." AT I, 3, 20 HE STATES THAT THE COURT OF SESSION "CAN SET ASIDE OR SUSPEND THE SENTENCES OF ALL INFERIOR COURTS IN CIVIL CAUSES, UNLESS WHERE THE POWER IS DENIED THEM BY SPECIAL STATUTE." AS HE POINTS OUT AT I, 3, 22, THE COURT OF SESSION "IS A COURT OF EQUITY AS WELL AS OF LAW; AND AS SUCH MAY AND OUGHT TO PROCEED BY RULES OF CONSCIENCE IN ABATING THE RIGOURS OF THE LAW, AND IN GIVING AID IN ACTIONS BROUGHT BEFORE THEM TO THOSE WHO CAN HAVE NO REMEDY IN A COURT OF LAW." THE JURISDICTION OF THE SHERIFF COURT HAS BEEN FOR CENTURIES WHOLLY STATUTORY. ITS JURISDICTION IS LIMITED TO THOSE SPECIFIC FORMS OF REMEDIES WHICH ARE COMPETENT IN THE SHERIFF COURT. BUT SAID COUNSEL, THERE IS NOW SUCH A REMEDY, NAMELY, AN ACTION OF DECLARATOR. THAT, IN MY OPINION, BEGS THE REAL QUESTION WHETHER, WHEN PARLIAMENT BY SECTION 5 (1) OF THE SHERIFF COURTS (SCOTLAND) ACT 1907 EXTENDED THE JURISDICTION OF THE SHERIFF TO INCLUDE MOST DECLARATORY ACTIONS, IT THEREBY CONFERRED UPON THE SHERIFF COURT A NEW SUPERVISORY JURISDICTION. IF I AM RIGHT IN CLASSIFYING THE POWER OF THE COURT OF SESSION TO QUASH DECISIONS ON THE GROUND OF NULLITY AS AN EQUITABLE POWER, THAT POWER HAS NEVER BEEN EXPRESSLY CONFERRED UPON SHERIFFS.COMMISSIONERS OF SUPPLY UNDER THE HEADING "INFERIOR JUDGES AND COURTS IN SCOTLAND." MACLAREN, COURT OF SESSION PRACTICE, AT P. 119, USED A SIMILAR HEADING. SENIOR COUNSEL EXPLAINED THE PASSAGE IN THE OPINION OF LORD PRESIDENT INGLIS IN FORBES V. UNDERWOOD (1886) 13 R. 465, AT 468, ABOUT THE ABSURDITY OF ONE INFERIOR JUDGE EXERCISING A SUPERVISORY JURISDICTION OVER THE ACTINGS OF ANOTHER INFERIOR JUDGE, AS BEING RESTRICTED TO JUDICIAL OR QUASI-JUDICIAL DECISIONS AND SUBMITTED THAT NO SUCH ABSURDITY AROSE IF THE DECISION IN QUESTION WAS MADE SOLELY IN AN ADMINISTRATIVE CAPACITY. ASSUMING THIS TO BE SO, THE DISTINCTION WHICH COUNSEL DREW BETWEEN JUDICIAL AND QUASI-JUDICIAL DECISIONS ON THE ONE HAND AND ADMINISTRATIVE DECISIONS ON THE OTHER EXPOSES, IN MY OPINION, THE INHERENT WEAKNESS OF HIS SUBMISSION THAT A SHERIFF NOW HAS POWER TO REVIEW ONLY ADMINISTRATIVE DECISIONS BY WAY OF DECLARATOR OF NULLITY.SHERIFF COURT COULD REVIEW AND QUASH ANY DECISION OF OTHER COURTS OR BODIES. IF IT IS A NECESSARY INFERENCE FROM THE INTRODUCTION BY THE 1907 ACT OF THE ACTION OF DECLARATOR, IN A LESS QUALIFIED FORM THAN THAT CONFERRED BY THE 1877 ACT, THAT THIS INTRODUCTION PER SE EXTENDED THE SHERIFF'S JURISDICTION TO INCLUDE THE POWER TO REVIEW AND QUASH DECISIONS, THERE IS NOTHING IN THE 1907 ACT WHICH EXPRESSLY OR IMPLIEDLY EXCLUDES THE POWER OF THE SHERIFF TO REVIEW JUDICIAL OR QUASI-JUDICIAL DECISIONS OF INFERIOR COURTS OR BODIES, WHERE NO OTHER REMEDY IS PROVIDED BY THE COMMON LAW OR BY STATUTE. YET THE CONCESSION BY COUNSEL FOR THE RESPONDENT THAT THE SHERIFF HAS NO POWER TO REVIEW JUDICIAL OR QUASI-JUDICIAL DECISIONS MEANS THAT THE USE OF THE ACTION OF DECLARATOR AS A REVIEW PROCESS IS SUBJECT TO AN ADDITIONAL LIMITATION WHICH, NOT BEING EXPRESSED IN SECTION 5 (1) OF THE ACT, MUST BE IMPLIED. I FIND NO GOOD REASON FOR READING SECTION 5 (1) OF THE 1907 ACT AS IMPLIEDLY CONFERRING UPON THE SHERIFF A NEW POWER TO REVIEW AND QUASH DECISIONS, WHICH POWER IS SUBJECT TO THE LIMITATION, ALSO IMPLIED, THAT IT DOES NOT EXTEND TO THE REVIEW OF JUDICIAL OR QUASI-JUDICIAL DECISIONS.SHERIFF COURT JURISDICTION TO TRY ALL ACTIONS OF DECLARATOR EXCEPT THOSE EXPRESSLY EXCLUDED, IT THEREBY CONFERRED JURISDICTION UPON SHERIFFS TO REVIEW, BY WAY OF ACTIONS OF DECLARATOR OF NULLITY, DECISIONS OF INFERIOR COURTS AS WELL AS OF STATUTORY BODIES; BUT I SHOULD HAVE BEEN UNABLE SO TO CONSTRUE IT. SUCH A WIDE EXTENSION OF THE SHERIFF'S POWERS COULD, IN MY OPINION, HAVE ONLY BEEN CONFERRED EXPRESSLY BY CLEAR STATUTORY PROVISION. AS LORD SALVESEN SAID IN DUNBAR V. SCOTTISH COUNTY INVESTMENT CO . 1920 S.C. 210, AT P. 217:—SHERIFFS TO REVIEW AND DECLARE NULL THE DECISIONS OF ANY BODIES, WHETHER OF A JUDICIAL OR OTHER NATURE.JUSTICE. THE 1907 ACT DID NOT EXTEND THE JURISDICTION OF THE SHERIFF COURT TO INCLUDE ACTIONS OF REDUCTION. IF PARLIAMENT HAD INTENDED SHERIFFS TO HAVE POWER TO QUASH DECISIONS ON EITHER OF THE ABOVE GROUNDS, IT OUGHT TO HAVE MADE EXPRESS PROVISION FOR THE REMEDY OF REDUCTION, AND NOT LEFT THE EXISTENCE OF AN ALTERNATIVE REMEDY OF DECLARATOR OF NULLITY TO BE IMPLIED FROM THE FACT THAT SUCH AN ACTION IS NOT EXPRESSLY SPECIFIED AS AN EXCEPTION IN SECTION 5 (1) OF THE 1907 ACT.SHERIFF TO DETERMINE SPECIFIC QUESTIONS ARISING FROM THE MANNER OF THE EXERCISE. I HAVE IN MIND THE BURGH POLICE ACTS, PUBLIC HEALTH ACTS, ROADS AND BRIDGES ACTS AND HOUSING ACTS, TO NAME BUT A FEW. THE ONLY STATUTORY PROVISION OF WHICH I AM AWARE WHICH GIVES THE SHERIFF A GENERAL POWER TO REVIEW AND QUASH DECISIONS OF STATUTORY BODIES IS SECTION 39 (4) OF THE LICENSING (SCOTLAND) ACT 1976. EVEN THERE, THE GENERAL POWER IS CREATED BY REFERENCE TO SPECIFIC GROUNDS OF APPEAL.SHERIFF MAY UPHOLD AN APPEAL UNDER THIS SECTION ONLY IF HE CONSIDERS THAT THE LICENSING BOARD IN ARRIVING AT ITS DECISION—(A)ERRED IN LAW; (B) BASED ITS DECISION ON ANY INCORRECT MATERIAL FACT; (C) ACTED CONTRARY TO NATURAL JUSTICE; OR (D)EXERCISED ITS DISCRETION IN AN UNREASONABLE MANNER."SHERIFF COURTS (SCOTLAND) ACT 1907 DID EXTEND TO DECLARATIONS THAT ADMINISTRATIVE DECISIONS OF STATUTORY BODIES WERE NULL AND VOID, THERE WAS NO NEED TO INSERT PARAGRAPHS (B), (C) OR (D) IN SUBSECTION 4.LORD SHAW OF DUNFERMLINE IN MOSS' EMPIRES V. ASSESSOR FOR GLASGOW 1917 S.C. (H.L.) 1, AT P. 17, IT IS NOT WITHIN THE POWER OR FUNCTION OF THE COURTS TO DO WORK SET BY THE LEGISLATURE TO BE PERFORMED BY ADMINISTRATIVE BODIES (SEE ALSO THE OPINION OF LORD GREENE M.R., IN ASSOCIATED PROVINCIAL PICTURE HOUSES LTD. V. WEDNESBURY CORPORATION [1948] 1 KB 223 AT PP. 228–9, AND ANISMINIC V. FOREIGN COMPENSATION COMMISSION 2 [1969] A.C. 147, PER LORD REID AT P. 171). JUDICIAL DICTARELEVANT TO DECISIONS OF HOUSING AUTHORITIES UNDER THE HOUSING (HOMELESS PERSONS) ACT 1977 WERE COLLATED BY LORD DENNING M.R. IN DE FALCO V. CRAWLEY BOROUGH COUNCIL [1980] Q.B. 460, AT P. 476; AND SEE BRIDGE L.J., AT P. 479. IT IS NOT IN DOUBT THAT, IN THE ABSENCE OF FUNDAMENTAL NULLITY, THE DECISION MADE BY HOUSING AUTHORITIES UNDER THIS ACT MAY NOT BE REVERSED BY THE JUDICIARY UNLESS THE COURT IS SATISFIED THAT NO HOUSING AUTHORITY, PROPERLY DIRECTING THEMSELVES AS TO THE PROVISIONS OF THE ACT AND ACTING IN GOOD FAITH, COULD REASONABLY HAVE REACHED THE DECISION IN QUESTION. ACCORDINGLY, IT IS NOT SURPRISING TO FIND THAT NO RIGHT OF APPEAL IS GIVEN BY THE ACT, AND THE ACT PROVIDES NO PROCEDURE FOR QUASHING DECISIONS WHICH ARE FOR ANY REASON RENDERED NULL AND VOID.SHERIFF HAS NO JURISDICTION TO REVIEW AND QUASH DECISIONS OF HOUSING AUTHORITIES, PURPORTING TO ACT IN PURSUANCE OF THIS ACT, ON THE GROUND OF FUNDAMENTAL NULLITY. THAT IS THE SOLE PREROGATIVE OF THE COURT OF SESSION IN THE EXERCISE OF ITS SUPEREMINENT JURISDICTION BY PROVIDING A REMEDY WHERE NO OTHER EXISTS.SHERIFFS TO HAVE JURISDICTION TO REVIEW DECISIONS MADE UNDER THE ACT, THERE IS NO GUARANTEE THAT A SHERIFF'S DECISION WOULD BE ACCEPTED AS FINAL. THE COURT OF SESSION HAS HAD A NUMBER OF APPEALS FROM DECISIONS OF SHERIFFS MADE UNDER SECTION 39 (4) OF THE LICENSING (SCOTLAND) ACT 1976, RESULTING IN DELAY AND FURTHER EXPENSE.SHERIFF COURT, I SHALL NOW DEAL WITH THE SUBSIDIARY ARGUMENTS.SHERIFF COURT. I AGREE WITH THIS, BUT I WOULD NEVERTHELESS HAVE HELD THAT, IF THE SHERIFF COURT HAD POWER TO REVIEW THIS DECISION, THIS ACTION WOULD HAVE BEEN COMPETENT AS THE ONLY FORM OF ACTION AVAILABLE FOR SUCH REVIEW IN THE SHERIFF COURT.SHERIFF. COUNSEL FOR THE RESPONDENT EXPLAINED THAT THEY WISHED TO RETAIN THE SECOND PART OF CRAVES 2 AND 3 "IN CASE THE RESPONDENT WAS EVICTED FROM THE HOUSE ALLOTTED TO HIM." IF CRAVE 1 IS REFUSED, DECREE COULD NOT BE PRONOUNCED IN TERMS OF THE ALTERNATIVE PARTS OF CRAVES 2 AND 3 SINCE THEY WOULD THEN RELATE TO A DUTY WHICH HAS LONG SINCE EXPIRED. IF CRAVE 1 WERE TO BE GRANTED WITH THE EFFECT OF ANNULLING THE DECISION OF 12TH DECEMBER 1978, I CONSIDER THE ALTERNATIVE PARTS OF CRAVES 2 AND 3 TO BE PREMATURE SINCE THE RESPONDENT DOES NOT, AND COULD NOT, AVER THAT IN THAT EVENT THERE IS ANY REASON TO BELIEVE THAT THE APPELLANTS WOULD FAIL TO PERFORM THEIR SECTION 3 (4) DUTY.SHERIFF COURT AND THAT THE FIRST CRAVE WERE TO BE GRANTED, THIS CLAIM FOR DAMAGES IS, IN MY OPINION, PREMATURE IN RESPECT THAT THE APPELLANTS MIGHT AGAIN, BUT THIS TIME PROPERLY, COME TO THE CONCLUSION THAT THE RESPONDENT BECAME HOMELESS INTENTIONALLY. IN THAT EVENT THIS CLAIM WOULD FAIL.SHERIFF HAS JURISDICTION TO PRONOUNCE DECREE IN TERMS OF THE FIRST CRAVE.JUSTICE NOT TO ASK THE RESPONDENT WHY HE HAD NOT USED THE RENT ALLOWANCE TO PAY THE RENT.JUSTICE. I AM THEREFORE OF THE OPINION THAT THE APPELLANTS HAVE RELEVANTLY AVERRED A DEFENCE TO THIS ACTION.LORD WILBERFORCE IN THE SECRETARY OF STATE V. TAMESIDE METROPOLITAN BOROUGH COUNCIL [1977] AC 1014, AT P. 1047, VIZ.:—SHERIFF HAS JURISDICTION TO ENTERTAIN THIS ACTION, I WOULD STILL ALLOW THE APPEAL, SUSTAIN THE APPELLANTS' FOURTH PLEA-IN-LAW AS TO RELEVANCY, REPEL THE RESPONDENT'S PLEAS AND DISMISS THE ACTION.LORDS AND THE PURSUER CROSS-APPEALED. THE APPEAL AND CROSS-APPEAL WERE HEARD ON 4TH AND 5TH OCTOBER 1982.LORD DIPLOCK .—THEIR LORDSHIPS WISH TO HEAR THE APPELLANTS AS TO THE CONFLICT BETWEEN M'TAVISH V. COMMISSIONERS OF THE CALEDONIAN CANAL (1876) 3 R. 412 AND MACFARLANE V. MOCHRUM SCHOOL BOARD (1875) 3 R. 88 AND AS TO THE EFFECT OF THE SHERIFF COURT'S INTERIM ORDER THAT THE APPELLANT SHOULD PROVIDE THE RESPONDENT WITH ACCOMMODATION PENDING THE OUTCOME OF THE APPEAL.LORD DIPLOCK .—MY LORDS, I HAVE HAD THE ADVANTAGE OF READING IN DRAFT THE SPEECH OF MY NOBLE AND LEARNED FRIEND, LORD FRASER OF TULLYBELTON. I AGREE WITH IT AND WOULD DISMISS THE ACTION.LORD FRASER OF TULLYBELTON .—MY LORDS, THE QUESTION IN THIS APPEAL IS WHETHER THE SHERIFF COURT HAS JURISDICTION TO REVIEW ADMINISTRATIVE DECISIONS OF LOCAL AUTHORITIES AND SIMILAR BODIES, ON THE GROUND THAT THEY ARE UNREASONABLE OR THAT THE PROCEDURE BY WHICH THEY HAD BEEN REACHED WAS CONTRARY TO NATURAL JUSTICE, OR WHETHER THE JURISDICTION TO REVIEW SUCH DECISIONS ON THOSE GROUNDS IS VESTED EXCLUSIVELY IN THE COURT OF SESSION.JUSTICE, AND HE RAISED AN ACTION IN THE SHERIFF COURT AT HAMILTON, THE FIRST CRAVE OF WHICH (AS AMENDED) IS FOR DECLARATOR THAT THE PURPORTED DECISION OF THE APPELLANTS THAT THEY WERE SATISFIED THAT HE HAD BECOME HOMELESS INTENTIONALLY WAS "NOT A DECISION WHICH THE [APPELLANTS] WERE ENTITLED TO REACH." THERE ARE OTHER CRAVES WHICH I SHALL MENTION LATER. THE APPELLANTS MAINTAIN THAT THE ACTION IS INCOMPETENT AND THAT THE SHERIFF COURT HAS NO JURISDICTION TO ENTERTAIN IT. THE APPELLANTS' FIRST AND THIRD PLEAS-IN-LAW ARE DIRECTED TO THE ISSUES OF COMPETENCY AND JURISDICTION RESPECTIVELY, AND THEY RAISE SUBSTANTIALLY THE SAME ISSUE.SHERIFF REPELLED THESE PLEAS-IN-LAW AND HELD THAT HE HAD JURISDICTION, BUT HE GRANTED LEAVE TO APPEAL AGAINST HIS DECISION. THE SECOND DIVISION OF THE COURT OF SESSION, BY A MAJORITY (THE LORD JUSTICE-CLERK (WHEATLEY) AND LORD ROBERTSON, WITH LORD DUNPARK DISSENTING), HELD THAT THE ACTION, AS AMENDED BEFORE THEM, WAS COMPETENT. IF THE ACTION IS COMPETENT, FURTHER QUESTIONS ARISE AS TO THE RELEVANCY OF CERTAIN AVERMENTS. I SHALL CONSIDER FIRST THE QUESTION OF JURISDICTION AND COMPETENCY.LORDS, IT HAS LONG BEEN RECOGNISED IN SCOTLAND THAT THE COURT OF SESSION HAS JURISDICTION TO EXERCISE A SUPERVISORY CONTROL OVER INFERIOR COURTS AND TRIBUNALS IN CASES WHERE THERE IS NO RIGHT OF APPEAL FROM THOSE COURTS OR TRIBUNALS, AND EVEN IN CASES WHERE APPEAL IS EXPRESSLY EXCLUDED BY STATUTE. THE PRINCIPLE WAS STATED, IN TERMS WHICH, SO FAR AS THEY GO, WOULD BE PERFECTLY APPROPRIATE AT THE PRESENT DAY, IN MAGISTRATES OF PERTH V. TRUSTEES ON THE ROAD FROM QUEENSFERRY TO PERTH (1756) (KILKERRAN'S NOTES) BROWN'S SUPPLEMENT VOLUME 5 318 AT P. 319, WHERE A STATUTE HAD PROVIDED THAT THE JUSTICES SHOULD "FINALLY DETERMINE" QUESTIONS BETWEEN THE ROAD TRUSTEES AND OTHER PERSONS. LORD KILKERRAN HELD THAT THE PROVISION DID NOT EXCLUDE THE SUPREME JURISDICTION OF THE COURT OF SESSION "TO DETERMINE WHAT IT IS THAT FALLS WITHIN THEIR POWERS; BUT WHATEVER MATTER IS FOUND TO BE WITHIN THEIR POWER, THIS COURT [THE COURT OF SESSION] CANNOT REVIEW THEIR PROCEEDINGS."LORD ADVOCATE 1979 S.C. 102. THERE IS NO DIFFERENCE OF SUBSTANCE BETWEEN THE LAWS OF THE TWO COUNTRIES ON THIS MATTER, ALTHOUGH, IN ORDER TO AVOID CONFUSION, IT HAS TO BE REMEMBERED THAT THE WORD "REVIEW" IS COMMONLY USED IN SCOTTISH CASES TO DESCRIBE A PROCESS WHICH IN ENGLAND WOULD BE CALLED "APPEAL" AND IS NOT RESTRICTED TO PROCEDURE CORRESPONDING TO THE ENGLISH PROCEDURE OF JUDICIAL REVIEW. CONTROL OVER INFERIOR COURTS AND TRIBUNALS IS EXERCISED IN SCOTLAND EITHER BY DECLARING A DECISION TO BE NULL OR INVALID, OR BY REDUCING THE DECISION, OR BY BOTH DECLARATOR AND REDUCTION. IN SOME CASES ALSO INTERDICT MAY BE AN APPROPRIATE REMEDY.SHERIFF COURT AS WELL AS IN THE COURT OF SESSION. THE ISSUE OF COMPETENCY TURNS UPON WHETHER THAT DISTINCTION BETWEEN ADMINISTRATIVE AND JUDICIAL DECISIONS IS WELL FOUNDED. THE MAJORITY OF THE SECOND DIVISION ACCEPTED THE RESPONDENT'S CONTENTION, AND THEY THEREFORE PROCEEDED TO CONSIDER WHETHER THE DECISION OF THE HOUSING AUTHORITY IN THE PRESENT CASE FELL TO BE REGARDED AS ADMINISTRATIVE, OR AS JUDICIAL OR QUASI-JUDICIAL. HAVING DECIDED THAT IT WAS ADMINISTRATIVE, THEY HELD THAT THE SHERIFF COURT HAS JURISDICTION TO REVIEW IT.SHERIFF COURT HAD JURISDICTION IT IS CONVENIENT TO START FROM THE CASE OF FORBES V. UNDERWOOD (1886) 13 R. 465, 467 WHERE LORD PRESIDENT INGLIS SAID THIS:—COMMISSIONERS, WHO ARE UNDER AN OBLIGATION TO EXERCISE THEIR FUNCTIONS FOR THE BENEFIT OF THE PARTIES FOR WHOSE BENEFIT THESE FUNCTIONS ARE ENTRUSTED TO THEM, AND IF THEY CAPRICIOUSLY AND WITHOUT JUST CAUSE REFUSE TO PERFORM THEIR DUTY THEY WILL BE ORDAINED TO DO SO BY DECREE OF THIS COURT, AND FAILING THEIR PERFORMANCE WILL, IN LIKE MANNER, BE COMMITTED TO PRISON. NOW ALL THIS BELONGS TO THE COURT OF SESSION AS THE SUPREME CIVIL COURT OF THIS COUNTRY IN THE EXERCISE OF WHAT IS CALLED, VERY PROPERLY, ITS SUPEREMINENT JURISDICTION … OF ONE THING THERE CAN BE NO DOUBT, THAT IN MAKING SUCH ORDERS AGAINST INFERIOR JUDGES, OR STATUTORY TRUSTEES, OR COMMISSIONERS, OR THE LIKE, THIS COURT IS EXERCISING AN EXCLUSIVE JURISDICTION—A JURISDICTION WHICH CANNOT POSSIBLY BELONG TO ANY OTHER COURT IN THE COUNTRY. IT IS ENOUGH TO SUGGEST THE IDEA, THAT AN INFERIOR JUDGE SHOULD BE CALLED UPON TO ORDAIN ANOTHER INFERIOR JUDGE TO PERFORM HIS DUTY—THE VERY IDEA CARRIES ABSURDITY WITH IT. IT CAN BE ONLY THE SUPREME COURT OF THE COUNTRY THAT CAN POSSIBLY EXERCISE SUCH JURISDICTION."COMMISSIONERS." THEY SAY, FURTHER, THAT IT IS NOT EXPRESSLY LIMITED TO JUDICIAL OR QUASI-JUDICIAL DECISIONS OF SUCH PUBLIC OFFICERS AND THAT THERE IS NO REASON TO IMPLY SUCH A LIMITATION. THE RESPONDENT SAYS THAT A LIMITATION TO THAT EFFECT IS TO BE IMPLIED. IN MY OPINION THE PASSAGE WAS NOT INTENDED TO BE LIMITED TO JUDICIAL OR QUASI-JUDICIAL DECISIONS OF PUBLIC OFFICERS. TRUE, THE ACTUAL DECISION IN FORBES WAS ABOUT THE DUTIES OF AN ARBITER AND HIS POSITION WAS COMPARED WITH THAT OF AN INFERIOR JUDGE. BUT THE FUNCTIONS OF PUBLIC OFFICERS, SUCH AS STATUTORY TRUSTEES AND COMMISSIONERS, WERE MAINLY ADMINISTRATIVE IN CHARACTER, AND IF THE LORD PRESIDENT HAD NOT INTENDED HIS OBSERVATIONS TO APPLY TO THEIR ADMINISTRATIVE FUNCTIONS, I THINK HE WOULD CERTAINLY HAVE SAID SO IN EXPRESS TERMS. THE CLASS OF BODIES TO WHICH HE REFERRED WOULD IN 1886 HAVE INCLUDED FOR EXAMPLE THE COMMISSIONERS OF SUPPLY, MOST OF WHOSE FUNCTIONS WERE TRANSFERRED TO COUNTY COUNCILS BY THE LOCAL GOVERNMENT (SCOTLAND) ACT 1889 AND ARE NOW VESTED IN REGIONAL COUNCILS OR DISTRICT COUNCILS. THEY ARE THUS THE STATUTORY ANCESTORS OF THE APPELLANTS, HAMILTON DISTRICT COUNCIL. THE CLASS WOULD ALSO HAVE INCLUDED THE COMMISSIONERS OF POLICE, WHO WERE THE LOCAL AUTHORITY IN BURGHS CREATED UNDER VARIOUS POLICE ACTS, AND ALSO MORE SPECIALISED BODIES SUCH AS THE COMMISSIONERS OF THE CALEDONIAN CANAL—SEE M'TAVISH V. COMMISSIONERS OF THE CALEDONIAN CANAL (1876) 3 R. 412, REFERRED TO INFRA. I ACCORDINGLY REGARD THE PASSAGE THAT I HAVE QUOTED AS AUTHORITY FOR TWO PROPOSITIONS RELEVANT TO THIS APPEAL; FIRST, THE COURT OF SESSION HAS A SUPERVISORY JURISDICTION OVER DECISIONS OF ADMINISTRATIVE BODIES SUCH AS LOCAL AUTHORITIES, WHETHER THE DECISIONS ARE ADMINISTRATIVE, JUDICIAL OR QUASI-JUDICIAL; AND SECONDLY, THAT SUPERVISORY JURISDICTION IS PRIVATIVE TO THE COURT OF SESSION AND IS NOT SHARED BY THE SHERIFF COURT. THE FACT THAT THE COURT OF SESSION HAS A STATUTORY POWER, UNDER SECTION 91 OF THE COURT OF SESSION ACT 1868, TO ORDER SPECIFIC PERFORMANCE OF ANY STATUTORY DUTY, AND THAT THE SHERIFF COURT HAS NO SIMILAR STATUTORY POWER, TENDS, IF ANYTHING, TO CONFIRM MY VIEW THAT JURISDICTION IN THIS FIELD IS PRIVATIVE TO THE COURT OF SESSION. BUT I AGREE WITH LORD DUNPARK THAT A SUMMARY PETITION UNDER SECTION 91 WOULD NOT BE A CONVENIENT PROCEDURE FOR DECIDING QUESTIONS SUCH AS THOSE RAISED IN THIS APPEAL.LORD PRESIDENT INGLIS'S OBSERVATIONS WERE IN DOUBT, THERE IS AUTHORITY, CONSIDERABLY EARLIER THAN FORBES, TO SUPPORT THESE PROPOSITIONS. THUS AITCHISON V. MAGISTRATES OF DUNBAR (1836) 14 S. 421 WAS AN ACTION FOR REDUCTION OF A RESOLUTION OF THE MAGISTRATES, THE RESOLUTION BEING PURELY ADMINISTRATIVE IN CHARACTER, AND ALSO FOR DECLARATOR. THE ACTION WAS DEFENDED BY THE MAGISTRATES AND TOWN COUNCIL ON THE GROUND INTER ALIA THAT THE COURT OF SESSION HAD NO JURISDICTION IN THE QUESTION, "WHICH IS ONE … RELATING TO THE MALADMINISTRATION OF THE PROPERTY OF THE BURGH," AND THAT THE NECESSARY JURISDICTION WAS VESTED IN THE COURT OF EXCHEQUER. THE DEFENCE WAS REPELLED AND THE LORD JUSTICE-CLERK AT P. 425 SAID:—LORD FULLERTON, FOUND IT NECESSARY TO CONSIDER WHETHER THE DECISION WAS ADMINISTRATIVE OR JUDICIAL. THE DISTINCTION BETWEEN ADMINISTRATIVE AND JUDICIAL DECISIONS HAD SOME PLACE IN MODERN SCOTTISH DECISIONS SUCH AS BARRS V. BRITISH WOOL MARKETING BOARD 1957 S.C. 72, 81–2 OWING, I THINK, MAINLY TO THE INFLUENCE OF ENGLISH DECISIONS WHERE TECHNICAL RULES RELATING TO THE PREROGATIVE WRITS FORMERLY MADE IT IMPORTANT. BUT FOR THE REASONS EXPLAINED BY MY NOBLE AND LEARNED FRIEND LORD DIPLOCK IN O'REILLY V. MACKMAN [1983] 2 AC 237 WITH WHICH I RESPECTFULLY AGREE, THESE "SUBTLE DISTINCTIONS" ARE NO LONGER RELEVANT IN ENGLAND AND IT WOULD BE STRANGE IF THEY WERE TO LINGER ON IN SCOTLAND. IN MY OPINION THERE IS NO REASON WHY THEY SHOULD, AND I REGARD THE DISTINCTION AS OF NO CONSEQUENCE FOR THE PRESENT PURPOSE. IT DOES, OF COURSE, REMAIN RELEVANT WHERE THE ISSUE IS WHETHER A DUTY HAS BEEN PERFORMED NEGLIGENTLY, AS IN SUTCLIFFE V. THACKRAH [1974] A.C. 727.COMMISSIONERS OF THE CALEDONIAN CANAL SUPRA, AS AN EXAMPLE OF THE SHERIFF'S EXERCISE OF A SUPERVISORY JURISDICTION OVER A DECISION BY A STATUTORY AUTHORITY, IN THAT CASE A PAROCHIAL BOARD WHICH WAS SEEKING TO RECOVER ASSESSMENTS UNDER THE POOR LAW. BUT THAT IS TO MISUNDERSTAND THE DECISION. THE ACTION, WHICH WAS RAISED IN THE SHERIFF COURT, DID NOT CONCLUDE FOR REDUCTION OR DECLARATOR OF NULLITY OF A DECISION BY THE PAROCHIAL BOARD; IN 1876 THE SHERIFF COURT WOULD HAVE HAD NO JURISDICTION TO GRANT DECREE OF REDUCTION OR DECLARATOR. IT WAS SIMPLY AN ACTION FOR PAYMENT OF A SUM ALLEGED TO BE DUE BY THE DEFENDERS (THE COMMISSIONERS) AND THE COURT OF SESSION HELD THAT IT WAS WITHIN THE JURISDICTION OF THE SHERIFF TO DECIDE WHETHER THE SUM WAS DUE OR NOT. THE DECISION IS, THEREFORE, IRRELEVANT TO THE PRESENT APPEAL.SHERIFF COURT WAS EXTENDED BY THE SHERIFF COURTS (SCOTLAND) ACT 1907, SECTION 5 (1) TO INCLUDE ACTIONS OF DECLARATOR, SUBJECT TO AN EXCEPTION WHICH IS NOT HERE MATERIAL. THAT EXTENSION DID NOT IN MY OPINION CARRY ANY IMPLIED EXTENSION OF THEIR JURISDICTION TO REVIEW THE DECISIONS OF OTHER BODIES. THE EFFECT OF SECTION 5 (1) WAS TO ADD TO THE FORMS OF PROCEDURE AVAILABLE IN THE SHERIFF COURT, BUT NOT TO CONFER UPON IT BY IMPLICATION ANY NEW JURISDICTION. AS LORD SALVESEN SAID IN DUNBAR & CO. V. SCOTTISH COUNTY INVESTMENT CO . 1920 S.C. 210, 217:—LORD JUSTICE-CLERK SAID THAT THE REMEDIES SOUGHT IN THE PRESENT CASE, NAMELY, (1) DECREE OF DECLARATOR, (2) DECRESS ORDAINING THE APPELLANTS TO CARRY OUT THEIR LEGAL DUTIES AND (3) A DECREE FOR DAMAGES, WERE ALL REMEDIES WHICH EX FACIE THE SHERIFF COURT COULD PROVIDE AND THE ACTION WAS THEREFORE COMPETENT. I AM WITH RESPECT UNABLE TO AGREE WITH THAT VIEW BECAUSE THE REASON WHY THE SHERIFF COURT IS NOT COMPETENT TO REVIEW THE DECISIONS OF ADMINISTRATIVE BODIES IS NOT MERELY A MATTER OF PROCEDURE, BUT SPRINGS FROM A FUNDAMENTAL LACK OF JURISDICTION IN THIS FIELD. MOREOVER, IF THE EFFECT OF INCLUDING ACTIONS OF DECLARATOR IN THE PROCEDURAL ARMOURY OF THE SHERIFF COURT WAS TO ENTITLE IT TO REVIEW ADMINISTRATIVE DECISIONS OF LOCAL AUTHORITIES, I DO NOT UNDERSTAND WHY IT DID NOT HAVE THE SAME EFFECT WITH REGARD TO THE REVIEW OF THEIR JUDICIAL DECISIONS AND ALSO THE DECISIONS OF INFERIOR COURTS, BUT NOBODY HAS SUGGESTED THAT THE ACT HAD THAT EFFECT. I THEREFORE AGREE WITH LORD DUNPARK'S DISSENTING OPINION ON THIS POINT.SHERIFF COURT HAS NO JURISDICTION TO GRANT DECREE OF REDUCTION OF THE APPELLANTS' DECISION. IT HAS A LIMITED JURISDICTION TO REDUCE DEEDS OR DECISIONS OPE EXCEPTIONIS UNDER RULE 5 OF SCHEDULE 1 OF THE 1907 ACT BUT IT HAS NO GENERAL POWER TO GRANT DECREES OF REDUCTION. THE SECOND DIVISION RECOGNISED THAT, AND NO ARGUMENT TO THE CONTRARY HAS BEEN SUBMITTED TO THE HOUSE. YET THE MAJORITY OF THE SECOND DIVISION HELD THAT DECREE OF DECLARATOR THAT THE DECISION OF THE HOUSING AUTHORITY WAS ONE THAT THEY WERE NOT ENTITLED TO REACH WAS ENOUGH TO DISPOSE OF THE PRINCIPAL ISSUE IN THE CASE, AND THAT IT WAS UNNECESSARY FOR THAT DECISION TO BE REDUCED OR SET ASIDE. I AM UNABLE TO AGREE WITH THAT VIEW. THE DECISION ON WHETHER THE RESPONDENT WAS A HOMELESS PERSON, AND IF SO WHETHER HE HAD BECOME HOMELESS INTENTIONALLY, IS ONE WHICH IN TERMS OF THE ACT OF 1977 IS ENTRUSTED TO THE HOUSING AUTHORITY AND TO THEM ALONE. THEIR DECISION EFFECTIVELY DETERMINES WHETHER THE AUTHORITY HAS THE DUTY OF MAKING ACCOMMODATION AVAILABLE FOR THE RESPONDENT. IF THE AUTHORITY IS "SATISFIED" THAT HE BECAME HOMELESS INTENTIONALLY THAT IS CONCLUSIVE—SECTION 4 (3). SO LONG AS THEIR DECISION STANDS, THE NECESSARY CONSEQUENCE IS THAT THE APPELLANTS' DUTY IS ONLY TO FURNISH HIM WITH "APPROPRIATE ASSISTANCE" IN ACCORDANCE WITH SUBSECTION (3) OF SECTION 4. THEY HAVE NO DUTY TO SECURE THAT ACCOMMODATION BECOMES AVAILABLE FOR HIM, AS THEY WOULD HAVE UNDER SUBSECTION 5 OF SECTION 4 IF THEY HAD NOT BEEN SO SATISFIED. A MERE DECLARATOR THAT THE DECISION WAS ONE WHICH THEY WERE NOT ENTITLED TO REACH DOES NOT GET RID OF THE DECISION, NOR CAN IT OPEN THE WAY FOR THE HOUSING AUTHORITY TO REACH A DIFFERENT DECISION IF, ON FURTHER CONSIDERATION OF THE MATTER IN LIGHT OF THE COURT'S DECISION ON MATTERS OF LAW, IT THINKS FIT TO DO SO. IN A CASE SUCH AS THIS, WHERE THE HOUSING AUTHORITY IS BOTH THE DECISION-MAKING AUTHORITY AND THE DECISION-IMPLEMENTING AUTHORITY, THE PROPER PROCEDURE IS FOR THE DECISION TO BE REDUCED SO THAT A DIFFERENT DECISION, CREATING DIFFERENT LEGAL RIGHTS FOR THE PRIVATE PARTY IN THE POSITION OF THE RESPONDENT, CAN BE MADE. THE VIEW WHICH WAS TAKEN BY THE MAJORITY OF THE SECOND DIVISION INVOLVES TREATING A DECREE OF DECLARATOR BY THE SHERIFF EITHER AS BEING IN SUBSTANCE A DECREE OF REDUCTION, IN WHICH CASE IT WOULD BE GRANTED WITHOUT JURISDICTION, OR AS A MERE BRUTUM FULMEN,HAVING NO COMPULSIVE FORCE, IN WHICH CASE IT WOULD BE FUTILE AND OUGHT NOT TO BE PRONOUNCED. I AM OF OPINION ON THIS GROUND ALSO THAT THIS ACTION IS NOT COMPETENT IN THE SHERIFF COURT.LORD JUSTICE-CLERK SAID THAT THE ACCOMMODATION TO BE MADE AVAILABLE FOR THE RESPONDENT PENDING THE APPELLANTS' DECISION MUST BE REASONABLE ACCOMMODATION. AS HE TRENCHANTLY PUT IT, "A PIGSTY COULD BE ACCOMMODATION BUT NOT REASONABLE ACCOMMODATION." ON THAT VIEW, HIS LORDSHIP HELD THAT THE RESPONDENT'S AVERMENTS, THAT THE ACCOMMODATION AT 36 CAITHNESS STREET DID NOT CONSTITUTE ACCOMMODATION IN TERMS OF THE ACT, WERE RELEVANT. LORD DUNPARK DISSENTED FROM THAT VIEW AND I RESPECTFULLY AGREE WITH LORD DUNPARK ON THIS POINT. IF THE DECISION OF THE MAJORITY OF THE SECOND DIVISION IS CORRECT, ITS EFFECT WOULD BE THAT IN EVERY CASE WHERE THE HOUSING AUTHORITY MAKES APPROPRIATE INQUIRIES UNDER SECTION 3 (1) OF THE ACT, IT WOULD HAVE ALSO TO INQUIRE INTO THE ADEQUACY OF WHATEVER TEMPORARY ACCOMMODATION THE APPLICANT HAPPENED TO BE OCCUPYING AT THE TIME, EVEN THOUGH HE HAD MADE NO COMPLAINT ABOUT IT. THAT WOULD IN MY OPINION BE TO IMPOSE AN UNREASONABLE BURDEN ON THE HOUSING AUTHORITY AND ONE WHICH DOES NOT APPEAR TO ME TO BE CONTEMPLATED BY THE ACT. I ENTIRELY ACCEPT, OF COURSE, THAT THE ACCOMMODATION PROVIDED MUST BE REASONABLE, BUT AS IT IS PROVIDED ONLY TEMPORARILY PENDING THE DECISION OF THE HOUSING AUTHORITY IT MIGHT, I THINK, BE ADEQUATE ALTHOUGH FALLING BELOW THE STANDARD OF ADEQUACY FOR PERMANENT ACCOMMODATION. WHERE AN APPLICANT INFORMS THE HOUSING AUTHORITY THAT HE IS OCCUPYING ACCOMMODATION AT THE TIME OF HIS APPLICATION AND MAKES NO COMPLAINT THAT IT IS INADEQUATE, AND WHERE THERE IS NOTHING IN THE ADDRESS OR THE DESCRIPTION OF THE ACCOMMODATION SO FAR AS KNOWN TO THE HOUSING AUTHORITY TO SUGGEST THAT IT IS OTHER THAN ADEQUATE, I AM OF OPINION THAT THE HOUSING AUTH- ORITY HAS DISCHARGED ITS DUTY UNDER SECTION 3 (4). ITS DUTY DOES NOT EXTEND TO MAKING FURTHER INVESTIGATION INTO THE ADEQUACY OF THE ACCOMMODATION. ACCORDINGLY, I REGARD THE RESPONDENT'S AVERMENTS ON THIS MATTER AS IRRELEVANT.JUSTICE. BRIEFLY, HIS COMPLAINT WAS THAT THE AUTHORITY HAD NOT PUT TO HIM ALL THE FACTS ASCERTAINED IN THE COURSE OF THEIR INVESTIGATIONS IN ORDER TO HEAR SUCH EXPLANATIONS AS HE MIGHT HAVE TO OFFER ABOUT THEM. THE INVESTIGATIONS IN QUESTION WERE THOSE MADE UNDER SECTION 3 (2) (B) (II) OF THE ACT TO SATISFY THE APPELLANTS WHETHER HE BECAME HOMELESS INTENTIONALLY. THE PRINCIPAL FACTS WHICH THEIR INVESTIGATIONS DISCLOSED WERE THAT HE HAD BEEN IN RECEIPT OF A RENT ALLOWANCE OF £5 PER WEEK FROM THE DEPARTMENT OF HEALTH AND SOCIAL SECURITY AND THAT HE HAD NOT APPLIED THIS ALLOWANCE TO PAY THE RENT OF THE HOUSE WHERE HE AND HIS WIFE AND CHILDREN WERE LIVING. IF IT HAD BEEN PAID TO THE APPELLANTS THEY WOULD NOT HAVE DEMANDED ANY FURTHER RENT FROM HIM. HIS COMPLAINT IS THAT IF HE HAD BEEN ASKED FOR HIS EXPLANATION OF THE FAILURE TO PAY THE RENT ALLOWANCE HE WOULD HAVE SAID FIRSTLY THAT AT ALL RELEVANT TIMES HE AND HIS WIFE HAD BEEN IN DIRE POVERTY SOLELY DEPENDENT ON SUPPLEMENTARY BENEFIT; THAT HIS WIFE HAD "FOR A PERIOD" OF UNSPECIFIED DURATION AND DATE BELIEVED HERSELF MISTAKENLY BUT IN GOOD FAITH NOT TO BE LIABLE TO PAY RENT TO THE DEFENDERS FOR THE HOUSE; THAT THE TENANCY WAS IN THE NAME OF HIS WIFE AND NOT OF HIMSELF; AND THAT THE APPELLANTS' HOUSING DEPARTMENT HAD REFUSED TO MAKE ANY REASONABLE ARRANGEMENT WITH HIS WIFE FOR PAYMENT OF RENT ARREARS. HE COMPLAINS THAT AS THE APPELLANTS FAILED TO ASCERTAIN THESE MATTERS, AS THEY COULD HAVE DONE BY ASKING FOR HIS EXPLANATIONS, THEY EITHER COULD NOT HAVE BEEN SATISFIED THAT HE WAS INTENTIONALLY HOMELESS, OR IF THEY WERE SO SATISFIED, THAT WAS BECAUSE THEY HAD FAILED TO TAKE INTO ACCOUNT HIS EXPLANATIONS AS THEY OUGHT TO HAVE DONE.SHERIFF COURT, I AM OF OPINION THAT IT IS IRRELEVANT AND SHOULD BE DISMISSED ON THAT GROUND ALSO.SHERIFF COURT HAS JURISDICTION IN THIS CASE IS ENTIRELY SEPARATE FROM THE QUESTION WHETHER THE COUNTY COURT WOULD HAVE JURISDICTION IN A SIMILAR CASE IN ENGLAND. THE HISTORICAL AND STATUTORY BASES FOR THE JURISDICTIONS OF THE TWO COURTS ARE WIDELY DIFFERENT. SECONDLY, IT IS FOR CONSIDERATION WHETHER THERE MIGHT NOT BE ADVANTAGES IN DEVELOPING SPECIAL PROCEDURE IN SCOTLAND FOR DEALING WITH QUESTIONS IN THE PUBLIC LAW AREA, COMPARABLE TO THE ENGLISH PREROGATIVE ORDERS. NOW THAT THE TECHNICAL RESTRICTIONS WHICH PREVIOUSLY APPLIED TO THE PREROGATIVE ORDERS HAVE BEEN REMOVED BY AMENDMENT OF THE RULES OF COURT IN 1977, AND BY SECTION 31 OF THE SUPREME COURT ACT 1981, THEY HAVE ADVANTAGES OVER ORDINARY PROCEDURES SUCH AS DECLARATION, PARTICULARLY BY MAKING AVAILABLE REMEDIES WHICH ARE SPEEDY AND CHEAP AND WHICH PROTECT PUBLIC AUTHORITIES FROM UNREASONABLE ACTIONS, AS EXPLAINED BY LORD DIPLOCK IN O'REILLY. SIMILAR ADVANTAGE MIGHT POSSIBLY BE DERIVED IN SCOTLAND FROM REVIVING WHAT LORD PRESIDENT COOPER IN J. AND J. V. C'S TUTOR 1948 S.C. 636, 643 REFERRED TO AS "OBSOLETE ADVOCATION AND OBSOLESCENT SUSPENSION" AS METHODS OF REVIEW OF DECISIONS IN THE PUBLIC LAW FIELD, WHICH ARE NOT SUBJECT TO APPEAL IN THE COURT. THEY ARE OF COURSE NEITHER OBSOLETE NOR OBSOLESCENT IN CRIMINAL PROCEDURE. ADVOCATION WAS HELD TO BE A COMPETENT PROCEDURE IN PRYDE V. HERITORS AND KIRK SESSION OF CERES (CIT. SUPRA).LORD KEITH OF KINKEL .—MY LORDS, I HAVE HAD THE BENEFIT OF READING IN DRAFT THE SPEECH OF MY NOBLE AND LEARNED FRIEND, LORD FRASER OF TULLYBELTON. I AGREE WITH IT, AND FOR THE REASONS HE GIVES I TOO WOULD ALLOW THE APPEAL TO THE EFFECT OF MAKING AN ORDER IN THE TERMS WHICH HE PROPOSES.LORD BRIDGE OF HARWICH .—MY LORDS, I HAVE HAD THE ADVANTAGE OF READING IN DRAFT THE SPEECH OF MY NOBLE AND LEARNED FRIEND, LORD FRASER OF TULLYBELTON. FOR THE REASONS HE GIVES I WOULD ALLOW THE APPEAL AND I CONCUR IN THE ORDER HE PROPOSES.LORD BRIGHTMAN .—MY LORDS, I ALSO WOULD ALLOW THIS APPEAL FOR THE REASONS GIVEN BY MY NOBLE AND LEARNED FRIEND, LORD FRASER OF TULLYBELTON, AND I AGREE WITH THE PROPOSED ORDER. [1983] SC(HL) 1