The New Despotism
By The Rt. Hon.
Of Bury, LCJ
Lord Chief Justice of England
ERNEST BENN LIMITED
FIRST PUBLISHED MCMXXIX
PRINTED IN GREAT BRITAIN BY
R. & R. CLARK, LTD., EDINBURGH
This little essay is obviously not intended to be more than a brief introduction to a topic of large, and unhappily growing, dimensions. An exhaustive examination of the pretensions and encroachments of bureaucracy — the new despotism — must await greater leisure and another occasion. Yet it seemed to be high time that, at any rate, a note of warning should be offered. Est quadam prodire tenust si non datur ultra.
I. The Nature of the Question 9
II. The Rule of Law 23
III. “Administrative Law” 37
IV. Administrative Lawlessness 43
V. The System at Work 59
IV. Departmental Legislation 79
VII. The Independence of the Judiciary 102
VIII. What is to be done? 143
IX. Some Leading Cases 165
X. Examples from Statutes 239
THE NATURE OF THE QUESTION
Wordsworth begins a well-known poem with the words: “Oh! what’s the matter? what’s the matter?” A simple and prosaic question like that is not always easy to answer. Nor is it easy to express in a sentence, for the information of Lord Bowen’s gentleman on the top of the Clapham omnibus, the precise nature of the present inquiry. Perhaps it may be well to offer at the outset a significant and recent example of the tendency which it is proposed to examine. On the 22nd December 1925 there was added to the Statute-book an Act of Parliament, entitled the Rating and Valuation Act, 1925,1 which fills ninety pages in the authorized edition of the statutes. It is described as an Act to simplify and amend the law with respect to the making and collection of rates. The marginal heading of section 67 of the Act consists, pleasantly enough, of the words “Power to remove difficulties”, and the section provides that if any difficulty arises in connection with the application of the Act to any exceptional area, or the preparation of the first valuation list for any area, “or otherwise in bringing into operation any of the provisions of this Act”, the Minister “may by order remove the difficulty”. More than that, the Minister may “constitute any assess-
1 15 Sc 16 Geo. V. c. 90.
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THE NEW DESPOTISM
ment committee, or declare any assessment committee to be duly constituted, or make any appointment, or do any other thing, which appears to him necessary or expedient for securing the due preparation of the list or for bringing the said provisions into operation”. Finally, it is provided that “any such order may modify the provisions of this Act so far as may appear to the Minister necessary or expedient for carrying the order into effect”. It would be difficult to imagine more comprehensive powers or more remarkable legislation. The Act of Parliament not only in terms empowers the Minister to “do any thing” which he may think expedient for the purpose named, but also in terms empowers him, if he thinks it expedient, to make orders which “may modify the provisions” of the Act of Parliament itself. These far-reaching powers were conferred upon the Minister by the statute for a period of no less than three and a quarter years — that is, until the end of March 1929.
In April 1927 this section was referred to in a cas e1 which came before a Divisional Court of the King’s Bench. The details of the case need not be repeated. The question turned upon an order made by the Minister under the Act approving a scheme for an assessment area, to which objection was taken on the ground that the constituent authorities were entitled to decide among themselves on the size or number of the assessment committee and on the mode of representation of their own group. In the result the Court held that, in the particular case,
1 The King v. Minister of Health: ex parte Wortley Rural District Council, 1927. 2 K.B. 229.
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THE NATURE OF THE QUESTION
there had been no usurpation or excess of jurisdiction. In the judgement, however, which expressed the unanimous opinion of the Court, the following passage with reference to section 67 of the statute is to be found (at p. 236):
“This, I think, though I say it with some hesitation, may be regarded as indicating the high-water mark of legislative provisions of this character. It is obvious that if this Court had taken another view of the case presented to us to-day and had decided to quash this order as having been made ultra vires, the Minister might tomorrow, under the provisions of section 67, have arrived at the same end by making an order and removing the difficulty.”
Now it will probably be admitted that matters must have gone rather far before a Minister thought fit to propose, and Parliament, either deliberately or by inadvertence, consented to approve, a scheme that empowered a Government department, on grounds of expediency, to make departmental orders modifying the provisions of the statute which conferred the power. A little inquiry will serve to show that there is now, and for some years past has been, a persistent influence at work which, whatever the motives or the intentions that support it may be thought to be, undoubtedly has the effect of placing a large and increasing field of departmental authority and activity beyond the reach of the ordinary law. Whether this influence ought to be encouraged, or whether it ought rather to be checked and limited, are questions into which, for the moment, it is not necessary to enter. But it does
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THE NEW DESPOTISM
at least seem desirable that the influence itself should be clearly discerned, that its essential nature and tendency should be quite plainly exhibited, and that its various methods and manifestations should not be allowed to continue and multiply under a cloak of obscurity. The citizens of a State may indeed believe or boast that, at a given moment, they enjoy, or at any rate possess, a system of representative institutions, and that the ordinary law of the land, interpreted and administered by the regular Courts, is comprehensive enough and strong enough for all its proper purposes. But their belief will stand in need of revision if, in truth and in fact, an organized and diligent minority, equipped with convenient drafts, and employing after a fashion part of the machinery of representative institutions, is steadily increasing the range and the power of departmental authority and withdrawing its operations more and more from the jurisdiction of the Courts.
In order to perceive clearly the nature of this influence or tendency, and the relation in which it stands to the essential foundations of the Constitution, it may be well to examine briefly, first, the meaning and implications, on the one hand, of the Rule of Law, and, on the other hand, of the Continental system of so-called “Administrative Law” with which the Rule of Law is sharply contrasted. The apologists of the growing system, or lack of system, which it is here proposed to explore sometimes permit themselves to speak of it as if it were “Administrative Law”. But the description, it will be seen, is quite curiously the reverse of the truth. The Continental system of
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THE NATURE OF THE QUESTION
“Administrative Law”, profoundly repugnant as it is to English ideas, is at least a system. It has its Courts, its law, its hearings and adjudications, its regular and accepted procedure. It would be a strange misuse of terms if the name of “Administrative Law” were to be applied to that which, upon analysis, proved to be nothing more than administrative lawlessness.
Let nobody be so foolish or so flippant as to suppose that any attack is here intended upon what it is a commonplace to describe as the best Civil Service in the world. In a treatise upon photography, as somebody says, one may assume the existence of the sun. In remarks upon the mischiefs of bureaucracy one may assume the excellence of the Civil Service. Yet it may perhaps be well to remember that high capacity and ardent zeal never need to be more carefully watched than when they appear to have entered, with all their might, upon a wrong road. It does not take a horticulturist to perceive that, if a tree is bearing bad fruit, the more vigorously it yields the greater will be the harvest of mischief. Many persons of course have from time to time perceived and deplored this particular mischief. But, somehow, some of them have found it more convenient to their inclinations or their aims to refrain from words even of good omen. They have passed by, like the prudent Levite, on the other side. Or they have been content to say that, “after all, people get the kind of government they deserve”, wholly refusing to recognize the power of a skilful and organized minority. Or, again, they have so nicely balanced their appreciation of what is good and their examination of what is less good that, with
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the convenient help of a little confusion of thought, they have left the detached spectator wondering upon which side they appeared. But to the impartial eye of the fearless citizen it is obvious that the official just as surely seeks to escape the jurisdiction of the Courts when he takes power to make regulations having the force of a statute as when he in terms provides that his decisions shall not by any method be open to review. It is no less obvious that, if such an endeavour were the isolated act of an ingenious individual, its consequences might be almost trivial. But other considerations apply if a mass of evidence establishes the fact that there is in existence a persistent and well-contrived system, intended to produce, and in practice producing, a despotic power which at one and the same time places Government departments above the Sovereignty of Parliament and beyond the jurisdiction of the Courts. If it appears that this system springs from and depends upon a deep-seated official conviction, which in turn it nourishes and strengthens by each successive manifestation of its vigour, that this, when all is said and done, is the best and most scientific way of ruling the country, the consequences, unless they are checked, must be in the highest degree formidable.
That there is in existence, and in certain quarters in the ascendant, a genuine belief that Parliamentary institutions and the Rule of Law have been tried and found wanting, and that the time has come for the departmental despot, who shall be at once scientific and benevolent, but above all a law to himself, needs no demonstration. There is an agreeable story, not too old, of a distinguished Anglo-
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THE NATURE OF THE QUESTION
Indian civilian, who, returning home on leave after a prolonged absence, passed the Houses of Parliament on his way from Victoria to Charing Cross. “What place is that?” he asked. “That, sir,” was the answer, “is Parliament — the Houses of Parliament.” “Really,” he exclaimed, though his exclamation was in fact slightly different, “does that rubbish still go on?” Everybody knows the frame of mind, and everybody has met some of the teachers in that school. But another aspect of the matter is illustrated by a well-known conversation which took place, not so many years ago, between a distinguished Treasury official, if the epithet is not tautologous, and the Chancellor of the Exchequer. It happened that matters had not gone quite smoothly in the House of Commons that evening. The departmental specialist was not, for once, able to say to his chief, after the rising of the House, with that air which as nearly approaches a tone of triumph as official decorum permits, “Well, sir, we have got our clauses”. What he did say was that he wondered whether all this palaver was really necessary. After all, what was the good of the House of Commons? And how perfectly useless was the House of Lords! Why should the work of the expert be always at the mercy of the ignorant amateur? Why should people be allowed to try to govern themselves when it was manifestly so much better for them to be governed by those who knew how to govern? “Seriously,” he asked, “could not this country be governed by the Civil Service?” “Undoubtedly it could,” replied the Chancellor of the Exchequer, “undoubtedly it could. And I am quite sure that you and your colleagues would govern the country remarkably well. But
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THE NEW DESPOTISM
let me tell you this, my young friend: at the end of six months of it, there would not be enough lamp-posts in Whitehall to go round.”
The matter has, no doubt, its humorous side. Yet many persons may think that it has not only a serious side, but a seriousness which goes far beyond what might at first blush be supposed. It is not merely that in this instance Parliament is being out-manoeuvred, or that in that instance the Courts have been defied. It is that the whole scheme of self-government is being undermined, and that, too, in a way which no self-respecting people, if they were aware of the facts, would for a moment tolerate. Much nonsense, to be sure, is written about what is called democracy. It might be thought, on the testimony of some of its apologists, that democracy was a patent medicine — on the testimony of others that it was a fancy religion. But when once the fact is appreciated that democracy is really the name of a form of government, the essence of which is that every citizen in the State shares the responsibility for the good government of the State, and when it is further understood that, in the opinion of many competent observers, by no means confined to this side of the Atlantic alone, the great achievement and the enduring pride of our history and institutions are precisely to have exhibited to the world, in an unexampled way, the art and practice of real self-government, as well in peace as in war, the true dimensions of the present issue, and the true nature of the assault which is being resisted, become reasonably clear. Much toil, and not a little blood, have been spent in bringing slowly into being a polity wherein
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THE NATURE OF THE QUESTION
the people make their laws, and independent judges administer them. If that edifice is to be overthrown, let the overthrow be accomplished openly. Never let it be said that liberty and justice, having with difficulty been won, were suffered to be abstracted or impaired in a fit of absence of mind.
The paradox which is in course of being accomplished is, indeed, rather elaborate. Writers on the Constitution have for a long time taught that its two leading features are the Sovereignty of Parliament and the Rule of Law. To tamper with either of them was, it might be thought, a sufficiently serious undertaking. But how far more attractive to the ingenious and adventurous mind to employ the one to defeat the other, and to establish a despotism on the ruins of both! It is manifestly easy to point a superficial contrast between what was done or attempted in the days of our least wise kings, and what is being done or attempted to-day. In those days the method was to defy Parliament — and it failed. In these days the method is to cajole, to coerce, and to use Parliament — and it is strangely successful. The old despotism, which was defeated, offered Parliament a challenge. The new despotism, which is not yet defeated, gives Parliament an anaesthetic. The strategy is different, but the goal is the same. It is to subordinate Parliament, to evade the Courts, and to render the will, or the caprice, of the Executive unfettered and supreme. The old King, as Rudyard Kipling sings in “The Old Issue”, sometimes reappears under a new name:
All we have of freedom, all we use or know —
This our fathers bought for us long and long ago.
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THE NEW DESPOTISM
Ancient Right unnoticed as the breath we draw —
Leave to live by no man’s leave, underneath the Law.
Over all things certain, this is sure indeed,
Suffer not the old King: for we know the breed.
Howso’ great their clamour, whatsoe’er their claim,
Suffer not the old King under any name!
It is pleasant to observe the excuses which are from time to time put forward by the apologists of bureaucratic encroachment. One of the most ingenious of them has lately expressed his opinion in the following way. “Provided”, he says, “that matters of principle and of substance are reserved for Parliament itself, provided that (as is usually the case with vigilant and well-organized interests) those concerned have been consulted in advance, provided that the Minister can be called to account for any wrongful or excessive exercise of his powers, and provided that full publicity can be secured, then the system of departmental legislation has advantages of elasticity, promptness, and technical knowledge which may be set against the dangers of encroachment by the Executive upon the citizen’s liberty.” The accumulation of successive provisos in this carefully constructed plea may be thought to be interesting and instructive. The strength of a chain is the strength of its weakest link. How, it may be asked, if matters of principle or of substance are not reserved for Parliament itself? How if those concerned (and as a rule the public is concerned) have not been consulted in advance? And how if full publicity cannot be secured until the mischief has been done? As for the proviso that “the Minister can be
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THE NATURE OF THE QUESTION
called to account for any wrongful or excessive exercise of his powers”, two reflections at least are unavoidable. One is that prevention is better than cure, and indescribably better than mitigation. The other is that experience has shown too often what precisely the process of calling the Minister to account may be worth. What with the collective responsibility of Ministers, and the inexorable demands of the party system, once the mischief has been done, the whole force of the Parliamentary majority tends to be directed, not so much to undoing it, as to preventing a defeat in a Parliamentary division. “This is our lobby”, say the Whips, when the critical moment comes, and at the eleventh hour the private member is naturally disposed to acquiesce. Here, as elsewhere, it seems to be important to distinguish things which are different from each other. It is one thing to confer power, subject to proper restrictions, to make regulations. It is another thing to give those regulations the force of a statute. It is one thing to make regulations which are to have no effect unless and until they are approved by Parliament. It is another thing to make regulations, behind the back of Parliament, which come into force without the assent or even the knowledge of Parliament. Again, it is a strong thing to place the decision of a Minister, in a matter affecting the rights of individuals, beyond the possibility of review by the Courts of Law. And it is a strong thing to empower a Minister to modify, by his personal or departmental order, the provisions of a statute which has been enacted. De Lolme said indeed that Parliament could do everything but make a man a woman or a woman a
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THE NEW DESPOTISM
man. There are those who think that it has now, to some extent, accomplished even that feat. But what would De Lolme have said to the suggestion that Parliament should enact that a particular individual should have power, at his pleasure, to override its enactment?
An agreeable writer, collecting from the pages of Boswell and elsewhere individual opinions expressed by Samuel Johnson, has compiled and composed a kind of Johnsonian creed or soliloquy, which sums up concisely the essence of his faith. If a similar method were applied to the ardent bureaucrat, the amateur of the new despotism, his reflections might perhaps be indicated in some such creed as this:
1. The business of the Executive is to govern.
2. The only persons fit to govern are experts.
3. The experts in the art of government are the permanent officials, who, exhibiting an ancient and too much neglected virtue, “think themselves worthy of great things, being worthy”.
4. But the expert must deal with things as they are. The “foursquare man” makes the best of the circumstances in which he finds himself.
5. Two main obstacles hamper the beneficent work of the expert. One is the Sovereignty of Parliament, and the other is the Rule of Law.
6. A kind of fetish-worship, prevalent among an ignorant public, prevents the destruction of these obstacles. The expert, therefore, must make use of the first in order to frustrate the second.
7. To this end let him, under Parliamentary forms, clothe himself with despotic power, and then, be-
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THE NATURE OF THE QUESTION
cause the forms are Parliamentary, defy the Law Courts.
8. This course will prove tolerably simple if he can: (a) get legislation passed in skeleton form; (b) fill up the gaps with his own rules, orders, and regulations; (c) make it difficult or impossible for Parliament to check the said rules, orders, and regulations; (d) secure for them the force of statute; (e) make his own decision final; (f) arrange that the fact of his decision shall be conclusive proof of its legality; (g) take power to modify the provisions of statutes; and (h) prevent and avoid any sort of appeal to a Court of Law.
9. If the expert can get rid of the Lord Chancellor, reduce the judges to a branch of the Civil Service, compel them to give opinions beforehand on hypothetical cases, and appoint them himself through a business man to be called “Minister of Justice”, the coping-stone will be laid and the music will be the fuller.
Yet in observing the bureaucratic encroachments — the manifestations of the new despotism — of recent years, especially under the greater latitude encouraged and bequeathed by the War, it is necessary to beware of a common fallacy. It is natural and usual enough when the acts of any body of men, or of any association or organization, are being considered — as, for example, a Government, a Cabinet, a party, a Committee, or a newspaper — to assume that that which has been done is a true reflection of the intentions and the wishes of every individual member of the association. But this assumption is not always correct. It may well be that, in the particular circumstances, responsibility in
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THE NEW DESPOTISM
relation to third parties must be shared by all and can be escaped by none. Yet, if all the facts were known, it might often appear that, within the body which was being criticized, there was a sincere minority, whether large or small, whose opinions tended rather to coincide with the opinions of the critic himself, and who were habitually engaged, behind the scenes, in combating, in preventing, and in reducing, at any rate, the dimensions of the kind of mischief under consideration. So when the performances of the new despotism are under review, it is natural enough to employ such a phrase as “the Government departments”. But it would be strange indeed if they were all cut after the same pattern, or if everybody comprised within them were of the same mind. Nobody who is at all aware of the facts would dream of entertaining any such view. There can be no doubt, for example, that the Law Officers of the Crown, the Treasury solicitor, and the Parliamentary draftsman have from time to time used all their influence to prevent, or to mitigate, acts which they could not approve. In a sense the fact is welcome. But it has a formidable aspect as well. If in truth and in fact the things which are done exhibit only the resultant force derived from influences that are to some extent in conflict, it follows that the force which makes directly in favour of those things is strong indeed. Such, there can be little doubt, is the force of the new despotism in Whitehall.
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THE RULE OF LAW
It seems convenient to retain the expression the “Rule of Law”, especially as it has become perfectly well known to more than one generation of Englishmen. But the expression itself is not free from ambiguity. It is often used, for example, in the sense in which a particular proposition, or statement of legal doctrine, is described as being a “rule of law”. But that of course is not the sense in which it is used here. What is meant here by the “Rule of Law” is the supremacy or the predominance of law, as distinguished from mere arbitrariness, or from some alternative mode, which is not law, of determining or disposing of the rights of individuals. It is, or at any rate it was until quite recently, a commonplace to say that the “Rule of Law” is one of the two leading features which distinguish our Constitution. So it has been ever since the eleventh century, and, if this leading feature or essential characteristic is to be diminished or destroyed, it seems at least desirable that the work of diminution or demolition should be openly and frankly performed, with the British public standing by, fully instructed and deliberately consenting. Nothing could well be more unfortunate than that a change of so fundamental a character should be brought about piecemeal, by subterranean methods, which might escape general
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observation until the mischief had been carried to completion.
Professor Dicey, in his classical work on the “Law of the Constitution”, enumerates three distinct yet kindred conceptions which are involved in the statement that the English Constitution is characterized by the supremacy, or the rule, of law. The statement means, first, that in England no man can be punished, or can be lawfully made to suffer either in his body or in his goods, except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts. It means, secondly, that in this country not only is no man above the law, but every man, whatever his rank or condition may be, is subject to the ordinary law of the land and the jurisdiction of the ordinary Courts. And, finally, it means that the general principles of our Constitution are mainly the result of judicial decisions determining the rights of private persons in particular cases brought before the Courts.
There is probably at this time of day little need to expound the meaning, or to dwell upon the importance, of these essential principles. Englishmen indeed are so thoroughly accustomed to them as to take them for granted. They have become a second nature. They are, so to say, part of the bracing air we breathe. They exemplify, as they spring from, that love of justice, and respect for it, which have excited witnesses from other countries, like Tocqueville and Voltaire, for example, to tributes so manifestly sincere, — a love of justice which in its turn is closely bound up with the unchanging passion for self-government. The underlying contrast, the permanent antithesis, is between
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the supremacy of the law on the one hand and, on the other hand, the arbitrary, which may easily prove to be the capricious, exercise of lawless power. Nothing perhaps is more profoundly repugnant to the English mind than that authority should be irresponsible or uncontrolled, that it should operate at pleasure or in the dark, that men should live in an atmosphere of uncertainty as to the nature of the rights they enjoy or the penalties to which they are exposed, or that among fellow-citizens there should be one code for one class of persons and a different code for others.
“With us”, as Professor Dicey says,1 “every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the Courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorize as is any private and unofficial person.”
But the supremacy of Law, as we know it, means something more than the exclusion of arbitrary power, and something more also than the equality of all citizens before the ordinary law of the land administered by the ordinary Courts. It means that in this country, unlike some foreign
1 Law of the Constitution, 8th Edition, p. 189.
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countries, the principles of the Constitution are, in Dicey’s phrase, inductions or generalizations based upon decisions pronounced by the Courts as to the rights of particular individuals. Under the contrasted system, where the Constitution is written out in declarations or definitions of rights, the rights of the individual may be said to be deductions drawn from the principles of the Constitution. The contrast is vital and is to be traced to profound differences of history, of temperament, and of outlook. This is not the place for any comparison of the respective merits and advantages of the two systems. But it may at least be observed that, under the system which we know, it is far more difficult for constitutional rights to be suspended or taken away.
To summarize the matter, it may be said that the “Rule of Law” comprehends and denotes the following principles:
1. No one can lawfully be restrained or punished, or condemned in damages, except for a violation of the law established to the satisfaction of a judge or jury or magistrate in proceedings regularly instituted in one of the ordinary Courts of Justice. The rights of personal liberty and of freedom of speech, the liberty of the press, and the right of public meeting, are all a result of the application of this fundamental principle.
2. Everyone, whatever his position, Minister of State or Government official, soldier or policeman, is governed by the ordinary law of the land and personally liable for anything done by him contrary to that law, and is subject to the jurisdiction of the ordinary Courts of Justice, civil and criminal.
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The plea of “act of State” is not permissible as a defence to an action in respect of anything done within the realm, or to any action by a British subject. It is confined to proceedings commenced by foreigners in respect of duly authorized acts done by officers or servants of the Crown abroad.
The Crown — that is to say, the Government — cannot itself be proceeded against, either by petition of right or otherwise, for any alleged wrong on the part of its servants. The remedy for any such wrong is against the individual wrongdoer. But in practice the Crown as a general rule pays any damages that may be recovered against its servants for wrongful acts committed in the course of their public employment.
3. No one who is charged with a violation of the law can effectively plead, either in a civil or in a criminal Court, that his act was done in obedience to the command of a superior, even the command of the King himself. The maxim “The King can do no wrong” imports not only that the King cannot be proceeded against for any alleged wrong, but also that he cannot authorize any wrongful act so as to justify the wrongdoer.
The right of personal liberty is the right not to be arrested or detained or otherwise subjected to physical restraint except in accordance with the law. And to speak generally, that is to say, except in the case of persons who are not sui juris, or persons subject to military law, the law recognizes an arrest or any sort of physical restraint as justifiable only where the person restrained is suspected of having committed a crime and is arrested in order that he
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may be brought before the Court for trial, or where he has been convicted of a crime and sentenced to imprisonment.
The law affords three remedies by means of which this right of personal liberty may be vindicated: (i) by the writ of habeas corpus, (2) by an action of damages for false imprisonment, and (3) by a prosecution of the person imposing the illegal restraint — that is, a prosecution for assault.
The writ of habeas corpus is a very ancient common law writ, which now issues from the High Court of Justice, directed to any person detaining another, commanding him to produce the body of the person detained before the Court, showing the day and the cause of his detention, to be dealt with as the law requires. The writ accordingly enables any person who is alleged to be unlawfully detained or imprisoned to be actually produced before the Court, and the cause of his detention inquired into. Unless a legal justification for his detention is shown, the Court will then order his immediate release. The writ is granted ex debito justitiae, and may be issued not only during term but also during vacation by any judge of the High Court. It will be issued on the application either of the prisoner himself or of any person who satisfies the Court or judge that there is prima facie ground for believing that the prisoner is unlawfully detained. The remedy is open not only to British subjects, but also to foreigners imprisoned within the realm. If the writ is disobeyed by the person to whom it is directed, he is liable to be attached for contempt of Court.
The Habeas Corpus Act of 1679, which applies only to
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THE RULE OF LAW
persons detained on a criminal charge, contains provisions to meet various devices by which the common law right to the writ had been evaded, and to secure that the prisoner shall in suitable cases be admitted to bail and in any case be promptly tried, and imposes heavy penalties for the refusal of the writ and for disobedience to it.
At various times, in periods of political unrest, statutes have been passed enabling persons to be arrested on suspicion of treasonable practices and certain other offences, and detained without bail or trial. Measures of this kind do no doubt to a limited extent suspend temporarily the operation of the Act of 1679. But these statutes, though they have been called “Habeas Corpus Suspension Acts”, have not in any sense suspended the general right to the writ of habeas corpus, nor have they legalized any arrest or imprisonment which would not have been otherwise lawful. Hence it is that such statutes have nearly always been followed by Acts of Indemnity, protecting from liability persons who acted in pursuance of the Suspension Acts.
The right of freedom of speech, again, is simply the right which everyone has to say, write, or publish what he pleases so long as he does not commit a breach of the law. If he says or publishes anything with a seditious intention, or speaks blasphemous words or publishes any blasphemous writing, he is guilty of a misdemeanour for which he may be prosecuted and punished. If he publishes anything merely by word of mouth which is untrue and defamatory of an individual, he may be sued by the person defamed for damages in an action of slander; and if he publishes defamatory matter by writing, print, or in some other per-
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manent form, he may either be sued in a civil action for damages or be prosecuted criminally for the libel, and in a prosecution the truth of the libel does not constitute a defence unless it is in the public interest that the truth in regard to the matter should be known. It is also a misdemeanour to speak or publish words defamatory of any Court of Justice, or of the administration of the law therein, with intent to obstruct or invalidate its proceedings, or diminish its authority and dignity and lower it in public esteem. Subject to these conditions, any person may say, write or print, and publish anything he thinks fit without risk, and fair comment or criticism in regard to a matter of public interest is no libel.
A seditious intention is defined by statute (60 Geo. III. & 1 Geo. IV. c. 8, s. 1) as an intention to bring into hatred or contempt the person of His Majesty, his heirs or successors, or the government and constitution of the United Kingdom as by law established, or either House of Parliament, or to excite His Majesty’s subjects to attempt the alteration of any matter in Church or State as by law established, otherwise than by lawful means. On a prosecution for sedition the defendant will be conclusively presumed to have intended the natural consequences of his words or acts, and it is therefore sufficient if his words or acts have a tendency to produce any of the consequences so stated. But it must be remembered that all such prosecutions are tried with a jury, who are entitled to return a general verdict of guilty or not guilty, and therefore determine the question of the criminality or innocence of the words used by the defendant. It is now extremely seldom that any
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attack on the Government or on either House of Parliament is treated as seditious, and the Constitution is frequently abused with impunity. In the absence of a tendency to cause riot or rebellion, or to disturb the peace of the Kingdom, the greatest latitude is permitted in the discussion of political affairs.
The liberty of the press is similarly a mere application of the principle that no one is liable to be punished or condemned in damages except for a breach of the law. Under recent statutes newspapers have certain privileges relating to the publication of fair and accurate reports, published contemporaneously, of proceedings in Courts of Justice, and of public meetings, and the publication at the request of any Government department, Commissioner of police, or chief constable of any notice or report issued for the information of the public. And, in an action for a libel in a newspaper, it is competent for the defendant to plead as a defence that the libel was published without actual malice and without gross negligence and that a full apology was published as soon as possible, provided that such plea is accompanied by a payment into Court in satisfaction for the libel. Further, no criminal prosecution can be commenced against any person responsible for the publication of a newspaper for any libel published in it, until the order of a judge in chambers has been obtained, the person charged to have notice and an opportunity of being heard against the application.
With these exceptions persons responsible for publications in the press are subject to precisely the same liabilities, civil and criminal, and the same jurisdiction and course of procedure, for any libellous, seditious, or blasphemous matter in their publications as if it were published in any other way. In like manner, there is not in the British Constitution any such thing recognized as a definite right of public meeting. The right is the result of individual rights of personal liberty and freedom of speech, which are themselves the result of an application of the principle of the Rule of Law. In other words, the right of a number of people to assemble together in a lawful manner for public discussion or other lawful purposes is simply an aggregation of the rights of each of the members of the assembly to go where he pleases so long as he does not break the law, as, for instance, by committing a trespass or causing an obstruction to a highway, and to say what he pleases provided it be not seditious, blasphemous, or defamatory.
An assembly may be unlawful either because of the purposes for which it is held or because of the manner in which it is held. For instance, an assembly of three or more persons is an unlawful assembly if they are assembled with intent to commit a breach of the peace; and an assembly of three or more persons with intent to carry out any common purpose, whether lawful or unlawful, is an unlawful assembly if it is held in such a manner as to give people in the neighbourhood reasonable grounds to apprehend a breach of the peace in consequence of it. But a public meeting, if otherwise lawful, does not become unlawful merely because it is prohibited by a Secretary of State or magistrate, or by the police.
If an unlawful assembly has actually begun to execute
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the purpose for which it is held by a breach of the peace and to the terror of any member of the public, it becomes a riot.
An unlawful assembly may lawfully be dispersed by force even though it has not yet become a riot, and all persons taking part in the assembly can be prosecuted for misdemeanour. It is justifiable, not only for magistrates, soldiers, and the police, but also for all citizens to use whatever force may be necessary to put down riots and breaches of the peace. Indeed, it is the duty of all citizens, if called upon, to take part in the suppression of riots and the prevention of breaches of the peace.
The position of the soldier, that is to say, any person, officer or private, who is subject to military law, is that, while he is subject to special duties and liabilities and to the jurisdiction of special tribunals under military law, he is also at all times subject to the duties and liabilities of an ordinary citizen, and to the jurisdiction of the ordinary Courts. If he commits a crime under the ordinary law he may be tried in the ordinary Criminal Court (referred to in the Army Act as a “Civil Court”), though, except in the case of murder, manslaughter, and certain other serious crimes, he is also liable to be tried by court-martial. For purely military offences he can be tried only by court-martial.
If a soldier is acquitted or convicted by a civil Court, he cannot afterwards be tried for the same offence by court-martial, but an acquittal or conviction by a court-martial is no bar to a subsequent indictment in a civil Court for the same offence. If, however, he has been sentenced
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to punishment by the court-martial, the civil Court, in awarding punishment, must have regard to any military punishment already undergone.
When a person is charged in a civil Court with any crime under the ordinary law, the fact that he was acting in obedience to superior orders is not of itself a defence, although under military law he is bound to obey such orders. In such cases any serious injustice may be prevented by the exercise of the right of the Attorney-General, as representing the Crown, to enter a nolle prosequi, or by means of the prerogative of pardon.
No person who is not subject to military law is liable to be tried by court-martial, and it is for the civil Courts to determine in any given case whether a person is or is not subject to military law. Any excess of jurisdiction on the part of a court-martial can be prevented by the writs of prohibition, certiorari, and habeas corpus, and officers who, as members of such a court, do acts not authorized by law, are liable to civil proceedings for damages, or to criminal proceedings, according to the nature of the case.
Private soldiers and non-commissioned officers of the regular forces are not liable to be taken out of His Majesty’s service by any process, execution, or order of any Court of Law, or to be compelled to appear in person before any Court of Law, on account of any debt, damages, or sum of money not exceeding £30. Nevertheless a person who has a cause of action against a soldier may proceed to judgement and execution, though not to execution against the person, pay, or military equipment of the defendant. Subject to this special exemption, officers and soldiers are
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in the same position as civilians with regard to the liability to be sued in the ordinary Courts for debts and civil wrongs.
Nobody can weigh and consider a summary statement of this kind without observing two main facts. The first is that the crucial decisions are the decisions of the Courts. The second is that the Courts which are referred to are the ordinary Courts. It makes not merely some difference but all the difference that under our Constitution, which is said to have grown and not to have been made, which — in other words — is the accumulated result of particular decisions and not the sudden product of a general declaration, there is not one Court for the constitutional problem and another Court for the controversy between individual citizens, not one Court for the official and another Court for litigation to which no official is a party, but one and the same Court for all parties and for all suits. To this topic it will be necessary, presently, to return. But it is of no less vital and far-reaching importance that the order which determines the question is the order of a Court. All that is involved and implied in the term “Court” is essential. It may well be that, in a particular case, a perfectly correct opinion might be obtained from some anonymous person, incapable of identification, who heard none of the parties to the controversy, but brought his individual reason to bear in private upon a miscellaneous bundle of correspondence. It is even possible that, in a particular case, a mysterious individual of that kind might not be in the smallest degree tempted or diverted from a sound opinion by the fact, if it happened to be the fact, that he was
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closely associated with one of the parties to the controversy. But it is manifest that an opinion so arrived at differs by the whole width of the heavens from the decision of a Court. The work of a Court involves many important ingredients, as for example, (i) that the judge is identified and is personally responsible for his decisions; (2) that the case, subject to rare exceptions, is conducted in public; (3) that the result is governed by the impartial application of principles which are known and established; and (4) that all parties to the controversy are fully and fairly heard. In other words, the decision of a Court is in every important respect sharply contrasted with the edict, however benevolent, of some hidden authority, however capable, depending upon a process of reasoning which is not stated and the enforcement of a scheme which is not explained. The administration of the law of the land in the ordinary Courts presupposes, at least, personal responsibility, publicity, uniformity, and the hearing of the parties.
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Between the “Rule of Law” and what is called “administrative law” (happily there is no English name for it) there is the sharpest possible contrast. One is substantially the opposite of the other.
In order to exhibit the true nature of this contrast between the “Rule of Law” and “administrative law”, each of which in its turn will hereafter be contrasted with administrative lawlessness, it may be convenient first to consider “administrative law” in outline and afterwards more particularly to examine some of its features. In France and in most other European continental countries a system of “administrative law” exists. It is known in France as “droit administratif“. It is a system which is fundamentally opposed to the English conception of the “Rule of Law”, especially as regards exemption from the jurisdiction of the ordinary legal tribunals, in the case of public officials acting in performance or purported performance of their official duties. In countries where this system of administrative law prevails the rights and obligations of all servants of the State, and also of all private individuals in relation to servants of the State acting in their official capacity, as well as the procedure for enforcing those rights and obligations, are governed by special rules which
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are, in general, administered by special tribunals, and the principles underlying these rules differ essentially from the principles forming the basis of the law which governs the relations of private individuals towards one another. Under this system, the ordinary Courts of Justice are regarded as having no jurisdiction to deal with any dispute affecting the Government or its servants, all such disputes being within the exclusive cognizance of the administrative Courts, the chief of which, in France, is the Conseil d’État. This Council was originally a purely administrative body, and though its composition has varied at different periods of French history, and it has gradually become more judicial in character, the members have always held office at the pleasure of the Government of the day.
Where, in the course of a case in an ordinary Judicial Court, it appears that a question of administrative law is involved, the Court is bound to refer the matter to the Council of State for decision. Where it is doubtful whether a question of administrative law is or is not involved, a conflict of jurisdiction arises. Until 1872 it was for the Council of State itself to determine all such questions of jurisdiction, the Council thus having, in effect, the power to fix the limits of its own jurisdiction. By a law of 1872 a Conflict-Court was established to decide questions of conflict of jurisdiction as between the administrative and the judicial Courts. This Conflict-Court consists of nine members. Three members are elected by the Judges of the Court of Cassation, which is the highest Judicial Court in France, from among themselves. Three members are elected by the Council of State, also from among them-
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selves. Two members are elected by the above-named six members of the Conflict-Court, one of whom is usually a Judge of the Court of Cassation, and the other a member of the Council of State. The Minister of Justice, a member of the Government, is ex-officio President. The eight elected members hold office for three years, but may be, and usually are, re-elected. The Minister of Justice does not often attend the sittings of the Court, though he may do so when the Court is equally divided. A Vice-President, chosen by the Court from among its own members, usually presides. In France a public official is not answerable in any Court, even an administrative Court, for what is regarded as an act of State, however unjustifiable his conduct may have been according to the ordinary law of the land. And agents of the Government are exempted from punishment for any act of interference with the liberty or rights of citizens, if the act was done in obedience to the orders of a superior. On the other hand, damages may be recovered from the State itself, through the Council of State, for unlawful acts of agents of the Government.
“Administrative Law”, therefore, properly so called, whatever else may be said or thought about it, is at any rate a form or branch of law. The essential idea which underlies and gives meaning to “droit administratif” is not that State officials, in their official dealings with private citizens, are above the law, or are a law unto themselves. It is rather that the position and liabilities of State officials, and the rights and liabilities of private individuals in their dealings with officials as such, form a separate and dis-
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tinct chapter of law, which depends upon principles different, indeed, from the principles of the ordinary law, but nevertheless legal principles. Nor is it that the rights and liabilities of private individuals in their dealings with officials as such are matters which are beyond or beneath the reach of established legal procedure. It is rather that for these matters a special procedure is provided, which has its own Courts, its own cases, its own precedents, and its own methods. An examination of the history of the topic during the last century and a quarter shows indeed some remarkable developments in the direction, not at all of extending, but always of limiting and curtailing the peculiar authority of “droit administratif“, and of rendering that which was once administrative more and more judicial in character. Yet the fact remains that at no time was the judicial element absent. The special Courts were associated, in ways in which the ordinary Courts were not, with the administration. But they were nevertheless Courts, which heard and determined the matters in issue.
If one starts with the assumption that the Government, and every one of its servants, enjoys as such a special class of rights and privileges as against private individuals, and that the nature and extent of those rights and privileges are to be determined upon principles which differ from the principles of the ordinary law, it follows naturally enough that suitable steps should be taken in order to prevent either the Government or the ordinary Courts from trespassing upon the other’s territory. It is in that sense that the expression “separation of powers” is used in countries where “droit administratif” is familiar. It means
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of course that, while the Judges in the ordinary Courts ought to be independent of the Executive, the Government and its officials ought to be free from the jurisdiction of the ordinary Courts. But the phrase, like so many other phrases, is often misused. In a country like our own, where the notion of “droit administratif” serves only by way of comparison and contrast, for the reason that the thing itself is completely opposed to the first principles of our Constitution, the “separation of powers” refers, and can refer only, to the principle that the Judges are independent of the Executive. Yet the phrase is sometimes employed, by the apologists of administrative lawlessness, for the purpose of suggesting, by means of a confusion of ideas, that here also the Government and its officials, while they are amenable to the jurisdiction of no other Courts, are or ought to be free from the jurisdiction of the ordinary Courts.
In France, therefore, it is not surprising to find administrative Courts, having their defined subject-matter, existing side by side with ordinary or “Common Law” Courts, having their defined subject-matter also. Nor is it surprising that, for the purpose of ousting the jurisdiction of the ordinary Courts, recourse has been had from time to time to the expedient of raising a conflict (élever un conflit), that is, of taking the point that the question in issue could not be determined by the ordinary Court without encroachment upon the province of the administrative Court.
In other words, rightly understood, “droit administratif” is a definite system of law, the rules and principles of which,
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it is true, differ essentially from the rules and principles of the ordinary law governing the relations of private citizens inter se. Nevertheless, it is a system of true “administrative law”, administered by a tribunal which applies judicial methods of procedure. The Council of State, when it is exercising judicial as distinguished from administrative functions, acts by a Committee which is in many respects analogous to the Judicial Committee of the Privy Council, in the exercise of its jurisdiction to hear appeals from the Dominions and in Prize Causes. The tribunal considers the arguments of advocates and delivers reasoned judgements. Those judgements are reported, and form precedents from which a fixed system of legal rules has been evolved. In short, the system may aptly be described as a special branch of the law for the determination of questions of a particular kind, and the tribunal as a quasi-judicial tribunal for administering that special branch of law.
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It is not, but it ought to be, common knowledge that there is in this country a considerable number of statutes, most of them passed during the last twenty years, which have vested in public officials, to the exclusion of the jurisdiction of the Courts of Law, the power of deciding questions of a judicial nature. Usually the power is given nominally to the Minister or other head of a Government department, sometimes to the department itself, and it is commonly provided that his or its decision shall be final and conclusive.
When it is provided that the matter is to be decided by the Minister, the provision really means that it is to be decided by some official, of more or less standing in the department, who has no responsibility except to his official superiors. The Minister himself in too many cases, it is to be feared, does not hear of the matter or the decision, unless he finds it necessary to make inquiries in consequence of some question in Parliament. The official who comes to the decision is anonymous, and, so far as interested parties and the public are concerned, is unascertainable. He is not bound by any particular course of procedure, unless a course of procedure is prescribed by the department, nor is he bound by any rules of evidence, and
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indeed he is not obliged to receive any evidence at all before coming to a conclusion. If he does admit evidence, he may wholly disregard it without diminishing the validity of his decision. There is not, except in comparatively few cases, any oral hearing, so that there is no opportunity to test by cross-examination such evidence as may be received, nor for the parties to controvert or comment on the case put forward by their opponents. It is, apparently, quite unusual for interested parties even to be permitted to have an interview with anyone in the department. When there is any oral hearing, the public and the press are invariably excluded. Finally, it is not usual for the official to give any reasons for his decision.
To employ the terms administrative “law” and administrative “justice” to such a system, or negation of system, is really grotesque. The exercise of arbitrary power is neither law nor justice, administrative or at all. The very conception of “law” is a conception of something involving the application of known rules and principles, and a regular course of procedure. There are no rules or principles which can be said to be rules or principles of this astonishing variety of administrative “law”, nor is there any regular course of procedure for its application. It is possible, no doubt, that the public official who decides questions in pursuance of the powers given to his department does act, or persuades himself that he acts, on some general rules or principles. But, if so, they are entirely unknown to anybody outside the department, and of what value is a so-called “law” of which nobody has any knowledge?
The idea of justice contemplates at least an independent
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and impartial judge, who founds his judgement on evidence and reason. By a provision of the Act of Settlement the Judges hold office during good behaviour, instead of, as before, at the pleasure of the Crown, and they can be removed only on an address to the Crown by both Houses of Parliament. They are, therefore, practically irremovable, and it may be observed that their salaries, being charged on the Consolidated Fund, do not appear in the annual votes. Moreover, by Parliamentary practice, it is not permitted to comment on the conduct of a Judge except on a formal resolution for an address to the Crown for his removal.
The system of so-called administrative “law” in this country has little or no analogy to the “droit administratif” of the Continent, and is an indescribably more objectionable method. The “droit administratif” is administered by real tribunals, known to the parties, and these tribunals apply definite rules and principles to the decision of disputes, and follow a regular course of procedure, though the rules and principles applied are different from those of the ordinary law governing the relations of private citizens as between themselves. Moreover, the tribunals give reasons for their decisions and publish them. In a word, the “administrative tribunals” of the Continent are real Courts, and what they administer is law, though a different law from the ordinary law. More than that, the “droit administratif” is a regular system of law, applicable not only to all matters pertaining to the public service, but also to all disputes between the Government or its servants on the one hand and private citizens on the other hand.
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Administrative “law” in this country is not really a system at all, but is simply an exercise of arbitrary power in relation to certain matters which are specified or indicated by statute, not on any definite principle, but haphazard, on the theory, presumably, that such matters are better kept outside the control of the Courts, and left to the uncontrolled discretion of the Executive and its servants.
The public official is not independent. As a civil servant, he is liable to be dismissed at any time without notice, and without any enforceable right to compensation. One would have thought it perfectly obvious that no one employed in an administrative capacity ought to be entrusted with judicial duties in matters connected with his administrative duties. The respective duties are incompatible. It is difficult to expect in such circumstances that he should perform the judicial duties impartially. Although he acts in good faith, and does his best to come to a right decision, he cannot help bringing what may be called an official or departmental mind, which is a very different thing from a judicial mind, as everybody who has had any dealings with public officials knows, to bear on the matter he has to decide. More than that, it is his duty, as an official, to obey any instructions given him by his superiors, and, in the absence of special instructions, to further what he knows to be the policy of his department. His position makes it probable that he should be subject to political influences.
Let it be supposed, for the sake of the argument, that the power of deciding disputes as to liability to income-tax were vested in the Board of Inland Revenue, without appeal to the Courts. Could it be suggested that the sub-
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ject would be likely to receive judicial treatment? “Oh,” it may be said, “but that is an extreme case which would never be sanctioned by Parliament.” Yet it would not be different in principle from the case exhibited by the powers vested in the Minister of Health in relation to National Insurance. It is the decision of his delegate which is final and conclusive, both in fact and in law, as to the rates of contribution payable by or in respect of insured persons, and his findings of fact are conclusive on any question whether any employment or class of employment falls within the scope of the Act, — a question which, of course, determines the liability to pay contributions.
Will anybody at this time of day deny that it is essential to the proper administration of justice that the decision should be based on evidence, and that the evidence should be heard in the presence of both parties, who are given the opportunity of cross-examination? Evidence not tested by cross-examination is nearly always misleading and practically valueless. The public official, as has been observed, may, and often does, decide without any evidence at all, and he may act on ex parte statements, made by one party without anything to support them, which are never brought to the knowledge of the other party, so that he has no opportunity to controvert them. Is it too much to say that such proceedings are a mere travesty of justice? It is also essential to the proper administration of justice that every party should have an opportunity of being heard, so that he may put forward his own views and support them by argument, and answer the views put forward by his opponent. More than that, it is of great importance that all
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judicial proceedings should be held in public, so that the public may know what is being done, and be able to judge whether it is really justice, or injustice, that is being administered, and also have a guide to their own conduct. The departmental policy of secrecy, which is inveterate, is in itself sufficient to condemn the system under which the public departments act as tribunals to decide disputes of a judicial nature. This secrecy naturally leads to the conclusion that the departments are afraid of their proceedings being made public, and tends to destroy confidence in the fairness of their decisions. How is it to be expected that a party against whom a decision has been given in a hole-and-corner fashion, and without any grounds being specified, should believe that he has had justice? Even the party in whose favour a dispute is decided must, in such circumstances, be tempted to look upon the result as a mere piece of luck. Save in one or two instances, none of the departments publishes any reports of its proceedings, or the reasons for its decisions, and as the proceedings themselves, if any, are invariably held in secret, even interested parties have no means of acquiring any knowledge of the departments publishes any reports of its proceedings, or the reasons for its decisions, and as the proceedings themselves, if any, are invariably held in secret, even interested parties have no means of acquiring any knowledge of what has taken place, or what course the department is likely to take in future cases of the same kind that may come before it. A departmental tribunal is, however, in no way bound, as a Court of Law is, to act in conformity with previous decisions, and this fact is commonly regarded as one of the reasons for the policy of secrecy. Others may think that the department is afraid to disclose inconsistencies and a want of principle in its decisions. However that may be, the policy is fatal to the placing of
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any reliance on the impartiality and good faith of the tribunal. It is a queer sort of justice that will not bear the light of publicity. In the kind of “legislation” which is being considered, it is usual to provide that the decision of the Minister shall be final and conclusive. When this is the case, the Courts are powerless to intervene, however unjust and absurd a decision may appear to be, and even though it is obviously based on an erroneous view of the law. It may be said that, if it can be shown that no real discretion was exercised by the deciding official, and the decision is merely capricious, or is perverse or corrupt, the Courts might hold it void on the ground that it does not really constitute an exercise of the authority vested in the Minister at all. But where one is dealing with a decision given without reasons, by an anonymous official, who is not ascertainable, how can any such matter be proved? How can it be shown that such a person, who has not disclosed the evidence, if any, on which he purported to act, was prompted by any particular motives? How can it be determined whether he has acted in good or bad faith, when he has not stated the reasons for his decision? It may be that the decision is apparently so perverse that the party against whom it is given has a reasonable suspicion that it was dictated by spite or vindictiveness, or was even corrupt. But, without knowing who the deciding official is, it is of course impossible for a person aggrieved to prove anything of the kind, or even to furnish grounds for suspecting it. The victim is, in such a case, perfectly helpless, and entirely without remedy. He is completely at the mercy of a person who, for all he
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knows, may be a bureaucratic tyrant. If he did attempt to challenge the decision by proceedings in a Court of Law, he might well be told by the Court that it must be presumed that the Minister acted in good faith, and in such circumstances the presumption is irrebuttable.
It may be said that there is no substantial ground for the fear of unfairness or corruption in the Civil Service. As to unfairness, people who have had disputes with public officials may sometimes conceivably hold a contrary opinion. As to corruption, that is a vice from which the Service is completely and undoubtedly free. It is of vital importance that it should so continue. But if there were any great extension of the system of giving uncontrolled and arbitrary powers to public officials, it is as certain as that night follows day that corruption might creep in. We might then be cursed with the corrupt bureaucrat. The bureaucratic despot we already have. To take a simple instance, the treatment of the panel doctors under the National Health Insurance Acts is pure despotism. The doctors are liable, at the mere discretion of the official who acts for the Minister of Health, to be ruined professionally by being struck off the panel, or, as a lesser punishment, to be fined to an arbitrary extent. In one instance, a fine of £1000 was imposed on two doctors who carried on business in partnership. “Excessive prescribing”, an offence wholly unknown to the law, which consists in prescribing for the patient medicines that are either too expensive in quality or too liberal in quantity, is one of the things for which a doctor may be penalized. One might think that, for a person who is bound by law to insure and pay contributions
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under the Acts, the best medicine ought to be prescribed in illness. But apparently that is not always the view of the department. One might wonder whether, in this matter, the interests of the patients are adequately taken into consideration.
It is sometimes enacted that, before the Minister comes to a decision, he shall hold a public inquiry, at which interested parties are entitled to adduce evidence and be heard. But that provision is no real safeguard, because the person who has the power of deciding is in no way bound by the report or the recommendations of the person who holds the inquiry, and may entirely ignore the evidence which the inquiry brought to light. He can, and in practice, sometimes does, give a decision wholly inconsistent with the report, the recommendations, and the evidence, which are not published or disclosed to interested individuals. In any case, as the official who decides has not seen or heard the witnesses, he is as a rule quite incapable of estimating the value of their evidence. So far, therefore, as restraining the arbitrary power of the deciding official is concerned, the requirement of a public inquiry is in practice nugatory, and it cannot be of much value in enabling him to form a just conclusion. It seems absurd that one official should hold a public inquiry into the merits of a proposal, and that another official should be entitled, disregarding the report of the first, to give a decision on the merits.
It is indeed sometimes suggested that these arbitrary powers are given by Parliament, who would not confer them in cases where it is considered that they are likely to
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be abused. But that is only theoretically true. In existing conditions the Cabinet, as representing the Government of the day, is, generally speaking, the real legislative power, Parliament merely confirming its proposals, and there can be little doubt that it is the officials in the departments concerned who initiate the legislation by which the arbitrary powers are conferred upon them. When Parliament passes such legislation, one may wonder how many members outside the Ministry know what they are really doing. How much less do the people know what is being done in this respect by their representatives! It is inconceivable that such legislation would be passed, at all events without protest, if the legislators knew that they were sapping the foundations of the Constitution. All great constitutional lawyers have recognized that it is the rule, or supremacy, of the law, administered by independent judges, that is the basis of all our constitutional liberties, and it is this characteristic of the British Constitution which, above all, makes that Constitution admired throughout the civilized world. Arbitrary power is certain in the long run to become despotism, and there is danger, if the so-called method of administrative “law”, which is essentially lawlessness, is greatly extended, of the loss of those hardly won liberties which it has taken centuries to establish.
One of the marks of despotism, as all history shows, is that it is unteachable. Its intrinsic nature, it would seem, is such that it must always, sooner or later, express itself in ways which are not only indefensible but also quite manifestly indefensible. The fact is not, perhaps, to be re-
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gretted. If it were otherwise, despotism might have more dupes, and a longer run. As it is, it exhibits itself, sooner or later, in a fashion which has the effect of exciting public observation, so that despotism is checked for a time, and has to start again. Attention has already been directed to a statute of the year 1925 (the Rating and Valuation Act, 1925) which contained the egregious provision that the Minister might, if he thought fit, actually modify the provisions of the Act itself. That provision was piloted through both Houses of Parliament. But it did not escape remark. On the contrary, since it became law, it has on many occasions been the subject of criticism, not only in public speeches and writings, but also in the Law Courts. It might have been thought that the amateurs of the new despotism, unless they regarded public opinion with complete indifference, and unless they were also satisfied that they could count upon perfect complaisance or utter inattention in both Houses of Parliament, would avoid, at any rate for a time, the repetition of that particular revelation of themselves. But what followed? In the early part of 1929 a new Local Government Bill was introduced which contained a clause (originally clause in) in the following terms:
“If any difficulty arises in connection with the application of this Act to any exceptional area, or in bringing into operation any of the provisions of this Act, the Minister may by order remove the difficulty, or make any appointment, or do any other thing which appears to him necessary for bringing the said provisions into operation, and any such order may modify the provisions of this Act so far as may appear to the Minister
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necessary or expedient for carrying the order into effect.”
Here, then, was another proposal to enact that the Minister, if he thought it necessary, or even expedient, might by order “modify the provisions” of the enactment. The House of Commons did not like it. A good deal of water had flowed under the bridges, and a good many remarks had been made, in public and in private, some of them Parliamentary, and some of them less Parliamentary, between 1925 and 1929. A storm, or at least a sort of storm, arose, and the Minister found it expedient, or even necessary, to promise amendment. But the amendment, when it came, was something quite wonderful. After a good deal of criticism, the amended clause, polished and pruned, was added to the Bill, and emerged from the House of Commons, in the following form (the clause now being numbered 120):
“If any difficulty arises in connection with the application of this Act to any exceptional area, or in bringing into operation any of the provisions of this Act, the Minister may make such order for removing the difficulty as he may judge necessary for that purpose, and any such order may modify the provisions of this Act,” and so on as before.
That is to say, the words “by order remove the difficulty, or make any appointment, or do any other thing which appears to him necessary for bringing the said provisions into operation” were taken out, and in their place the following words were inserted: “make such order for re-
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moving the difficulty as he may judge necessary for that purpose”, while the power to modify the provisions of the Act remained. Such was the official redemption of the promise given to the House of Commons to meet by amendment the objection which had been taken. Did ever a mountain in labour bring forth a more ridiculous mouse? “The difference between the two clauses is”, as the Law Journal truly said (February 23,1929) “a case of Tweedledum and Tweedledee. In fact, the practical effect is the same, and the Minister has found it impossible to carry out his undertaking, and yet leave the clause in being.” Nor is it to be supposed that either the Minister himself, or any of the skilled advisers upon whom he depended, was not perfectly well aware of the exiguous nature of the change. The House of Commons, it was believed, for some reason or other, would ultimately acquiesce, even though for a time it protested. What is significant in this transaction, it may be suggested, is the frame of mind of those who drafted and approved the original proposal, and had the courage to put forward the amendment as removing the objection to it.
The sequel is not without interest. When the measure reached the House of Lords, the clause had come to be clause 123. In the discussion on the previous clause in Committee (March 8,1929) something had been said upon the provisions for laying before Parliament certain orders and regulations made under the Act. “We may be told”, said Lord Strachie, “that we can have confidence in the present Minister of Health. I quite agree, but the present Minister of Health will not always be there, and we may
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THE NEW DESPOTISM
have a Minister who will adopt a very hostile attitude towards County Councils and local bodies and want to centralize everything in Whitehall. There is always that danger, and we must look ahead.” When clause 123 was reached, no amendment was proposed to the first part of the clause, which provided,in the terms already set out, for the making of orders that might “modify the provisions of this Act”. The attack, such as it was, was directed against the second part of the clause, which provided merely that “every order made under this section shall be laid before Parliament as soon as may be after it is made”. Lord Askwith moved an amendment for the purpose of adding the words, “and shall not be of any effect unless and until a Resolution affirming the order is passed by each House of Parliament”. The amendment, he said, “would give a control to Parliament which has rather been before the country, and which the country desires, against orders being made by a Minister without anybody else having any control”. The amendment was afterwards withdrawn upon an assurance given by the Lord Chancellor. “I am quite willing,” Lord Hailsham said, “if your Lordships think it right, that any exercise of the power of clause 123 should be brought to the special attention of Parliament by providing that, instead of its merely being laid on the Table, and subject to disallowance by a Resolution under clause 122, in the case of an order made under clause 123 there should be the necessity for its confirmation by an affirmative Resolution within a named number of days after Parliament meets, after the order has been made.” The last phase was reached on the Report Stage in the House of Lords (March 14,
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1929). Again the first part of the clause, giving power to make orders modifying the provisions of the Act, was allowed to remain in the form in which it had come from the House of Commons. But the second part of the clause, by the combined result of more than one amendment, was altered so as to read in the following way:
“Every order made under this section shall come into operation upon the date specified therein in that behalf, but shall be laid before Parliament as soon as may be after it is made and shall cease to have effect upon the expiration of a period of three months from the date upon which it came into operation, unless at some time before the expiration of that period it has been approved by a resolution passed by each House of Parliament:
“Provided that, in reckoning any such period of three months as aforesaid, no account shall be taken of any time during which Parliament is dissolved or prorogued, or during which both Houses are adjourned for more than four days.”
It is in that form that the clause now appears as section 130 of the Local Government Act, 1929. From all of which it will be seen (1) that the power to modify, by departmental order, the provisions of the Act, remains; (2) that every such order is to come into operation upon the date specified in the order in that behalf; (3) that the period of three months runs from the date so specified; and (4) that the proviso with regard to the reckoning of that period, although to the careless reader it might seem to involve an extension of the period of Parliamentary control, in effect extends the period during which the order may be in operation without Parliamentary approval.
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THE NEW DESPOTISM
It may be observed that The Times, in a leading article in its issue, dated the 16th February 1929, said with reference to this clause, enabling the Minister by Order to modify the provisions of the statute:
“The true precedents, it has been pointed out, must be sought further back than 1888. They are the pretensions to the dispensing powers under the Stuarts and the Statute — obsequiously passed by both Houses — which declared that anything enacted by King Henry VIII. or by Order in Council should have the force of law.”
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“THE SYSTEM AT WORK”
During recent years a practice has grown up, and is rapidly being extended, whereby Parliament delegates to the public departments more or less wide powers of legislation. In consequence of the increasing demand of the departments for legislation giving them the detailed control of matters connected with local government, health, education, industry, housing, and so forth, Parliament is, it is said, overburdened, and quite incapable of dealing adequately and in detail with the subject upon which it is invited to legislate. The words “in consequence of the increasing demand of the departments for legislation” may be used advisedly, because the public may probably think that there is too much legislation, and also that there are too many public officials. It is interesting to notice that the growth of the system of subordinate legislation by the departments has proceeded side by side with a great increase in the number of public officials.
There are various forms of departmental legislation. Sometimes Parliament passes an Act expressing its intention in general terms, and leaving the mode of carrying out that intention to be settled by rules and regulations to be made by the public department which is charged with
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THE NEW DESPOTISM
the supervision of the matters legislated upon. Sometimes the department is given power to make orders having the force of law with reference to the subject-matter of the statute. And in some cases the department is empowered, within limits, to repeal or vary the express provisions of the Act conferring the powers.
For instance, by section i, sub-section (2), of the Road Transport Lighting Act, 1927 (17 & 18 Geo. V. c. 37), the Minister of Transport may exempt, wholly or partially, vehicles of particular kinds from the requirements of the Act, and by sub-section (3) he may, by regulations, add to or vary such requirements.
Again, by section 1 of the Trade Boards Act, 1918 (8 & 9 Geo. V. c. 32), the Minister of Labour may, by special order, extend the provisions of the Trade Boards Act, 1909, to new trades, or withdraw any trade from the operation of that Act, and may alter or amend the Schedule to the Act. By section 2 (1) of the Act of 1918 a special order so made is to have effect as if enacted in that Act.
There are recent instances of the power of modifying the provisions of the enabling Act which has been given for the purpose of removing difficulties in bringing the Act into operation, two of which are as follows:
The Unemployment Insurance Act, 1920 (10 & 11 Geo. V. c. 30), by section 45 provides:
“If any difficulty arises with respect to the constitution of special or supplementary schemes or otherwise in any other manner whatsoever in bringing this Act into operation, the Minister (of Labour), with the consent of the Treasury, may by order do anything which ap-
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THE SYSTEM AT WORK
pears to him necessary or expedient for the constitution of such schemes or otherwise for bringing this Act into operation, and any such order may modify the provisions of this Act so far as may appear necessary or expedient for carrying the order into effect.”
By thft Rating & Valuation Act, 1925 (15 & 16 Geo. V. c. 90), section 67 (1), to which reference has already been made:
“If any difficulty arises in connection with the application of this Act to any exceptional area, or the preparation of the first valuation list for any area, or otherwise in bringing into operation any of the provisions of this Act, the Minister (of Health) may by order remove the difficulty, or constitute any assessment committee, or declare any assessment committee to be duly constituted, or do any other thing which appears to him necessary or expedient for securing the preparation of the list or for bringing the said provisions into operation, and any such order may modify the provisions of this Act so far as may appear to the Minister necessary or expedient for carrying the order into effect.”
The extent to which the Courts of Law have jurisdiction to review and question the validity of statutory rules and orders depends, of course, upon the terms of the statute which gives the power to make them, and from which their force is derived. Sometimes such rules and orders are, as they manifestly ought to be, liable to be challenged on the ground that they are not within the powers of the authority making them, or, in other words, that they are ultra vires, or on the ground that in making them the
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THE NEW DESPOTISM
authority did not exercise the discretion vested in it, but took into consideration extraneous matters.
The usual means whereby the Courts secure that the departments shall not legislate in abuse of their powers is by the prerogative writs of prohibition or certiorari, which are issued by the King’s Bench Division of the High Court. By the writ of prohibition a department which is proceeding with the consideration of a statutory rule or order in excess of its powers, may, before the rule or order is made, be prohibited by the Court from proceeding further in the matter. And by the writ of certiorari the department may be commanded to bring into Court a rule or order after it is made, so that it may be reviewed, and, if it is found to be ultra vires, or if it is found that the department took extraneous matter into consideration, may be quashed.
Sometimes the enabling statute provides that the rule or order shall be laid before Parliament for a certain number of days, and, if it is objected to during that time by resolution of either House, shall be annulled. But such a provision does not prevent the Court from inquiring into the validity of the rule or order, and, if it is found to be invalid on either of the grounds above mentioned, from quashing it, either before or after the expiration of the period during which it is before Parliament. But, provided that a rule or order is not invalid on the ground that it is ultra vires, or on the ground of extraneous matter having been taken into consideration, the Court has no jurisdiction to review it on its merits, or to inquire into the soundness of the discretion exercised by the legislating department. The Court
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THE SYSTEM AT WORK
can prevent a department from acting illegally, but cannot require it to act reasonably.
Where delegated legislation is subject to judicial control, it is perhaps not open to the most serious kind of objection. But various forms of words have been used in connection with this sort of legislation in order to limit the controlling power of the Courts, and in some instances, where private rights are seriously interfered with, the jurisdiction of the Courts has been entirely ousted, and the officials in the exercise of their powers have been rendered wholly free from judicial control.
Sometimes it is provided that the Minister (an expression which, of course, means some official in his department) may make such orders as he shall think fit, apparently with the view of indicating that he is intended to have a very wide discretion, and of preventing the Court from interfering with any order, whatever its terms, relating to the matter concerning which he is given power to legislate.
So, for example, section 10 of the Roads Act, 1920 (10 & 11 Geo. V. c. 72), provides tha —
“Where any persons are, whether by virtue of any Act or otherwise, liable to pay any sums, by way of mileage charges or other annual payments, in respect of the use of any road by their vehicles, the Minister (of Transport) may, on an application by those persons in that behalf, and after considering any objections made by any person interested, suspend, modify, or determine the liability to make the payments, as he shall think fit.”
So, again, by section 6 (5) of the London Traffic Act, 1924 (14 & 15 Geo. V. c. 34), the Minister of Transport may, on
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THE NEW DESPOTISM
an appeal, make such order amending the schedules of omnibus routes and services as he may think fit.
Another form of words that has been used is that a decision of the Minister on a question shall be final and conclusive, as in the case of the following sections of the Town Planning Act, 1925 (15 Geo. V. c. 16):
“Section i (3). The expression ‘land likely to be used for building purposes’ shall include any land likely to be used as, or for the purpose of providing, open spaces, roads, streets, parks, pleasure or recreation grounds, or for the purpose of executing any work upon or under the land incidental to a town planning scheme, whether in the nature of a building work or not, and the decision of the Minister (of Health), whether land is likely to be used for building purposes or not, shall be final and conclusive.”
“Section 7 (3). If any question arises whether any building or work contravenes a town planning scheme, or whether any provision of a town planning scheme is not complied with in the erection or carrying out of any such building or work, that question shall be referred to the Minister (of Health), and shall, unless the parties otherwise agree, be determined by the Minister as arbitrator, and the decision of the Minister shall be final and conclusive.”
There are other cases where it is expressly enacted that an order made by the Minister shall not be subject to an appeal to any Court. For instance, section 9 of the Roads Act, 1920 (10 & 11 Geo. V. c. 72), provides for the issuing by a county council to any manufacturer of or dealer in vehicles of a general licence in respect of all vehicles used
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THE SYSTEM AT WORK
by him, at a reduced duty, in lieu of separate licences in respect of each vehicle, and sub-section (3) is as follows:
“If any person is aggrieved by the refusal of a council to issue a general licence under this section, he may appeal to the Minister (of Transport), and the Minister shall, on any such appeal, make such order in the matter as he thinks just, and the council shall comply with any order so made.
“An order made by the Minister under this provision shall be final and not subject to appeal to any Court, and shall, on the application of the Minister, be enforceable by writ of mandamus.”
A similar provision is contained in section 14 (3) of the same Act, as follows:
“Where, upon application for a licence to ply for hire with an omnibus, the licensing authority either refuses to grant a licence or grants a licence subject to conditions, in either case the applicant shall have a right of appeal to the Minister of Transport from the decision of the licensing authority, and the Minister shall have power to make such order thereon as he thinks fit, and such order shall be binding on the licensing authority. “An order made by the Minister under this subsection shall be final and not subject to appeal to any Court, and shall, on the application of the Minister, be enforceable by writ of mandamus.”
The writ of mandamus here referred to is the prerogative writ issued from the King’s Bench Division of the High Court, whereby the Court compels the performance of a duty of a public or quasi-public nature.
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