THE PASSING OF PARLIAMENT r THE PASSING OF Professor G. W. Keeton is the General Editor of THE BRITISH COMMONWEALTH: THE DEVELOPMENT OF ITS LAWS PARLIAMENT AND CONSTITUTIONS Also Joint Editor of THE YEAR BOOK OF WORLD AFFAIRS by and CURRENT AND LEGAL PROBLEMS PROFESSOR G. W. KEETON M.A· LL.D Professor of English Law University College. London Principal and Treasurer, the London Institute of World 41fairs .. ~. WITHDRAWN FRO SUU LIBRARY NEW YORK John de Graff Inc. First Published 1952 Second Edition 1954 .Jv-1Jf ..... 1 L .c Contents ACKNOWLEDGEMENTS VB 1. THE TWILIGHT OF THE COMMON LAW 2. THE ROAD TO MOSCOW 13 3· THE STUARTS AND THE CONSTITUTION 34 4· THE PASSING OF IMPEACHMENT 44 5· THE TRANSFORMATION OF PARLIAMENT 55 6. THE MENACE OF DELEGATED LEGISLATION 64· 7· ADMINISTRATIVE TRIBUNALS AT WORK 81 8. THE COURTS AND THE EXECUTIVE 98 9· TAXATION AND FREEDOM 1I8 10. LAND IN CHAINS 137 II. THE PROBLEM OF STATE MONOPOLIES 153 12. THE CONTROL OF ADMINISTRATIVE POWER ABROAD 175 13· THE CONSTITUTIONAL PROBLEM TODAY 190 14· SOME RECENT TENDENCIES 208 INDEX 213 Printed in Great Britain v of Acknowledgements HIS VOLUME is in form an expansion of a number of articles contributed in recent years to various T periodicals. I should therefore like to acknowledge the courtesy of the editors for permission to reproduce them from the pages of Current Legal Problems, The Nineteenth Century, The Westminster Bank Review, and The South African Law Journal. G. W. KEETON vii Note to the New Edition. HE present edition had been completed before the appear- ance of the Report of the Public Inquiry into the disposal Tof land at Crichel Down, and the ensuing Parliamentary debate which resulted in the resignation of the Minister of Agri- culture. These events have focused public attention. upon some activities of the Ministry of Agriculture, and have added point to the criticisms which appear in Chapter 10. Whilst it is now apparent that the co.untry has been s~ri0':lsly concerned by the revelations of the Crichel Down Inquiry, It must be added that this affair was not an isolated phenomenon. The Times of July lZ!Znd,1954, contained reports of ~o cases, in both of which irregularities in the Ministry of Agriculture's methods of appoint- ing tribunals were brought to light. In the first, Woollett v. Minister of Agriculture, Stable, J., held that the Minister could not retain agricultural land because two members of an Agricultural Land Tribunal, on whose decision the Minister relied, had not been properly appointed. Indeed, as Stable, j., pointed out in his judgment, there was no authority of any kind emanating from the Ministry, authorising the two members to act. The situation was the more astounding as Mrs. Woollett was one of a group of no less than twenty-five persons, whose rights were disposed of in this cavalier fashion after deliberations lasting no more than a day. The result of these deliberations was that nineteen of these pe~<:>ns had their property compulsorily purchased by the MinIStry. n'In" the second case, decided on the same day , this time by the ivisional Court, R. v. Minister of Agriculture, ex parte Graham, Mr. ~r~ham, a farmer in Durham, had been the subject of a super- VlSlonorder by the Durham C.A.E.C. Under the Agriculture Act, 1947, such an order can be made only after representations have been heard by a person appointed by the Minister. The Act also expr~ssly excludes certain persons from the class of those to be a~pomted,.amongst them being "any sub-committee of the dis- tri ct comrmn ee."N evert heIess, Mr. Graham was informed that IX x NOTE TO TIlE NEW EDITION the person appointed by the Minister was the husbandry sub- committee of the Durham C.A.E.C. When he raised the point that his case was being heard by a body expressly declared in- Chapter 1 competent, Mr. Graham's objections were swept aside, the pro- ceedings were continued, and the order was made. The matter was all the more serious, as the farmer was poor, and only obtained legal aid after it had been initially refused. That this The Twilight of the Common Law was by no means an isolated instance is shown by the decision of the Divisional Court in Re Turcoyse Farm, reported in The Times of July 31st, 1954, in which it appeared that the Ministry had followed exactly the same procedure in Cornwall, where Mr. Tis now more than twenty years since Lord Hewart, Benney, the farmer, was dispossessed after a hearing conducted by the husbandry sub-committee of the Cornwall C.A.E.C. then Lord Chief Justice, opened a new phase of the Shortly after these cases had been decided, the Ministry issued Icampaign against the 'petty despots of Whitehall' by a two statutory instruments introducing changes in the procedure spirited attack in his New Despotism. Quick gains apparently for appointing Land Tribunals, and also further instructions followed this legal offensive. If a Lord Chief Justice had designed to prevent such irregularities in the future. entered the fray, then it was possible-nay, probable-that The facts revealed by these cases, when taken in association something was seriously wrong. For a time, the encroach- with Sir Andrew Clark's findings in the Crichel Down affair, ments of bureaucracy were front-page news. Alarm spread throw a flood of light upon the pretensions of bureaucracy, and from the Temple to Fleet Street, and the Government was its attempts to secure immunity from the control either of Parlia- sufficiently impressed to set up the Committee on Ministers' ment or of the courts-an attempt which succeeded in keeping Powers in October, 1929. It was a strong Committee, for the Minister himself uninformed. In particular, the report has done a permanent service by tracing in detail the consequences in addition to three Conservative ex-Ministers and three of that "passionate love of secrecy inherent in so many minor Labour Members of Parliament, it included three well- officials", which made it so difficult to bring to light this succes- known King's Counsel and three leading solicitors, and, sion of mistakes and violations of private rights by the Ministry in addition, Sir John Anderson, Sir Claud Schuster and Sir of Agriculture and its dependents. Similarly, it is well to ponder Warren Fisher, and, finally, Professor Laski and Sir William upon the implications of Sir Andrew Clark's conclusion that a Holdsworth. Thus the Committee could properly lay claim group of high public servants adopted "a most regrettable attitude to strength, breadth of view, and familiarity with the theoret- of hostility" to Commander Martin, which was "engendered ical and practical implications of delegated legislation. Its solely by a feeling of irritation that any member of the public proceedings, publicly conducted, showed an anxiety to should have the temerity to oppose or even question the acts or probe beneath the forms of day-to-day activity in order to decisions of officials of a Government or State Department". lay bare the causes of modern bureaucratic encroachments. The Crichel Down affair emphasises yet again that all Govern- ments in the recent past have been far too tolerant of bureau- The public was reassured by its evident sincerity and ability, cratic excess. If the Clark Report and the ensuing debate have and when the report of the Committee appeared, with a served notice that a halt must be called to the usurpation of glowing tribute to the integrity of the civil service and with private rights by officials swollen with excess of authority, the recommendations for various alterations of detail, but no episode may possibly be a turning-point in our constitutional proposals for important constitutional change, the public evolution. heaved a sigh of relief and forgot the whole question. Indeed, few reports have assembled so much wisdom whilst proving so completely useless, as the Report of the Committee on Ministers' Powers. Except amongst students of admin- THE PASSING OF PARLIAMENT 2 THE TWILIGHT OF COMMON LAW 3 istrative law (one is tempted to say historians of adminis- . ase out of two. I expected to be castigated for this In one c .. di d d nt but to my intense surpnse It was not ispute an trative law) its recommendations are forgotten, even by stateme , d i '1 lawyers and administrators, and in no important respect 'udges and advocates all supporte It. did the report influence, much less delay, the onrush of JE idently therefore, the lawyer in his attack on admin- VI , th h' . administrative power, and the supersession of the ordinary . t tive justice, must not assume at IS own system IS IS ra h d . h forms of law which is today taking place. The extent to • t: llible. It may well be that tea rmrnstrator as as strong which the general conditions of the problem have changed mracase against him as he has agamst. teah drnirrumstrator, is shown by the fact that so able a lawyer as Lord Hewart a On the other hand it is idle to deny that the existing could still write of administrative law and administrative safeguards of private right in administrative tribunals tribunals as an impudent usurpation. Today, not only are are inadequate, and that increasingly wide delegations both taken for granted, but already it is possible to detect of power at times give officials a dangerous immunity the first suggestions that the ordinary courts have exhausted from control. In Blackpool Corporation v. Locker» the Court their usefulness in the era of rapid change through which of Appeal condemned in the plainest terms one of the we are passing.