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 WITHDRAWN FRO SUU LIBRARY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. The future will unquestionably see more most serious abuses of authority which has occurred in experiments (ominous though they may be) such as the recent times. A local authority requisitioned a house furnished rent tribunals. From there to people's courts is which was unoccupied but which contained the owner's not so very far, especially if one reflects how far we have furniture. It purported to act under powers delegated travelled in the past twenty years. by the Minister of Health. This act of requisition was Nevertheless, there exists today a major problem which contested by the owner, who subsequently showed that troubles all who are concerned with the problem of justice he had bought the house for his own occupation, in the modern State. Most lawyers would admit today that and when he asked for the actual terms of the Ministry of the machinery of the ordinary courts functions under Health's circulars (which were the sole foundation of the i.ncreasing strain. Our rules of evidence are complicated and local authority's claim to requisition) both the local authority arbitrary; our procedure is slow and expensive. Moreover, and the regional officers of the Ministry refused to communi- there can be no certainty that this cumbrous and expensive cate them for nearly six months. Indeed, it was only in machinery will, in the end, dispense justice to those who consequence of the pertinacity of the owner's solicitor that invoke it. In the course of a thoughtful analysis of the defects the two public authorities were at length compelled to give of modern legal procedure in the British Commonwealth, no way-when it appeared that the corporation in fact possessed less an authority than Sir Frederic Eggleston, a former no authority at all under the circulars to requisition the Attorney-General of Victoria and now Australian Ambassa- houses! Clearly, cases such as this raise questions going to dor to the United States, said recently: the root of Our political association. They reveal a contempt ~orlegal process which is comparable with that of an official 'In addressing the Medico-Legal Society of Melbourne in In a totalitarian State, or with that of a public officer in the which there were leading judges, barristers and solicitors, I stated that the truth of verdicts in trials was really accidental r.r~nce of 1792. So far these cases have attracted little pub- lClty, because the processes by which property is today and that only in one case out of four could it be said that removed from . . verdicts were the due result of scientific processes. I worked pnvate ownershIp are complex and they are this out as follows:in fiftyper cent. of the casestried the verdict ;o~ apt I?aterial for newspaper paragraphs. Nevertheless, was probably correct on the principle of probability. Either I e attItude revealed in this case is allowed to develop the plaintiff or defendant was right and chance would produce 1 'Legal Develo' .'. ugaJ PhilosoAhiu pmaent In a Modern Community' In Interpretations of Modern a correct verdict in half the cases. In the other cases the legal • '" p. 1 I. processmight have the effect of bringing about the right result [1948), 1 K.B. 439. 4 THE PASSING OF PARLIAMENT THE TWILIGHT OF COMMON LAW 5 unchallenged, the entire constitutional structure of this It should not be thought that the powers conferred by country will be undermined. In the case under consideration, delegated and sub-delegated legislation are limited to con- Lord Justice Scott (who served as Chairman of the Com- t 01 or confiscation of property. They may, and have been, mittee on Ministers' Powers) observed: r tended to the personal freedom of the citizen, for example, 'There is one quite general question ... of supreme import- ~x the direction of labour. As yet, their potentialities in this In . d b '11 . ance to the continuance of the rule of law under the British direction are imperfectly appreciated, ut an 1 ustration constitution, namely, the right of the public affected to know from my own personal experien~e may se:ve to illustrate what that law is. That right was denied to the defendant in them. During the recent war a friend of mme was charged the present case. The maxim that ignorance of the law does not excuse any subject represents the working hypothesis on with a breach of the Defence of the Realm Regulations in which the rule of law rests in British democracy. That maxim being unlawfully on a railway siding (where he had gone in applies in legal theory just as much to written as to unwritten pursuit of his small child, aged three). I was reliably in- law, i.e., to statute law as much as to common law or equity. formed that it was only my friend's absence from home at But the veryjustification for that basic maxim is that the whole the time of the summons that prevented his arrest. Neither of our law, written or unwritten, is accessibleto the public- in the sense,of course, that, at any rate, its legal advisershave he nor I was at that time aware that the regulation was accessto it, at any moment, as of right. When a government drafted in such comprehensive terms, and we were unable bill is brought before Parliament in a form which, even in to secure a copy of the Defence Regulations from the local regard to merely executive or administrative matters, gives bookseller. It occurred to me, however, that there would be a wide or unlimited discretion to a minister, and objection is a copy of them at the nearest police station, which I accord- made, the answer is sometimes given that the minister may ingly visited. On asking to see a copy of the regulations I was be trusted by the House to use his powers with a wise and reasonable discretion. The answer may be perfectly bona fide; informed that it was not in the p~lic interest that they should be but tempera mutantur, and another minister or another govern- revealed! In this case the regulations were actually published, ment may use the unlimited powers indiscreetly or oppres- and I secured a copy from London, but if they had been un- sively. If that happens, the only remedy practically open to published sub-delegated legislation, my friend would have the aggrieved citizen is action in Parliament to which alone been in a plight as bad as (or worse than) that of the plaintiff the minister is responsible. But the Act when passed may contain delegated powersto a minister of the Crown to legislate, in Blackpool Corporation v. Locker. As one might expect, it is and the minister may within his powers make rules or orders in Nazi Germany and in the U.S.S.R. that the potentialities which constitute binding legislation. Again, the aggrieved has of this legislative device have been exploited to the utter- no legal remedy against the legislativeact of the minister; he most limit. is bound by the terms of the delegated legislation. But in both . Lor~ Hewart's book was not the only contribution to the typesoflegislation, Parliamentary and delegated, the aggrieved citizen at least knows, or his lawyers can tell him, just what dISCUSSIonof this major problem of constitutional law to his rights and duties and restrictions are under the new law; appear twenty years ago, although it naturally attracted the because each kind of statutory law is at once published by the most popular attention. It was anticipated by the first edition King's Printer-whether as Acts of Parliament or as statutory of ~rofessor W. A. Robson's acute and stimulating study instruments. On the other hand, if the power delegated to the Justlce and Administrative Law (the third edition of which minister is to make sub-delegated legislation and he exercises aPb~red in 1951), whilstDr, Port's Administrative Law was it, there is no duty on him, either by statute or at common u law, to publish his sub-delegated legislation; and John Citizen t he? almost contemporaneously with Lord Hewart's. may remain in complete ignorance of what rights over him thnhapplly, Dr. Port died shortly after its appearance, with and his property have been secretly conferred by the minister i ; c~nsequence that the researches which he there initiated on someauthority or other, and what residual rights have been s~s~et e natu~e an? function of administrative law in foreign left to himself. For practical purposes, the rule of law, of rns remallled lllcomplete. which the nation is sojustly proud, breaks down.' 6 THE PASSING OF PARLIAMENT THE TWILIGHT OF COMMON LAW 7 ne from Cabinet Minister to the meanest clerk in a The appearance of these three important works so close Everyo , .' . r nrnent office, remamed a citizen, and preserved as Jar together was symptomatic. They defined the nature of the gover . I' problem for lawyers and others, and they indicated the ossible his amateur status m re anon to government. as p, . t: • hi h '11 views which it was possible to hold in respect of it. Not un- This was satisfying do~trme lor a sO~Iety .w IC. was sti naturally, the force with which Lord Hewart had delivered dominantly aristocratic, rural and individualist; and a pre f h· his onslaught produced a reaction, in which the lawyers te of condescension, almost 0 contempt, c aractenses were pressed hard, but the tide once again turned tempor- ~~cey's exposition of con~nen~al constitution~, ~hich contain arily in their favour with the appearance of Sir Carleton 'constitutional guarantees which break down m times oferner- Allen's Bureaucracy Triumphant, and his fuller work, Law and gency, and which breed increa.sing numbers ?f industri~us Orders, which appeared in 1945. Of Sir Carleton Allen, middle-class officials who require the protection of special Professor Robson, in the second edition of his own book, administrative codes applied in administrative tribunals. writes that he represents 'in a more refined and scholarly All Dicey's critics have noticed, however, that his com- manner, the school of thought of which Lord Hewart was placency is much less marked in th~ la~t editions. of ~on- the crudest and most undiscriminating exponent.' 3 stilutional Law to be prepared by him m the period Just To understand this great controversy, in which most of before the first World War. The close of Victoria's reign our constitutional lawyers and political scientists have had witnessed, even in England, the first cautious steps to- joined in recent years, it is necessary to revert to the more wards the collectivist State. With the assumption of new settled days of the late nineteenth century, when Anson and social responsibilities by the State came new types of official, Dicey were the high priests of orthodox constitutional theory. armed with new power. Steadily, too, the pace of legislation They inherited an outlook upon the constitution which owed quickened, and as its scope became more comprehensive something to Burke, Blackstone and Bagehot, and which the practice of delegating legislative power grew. In the last saw in the English system the climax of political achieve- half-century, there has been a shift in the governmental ment. It was left to Dicey to formulate in general principles centre of gravity from the floor of the House of Commons the assumptions upon which political association in England to the offices of the great departments of state, where in was founded. They were the doctrine of Parliamentary sov- reality policy is framed. Parliament becomes year by year ereignty and the Rule of Law. Parliament was omnipotent: less of a governing council and more of a censor of executive it could do, or undo, anything, but it was in no danger of ~cts. Even in the sphere of legislation its function is increas- abusing its powers because it was a combination of diverse mgl~ to define the orbit of legislative activity upon a topic, elements, linked together by an intricate system of 'checks leavmg the detailed working out of the programme to the and balances' (pace Bagehot), and also because Englishmen appropriate department, which, not infrequently, possesses possessed, to a markedly greater degree than other peoples, the pOwer to amend the Act by which legislative power is a mysterious political instinct. Moreover, their innate sense conferred upon it. Dicey's own treatise Law and Opinion in of fair play was expressed in legal terms in the Rule of Law, England, shows that he was aware of the general trend of which meant that everyone, from highest to lowest (except the changes which were taking place in our constitutional the sovereign himself) must answer for his acts before the structure. It is possible that before his death he would have ordinary courts, according to the ordinary law of the land. conce.ded that an unwritten constitution is not necessarily There were no official, or administrative, courts in England, s~~:nor to a written one. His Constitutional Law in successive deciding disputes between the administration and the ordin- ; ecuItl~.ns had shown a strange inability to recognise that the ary citizen, because there was no official class or bureaucracy. lO la: strength and stability of the American system owes tncthmg to the constitutional compact which is embodied s P. 367. 8 THE PASSING OF PARLIAMENT THE TWILIGHT OF COMMON LAW 9 in the American constitution. Had he written his lectures A Parently, therefore, even a written constitution could thirty years later it is possible that he would have had a Pt ave us from administrative encroachment. It is, in fact, good deal more to say on this point. In any event, in the no soduct of the modern SOCIa. 1consciousness.. But Dr. Port edition of his Constitutional Law which appeared before the a pr. ts out the sigru"fi cant tactc: th at th e C·ontmenta I nations. first World War, he sounds a note of alarm. The Rule of Law P~~se constitutions had been damned with faint praise by is under attack. It is no longer true that we have no admin- ;icey, had establis~e? re~ular systems admi~istrative istrative law in England. We have a good deal of it, and it is 0: law, applied in administrative c~urts, a~d m s~ domg, h~d urgently necessary to set limits to its encroachments. more effectively protected the subject agamst arbitrary official Whatever might have been the result of the growing action than the English system had so far been able to do. awareness of the classical constitutional lawyers of the This somewhat surprising conclusion received weighty stealthy inroads of administrative power upon Parliamentary confirmation from another distinguished constitutional sovereignty had there been no war, the conclusion of the lawyer, Professor J. H. Morgan, K.C., in a little work which first World War ushered in a new phase of development, is not sufficiently widely known. for during four and a half years of war Parliament had Professor Robson's work has again a different method sanctioned successive extensions of administrative power of approach. Whilst by no means ignoring the importance without precedent since the execution of Charles I. Once and implications of increasingly wide grants of legislative the emergency had passed, however, lawyers who had been power by Parliament to executive departments, he is prim- trained in the school of Anson and Dicey, and who now arily concerned with the alleged conflict between law and occupied leading positions within their profession, waited administration in the decision of cases between subjects confidently for a return to the pre-war system. Administra- and the state. A court oflaw, it is said, exists to decide private tive power did not decline, however; it continued to grow rights; a department of state exists to promote a policy. very rapidly, and appetite grew with what it fed upon. Yet judicial decisions are manifestly the expression ofjudicial Indeed, the temper of the times had changed. The era of conceptions of social policy, and it is rarely possible to point controls and compulsory powers had opened. to policy decisions which ignore private rights. What is Accordingly, the appearance of the works of Lord Hewart, needed, therefore, says Professor Robson, is the extension Dr. Port, and Dr. Robson (as he then was) within the space of .the main elements of the judicial process to decisions upon of a few months was significant. They indicated that we pnvate rights within the departments. Summing up one were face to face with one of the great issues in the history phase of his argument, Professor Robson says: of our political evolution. The reaction of each of the three writers was significant. In spite of Professor Robson's .'What we advocate, therefore, is that all administrative tnbunals, and other bodies performing judicial functions, strictures, Lord Hewart's book is of major importance. ~O~ld b~ ~equired invariably to describe the reasons on which I t represents the anxiety of the head of the historic courts err declSlonsare founded. The reasons, like the decisions, of common law at a new threat to the supremacy of law. ~y be good or they may be bad, the premises from which The terms in which Lord Hewart writes recall (no doubt e argument starts may be true or false the inferences un- intentionally) the terms used by Coke, one of the greatest of ~arranted, and cause confused with effect'· but the obligation o~ e,:,~l,:ea chain of reasoning which m~st stand the strain Lord Hewart's predecessors, in defending Parliamentary of cnhcIS~ and discussion, is desirable from the point of view sovereignty and the rule of law. Dr. Port's approach is -no)rO~tmg. a .sense of the judicial spirit in the adjudicator quite a different one. He wishes to discover how far English ess an in Importing certainty into the body of the law.' experience has any counterpart abroad. He finds that it to ~~ofessor R~bson's development of this thesis leads him has-not only on the Continent, but in the United States. e ConclUSIOnthat private rights would be better pro- 10 THE PASSING OF PARLIAMENT THE TWILIGHT OF COMMON LAW II tected by a regular system of administrative courts acting in accordance with the principles he has discussed than by Professo r Laski pointed out in the inter-war period that tionary changes might have to be brought about by a a perpetuation and extension of our present administrative reVOIu I . . I delegation of power by Parliament to the executive. chaos. Unfortunately, this view was decisively rejected by gencra . . I I the Committee on Ministers' Powers, which does not seem ~rhis is, in fact, no more than happens In war-time, t a s to have grasped its 'implications, and since the publication J cned in Germany between 1930 and 1939. The dele- lapp I lezi I' h d of its report the situation has deteriorated a good deal further. ti n of still wider powers 0 egis anon to t e cpartmcnts Jndeed, the Committee seems to have laboured under the ga l~d necessarily involve also the establishment of new delusion that an eloquent and well-merited tribute to the ~;;inistrative tribunals, working independently of the integrity of the civil service, coupled with a few procedural ;~rdinary courts. Already this pr?cess has go~e. very' f~r in amendments, disposed of this great issue. Its report restored England. If ministerial conduct IS to be scrutinised It IS no to the public a sense of security, which had been badly shaken longer by the ordinary courts, but by an ad hoc Tribunal of by Lord Hewart's book, and which subsequent events have Inquiry. If rents of furnished houses. are t?ought to be proved to be false. excessive, no one suggests that magistrates courts may The three books which have been discussed above are establish fair rents. Special rent tribunals are set up. From by no means the whole. literature upon this question to here to special marketing tribunals, and special tribunals for appear in recent years. Indeed, to a greater or lesser degree motor-car accidents is no more than a step-and then what every work upon Constitutional Law and most works upon is left of the common law, or, for that matter, of private right? Jurisprudence now have something to say upon it. The atti- tude of Sir Carleton Allen has already been mentioned. It This is, as it were, the problem behind the problem; and remains to add the names of Sir Ivor Jennings and the late when Holdsworth, Lord Hewart and Dr. Allen attacked the Professor Laski to those who are by no means dismayed by extension of administrative powers of legislation and ad- recent developments but who would nevertheless wish to see judication, it was with the knowledge that each successive the present administrative chaos replaced by some coherent delegation for the purpose of developing a policy and each system. At this point the reader will no doubt perceive an delegation of powers of adjudication to administrative tri- interesting circumstance. Professor Robson and Professor bunals represented a fresh victory for policy over private Laski, Sir Ivor Jennings and Dr. Port either hold or have right. The whole conception of the orbit and enforceability of a private right differs fundamentally today from what it held important teaching posts at the London School of meant sixty or seventy years ago. A private right may, with- Economics and Political Science, and in spite of important differences in point of view between them, they may all out. exag~eration, be defined as an area of personal freedom which exists only so long as it does not impede the develop- be grouped together as exponents of a particular type of ment of a social policy by a public organ. When it does, political thought. Their adversaries can also be grouped Compulsory powers of acquisition or of personal direction together. Amongst the most distinguished of them are Sir Carleton Allen, the late Lord Hewart, and the late Sir c~UPI~dwith departmental legislation and adjudication wili ellectlVely compass its destruction. It is only very exception- William Holdsworth. This is not accidental. Those who regard modern developments with equanimity have done so ; Yhtod~y that the hunted citizen can escape from the com- because they have recognised the growth of administrative ~t en~lVe meshes of this spider's web into the somewhat power as an instrument of planning in a period of rapid social it i~~Plan calm of the ordinary courts-and when he does change. As yet, the possibilities of administrative power have the requently to be told that, however regrettable it may be, by no means been fully explored. Sir Stafford Cripps and van~our: has no power to interfere with the inexorable ad- e 0 departmental policy. 12 THE PASSING OF PARLIAMENT Behind this constitutional conflict between law and admin- istration it is evident that there exists a still more fundamental Chaper 2 problem. The days of individualism have ended, for the time being at any rate. Everywhere, to a greater or a lesser degree, the collectivist state is triumphant. There are, it is clear, many possible forms of collectivism, but they all Use The Road to Moscow certain clearly recognisable techniques to develop their policies. We are all aware which way the tide is running. How far do we wish it to run? Do we wish it to batter down 1 the few remaining barriers between the executive and the HOSE who frequent the cinema will be familiar with citizen? Are we really satisfied that official policy is neces- the exploits of two American comedians, both world- sarily a satisfactory substitute for private right? The con- famous, who periodically combine in a succession of sideration of these questions passes far beyond the province films, each describing their adventures together on the road of the constitutional lawyer; beyond, indeed, the province to some great city. The technique is in every case the same. of the jurist or the political scientist. Nevertheless, it will The two comedians set out with no clear idea where they are only be when these fundamental questions have been an- going, or how they are going to get there. At times they swered that we shall be able to define the purpose, function, appear to be travelling anywhere except to their nominal and orbit of administrative law and administrative justice destination. There are innumerable digressions and irrele- in the modern State. vancies, and then, unexpectedly, in the last hundred feet of film or so, there they are in the city a7ter all! So far, however, there is one great city towards which Messrs. Hope and Crosby have not directed their wandering feet. As yet, there has been no 'Road to Moscow'. Possibly that is because their technique in this instance has been anticipated by develop- ments in these islands since 1945. Without set purpose and with many hesitations and digressions, our feet have stumbled some significant part of the way along the road to Moscow. Whether we shall eventually arrive, yet remains to be seen. _ If we ask ourselves what are the outstanding political characteristics of the Soviet system, we should conclude that they are three: (I) a one-party organisation in which, al- though there is a wide power of criticism within the party, no ex~ernal opposition is tolerated; (2) an all-powerful executIve, which can put into effect the programme decided ~po~ by the party, without substantial impediment or modi- iC;tion, especially that which might emanate from an Inn u1f:pendentParliament, and (3) an economy which is oded ithi in whi WI In the framework of a comprehensive plan, and lllon ch. all the more significant activities are government opohes, subservient only to executive control. 13 THE PASSING OF PARLIAMENT THE ROAD TO MOSCOW So far, it is clear, we have not yet arrived in Moscow. We MosCOW;that indeed, t~ey are part of an inevitable change do not yet have the one-party state. Today, the executive is . the nature and functions of government to meet changed not quite all-powerful, although it is beyond question that it In ntieth-century conditions. Such a hypothesis, however, tWe d I . h h .. h . . l has increased very considerably in power during the past ceals the un er ymg trut -t at It IS C ange m a particu ar quarter of a century, and that it exists increasingly for the ~~~ction and in the light of a particular theory which has purpose of putting into effect a pre-determined plan. As far ~curred. Other types of change are possible. The change as the third characteristic is concerned, very considerable o hich has occurred has led directly to the aggrandisement of development, indeed has occurred. Successive measures of ;e State and the Executive and, as a necessary consequence, nationalisation have brought about the establishment of huge to diminution of the status and freedom of action of its com- state-monopolies, subordinate to the executive, and over ponent individuals. As yet, the Soviet system illustrates this which Parliament exercises only a tenous scrutiny through development in its most extreme form, but the political and the medium of questions to the Minister, within whose sphere economic structure of this country now affords a fairly-well the state monopoly operates. developed example of the same type. The most ominous Thus, a recent writer of eminence concludes her analysis feature of the development is that modern techniques of of recent constitutional developments in Great Britain with social control make it possible to organise slave-states on a the following weighty warning: scale never before contemplated. The machinery already exists. What to a considerable degree conceals its significance 'The trend of modern constitutional development towards a concentration of legislative, administrative, and judicial powers in Great Britain is that the system of two-party government in the hands of the Executive has already gone a long way is deep-rooted in our political consciousness. If it were not, towards upsetting the balance of powers as it obtained in the then the extent to which our political machinery resembles nineteenth century. The democratic method of law-making by that of Soviet Russia would be more clearly apparent. So a representative assembly is being superseded in many fields long as a plurality of parties does exist, then although Parlia- by the autocratic method of governmental legislation. Though this legislation is delegated and controlled by Parliament, it ment and the courts can be, and in fact are, frequently can no longer be described as subordinate as it is usually by-passed, they cannot be ignored. equipped with the force oflaw. Owing to the wide discretionary powers conferred by the instruments of authority, it also enjoys 2. The Growth of the Machinery of Despotism to a great extent immunity from judicial control. The Govern- Dicey's Introduction to the Law of the Constitution is still the ment is thus being instituted as a second legislature and the ordinance changed into a law. Whatever are the reasons for most illuminating exposition of the nineteenth-century con- these changes, it would be futile to minimize the dangers which stitutional system which we possess. In that volume, his result from the present lack of constitutional balance. These primary purpose is to discuss the factors which have given dangers are real dangers, despite the fact that they are so far o~e constitutional life stability, especially when contrasted not of an actual, but of a potential danger only. Though it is with the successive constitutional experiments of the major true that up to the present no British Government has made states of the continent. He concludes that the twin pillars full use of all the powers which confident Parliaments have bestowed upon it, these powers exist and their very existence upon which our system rests are the sovereignty of Parlia- may-in changed circumstances-constitute a serious threat to ~ent and the supremacy of the common law, administered In the di . the democratic foundations of the British Constitution.'! or mary courts independent of the executive, over e~~ryone within the realm, whether public official or private It may, perhaps, be argued that these developments, the CItizen ru . . I c. th . SIS, mdeed, precisely what one wou d expect, lor cumulative effect of which upon our constitutional structure CSe is very considerable, have no necessary connexion with tio IWere the twin principles for which the great constitu- na struggle, beginning with the accession of James I and 1 M. A. Sieghart. Government by Decree. pp. 147-8. 16 THE PASSING OF PARLIAMENT THE ROAD TO MOSCOW 17 ending with the flight of James II, was fought. The first two This system was peculiarly well adapted for the English- Stuarts had denied the sovereignty of Parliament, asserting n of the eighteenth and nineteenth centuries, and it stood their own freedom of action, by assertion of the prerogative. :~ test of successive strains. The period from 1688 until As a necessary consequence, they sought to make the 18r5 was o~e of :r;>rolongedand .bit~er wars,. during which judiciary subservient to their policy, and when they failed Great Britam survived two JacobIte msurrections, numerous completely to overawe the judiciary, they were led to rely threats of invasion, and, during the Revolutionary war with increasingly upon courts, such as the Star Chamber, which France, two naval mutinies and an Irish rebellion simultane- were in origin offshoots of the King's Council, and which ously. During the Napoleonic wars, Great Britain for a time did not regard themselves as bound by the rules of common stood alone against a continent which had been united under law. The Star Chamber, says F. Maitland, was "a court of an aggressive military dictator. It cannot be contended, politicians enforcing a policy, not a court of judges admin- therefore, that the structure built at the close of the seven- istering the law". 2 Inevitably, the royal policy provoked teenth century was apt for periods of peace but not for opposition from Parliament and from the common lawyers, times of stress. It emerged in 1815 substantially unchanged and the late Sir William Holdsworth, in a memorable from twenty-two years of war with France, during which a Creighton Lecture, S has shown how the alliance of Parlia- widespread attempt had been made to overturn our con- mentarians and common lawyers, first brought about the stitutional system by means of what today we should term overthrow of royal pretensions, and then preserved the essen- 'fifth-column' activities, which had been met by emergency tial constitutional tradition of the country against a succession measures which passed with the restoration of peace. Of of reforming cranks. When the struggle was at length com- necessity at such a period, ministers were sometimes com- plete, Parliamentary sovereignty stood unchallenged, whilst pelled to act very boldly indeed, but they acted in general the common lawyers also reaped their reward in the abolition within the limits traced out in the constitutional settlement of the prerogative courts which had challenged the supre- a century earlier, and where they were compelled to over- macy of the common law. The result was that for nearly two step these limits, they asked Parliament for an indemnity. centuries, there was an almost complete absence from Eng- If the successive phases of the War of 1793-1815 are exam- land of anything resembling executive absolutism, and ined, it will be found that there arose exactly the problems with it a system of administrative law operating outside the which were faced again in the wars of 1914-18 and 1939-45. jurisdiction of the ordinary courts. The subject was free to On the other hand, in time of peace, this system had do as he pleased, except in so far as he was forbidden by the peculiar advantages. It gave the individual citizen that ordinary rules of the common law. In England, that is to security and self-reliance in which he could prosecute his say, there existed no class of men, officials or others, who ~ffatr:>without risk of arbitrary interference. The accepted were privileged in having their acts placed beyond the reach ~nctIon of the state was to foster and preserve those condi- of the ordinary courts. It was this fact which appealed so tIons in which the individual could achieve the greatest strongly to foreigners who, like Voltaire and Montesquieu, ~~lf-realisation. By modern standards, this is possibly not an contrasted the English system with that prevailing on the ; teal conception. It left too much to individual initiative. continent in their day. Moreover, during the same period, was,. however, that individual initiative, and not state changes in the law were not only enacted by, but initiated ~%er~nse, which built the British dominions overseas, and and decided in, Parliament. eVec bro~ght the British flag and British commerce to ha(?trport in the world. France, it should be remembered, I Constitutional History, p. 263. ernp' led ~e. method of state-enterprise as an instrument of a The Influence of the Legal Professior on the Growth of the English Constitution- Essays in Law and History, P 71. Ire-buIldmg in the seventeenth and eighteenth centuries, 18 THE PASSING OF PARLIAMENT THE ROAD TO MOSCOW 19 but the French colonies overseas had remained struggling • h school of Sir Robert Peel, and his appeal met with communities, incapable of survival against increasing British In. It esupport, even from fellow-members 0f th e Cabimet. litt e 'b db' f " pressure. It was only after the fall of French power in North TIl Press clamoured for a roa er asis 0 taxation', America, and with it the system of paternalism which that ne organs for defence and others for increased social power fostered, that the foundations of the modern prosperity som·ces. Two years later the Chancellor was still fruitlessly of French Canada were laid. S~~ding with his colleagues, and in a letter to Joseph In the second half of the nineteenth century, however, a ~amberlain, on October znd, 1901, he writes: change in outlook slowly took possession of government. 'I do not ask for a reduction of our present burthens. That This can be traced directly to the progressive extension of is impossible without a reaction, which, as. you say, has not the franchise during the century. Such a vast transfer of yet visibly begun. ~u~ I do ask for a ces~atlOn,so far as may be possible, of their increase; ~nd .certainly for. a much le~s political power brought with it the necessity for developing rate of increase than has prevailed m the past SIX years. It IS new objectives in domestic policy. To foster a steadily-rising true that our present burthens, in peace time, are very light- standard of living by means of a continuous expansion of considering the increase in population and wealth-as com- trade was not enough. There must be more direct and tang- pared with those borne by our ancestors 100 years ago. But ible benefits for those whose votes now dominated elections. they were then engaged in a life and death struggle with France; the cases do not admit of comparison. It may also be Accordingly, policy changed steadily from social reform to that our people at large (not payers of direct taxation) are social revolution. It was not sufficient that conditions should more lightly taxed than the people of other European countries be improved. They must be changed. Simultaneously, the now. But one of the main causes of the increase of the wealth function of taxation changed. Instead of being a means and comfort of our population in the last 50 years, far greater whereby the necessary funds for essential State services than in any other European nation, has been the lightness of our taxation; and if our peace taxatfen is to grow largely, as should be raised, taxation itself became an instrument of it must if our present rate of expenditure continues, wealth and social change. It became an annual redistribution of wealth, comfort will be so diminished as to cause grave danger to our and a means whereby an ever-increasing range of benefits social system.' 5 could be secured to the lower income groups. By the turn Hicks Beach completely failed to convince his colleagues, of the century, this fundamental change was already well however, and on his resignation, the race of saving Chancel- under way. For example, Sir Michael Hicks Beach, as lors was extinct. Every subsequent Chancellor has been a Chancellor of the Exchequer, in his Budget statement in spending Chancellor, even if the pace of expenditure has 1899 said: not remained constant. The consequences on our economy 'I daresay I am old-fashioned in my ideas, but I look with :r plain to see, whilst even today, half a century after alarm on the tendency of the present day, quite irrespective leks Beach's unheeded appeal, the cry is still for more of political opinion-a tendency which is perhaps more rife tr·armaments and more social services, with more adminis- on this side of the House than on that-to look to the Exchequer ative Control Over every phase of the national economy. and the central Government for superintendence, for assistance, for inspection, and for control in all kinds of departments of . The development of social services, with their new tech- life, in all kinds of relations between individuals, in which, ;lq~es of social control, produced a crop of new problems for in the old days, the Government of the country was never li~r lament: To define the social regulation of millions of deemed capable of action at all.'4 la~~ o.r of Important branches of industry, in terms of legis- That short statement placed the extent of the change in plex ISnever easy. Statutes became longer and more com- the political outlook in a nutshell. Sir Michael Hicks Beach, Will'8~S successive volumes of late nineteenth century statutes however, was the last of the old line of Chancellors, bred 1/6' ow. Even so, the machinery of control needed to be u., PP. 157-158. • V. Hicks Beach. Life of Sir Michael Hicks Beach, Vol. II, pp. 95-96. 20 THE PASSING OF PARLIAMENT THE ROAD TO MOSCOW 21 more complex than an Act of Parliament permitted. Control 3. Are the Departments Sovereign? is always experimental, and it needs progressive modification if its objects are to be achieved. Hence, there arose the D' ey pointed out that one main consequence of the sov- practice of defining the broad objects of social change in a j~~ty of Parliament was that Parliament was legislatively statute, leaving the department charged with its adrnijj, ·potent· that is to say, that it could make or unmake tllnnI, there exi d . II isl . istration to devise the necessary regulations for its enfore-, aD law it pleased, and that ere existe no nva egis ative ment. Such regulations, in origin at least, were subordinate ~y which could make laws which overrode those of to the statute to which they owed their origin. They were, Parliament or which could not be forced to yield to the moreover, subject to Parliamentary scrutiny and repeal. lirce of a Parliamentary s~atute. This, ind~ed, was one of Thus, it came about that Maitland, writing so long ago as the main points of contention between Parliament and the the middle-eighties could say: irst Stuarts. Both James I and Charles I claimed that they III.d power to make binding laws independently of Parlia- 'We are becoming a much-governed nation, governed by ment. The Revolution of 1688 ended such claims by the all manner of councils and boards and officers, central and monarch. Today, however, the departments have for all local, high and low, exercising the powers which have been committed to them by modern statutes." practical purposes established an independent legislative Already before the end of the nineteenth century, the po;~:.steps by which this position has been established, process of submitting all this departmental legislative activity notwithstanding the jealousy of Parliament, and the reassur- to Parliamentary control was causing anxiety, but two suc- ances of Lord Thring and his predecessor, are plain and cessive Parliamentary Counsel, Sir Henry Jenkyns and continuous. The Reform Bill of 1832 liberated Parliament Lord Thring, were able to offer reassurance by reaching the &om the legislative inhibitions of the eighteenth century. conclusion that it was a great advantage to be able to save Thereafter, legislation was used increasingly as the instru- Parliamentary time by leaving the details to the departments, ment for social change. Of necessity, this could not be com- leaving a greater amount of time for matters of more general pletely comprehended within the clauses of statutes, so that concern, whilst any attempt to by-pass Parliamentary little by little the practice grew of setting out the main I scrutiny could be checked by the process of laying draft features of the proposed change in the statute itself, and at 'j orders before the House." Neither distinguished counsel, the same time Parliament conferred on the appropriate however, attempted to explain who was going to exercise &OYernmentdepartment power to make regulations having this check, if Parliamentary time was increasingly consumed statutory force, within the terms of the statute. At first, the with 'more serious questions'. Today, the annual output POtentialities of this innovation passed unnoticed. Even so of subordinate legislation is nine times the annual output acute a critic as Dicey observed, with some complacency: of statutes. These latter usually fit two fat and closely- printed volumes. How the private member is to grapple altetn'Unlesst the. temper of Parliament should materially change, with the substance and implications of departmental p s to give delegated powers in unduly wide terms, or to :J::d the~ beyond matters of minor importance, or to strain legislation has never been satisfactorily explained. In recent IDiIch~xerClse,would produce a reaction which would have a years, a special Parliamentary Committee has been estab- rn_ levous and embarrassing effect on 1 he form of Parlia- _tary legislation.' lished to scrutinise it, but even this cannot cope effectively with the avalanche of regulation, rules, orders and other Yikether Dicey means by this that excessive delegation departmental material which ceaselessly pours forth. ~ead to the abolition of delegation altogether, which , Constitutional History, p. 417. tile 1.:. e a bad thing, or whether he means it would upset 7 C. K. Allen. Laws and Orders, p. 28. ance of the constitution is not altogether clear. The 22 THE PASSING OF PARLIAMENT THE ROAD TO MOSCOW fact remains that the temper of Parliament has changed and with remarkable rapidity. All Parliaments this century have the ru Ie of law . Departments,. . however, have habitually conceded to the departments power to legislate in increas, consiid ere d it inappropnate '..either that they should be sub- ingly wide terms, and their readiness to do so has no doubt . t the control of a sovereign ParlIament or that they been increased by inevitable growth of executive power Jshectl~ be answerable in the ordinary courts, as all other ou A di 1 . during two world wars. CI'0'zens are , for what they do. ccor mg y, .10 many statutes The constitutional lawyers are not to be condemned, how- th have taken powers to make regulation, and orders ey . J l"d ever, for failing to perceive the sinister possibilities of the hich by the mere fact of bemg maae, are cone USIveevr ence new instrument which Parliament had created. Until the :i:at they are within the terms of the statute conferring the end of the nineteenth century, the pressure of public business power to make them. They have even gone further, and taken was not so great that important measures had to be rushed powers to vary, by departmental regulation, the terms. of through Parliament by a pliant majority, without adequate the statute itself; and finally, they have taken the precaunon debate, as they not infrequently are today. Moreover, until of excluding all appeals to the ordinary Courts by subjects the Parliament Act of 191 I, the House of Lords acted as an who are aggrieved by the exercise of departmental despo- effective brake upon hasty legislation, especially if the social tism. It is in vain that successive judges in the courts have changes which it embodied were far-reaching. Altogether drawn attention to the fact that such powers completely apart from these legislative limitations, however, there were upset the balance of the constitution, and that they have two other factors which operated to keep the departments stressed the very grave threat to individual freedom that within bounds, They were the operation of the ultra vires these powers constitute. Inasmuch as the Press cannot doctrine, and the possibility of testing the effect of the regu- report every arbitrary invasion of the subject's rights, and lations themselves in the ordinary courts. These two judicial since much of what the department does is done behind the checks were often associated in appeals to the courts, but closed doors of the ministry, the ordinary citizen is unfortun- they were in substance quite distinct. ately only too prone to regard what is being done as of no The ultra vires doctrine was one further and necessary direct interest to him, until some particularly audacious consequence of Parliamentary sovereignty. If the authority onslaught, as for example, a planning order under the of a statute was unchallengeable, it followed that all regula- Town and Country Planning Act, compelling him to remove tions made in pursuance of it must be limited by the circum- some treasured, but amateur erection from his garden, stance that they must be within the terms of the competence ~ompels him to take notice how far this deprivation of conferred on the department, and further, they must not liberty has already gone. It raises, moreover, an even more contravene the statute itself. If it were alleged, therefore, fundamental question. If Departments can today legislate that a Minister's regulation, made under a statute, had beyond the reach of Parliament, and if, as they do constantly, exceeded the competence conferred on the minister, this ~ey .eXclude the jurisdiction of the ordinary courts, sub- was a matter which must be tested before the courts. In :~Uting f~r _it the jurisdiction of their Own departmental this way, the courts became the guardians of the constitution, tit unals, IS It not clear that they have effectively excluded on behalf of Parliament, to ensure that its sovereign authority ine1rul~ of law and the control of Parliament from increas, was not infringed. Moreover, when an official act was done, ill~ y WIde areas of the subject's social existence? If this is so, either under the statute or the regulations, any person who was P~~ Dot clear that 'the rule of law' and 'the sovereignty of ~rnent' have both become polite, and increasingly adversely affected by that act could appeal to the ordinary 1'hengless fictions? courts, exactly as he could if the act had been committed by a private citizen. This, as we have seen, is the essence of Po\\I procedure by means of which the departments take trs to amend the constitutive Act, or a1V' other Act, is THE PASSING OF PARLIAMENT THE ROAD TO MOSCOW 25 usually included in what is known as the "Henry VIII clause", significantly named, not only from the most powerful of the Act. Thereaft~r objectio~s were received from n.u~cr- English king, but also from the Statute of Proclamations s persons, includmg Franklm and others. The MmIster which conferred upon Henry, alone of English sovereigns, rhen sent an Inspector of the Ministry to hold a public local the power to make proclamations with full legislative force. enquiry as prescribed by Paragraph 3 of the First Schedule. The enquiry was held on October 7th and 8th, 1946, and on Since, where this clause exists, there is no possibility of th attacking it in any court, appeals to the ordinary courts October 25 , the Inspector submitted his report to the Ministry. On November I r th, the Minister made an order upon the effects of this clause are practically non-existent, and when the effect of this clause was discussed by the for the creation of the New Town, as prescribed by Para- graph 4 of the First Schedule, whereupon, on December Committee on Ministers' Powers, several witnesses remarked th 6 that although they greatly disliked it, they were not 9 , 194 , Franklin and others applied to the King's Bench Division to have the order quashed on various grounds, of aware of any abuse. The very nature of these observations, which the chief were that the terms of the Act had not been however, recalls the arguments used in the Soviet Union complied with, in that the Minister had already declared, to defend the Soviet conception of democracy, viz. that before the enquiry was held, that he was going to make the there is little or no opposition to it. When anything order, notwithstanding the opposition. The Minister, there- which a Minister does can be embodied in statutory form, fore (it was alleged) was biassed in his consideration of the then abuse is naturally impossible, for the sufficient reason objections raised at the enquiry. Henn CollinsJ. in the King's that opposition can never be effective. We have, in fact, Bench Division held that the order must be quashed, since the reached the threshold of tyranny. I may, for example, regard Minister had failed to act judicially in considering the ob- an order of the Minister of Town and Country Planning as jections. If he reached any other decision, he said, he would contrary to the principles of natural justice, as made in be forced to the conclusion that the procedure of public violation of every principle of the common law, and as enquiry, as prescribed by the Act, was a sham, which gave destructive of my livelihood, but there is nothing I can do the subject 'a right to fulminate and nothing more'. Both about it in the ordinary courts. My protests will be consid- the Court of Appeal and the House of Lords, however, de- ered by administrative authority throughout, in accordance cided that the order must stand. This decision was reached, with administrative practice. In Great Britain, we do not not on any variation in view between them and Henri even have, as some Continental countries have, a uniform Collins J. in respect of the proceedings at the enquiry or of system of administrative tribunals, with a uniform procedure, the conduct of the Minister, but simply on the ground that or the possibility of an appeal to an administrative Court of ~e Minister, in making the order, was acting administra_ Appeal, in which the judicial element is preponderant. !ively, and not judicially, so that the question of bias was The position has been grimly emphasised in recent years 1Il'elevant. In matters Such as this, therefore, it is evident in the case of Franklin v. Minister of Town and Country Plan- that the subject has simply a right to fulminate and nothing ning.8 In that case, Franklin and others were occupiers of ~~re, for he is far beyond the reach of any assistance from land and houses in Stevenage. On August 3, 1946, the Min- UIIC COurts. ister of Town and Country Planning prepared the draft Dranlclin'scase does not stand alone nor is it in any way Stevenage New Town (Designation) Order, 1946, under l'elnark bl f . , dec:'d a e Or ItS facts. In 1939, for example, there was powers conferred in the New Towns Act, 1946, and on ab.! ;'d the case of Robins v. Minister of Health, g the remark_ August 6, 1946, he caused this to be published, and notices to e,,,~cts of w.hich are tersely summarised in Lord Justice be issued as prescribed by Paragraph 2 of the First Schedule '~nnon's d . • JU gInent in the case as follows: I [1948] A.C. 87. • [1939] 1 KB. 537. THE PASSING OF PARLIAMENT THE ROAD TO MOSCOW 27 'The appellants some years ago bought this property with the sole object of obtaining a vacant site for buildings which H Se of Lords decided in Zadig's Case,ll there was no they wished to erect as an extension of their existing premises the 1 ouocess whereby they could ert. her be brough t to tria. I in the course of the development of their business. They have Iega prd Iati . d th f h been prevented from carrying out that desire by reason of the or free . So long as the Regu ation exrste,h eref ore, t e operation of the Rent Restriction Acts. The corporation.w Impnso• . nment might well be perpetual. In t e war. 0 1939-45,

having power to acquire the site unhampered by those Acts, tho rocedure was extended under RegulatlOn 18B of the could and did declare it to be a clearance area under s. 25 of Defence15 p Regulations to Brrtis.. h -born subiuects 0f "h OSUile the Housing Act, 1936. The corporation could then under associations". In Liversidge v. Anderson,12 the House of Lords subsection (3) of that section secure the clearance of the area ched the conclusion, not only that there was no legal either (a) by ordering the demolition of the buildings, or rea db' ked . (b) by purchasing the land. Considering that an order for machinery which coul e mvo e to assist persons so demolition would be welcomedwith alacrity by the appellants, interned but that there was no method known to law where- and that there can be no doubt as to their ability to comply by the r~asonableness of the Home Secretary's action could with it, one might have expected that an order under (a) for be tested. So far, such imprisonment (or, as it is normally demolition would be made. But the corporation preferred to styled, internment) has bee~ confined to war-time only, proceed by purchase under (b), and they eventually made a compulsory purchase order which has been confirmed by the for these oppressive RegulatlOns have been amongst the Minister. Unless that order can be set aside by this court, they first to be repealed, once hostilities have ceased. Nevertheless, can thus pull down the buildings, although as I have said, under the Emergency Powers Act, 1920, it is provided that there is no suggestion that the appellants themselves could where a state of emergency has been prOclaimed, Ministers not pull them down with equal diligence. The corporation, may by Order in Council, make regulations if they pull down the buildings and acquire the land, can sell it under sec. 30 (I) (a), or, without pulling down the buildings, 'for securing the essentialsof life to the community, and those they can sell the site under sec. 30 (I) (b), subject to a condition regulations may confer or impose on a Secretary of State or that the purchasers shall pull them down. Obviously, in either other Government department, or any other persons in His case the appellants who want to extend their existing premises, Majesty'sserviceor acting on His Majesty's behalf, such powers must be the most eager purchasers. In such circumstances, and duties as His Majesty may deem necessaryfor the preserv- the possibilityof using the provisionsof the Act for the indirect ation of the peace, for securing and regulating the supply and purpose of making money out of the appellants is apparent.' distribution of food, water, fuel, light, and other necessities, The Court of Appeal was forced to hold, nevertheless, for maintaining the means of transit or locomotion, and for any other purposes essential to the public safety and the life of that it had no power to help the appellants, and that the the community, and may make such provisions incidental to Act permitted the corporation to act in a way which, in an the powers aforesaid as may appear to His Majesty to be individual, would scarcely have been regarded as creditable. requIred for making the exercise of those powers effective.'

4. The Machinery of Dictatorship Hitherto, Governments have shown themselves extremely Moreover, the subject can no longer comfort himself with reluctant to make use of powers which are wide enough to the reflection that it is merely the whole of his property establish a rigid dictatorship by the simple expedient of which is today exposed to the rapacious attentions of the Proclaiming a state of emergency. Their successors, how- departments. In the war of 1914-18, Defence of the Realm ~, may not necessarily be so restrained. Should they fail Regulation I4B conferred upon the executive powers to ~ e Somoderate, they will be able to cite in support of their detain indefinitely and without trial persons who, though British __ Onsth.e Writings of Sir Stafford Cripps, who Wrote in an subjects, were, in the opinion of a Minister deemed to be }' entitled 'Can Socialism Come by Constitutional IIthods?'(I in Problems of a Socialist Government. of hostile origin and associations. If internment occurred, 91 II ( 7) A.C. 260. 10 of Brighton. 1942J A.C. 206. THE PASSING OF PARLIAMENT THE ROAD TO MOSCOW 29 'From the moment when the Government takes control h . itself is considered to be a good enough reason for rapid and effective action must be possible in every sphere of theirt at Inretention. A very clear illustration" 0 f th'IS IS. rounfound Ini the national life. . . . The Government's first step will be the history of identity car~s. Although they have long be:n to call Parliament together at the earliest moment and place before it an Emergency Powers Bill to be passed through all k wn in continental police States, they were unknown In its stages on the first day. This Bill will be wide enough in its ;0 United Kingdom until the recent war. Even during the terms to allow all that will be immediately necessaryto be done ar of 1914-18 no need was felt for introducing them. by ministerial orders. These orders must be incapable of chal- ~~wever, a sch.eme .of national re?istration~ includin~ the lenge in the courts or in any way except in the House of introduction of Identlty-card~, was Included ~n the National Commons.' Registration Act, 1939, and It was declared In the Act that The regimes of both Mussolini and Hitler, it will be re- it should remain in force until such date as the King by membered, began in exactly the same way, and inasmuch Order in Council should declare to be the date on which as Sir Stafford points out that all opposition to government the emergency contemplated ended. In 1951, however, not policy is to be treated as sabotage, it is clear that the disso- only were identity cards not abolished; their production lution of an effective Parliamentary opposition would rank was being demanded by officials of all kinds on an increasing high on the list of priorities. Neither Sir Stafford nor his number of occasions. In Willcock v. Muckle,13 Mr. Willcock associates it must be conceded fulfilled the promise of these appealed by way of case stated from a conviction before the inter-war years. That, however, misses the point that the Highgate justices for refusing to produce his identity card machinery exists for the use of others in whom, when the test- when called upon to do so by a uniformed constable, who ing time comes, the liberal tradition is less firmly engrained. had stopped Mr. Willcock whilst driving his car. Mr. Will- There was, perhaps, a special appropriateness in the re- cock contended that as the emergency contemplated in the marks of Mr. Clement Davies in the House of Commons Act had passed, the Act itself had lapsed. Neither the justices on October 23rd, 1950, that nor the Divisional Court could accept this contention, but 'it was sad to see how little interest was being taken in a the Lord Chief Justice and other members of the Divisional matter that concerned the sovereignty of Parliament by mem- Court expressed in the clearest possible terms their dislike bers of all parties. During the last thirty years the tendency of the existing official practice. Although the justices had had been to surrender back to the executive powers that had been won from them over the centuries. There was a tendency been compelled to record a conviction, they had nevertheless to initiate a new judicial power, to create administrative laws, ~~t.ed Mr. Willcock an absolute discharge, and the making the executive to a large extent judges in their own DiVISIonal Court congratulated them upon their action. case. The sovereignty of Parliament was threatened. All the In the words of Lord Goddard, time we were being called on to surrender more and more of our rights and privileges to the Government of the day. 'Because the police might have powers it did not follow that This continuous erosion was far more dangerous to liberty than ~ey shoul~ exercisethem on all occasionsas a matter of course. any attack from the other side. We were awake to that and twas .0bVIousthat at the present time the police as a matter could resist it, but the drip, drip, drip of erosion was more ~ routme demanded the production of identity cards whenever likely to destroy the House.' titey stopped a motorist for any offence. It was one thing if ey wer~ searching for a stolen car or for particular motorists These last remarks are worthy of careful consideration. :~ag~d In.committing crime; but to demand the production Once powers have been conceded to the executive for a lV n Idenhty card from all and sundry-for instance, from a special emergency, there is deep-rooted resistance to the oman leaving her car outside a shop longer than she should suggestion that they should be surrendered, even though the ;(was Whollyunreasonable. The Act was passed as a measure security and not for the other purposes for which identity emergency is long past. Isasmuch as administrators have found it convenient to govern by the use of these powers, • [1951] W.N. 381. THE PASSING OF PARLIAMENT THE ROAD TO MOSCOW 31 cards were now sometimes sought to be used. To use Acts of Parliament passed in war-time for particular purposes now th tribunal may be of the slenderest. A startling illustration that war had ceased tended to turn law-abiding subjects into fethe extent to which neglect (or even contempt) for the law breakers, which was most undesirable, and the good rela- ~rdinary forms of justice has proceeded is afforded by the tions between the police and the public would be likely to L ndlord and Tenant (Rent Control) Act, 1949, and the suffer from it.' ~ulations made thereunder. These have established rent The House of Lords, in a debate shortly afterwards, very ~:ibunals comprising laymen, to determine the appropriate strongly condemned the retention of identity cards, and ents for houses and flats referred to them. Such tribunals passed a resolution calling for their abolition by a vote of need receive no evidence, nor is there argument in the 54 to 28. Members of all three parties strongly condemned accepted sense, before them. The tribunal can, if it wishes, the practice of requiring their production, and Lord Goddard inspect the premises, and often does so '. Otherwis~, the put the matter in the clearest possible fashion when he said proceedings appear to the lawyer to be SImply arbitrary, that he objected to an Act which was passed for security and in the case of R. v. Brighton and Area Rent Tribunal Ie purposes being used merely for administrative convenience, the King's Bench Division decided that even if the tribunal and he added that his experience was that identity cards had decided of its own knowledge, and not from evidence were not protection at all against post office savings banks submitted by the tenants, the ordinary courts were unable frauds. Lord Amwell and other Labour members of the to give redress to a landlord whose rents were reduced by House were equally emphatic that liberty was preferable the tribunal. Moreover, such decisions, once made, are to "streamlined administrative efficiency" (which assumes subject to no appeal. They are, in fact, reasonably close that efficiency is produced by the multiplication of irksome counterparts to the decisions upon private law made by law restrictions). As a result of these discussions-and possibly tribunals in the Soviet Union. The main difference is that only as a result of the attendant publicity-the order in the Soviet Union, the People's Judges who preside over requiring production of identity cards was at last repealed in the courts delineating private rights are elected directly by May, 1952, seven years after the fighting ceased in Europe. the people, whereas the staffs of the Rent Tribunals are appointed by the Minister of Health in consultation with the 5. Administrative Tribunals local authority. It has been pointed out that in increasingly wide areas of All who have written on administrative tribunals in Great social regulation, the departments have completely ousted ~ritain have emphasised the chaos, lack of unifying prin- the jurisdiction of the courts, substituting for it a system of Ciplesof adjudication which exist, as well as the serious draw- administrative justice, within the control of the appropriate back which is furnished by the absence of any administrative department. The layman, however, .is probably largely COurt of appeal. Unfortunately, since the introduction of ignorant of what tribunals exist, or how they function. coherence and system into this jungle of jurisdictions would That is because, although the supreme judiciary of this necessarily reduce the degree to which the departments country must function in public, administrative tribunals COntrol the tribunals which they create, an early removal may frequently sit in private. Moreover, the citizen who of the principal obnoxious features is scarcely to be expected. brings his case before them mayor may not be entitled to legal representation, and he mayor may not be entitled to 6. Public Corporations see the report of the tribunal upon his case. More serious f There remains for consideration the constitutional position still, there is no guarantee that his administrative judge has o the great public corporations which have been created to any familiarity with legal principle at all, whilst the associa- COnduct,. [ nationalised industries. The term public corporation tion of the normal forms of justice with the proceedings of 1950] K.B. 410. 32 THE PASSING OF PARLIAMENT THE ROAD TO MOSCOW is, in reality, a complete misnomer. It impliedly suggests 33 something representative. In fact, however, these great .d "No". The workers' representatives should strive to acquire sal nse of responsibility and to educate themselves so as to organisations, although for legal purposes they have been a :ee s near as possible to a basis of intellectual equality with given the capacity of suing and being sued as legal entities, gh amanagement side, because otherwise the thing would fail have no constituent human members, as commercial com- andt e there would be a sense 0ffjrustration. on the work'ers part. " panies or local government authorities, have. In fact, Whatever may be the intrinsic merits of these observations, they are vast state monopolies, closely resembling those it is undeniable that they are an excellent description of the which exist in the Soviet Union, and created to carry out 1 achinery of the great Soviet State enterprises, which have an overall economic plan. In this country, the legislation shown great solicitude for the establishment of machinery governing the establishment of these vast State monopolies for exactly the purposes described by Mr. Morrison. The has followed the same general plan. The Act itself defines operation of this machinery would repay careful study, the structure, organisation and functions of the monopoly, and would perhaps go some way towards elucidating the as well as the powers of the Minister in respect of it. The stresses and strains to which the British State monopolies monopoly itself is then given a wide discretion as to the are periodically subject. Soviet experience could even furnish manner in which it will discharge its functions, and the useful information upon the problem of centralisation Minister is given extremely wide legislative competence on versus greater local or sectional autonomy which is one all matters affecting the nationalised industry. To the Min- of the main topics discussed in Commons debates on ister also is entrusted the power of determining the general nationalised industries. Experience of nationalised industries policy of the State monopoly. To this extent, the Minister has shown that over-centralisation had been responsible for becomes responsible to Parliament for the affairs of the mono- frustration among employees, waste, and lack of enterprise. poly, but where the monopoly is acting within the terms of Since 1951, therefore, efforts have been made to bring about its own discretion, it would seem that it is no more respon- some degree of decentralisation. sible to Parliament than any private enterprise is. As yet, the limits of effective Parliamentary control have not been 7· Conclusion determined, Whilst there was fairly wide agreement among Today, in Great Britain we live on the edge of dictatorship. members in the House of Commons at the end of December Transition would be easy, swift, and it could be accom- 1950 that the existing discretions of managing boards should plished with complete legality. Already, so many steps have be retained, the proposal of a Select Committee of the House been taken in this direction, due to the completeness of to conduct inquiries into the activities of the monopolies power possessed by the Government of the day, and the was rejected by the Government, although Mr. Morrison absence of any real check such as the terms of a written welcomed the suggestion of periodic reviews of their work, constitution or the existence of an effective second chamber at approximate intervals of seven years, along the lines of that t?ose. still to be taken are small in comparison. More~ those held in respect of the B.B.C. over, In VIew of the urgency of our needs in the sphere of Within the monopolies themselves, these boards are re- rearmament, no mitigation of the existing system is to be quired to have machinery for joint consultation with the expected, but rather an intensification of it. Today, virtually workers. In the words of Mr. Morrison: 0;" Only remaining constitutional safeguard is the habit ;~oIerance and the existence of a powerful political oppo- 'This element of industrial democracy was one of the im- ~ ~8both of which owe their existence to the Revolution portant new chapters in democracy. Suggestions put forward tUtjl nal8. If b~th these safeguards disappeared, our consti- by the workpeople ought to be carefully examined. It was not of ao ~aC~lnery would forthwith become the instrument good enough when the management forgot them, or merely •• totahtanan despotism. THE STUARTS AND THE CONSTITUTION 35 of the Common Law co~rts, their ~ethods of asserting royal Chapter 3 er were upon occasion very direct. po;: contrast, England during the sixteenth century had b n governed by a succession of powerful sovereigns, to The Stuarts and the Constitution w~om only Edward VI stands as an exception. The country as a whole had accepted the forcefulness of the Tudors without protest, since it had wearied of the long-drawn out Civil War between the Houses of York and Lancaster. The Tudors, m01:eover, were careful. to clothe their strong per- HE accession of James VI of Scotland to the throne sonal rule WIth the forms of ParlIamentary government, and of England in 1603 marked the opening of a struggle Parliament itself was hesitant to press its privileges to their Tbetween Crown and Parliament which continued, furthest extent. Even so, however, the long period of domestic with occasional intervals, until the flight of his grandson, tranquillity during Elizabeth's reign coupled with the James II, in 1688. The Stuarts were unlucky, not only in feeling of international security which followed the defeat their Scottish background, but in the period of their acces- of the Armada, gradually induced a more independent sion. The history of Scotland for many years previously had spirit in the later Parliaments of the sixteenth century. been turbulent. James had succeeded to the Scottish throne Already before 1603, some of the issues which divided the in infancy, on the deposition of his mother, Mary, Queen nation in the reign of Charles I had been raised, but they of Scots. Plots for her restoration to the Scottish throne, and had not been settled. The transition from the medieval to for the murder of her cousin, Elizabeth, ended only with the modern world had left the limits of the respective spheres Mary's execution at Fotheringay in 1572. The murder of of Crown and Parliament undefined, and much tact and Mary's second husband, and James' father, the unhappy patience would have been in any event necessary to reach Darnley, in 1567 had been the direct cause of Mary's a satisfactory compromise. Unhappily, the Stuarts possessed abdication. Her father, James V, had died prematurely in neither quality, and the constitutional struggles of the period 1542 after an unsuccessful border war, leaving his infant between the death of Queen Elizabeth and the outbreak of daughter as quecn of a divided Kingdom. He had succeeded the Civil War frequently give the impression that there was to the throne as an infant in 1513, following the death of more legal substance in the Crown's case than is generally his father, James IV, in the disastrous defeat at Flodden in believed, but that the sovereign himself was incapable of 1513. Thus it had happened that throughout the sixteenth putting his case upon the firmest legal ground, or with century, whilst England had enjoyed strong centralised lD?~eration. Whatever might be the letter of the law, the government under the popular Tudors, Scotland had wit- ~lflt of the times had changed, and expediency, if no nessed the succession of three infants in succession, and higher motive, warranted a compromise. during the long regencies which these events had neces- Basically, the issues dividing the nation on the outbreak sitated, her great nobles had struggled for power, intriguing of !he Civil War were two, and they are precisely the two continuously with the English court. Moreover, Scotland ~Ch have provoked increasing concern at the present day. herself had suffered a succession of English invasions. It is ~ fi~st was the question whether the King possessed a therefore not surprising that the Stuarts, when they reached Tji1slatxve power, independent of Parliamentary control. manhood, were eager to reassert royal prerogatives that had te seCond. was whether the ordinary law of the land-the been usurped during their minorities, and also, since in donc Common Law of England-governed all causes Scotland there was no counterpart to the centralised justice I all men, or whether, on the contrary, the King, by virtue 34 THE PASSING OF PARLIAMENT THE STUARTS AND THE CONSTITUTION 37 of the royal prerogative, had power to create new courts, dispensing 'administrative justice'. tters either of temporary interest or of a specialised nature. rna he successi li . I I t will be apparent that the two issues are very closely In any event, however, t e successive re IglOUSsett ements connected. An asserted royal power of legislation would fall b statute between 1535 and 1603 had done much to empha- to the ground, if the ordinary courts of the realm refused to sise.Y the importance of. embodying great changes in statutory recognise it. On the other hand, it could become an instru- f rm and what Parliament was reluctant to concede to the ment of royal despotism, if the King established courts in ;ud~rs it would emphatically refuse to the Stuarts. Hence, which his commands, issued independently of Farliament, in the Case of Proclamations- in 1610, the judges resolved could be enforced. Further, if the King could legislate 'that the King by his proclamation cannot create any offence independently of Parliament it followed, that he could levy which was not an offence before, for then he may alter the law of the land by his proclamation in a high point ... but the taxes in this way. Accordingly, if these claims were conceded, King for the prevention of offences may by proclamation the King would be well on the way towards governing in- admonish his subjects that they keep the laws, and do not dependently of Parliament, and outside the framework of offend them; upon punishment to be inflicted by the law. the ordinary law of the land. Lastly, if the offence be not punishable in the Star Chamber, It was the most serious handicap under which the Stuarts the prohibition of it by proclamation cannot make it punish- able there.' laboured that they came to the English throne without adequate appreciation of the course of English constitutional This was the legal death-warrant of the King's indepen- development. In Scotland, the royal authority had fluctuated dent legislative power, and the fact that Charles I had violently from reign to reign. Under an infant or an adult ignored this judicial decision was one of the grounds for his of weak character, the greater nobles might achieve a de eventual overthrow. Moreover, four years before the Case facto independence, as they had done in England during of Proclamations, the Court of Exchequer had decided in the reign of Henry VI. A strong King, on the other hand, Bates' Case» that the King had no power by proclamation, by a series offorceful interventions, might bring his baronage independent of Parliament, to levy customs duties. By temporarily to submission. Unfortunately, in Scotland there bringing these matters to a head early in his reign, the first was no counterpart to the wealthy and increasingly im- Stuart provoked decisions which established clear limits to portant middle class, which proved to be such a stabilising powers which before that time had been uncertain in extent. factor in Tudor England. It was the tragedy of the Stuarts These decisions in effect denied that the Crown had legisla- that they sought to employ against that powerful and politi- tive power independent of Parliament, and in this way they cally-conscious middle class the force which their ancestors conceded to Parliament a legislative omnipotence which had in Scotland directed against a lawless, and at times, has survived to Our own day. treacherous baronage. . ~here were similar uncertainties in respect of the juris- It must at once be conceded that even as late as 1603, dictIOn of what were known as the "prerogative courts", the extent of the Crown's power to legislate independently "[!e Common Law of the land was administered in the three of Parliament was still uncertain. The Tudors had legislated mmon Law Courts of King's Bench, Common Pleas extensively by proclamation, but they had often (but not ~d Exchequer, which had been established shortly after invariably) taken the precaution to secure prior Parlia- die Norman Conquest. The bulk of the criminal work was mentary sanction. In the Middle Ages, both Parliamentary IScharged either before the magistrates or before the Com- statutes and Royal ordinances had been recognised as ~n Law judges at Assizes. In later Plantagenet times, possessing full legislative force, although there was a vaguely- owever, the machinery of the criminal law had not worked : (1610) 126 Rep. 74. understood convention that Royal ordinances related to (1606) Lane 22. THE PASSING OF PARLIAMENT THE STUARTS AND THE CONSTITUTION 39 well, and in particular, the Justices of the Peace had failed the acts of the King; whilst .the co';!rtsof S~ar Chamber.

7 R. v. Hampden (1637) 3 St. Tr, 825. THE PASSING OF IMPEACHMENT 4-5 'urv<,ying the occasions on which acts of attainder have Chapter 4 been used to destroy public men, it may be said that they can be divided into three distinct classes: (I) Acts of poli tical revenge, e.g. of Lancastrians against Yorkists, or of Yorkists against Lancastrians, or of Parliamentarians against the The Passing of Impeachment ministers of Charles I; (2) Acts of royal despotism. These arc confined to the reign of Henry VIII;3 (3) Acts of political expediency, e.g. the acts of attainder against the Jacobites, the procedure here being employed because of the unsettled NE great chapter of English constitutional history state of the country, and the uncertainty of securing (L records the struggle between Crown and Parliament conviction for treason from a jury. All three classes of case Ofor the control of the executive. During the Course may therefore be regarded as abnormal, and the first two of that struggle two procedures for the control of political have the character of political persecution. Moreover, all acts by high officials were elaborated-impeachment and acts of attainder are examples of the legislative process. acts of attainder. Historically, they were used for different They have neither the form nor the substance of judicial purposes, though it would seem that such differentiation is procedure, and their revival in modern times could only not inherent in the nature of the remedies. Impeachment be imagined during or at the close of a civil war. was the weapon fashioned and employed by Parliament Impeachment, however, has a longer history, and raises to secure punishment for grave abuses committed by men more difficult problems. The first clear example occurs in who were in reality, as well as in name, the King's servants. 1376, the last in 1805. Between these dates, impeachments Acts of attainder, on the other hand, were employed by the were in no sense continuous. They occur in waves, the first Tudors, and particularly by Henry VIII, to get rid of minis- being in the closing years of the reign of Edward III, and ters who obstructed the royal will, although such acts had during the reign of his grandson and successor, with a few also been used during the Wars of the Roses to bring about in Lancastrian times, the last being that of the Duke of the destruction of political opponents, and they were used Suffolk in 1449. Thereafter, there is an interval until 1621, again in the eighteenth century against the J acobites.' when Mitchell, Mompesson, Bacon and others were im- It was, moreover, by act of attainder that Strafford, the great peached to be followed by the impeachment of the Lord minister of Charles I, perished in 1641, and a similar pro- High Treasurer, the Earl of Middlesex, in 1624; by that of cedure was employed against Archbishop Laud in 1645, BUCkingham in 1626; and by that of Dr. Mainwaring in although on this occasion the Royal Assent was not given, 1628. Once again there is an interval, until the meeting of because of the existence of the Civil War. An act of attainder th~ Long Parliament in 1640. In the first two years of its affords the most striking example known to English law eXls.tencethere was a fresh crop-the largest in any single of the omnipotence of Parliament. It is, in fact, homicide penod in English history. There were several others between by statute, for Cromwell, Henry VIII's Chancellor, obtained the Restoration and the accession of William III; and a an opinion from the judges that Parliament might properly few additional cases occurred in 17 I 5, the accused being proceed to pass such an Act without preliminary judicial the' cr. Ta.·well-Langmead, op. cit., p. 320: 'The act of attainder asserted proceedings. Ironically, Cromwell himself was one of the hads~meIrresponsible despotism over the individual as the acts of suppression first persons to lose his life in this way. 2 fOUndone ove: ecclesiastical corporations, and both of them denied the pro- ~ted est convIction of the Middle Ages, namely, that the liberty of the subject 1 See Maitland, Constitutional History, pp. 246, 317-318. or d upon the inviolability of his person and his property within the limits ue process of law'. • Taswell-Langmead, Constitutional History (roth ed. Plucknett), pp. 261-262. 44 THE PASSING OF PARLIAMENT THE PASSING OF IMPEACHMENT 47 Jacobites implicated in the Rebellion of the Old Pretender. extended, and once again the judicial proceedings were In 1746 Lord Lovat was impeached for high treason. bandoned in favour of an act of attainder. 7 Thereafter, impeachment tends to fall into disuse, the last a The incidence of impeachments is extremely interesting. two cases being those of Warren Hastings, at the end of the The evolution of the process in the last years of Edward eighteenth century-a case which dragged on for seven Ill's long reign was the product of a popular movement years, before the great Indian administrator was acquitted' (which enjoyed the sympathy of the Black Prince) to free and finally, that of Lord Melville in 1805. Thereafter: the old King from the corrupt advisers and favourites who impeachments have ceased to be brought in England, though surrounded him. In 1376, the 'Good Parliament' which there have been occasional hints that they might be revived. met for the first time in that year, impeached two peers, For what maya person be impeached? The trials show Latimer and Nevill, and four commoners, who were farmers that either a peer or a commoner may be impeached for of customs and of various monopolies. There were many high treason, for felonies, and for high political misdemean- charges in the impeachment, but the three principal ones ours.' The latter is an elastic term which has never been are interesting. They were (I) that the accused had advised defined. Thus, Dr. Roger Mainwaring, was impeached in and procured the removal of the Staple from Calais, con- 1628 for three political sermons (two of which had been trary to statute; (2) that they had lent money to the King preached before the King), which had been published at excessive rates of interest; (3) that they had bought up under the title of 'Religion and Allegiance'. The trend of cheaply old debts due from the Crown, and had subsequently these sermons was to exalt the royal authority, and to main- paid themselves in full from the Royal Treasury. The accused tain that those who refused to pay taxes imposed by royal were in due course found guilty after a full consideration of command and without parliamentary authority, offended the charges and the defences offered, the principal punish- against the Law of God and the King's Prerogative, and were ment inflicted being imprisonment for varying periods. guilty of impiety and rebellion. For these adventurous views Thus, on the occasion of the first use of this powerful con- Dr. Mainwaring was condemned by the Lords to imprison- stitutional weapon, we find that it is employed essentially ment during the pleasure of the House, to pay a fine of for political, rather than for legal shortcomings, and this £1,000, to be suspended for three years from the ministry, impression is confirmed by a perusal of the political history and to be incapable of holding any ecclesiastical or civil of the period. Both Stubbs and Taswell-Langmead in their office. However, the King pardoned him forthwith, and constitutional histories" emphasise the fact that the impeach- subsequently he was appointed Bishop of St. David's." Even ments were in reality the opening and most important moves charges of high treason, however, were often little more than in a political campaign, the object of which was to destroy cloaks for political attacks. Thus, although twenty-eight the monopoly of administration which had been secured articles were exhibited against Strafford, when impeached by John of Gaunt, Duke of Lancaster, during the illness of for high treason in 1640, they proved so flimsy that it early the Black Prince and the dotage of Edward III. Thus, at became apparent that the impeachment would fail. It a period long before responsible government was evolved, was accordingly dropped, and Strafford forfeited his life th~re. was introduced into the English constitution the under an even more arbitrary act of attainder. 6 The charges pnnclple of legal responsibility for political acts, which against Laud, who was impeached in 1641, were still more COuldbe invoked at any time by a party which came to remote from the legal conception of treason, even asjudicially POWerOn a wave of popular enthusiasm, which a newly-

• Anson, Constitutional Law, 5th ed., Vol. I, pp. 384-388; Ridges, Constitu- : Ibid., p. 593. tional Law (ed. Keith), pp. 215-217. 6 Taswell-Langmead, op. cit., pp. 591-592. lIJl.c~ttUbbs,Constitutional History, Vol 2, pp. 430-434; Taswell-Langmead, " pp, 184-185. • Ibid., pp. 592-593. THE PASSING OF PARLIAMENT THE PASSING OF IMPEACHMENT 49 elected Parliament in times of political stress will normally In the end all thoughts of impeachment were abandoned, reflect. This lesson was driven home during the reigns of and this, as much as anything, proved the decisive moment Edward Ill's successors. Richard II attempted to rule in in modern English constitutional history. Had Walpole defiance of popular opinion, as expressed in Parliament, and been successfully impeached, it is possible that, notwith- his ministers paid the penalty. Thus, in 1386, the Commons standing the evolution of theories of ministerial responsibility impeached Michael de la Pole, Earl of Suffolk, and Lord to Parliament, every Prime Minister, on defeat in the House, Chancellor, and procured his removal from office, coupled would have run the risk of impeachment, especially if issues with a fine and imprisonment." of any moment had been decided during his tenure of So far, impeachment, though judicial in form, appears office. Yet the abandonment of this weapon is most strikingly rather as a move in a political campaign than as a genuinely illustrated by the failure to impeach Lord North for the loss judicial proceeding. If a minister carries out the King's of the American Colonies, more especially as Lord North policy in defiance of the prevailing sentiment in Parliament, approximated more closely to the position of King's instru- he will be accused, forced from office, and compelled to pay ment (and as such is comparable with Michael de la Pole, a fine for his termerity. The actual charges do not appear to the first Duke of Buckingham and the Earl of Strafford) be taken too seriously, and are regarded rather as pegs upon than any other Prime Minister since the Revolution of which to hang political attacks. This character was never 1688. It is by no means without significance that the Ameri- entirely lost. Indeed, it reappears in the fullest and most can Colonies, after the close of the War of Independence, complete form in the trial of Warren Hastings at the end retained impeachment as a part of their constitutional of the eighteenth century, when the leaders of the parlia- machinery. Even today, it is a weapon which may be used mentary attack upon him, and especially Burke, Fox and against an unpopular or inept State Governor, and it has Sheridan, used the flimsiest charges of corruption as a more than once been threatened against a President him- pretext for attacking the entire achievement of Hastings self. It was a very real possibility against a successor of in India, as well as the system under which India was Lincoln, GeneralJohnson, whose desire to benefit his friends governed, and the English ministries under whom that at the charge of the nation sometimes outran his discretion.t- system had grown up. So employed, impeachment appears Whilst the first cases of impeachment were intended to as the extreme weapon of a victorious faction, used against establish the constitutional principle that the Ministers of an administration whom it regards as having governed the Crown must answer to Parliament for their policy, a oppressively. 'Oppressively', however, is a term which is second group of impeachments in the reign of Richard incapable of exact definition, at any rate in such a context. II pointed ominously to possible future developments. In Modern historians agree that the long ministry of Walpole, 1397 Richard made a strong attempt to destroy the fetters at the beginning of the eighteenth century, was the period which his barons had placed upon him, and he secured the in which political toleration first took deep root, and in return of the House of Commons subservient to his wishes. which Government learned to make its existence as unob- ForthWith, the newly-returned Parliament impeached the trusive as possible. Yet when Walpole was at length driven from office in 1742, there was a very real possibility that he pe lltnL. De Lolme in his essay on The Constitution of England describes im- CO ac en~ ~ 'an admirable expedient, which, by removing and punishing would be impeached. Indeed, his biographer suggests that ItrrrU~tnumsters, affords an immediate remedy for the evils of the State, and he spent considerable sums of money in bribes to avoid it,1O "'h~ngy marks out the bounds within which power ought to be confined; 'Pe~Chtakes away the scandal of guilt and authority united, and calms the 8 Taswell-Langmead, op. cit., pp. 190-191; Stubbs, op. cit., Vol. 2, pp. 474- .pecf1t by a ~reat and awful act of justice: an expedient, in this respect es- 475· attrit ly, so highly useful, that it is to the want of the like that Machiavel 10 John (Viscount) Morley, Life of Walpole (Twelve English Statesmen exile ~tes the "ruin of his republic" (ed. Hallam, p. 181). But American Series). rJence has been no happier than our own. 50 THE PASSING OF PARLIAMENT THE PASSING OF IMPEACHMENT 51 leaders of the baronial opposition. These included the Arch- before us. If a statesman has really committed a crime then he bishop of Canterbury; the King's uncle, the Duke of Glouces_ can be tried like any other criminal; if he has been guilty of ter; and the Earl of Arundel. Of these, the Archbishop was some mis-doing that is not a crime, it seems far better that it banished, Arundel was condemned and beheaded, and the should go unpunished than that new law should be invented Duke of Gloucester was found murdered at Calais before for the occasion, and that by a tribunal of politicians and partisans; for such misdoings disgrace and loss of office are the charges against him could be investigated. In spite of nowadays sufficient punishments'. 13 this a sentence against him was recorded.P Thus, in the space of ten years, the Commons had impeached the chief instru- This is, however, the political philosophy of a settled ments of royal despotism, and then, at the behest of a tem- and progressive age, and it is noteworthy that Maitland, with characteristic caution, excepts a period of revolution. porarily triumphant King, had proceeded to destroy the chief authors of the limitations upon the royal authority. There is great wisdom in this exception, for the hypothesis The lesson is thus made terribly clear that, if once con- that impeachment has fallen into disuse because of ministerial responsibilityfor political acts to Parliament seems inadequate stitutional restraints are thrown aside, the inevitable swing of the political pendulum will in turn destroy the leaders as an explanation; otherwise, impeachment would have been used to curb the increasing extra-parliamentary power of of both parties. During the faction fights between the Houses of York and Lancaster, these consequences followed inevit- the Cabinet, or to punish a minister such as Lord North, ably upon a temporary change of dynasty. However, by who was only maintained in office by constant royal pressure, and whose policy in North America was repudiated and this time, the protagonists had tired even of the forms of denounced by most of the great statesmen of the day. The judicial process. So, after the impeachment of the Duke of real explanation for the disuse of impeachment is to be Suffolk, Michael de la Pole's grandson, in 1449, impeach- ment was abandoned for the more summary act of attainder. found in the Revolution Settlement of 1688, and it is well exemplified in the political discussions which accompanied Once again the monarchy learned the lesson which this change implied, and the Tudor despots relied upon the the fall of Walpole in 1742. Articles of impeachment were prepared but were not proceeded with. A bill of pains and act of attainder, permitting impeachment to lapse for 171 penalties was next drawn up, but it was abandoned because years-a period longer than that which has elapsed since it was realised that there was no chance that it would pass the impeachment of Lord Melville in 1805. the House of Lords. Finally, the incoming Ministry appointed With the exception of the impeachment of the Jacobite a secret committee to examine into the last ten years of lords in 1715 and 1746, and of the impeachments of Warren Walpole's administration, but it failed to report anything of Hastings and Lord Melville, every impeachment of a great substance. One after another the possible punitive measures political figure since the revival of this constitutional device had broken down, and the reason may perhaps be found in in 1621 had been intended to bring home to the Ministers a significant paragraph in John Morley'S of the Crown the lesson of ministerial responsibility to biography.t- When Walpole went to the levee, the King (says Morley), Parliament. Since 1714, as we have seen, no impeachment on this ground has been preferred, the reason usually given 'could not conceal his delight at seeing again the friend and being that since the accession of the Hanoverians, this ~uthor of so many good counsels, and the new ministers were In agony lest the King should call him into the closet. They lesson has been finally learned. Thus, Maitland, writing all,. ~owever, kept that fair countenance which often among in the far-off days of the nineteenth century, says: polItIcal men hides such dismal emotions. They came and 'It seems highly improbable that recourse will again be ~ad ;roke to him, and he had a long and jovial talk with Chester- to this ancient weapon unless we have a time of revolutiOn 1.eld,C. Nobody. seemed to bear anybody else malice. The Duke 6 I,ponstltutional History, p. 477 . 11 Taswell-Langrnead, op. cit., pp. 196-197 j Stubbs, Vol. 2, pp. 495-49 . . 246. 52 THE PASSING OF PARLIAMENT THE PASSING OF IMPEACHMENT 53 of Newcastle gave his colleagues a dinner one Sunday at Clar<;;- his death to Ulm', says Lord Rosebery.ts 'and some to mont; the servants got drunk and the coachman tumbled off the box on the way back. They were not far from Richmond Austerlitz; but if the mortal wound was triple, the first and the innkeeper told them that perhaps Lord Orford would stab was the fall of Dundas'. Of the impeachments of Warren lend them his coachmen. So Walpole's coachman drove Hasings and Melville, May says: 'The former was not a Pulteney, Carteret, and Limerick home. Carteret at a levee minister of the Crown, and he was accused of offences com- came up to thank him, the Duke of Newcastle standing by. mitted beyond the reach of parliamentary control; and the "Oh, my lord," said Walpole, "whenever the duke is near offences charged against the latter had no relation to his overturning you, you have nothing to do but send for me, and I'll save you." , political duties as a responsible minister'.16 The Revolution of 1688 established in these islands the Newcastle, Chesterfield, Pulteney, Carteret and Limerick liberal State founded on political toleration. Its lifeblood has were all Whigs, as Walpole himself was, but they were the been the acceptance of certain fundamental principles under- leaders of the coalition that overthrew him. The Revolution lying our political organisation, the 'agreement to differ' of 1688 had decided that the Whigs were to enjoy a monopoly together with the acceptance of a clear delimitation between of government for the next eighty years. Politics were there- the spheres of private and State action. There is no warrant fore reduced to a game of manoeuvre between rival Whig in English constitutional history, at any stage of our political groups. A group might be in office today, and in opposition development, for the tolerance of intolerance, whether the tomorrow. Selected as they were from a single small class, intolerance was that of militant Catholicism or that of there were clear limits to the action which they could initiate advocates of arbitrary power. It was only when the lesson against one another. Further, the Revolution of 1688 had had been learned at the cost of long and bitter struggles and established a parliamentary settlement which lasted in all great loss of life, that milder habits became possible. This essentials until the middle of the nineteenth century. Con- dates from the fall of Walpole-the time when England's stitutional principles were no longer in dispute, but merely long commercial and maritime supremacy were becoming particular aspects of political action. On these, there might firmly established. It was natural for the constitutional be many possible variations of opinion, but they were not historians of the late nineteenth century to assume that these matters for which gentlemen could lose life, fortune or repu- social conditions would continue indefinitely. Instead, our tation. Warren Hastings, however, was impeached for a commercial supremacy has gone, our colonial empire is major constitutional principle. His trial was a clumsy method going, and for the first time since the Revolution of 1688, of making the Government of India subservient to Parlia- political doctrines based on intolerance of opposing views ment, and it is therefore in line with the great impeach- are being industriously propagated. These are new condi- ments of the seventeenth century. The last impeachment of tions, giving rise to political problems different in nature all, that of Lord Melville in 1805, was on the other hand from those which have existed during the past two centuries. simply for maladministration whilst a Minister of the Crown. or is this all. The progressive abandonment of extraordinary As such, it was something of an anachronism, and was judicial methods of coercion for political acts was, as we have ineffective. Melville was a personal friend of the Younger seen, made possible by the acceptance of the conception of Pitt, then Prime Minister, and the decision to impeach was t~e liberal State, with its comparatively few points of contact made upon the Speaker's casting vote. Melville was event- ~lth the individual. Today, the liberal State is passing away, ually acquitted, and the verdict of history seems to be that I? favour of a planned society. This is not the place to con- the proceedings were misconceived, and that they were in SIder whether, in spite of emphatic assertions to the contrary, reality a veiled political attack upon Pitt himself. At any 16 L;r. 10 v» ~f ~itt, p. 251• rate, Pitt felt the attack very deeply. 'Some have ascribed ConstitutIonal History, Vol. 2, P.~93. THE PASSING OF PARLIAMENT 54 anything more than the empty shell of liberty can exist in a planned society, but it is already apparent that the respon- Chapter 5 sibility of government for policies affecting every aspect of individual activity is higher in a planned society than it was in a liberal State. The Transformation of Parliament The increased responsibilities which have been assumed by servants of the Crown in recent years may have in the future important implications in the sphere of constitutional law. We have seen how the extraordinary remedies of the constitution fell into disuse when government became re- HE history of modern political society is in large stricted to a choice of alternative courses of action within measure the history of the struggle of the ordinary an agreed political and social framework. That framework Tcitizen to exercise some influence upon government- today is passing away. It has been in course of liquidation and of his repeated failures to achieve that modest ambition. during the past half century. Today, in Great Britain, there All governments control the governed. They vary widely in is more disagreement over the bases of political action than the extent to which they make that control manifest. Some, as there has been for two and a half centuries. This may involve in Nazi Germany or Soviet Russia, manufacture an elaborate a heavier degree of ultimate responsibility for mistakes which ideology, synthetically producing various 'communal' objec- may involve anyone or everyone of us in ruin. This does tives, expressed in general terms, for which the mass of not inevitably follow, and it may not be desirable, but so the people are quite arbitrarily assumed to be striving. long as human nature--even British human nature-re- Behind this collection of generalities, an organised minority mains what it is, it is at any rate a possibility which cannot forcibly assumes power, and then ruthlessly perpetuates its own ascendancy. In the Western world, the process of be completely discarded. control is subtler in consequence of the existence of opposing political parties, each professing different ends. Such a system, however, could not work at all unless there was agreement underlying the policies of all parties to work the political machine in the traditional way. It is because the Communists reject such a fundamental assumption that they cannot be regarded as a normal political party. They are, in fact, a disruptive element in any non-Communist State. Even with this qualification, however, it must be conceded that the term 'democracy' as used to describe ~estern political society, has practically nothing in common with Greek democracy, and that it bears little resemblance to philosophic expositions of the meaning of the term. From the beginning of the nineteenth century, it has been :SS~ed that political democracy is synonymous with the rerclse of the vote by the adult population, male and ~ter) female. Hence the successive extensions of the fran- se during the nineteenth century. These, however, have 55 THE PASSING OF PARLIAMENT THE TRANSFORMATION OF PARLIAMENT 57 necessarily involved the increasing insignificance of the in- members of the House of Commons become increasingly dividual elector. Since individual votes are so numerous that responsive to ~ublic op~nion, or especially to the influence of they are almost valueless, and it is only in the mass that they their more active consutuenrs. achieve significance, each extension of the franchise has I t will be valuable in this chapter to attempt a sketch of increased the power of the major political parties. ,They have the process by means of which the present insignificance relentlessly driven out independent representatives and have of the private citizen has been achieved. destroyed smaller parties, and they exercise a predominant In a remarkable book, The Crowd, written nearly sixty influence in the selection of candidates. When the candidate years ago, a French writer, G. le Bon, called attention to is returned to Parliament, he finds himself controlled by the some observations of Herbert Spencer in The Man Versus the party system, without the support of which he cannot hope Slate, in which the English philosopher observes of recent to be returned in a future election. Accordingly, it follows tendencies in government in England: that those who control the machine of the principal political 'Legislation since this period has followed the course I party are the persons who exercise political power in a pointed out. Rapidly mul~iplyin~ .dictat~rial .measures ~a,:,e Western democracy. In Great Britain, those persons are continually tended to restrict individual Iiberties, and this in also the leaders of the party within the House of Commons, two ways. Regulations have been established every year in and therefore they can force legislation through Parliament. greater number, imposing a constraint on the citizen in matters Again, they are the political heads of the Executive, and in in which his acts were formerly completely free, and forcing this capacity they frame policy, and enforce its execution. him to accomplish acts which he was formerly at liberty to accomplish or not to accomplish at will. At the same time Moreover, by the development of departmental legislation heavier and heavier public, and especially local, burdens have and administrative tribunals, much of what they do is still further restricted his liberty by diminishing the portion beyond the reach of the courts or even the scrutiny of Parlia- of his profits he can spend as he chooses, and by augmenting ment. Great Britain today illustrates the dictatorial powers the portion which is taken from him to be spent according to the good pleasure of the public authorities.' of a Cabinet in extreme form for, unlike the United States, Great Britain possesses no effective Second Chamber. On this, Ie Bon commcnts.! Further, again unlike the United States, it possessesno written 'This progressive restriction of liberties shows itself in every constitution. Any constitutional change whatever can be country in a special shape which Herbert Spencer has not achieved within the lifetime of a normal Parliament, in pointed out; it is that the passing of these innumerable series little more than eighteen months by the use of a majority of legislative measures, all of them in a general way of a restrictive order, conduces necessarily to augment the number, in the House of Commons, and the machinery of the Parlia- the.power, and the influence of the functionaries charged with ment Act. Perhaps even more serious, however, is the fact their application. These functionaries tend in this way to that Parliament can, and docs, give away such wide powers to become the veritable masters of civilised countries. Their the departments without the possibility of such abdication of power is all the greater owing to the fact that, amidst the in- authority being challenged as unconstitutional. It may also ~essa~ttransfer of authority, the administrative caste is alone ~n bemg untouched by these changes, is alone in possessing be added that the position of stalemate which was established Irresponsibility, impersonality, and perpetuity. There is no at the General Elections of 1950 and 1951 is the only one mhi?reLATION 65 . r prior to the Reformation there was a suggestion, Ieove , . I I b k Chapter 6 .. h as repeated in some of our earliest ega text- 00 s, ,hie w di hi h that an, enactment whether statute or or mance, w c ran. to the principles of the Common Law, was VOId. unter ... h The Menace of Delegated Legislation o one seems to have paid senous attention to sue a lnclple in practice, however. pnAs Parliament steadily devel?ped its corporate existence d extcnded its powers, several Important changes occurred. In the first place Parliament, and especially the Commons, Norder to understand what is meant by delegated legis- ;ured greater control over theform oflegislation. The actual lation, and to define some of the principal problems draft of the proposed measure was usually prepared by Icreated by it, it is necessary to revert to the sovereignty members of one or other House of Parliament. The King's of Parliament, which received unchallenged acceptance as function progressively dwindled to the point where he either the basis of our modern constitution, at the close of the accepted or rejected the measure put before him. Further, great seventeenth century struggle. The essence of Parlia- Parliament consistently sought to establish the principle mentary sovereignty is: (I) that Parliament (i.e. King, Lords that the Crown's legislative power could only be exercised and Commons) can pass laws on any topic whatever; subject to ultimate Parliamentary control. No one doubted, (2) that such laws, if passed, cannot be challenged, or however, that the royal legislative power existed. The Tudors held invalid, in any Court; made frequent use of it, but it is significant that the most (3) that no other body has similar legislative powers. powerful Tudor of all, Henry VIII, took the precaution of No other body, that is to say, has power to pass compulsory securing the passage of the Statute of Proclamations through rules binding on the community as a whole, and changing Parliament in 1539. These exceptional statutory powers the existing law, unless it derives its authority ultimately did not extend beyond Henry's own reign, however, for the from Parliament itself. Statute of Proclamations was repealed at the beginning of Each of these three principles had been challenged by the reign of his successor. It was, therefore, not until the the Stuarts, who had sought to suspend the operation of second half of the nineteenth century that the almost limit- particular statues passed by Parliament, and who had also less possibilities of delegated, subordinate legislation became claimed power to enact laws themselves, independently of apparent. The convenience of the device first became fully Parliament. For both contentions of the Stuarts there was appreciated when the dominating trend in legislation turned some warrant in past history. It is difficult to determine from reform to social reorganisation. This change owed exactly what constituted a statute in the Middle Ages. a good deal to the spread of Benthamite ideas as the century Sometimes the King legislated with the advice and consent progressed. Bentham, and following him John Austin, had of Lords and Commons. Sometimes, on the other hand, he ~ded statute law as the principal, and most developed made laws with the advice of his Council only. Laws made ~rrn of law, and it was therefore natural that legislation l d in Council were often known as Ordinances, and there was of t: . ~ome to be regarded as the most expedious means a vague suggestion that such laws were normally of a tempor- nngmg about the changes which were required. Parlia- ary, local, or special character (e.g. they might apply to some Jnent, t~e constitutional lawyers were apt to say, could do thmg particular trade or profession), but there was no formal rul- ::r except make a man a woman, and in the past about this, and one or two of the best-known medieval daim.e-quarters of a century, it has fully lived up to this statutes were passed in the Council, and not in Parliament. ~ 64 THE PASSING OF PARLIAMENT 6 MENACE OF DELEGATED LEGISLATION

Bringing about far-reaching social changes by way of r. xperts doing a skilled job. What then is, or should fact, e, d' f h legislation in turn produced a crop of Parliamentary prob- their relationship to the electe representatives 0 t e lems. Bills themselves became longer and more technical I Ie in the House o~ Commons ~ . . as they sought to embody ideas which had not previousl; /liament is sovereign and ommpotent, and the legislative been expressed in statutory form. Moreover, they were ar of the Departments is delegated and subordinate. bitterly contested by those who were adversely affected by !fl:::neans that it is d~rived from Parliament, which d.efines them. More and more Parliamentary time was occupied by the limits within which the Depart~ent.s can legislate. the process of putting them on the statute-book, and, as Was nat is the point of departure, although It WIllbe shown that shown in the last chapter, in the long run, the clash of inter- the modern legisl~tive power of t~e ?epartments has long ests which legislation of this kind produced was directly ago emancipated Itself from the prmcIpl~ that del?art~ent~l responsible for the prolonged struggle over the powers of the Jecislation, like other forms of subordmate legislation, IS House of Lords, which ended only with the virtual destruc- subject to the ultra vires rule. This implies that if a Depart- tion of an effective second chamber in 1948. It was in this ment in the exercise of its rule-making power, passes beyond environment that modern delegated legislation became once the limits set by Parliament, a citizen affected by it, can more a normal instrument of government. Once Parliament claim that the rule is of no legal validity. If he succeeds in had adopted the general principles underlying an important establishing that the rule is ultra vires the power of the measure of social change, the task of applying those prin- Department to make it, the Court will hold it null and ciples in their every-day impact upon ordinary citizens void. devolved upon the Departments, which were progressively In the light of this constitutional rule, it would appear enlarged, and strengthened, by the recruitment of technical that Parliament can itself set limits to the legislative power staffs, to discharge tasks which steadily increased in volume of the Departments, so that there can be no challenge to and importance. Moreover, since it was the Departments ita legislative supremacy. It was because this was assumed which accumulated the expert knowledge upon the manner to be the position that the increase in delegated legislation in which a piece of social legislation was working, it was in the period between 1870 and 1910 was regarded with appropriate that there should be committed to the Depart- comparative complacency. It was for Parliament to set ment, not only the power to make detailed regulations in limits to the practice, and so long as Parliament could check the first place, but also to amend them from time to time, the legislative activity of the Departments, and had know- as problems arising from the administration of the Act ledge of its nature, there seemed to be little possibility either emerged. of abuse or of a fetter being imposed upon the legislative This is the basis of government by the Executive Depart- pcnversof Parliament. ments, which has now become an accepted, and increasingly . Unfortunately, the Departments have shown the greatest important, part of our political system. I t will at once be ~uity in evading the control alike of Parliament and apparent, however, that its development has raised a major Courts. Before this process is analysed, however, it constitutional problem. In reality, the bulk of the legislation ~ld be noticed that the subordinate legislation which by which today the conduct of the citizen is controlled is made, IS ~w under consideration may assume a variety of forms, not by Parliament, but by government officials inside the hhich are not substantially different in nature and function. ay Departments. These officials are in no sense responsible to w.: , for example, take the form of Orders in Council, the electorate for what they do. They are civil servants, h are prepared by the Department primarily concerned enjoying security of tenure during good behaviour, and they the matters affected by the Order, and they are then work remote from the light of public criticism. They are, ted by the King in Council. This latter has long been a THE PASSING OF PARLIAMENT 68 MENACE OF DELEGATED LEGISLATION 69 purely formal process. Again, the subordinate legislation 'The principal changes are (i) the omission of the. r~quire- may take the form of rules, prepared and promulgated t forms of application by parents for the .admissIOn or directly by the Department upon the authority of the appro- ~ilidrawal of pupils; (ii) the inclusion of specI?~d grounds priate Minister, acting under statutory power. Orders vary hich must be satis~~d before the. name of a pupil 1~ removed &om the registers; (Ill) the ~xtensIOn of the .RegulatIOn~ to. all very greatly in form. Some are in reality a detailed code upils in the school irrespective o~age; and (~v) th~ application carrying out a general purpose which has been stated in :f the Regulations for the first time to pupils of mdependent general form in the parent Act; others are specific prohibi- schools. .... b tions. Some again are provisional orders, which do much of 'The purpose of the changes IS to assist m securmg 0 serv- the work done in former times by Private Bills, others are ance of the law of school attendance.' special orders, which are variants of provisional orders. So the object of these regulations at last is clear. The Again, there are rules of various kinds, and provisional public will notice the courteous use of the word "assist". rules, which are in theory made on grounds of urgency, They will also notice that in four years the administrative or for some other special reason. These come into operation net was thrown more widely than before. However, let immediately on publication, and they continue to be effective us look at one section of the Regulations themselves: unless and until they are rejected by Parliament. It must '4' The following grounds are hereby prescribed as those also be pointed out that there may today be four, and even on which the name of a pupil is to be deleted from the Ad- five-tier legislation. A statute may provide that its provisions mission Register, that is to say- shall be implemented by Order in Council. The Orders '(i) where a pupil is registered at the school in accordance in Council, when made, may confer upon a Minister power with the requirements of a School Attendance Order, that to make rules. When the rules are made, the Minister may another school is substituted for that named in the Order or have power under them to prepare a scheme, e.g. for a the Order is revoked on the ground that arrangements have been made for the child to receive efficient full-time education particular industry. Under that scheme, the Minister may suitable to his age, ability, and aptitude otherwise than at have power to make an Order. All this makes for incoherence lChool; and uncertainty, especially as Departments are progressively '(ii) in a case not falling within sub-paragraph (i) of this developing a jargon of their own in framing their legislation. paragraph, that he has been registered as a pupil of another It is regrettable that no anthology of Departmental jargon 1Ch001; has so far been compiled from subordinate legislation actually '(iii) in a case not falling within sub-paragraph (i) of this in force today. Almost any lawyer could contribute his c:~grap~, that he has ceased to attend the School at which quota. If one takes, for example, the Departmental legisla- IS registered and his parent has satisfied the Authority that he .l~ receiving efficient full-time education suitable to his tion power of the Ministry of Education, one notices that age, ability and aptitude otherwise than by attendance at although it is voluminous, it is for the most part well-drawn 1Cb001; 8 and understandable. The Pupils Registration Regulations, 194 ,1 ~iv) except in the case of a boarder, that his ordinary residence however, has points of interest. It is prefaced by an explana- • been transferred to a place whence the school at which he tory note which reads as follows: II regIstered is not accessible with reasonable facility; U:~) that is certified by the School Medical Officer as unlikely 'These Regulations are made under Section 80 of ~he legal~In a fit state of health to attend school before becoming Education Act, 1944, as amended by Section 4 of the EducatIOn • .y exempt from the obligation so to attend; Act, 1948, and replace the Registration of Pupils at Schools Regulations, 1945, made under Section 80 of the Act of a ~VI~ ~hat he has been continuously absent from school for lCb~r~o of Il:0t less than four weeks and the proprietor of the 1944· lion ~f hhs faIled, after reasonable enquiry, to obtain informa- 1 S.1. 1948, No. 2097. t e cause of absence; THE PASSING OF PARLIAMENT fENACE OF DELEGATED LEGISLATION '(vii) that the proprietor has ascertained that the pupil has ensation shall cease to be payable, and if it exceeds such died; corntpof the pension as aforesaid, it shall be reduced by an '(viii) that he will cease to be of compulsory school age Parount equal to th'at part. before the school next meets and intends to discontinue in attendance thereat; or ;e regulations under th~ Town a~d C.oUl:try Plannin.g '(ix) in the case of a boarder, that he has ceased to be a pupil t, 1947, it should be noticed, are rich m Jargon ~f this of the school: lOr.t so are those issued under the Steel Industry National- '(a) provided that in a case not covered by sub-paragraph • cion Act. Thus, Statutory Instrument 1345 of 1951 con- (i) of this paragraph, the name of a child who has under ~ s the following little conundrum: arrangements made by an Authority become a registered pupil at a special school shall not be removed from the Ad- '''High-speed steel" means any alloy steel containing by mission Register of that school without the consent of that weight either (a) 12 per centum o~ more of !ungsten, or (b) Authority or, if that Authority refuse to give consent, without both molybdenum and tungsten In respective percentages a direction of the Minister; or such that when the percentage of molybdenum therein is Illultiplied by two and added to the percentage of tungsten '(b) if he is not of compulsory school age, on any of the therein, the sum is not less than 12.' following grounds: '(i) that he has ceased to attend the school or, in the case However, even this pales into insignificance compared of a boarder, that he has ceased to be a pupil of the school' with this gem, culled from form IS GRAfCI 19, issued under '(ii) that he has been continuously absent from school for a the statutory instrument just mentioned. The purpose of period of not less than four weeks and the proprietor of the the form is to require a return in duplicate of stocks to the school has failed, after reasonable enquiry, to obtain inform- Ministry of Supply. Article 5 of this form reads: ation of the cause of absence; or '(iii) that the proprietor has ascertained that the pupil has 'If by the usual course of business of any undertaking the died.' usual principal periodical completion of records of business for that undertaking would be completed on some day other than All this to remove a name from the register; and it must the 30th day of June, 1951, being a day not earlier than the be remembered that the local Authority where the school 15th day of June, 1951, nor later than the 15th day of July, is situated has power to complicate the teacher's task still 1951 (which day in respect of that undertaking is hereafter in further. The following is a choice specimen from the Schedule this Order called "the private reference day") then such information as is required by or under the provisions of Article to the Town and Country Planning (Transfer of Property and I o~this Order to be given with reference to a specified day or Officers and Compensation to Officers) Regulations, 1948: penod may be given as if that day or period were set back '35 (i) Where a person to whom compensation is payable «»: brought forward (as the case may require) to correspond under these regulations for loss of employment has become or With the difference between the undertaking's private reference becomes entitled to a pension in respect of the employment he day and the 30th day of June, 1951.' has lost otherwise than on losing such employment or where a ~t is almost unbelievable that large sums of money are person to whom compensation is payable under these regula- ~g. pai? in salaries to allow Departments to issue rubbish tions for loss of employment or diminution of emoluments has this kind. Unfortunately, the tortured and incoherent become or becomes entitled to a pension in respect of any employment the remuneration of which was payable out of laaguage of these and other documents is indicative of the public funds and which he had obtained in place of the employ- :nne~ in which the Departments are today transacting ment he had lost or in place of or in addition to the employment 'I natIon's business. the emoluments of which were diminished, and in calculating t should be added that today the Departments are by the amount of such pension account is taken of any service tneans the only bodies to whom there has been committed which was taken into account in calculating the compen- t sation payable, then, if the compensation does not exceed such t~k of making subordinate legislation. Local authorities part of the pension as is attributable solely to that service, the Y-Iaws; so does the Railway Executive. In addition THE PASSING OF PARLIAMENT MENACE OF DELEGATED LEGISLATION 73 Parliament has shown a steadily-increasing inclination to .__ The methods by which they secure such freedom will commit the rule-making power to statutory bodies, either ue'be described. The principal device is for the draftsman independently, or with the approval of a Government :clude in the Act conferring a grant of legislative power, Department. Many of these Boards function in connexion tOft rther power to amend the Act itself. To some extent, the with the industry, and they are, in fact, instruments for a '~tence of such a power is not open to serious objection, organising and controlling industries still remaining under ~vided the Act is careful to define the limits within which private ownership. It will be sufficient to give by way of r:isexercised. No one quite knows how a complicated piece illustration the Cotton Industry Board, with legislative ~f social legislation is going to work out, and a power to powers derived from the Cotton Industry (Reorganisation) a.odify its details may have considerable effect in promoting Act, 1939; the Catering Wages Commission, constituted its smooth operation. Moreover, the vast majority of amend- under the Catering Wages Act, 1943; and the various Mar- ments into Statutes in this way relate simply to matters keting Boards (e.g. the Milk Marketing Board) established of detail. On the other hand, instances have been known in under the Agricultural Marketing Acts. The powers con- hich the Departments have sought more extensive powers ceded to these miscellaneous bodies are often very wide, by this device than Parliament was originally prepared to ranging from the power to inflict a substantial fine, to the concede. A further development of this device is what is power to put a person trading in the industry out of business known as the 'Henry VIII Clause', recalling the grant of altogether. It will be shown in the next chapter that in the power by Parliament to that monarch to legislate free from great majority of instances, these Boards have excluded the Parliamentary interference. By virtue of the 'Henry VIII aggrieved citizen from access to the Courts altogether, in Clause', power is conferred on the Department to modify, cases in which he is charged with an infraction of the rules not only the Act from which the power is derived, but also issued by the Board. Sir Carleton Allen writes of the pro- any other Act, in order to remove difficulties, or to bring ceedings of such Boards: the Act more fully into operation. Serious anxiety has been 'Although the defendant may be represented, the Board is frequently expressed concerning the scope of this clause, not bound by any rules of evidence. When it is remembered which, if widely used, would go far towards by-passing that the defendant may be ruined by the revocation of his Parliament altogether, and in recent years, instances of its licence (and if he trades without it he is liable to prosecution insertion into Statutes have been rare. in the ordinary Courts), and that his judges cannot possibly Two other devices call for comment under this head. be regarded as impartial, since they are themselves producers pecuniarily interested in the finance of the whole scheme, it is Statute may give a Department power to make such rules difficultto imagine a greater travesty of a "judicial" proceeding :as, in its opinion, are necessary in order to bring the Act fully or one more contrary to all accepted notions of procedure and Into operation. It will be seen that this is really a variation fairness. There is, it is true, appeal to an arbitrator, but t~e of the 'Henry VIII Clause'. If this is the position, and the Board is not bound to accept the defendant's nominee, and III ~~ are made, then the subject is for all practical purposes, that case the Minister appoints an arbitrator who is usually ~ond the power of the Courts to protect him. Finally, a a Civil Servant. To complete the picture, execution of the Board's judgments falls on the ordinary courts; they are thus bstute may lay down that certain conditions are to be made mere machinery to exact penalties with which they have ~erved by the Department in rule-making, but it may no concern and which, for all they know, may be highly 'p~ovide that a statement by the Department that the arbitrary.' :?;lslons of the Act have been complied with is conclusive It has been said that the Departments have shown v~ry oence that the requirements of the Act have been fulfilled. great ingenuity in emancipating themselves from Parha- efI'e ne or two illustrations will be sufficient to show the mentary control over the subordinate legislation which they ct of these devices in practice. In Institute of Patent Agents 74 THE PASSING OF PARLIAMENT MENACE OF DELEGATED LEGISLATION 75 v. Locktuoodi the Patents, Designs and Trade Marks Acts the Court of Appeal, on the ground that the Minister's 1883 and 1888 conferred on the Board of Trade power to when made, covered any defects in the original make such rules, as, in the opinion of the Board, were neces- m~. However, the House of Lords were at pains to sary to give effect to the provisions of the Acts governing the .g~est that the terms of Section 40 (5) did not give the registration of patents agents. Such rules, when made, were ·inister of Health unlimited legislative power. Lord to have effect as if embodied in the Act itself. One of the Dunedin, in his speech, says: rules so made required every patent agent to pay an annual registration fee on pain of being removed from the register. 'The first question, and it is a very important and far- Lockwood failed to pay, and was removed from the register. reaching one, is, therefore, as to the effect of Section 40, sub- He continued to practice, and the Institute of Patent Agents section 5. Has it the effect of preventing any enquiry by way ofcertiorari proceedings by an order confirmed by the Minister? sought to restrain him from describing himself as a patent It is evident that it is inconceivable that the protection should agent. The House of Lords reluctantly came to the conclu- extend without limit. If the Minister went out of his province sion that it had no power to assist Lockwood, since the altogether, if, for example, he proposed to confirm a scheme Act gave the Board of Trade power to make rules which, which said that all the proprietors in a scheduled area should when made, had statutory force, in the sense that they were make a per capita contribution of £5 to the municipal authority to be applied by them for the building of a hall, it is repugnant to be read as a part of the Act itself. This made it impossible to common sense that the order would be protected, although, to challenge them on the ground that they were ultra vires. if there were an Act of Parliament to that effect, it could not This decision appears to exclude the possibility of judicial be touched. The high-water-mark of inviolability of a con- enquiry into delegated legislation framed under such wide firmed order is to be found in a case in this House which powers altogether, but the position of the Courts in respect ftlcessarily binds your Lordships. It is the case of Institute of Patent Agents v. Lockwood .... There is an obvious distinction of it was explored further in R. v. Minister of Health: Ex between that case and this, because there Parliament itself parte Taffe. <1 In that case, the Liverpool Corporation had was in control of the rules for forty days after they were passed made an improvement scheme under the Housing Act, and could have annulled them if motion were made to that 1935, and the scheme was approved, with some modifica- effect, whereas here there is no parliamentary manner of tions, by the Minister of Health under Section 40 (3) of the dealing with the confirmation of the scheme by the Minister of Health. Yet, I do not think that that distinction, obviousas Act. Section 40 (5) of the Act provided that 'the Order of it is, would avail to prevent the sanction given being an the Minister when made shall have effect as if enacted in untouchable sanction. I think the real clue to the solution of this Act.' Yaffe owned two houses which were compulsorily the problem is to be found in the opinion of Lord Herchell, acquired under the scheme, and he sought to have the L.C.,who said: "No doubt there might be someconflictbetween Minister's Order confirming the scheme quashed, on the a rul~ and a provision of the Act. Well, there is a conflict ;mehmes between two sections to be found in the same Act. ground that at the local inquiry held by the Minister certain ou have to try and reconcile them as best you may. If you provisions relating to the furnishing of plans had not been cannot, 'you have to determine which is the leading provision complied with. The Court of Appeal took the view that, as and which the subordinate provision, and which must give the statutory provisions had not been complied with, the -y to the other. That would be so with regard to the enact- Minister's purported Order was not a valid Order at all, :en~and with regard to rules which are to be treated as ita tfIn the enactment. In that case probably the enactment and therefore could not take effect under Section 40 (5)' ..Jf would be treated as the governing consideration and the The House of Lords, however, by a majority of four to .o?e, ,e as subordinate to it". Lord Russell of Killowen dissenting, reversed the deCISIOn febWhat that comes to is this: The confirmation makes the but~e speak as if it was contained in an Act of Parliament, 3 [1894J A.C. 347. "'hic~e Ac~of Parliament in which it is contained is the Act 4 [1931J A.C. 494. prOVIdesfor the framing of the scheme, not a subsequent THE PASSING OF PARLIAMENT MENACE OF DELEGATED LEGISLATION 77 Act. If, therefore, the scheme, as made, conflicts with the Act , rs have been unable to agree on terms of sale with it will have to give way to the Act. The mere confirmation will w IlC ective purchasers. If, in fact, that is the result of the Prosp ., li if . c. f not save it. It would be otherwise if the schemes had been t of 1947, it IS.' m re~ ity, 1 not m rorrn, a .measure 0 per se, embodied in a subsequent Act, for then the maxim to land nationalisatlOn which has never been discussed by be applied would have been posteriora derogant prioribus. But as it is, if one can find that the scheme is inconsistent with the , liament at all. It should be added that the Central Land provisions of the Act which authorises the scheme, the scheme arard in this case, was seekimg to carry out thee nroviprovisions. will be bad.' of a ~emorandum which it had circulated to landowners d prospective purchasers under the heading: 'House I' The two decisions of the House of Lords reflect two differ- 'which it had stigmatised the sale of land at a price which ing attitudes towards the Departments. In 1894, the extent luded building value as unfair. The Court of Appeal, to which Departmental legislation might threaten Parlia- evertheless, held that the order of the Minister was intra mentary sovereignty had not been perceived. In 1931, the ';;"es but Denning L. ]. in a powerful dissenting judgment, House of Lords was anxious to preserve any controls which put 'forward argumen~s against such a course which appear might still remain. unanswerable. He said: Possibly the high-water mark in the legislative audacity of the Departments was attained in Earl Fits; William's Went- 'My conclusion therefore is that the ultimate object of the board and the Minister is one which is not lawful, because worth Estates Co. Ltd. v. Minister of Town and Country Planning» it is not their function to legislate. I would willingly support The Estate Company refused to lease a plot ofland on which their action, if I could, because I see no reason why this land- to build a house except for a term of 300 years at a rent of owner should make an undeserved profit out of the purchaser. £20.10.0 a year, and subject to the condition that the tenant But there is a principle at stake which is far more important should pay the development charge in return for an assign- than the stopping of one particular piece of profiteering. The principle is that the legislative power in this country ment of the right to compensation for loss of development resides in Parliament and not in the government departments. rights. The applicant for a lease refused this offer, and applied If once it appears that the ultimate object of the board is to the Central Land Board, who after unsuccessful negotia- one which is not authorized by Parliament, then it is the tion with the company, made an order under section 43 (2) duty of the courts to interfere, for it is a principle of our law of the Town and Country Planning Act, 1947, for its com- that a public authority, which is entrusted with executive powers, must exercise those powers genuinely for the purposes pulsory purchase at existing use value. The owner objected, for which they are conferred. They must not be used for an and the Minister, after enquiry, confirmed the order. The ult~rior object, which is not authorized by law, however Company thereupon applied to have the Minister's order ~eslrable that object may seem to them to be in the public Interest. and confirmation quashed as ultra vires. Section 43 (2) of that Act gives the Central Land Board .'I am greatly strengthened in this view by the judgment of :~rkettJ., who said" quite clearly that the powers of the board power to acquire land compulsorily, for the purpose of carry- hd not enable them to exercise and enforce a policy that land ing out their functions. These functions are described in IIould not be sold at a price greater than its existing value. other sections of the Act, and they include the ascertain- e only decided in favour of the board because he thought it ment of development values and the fixing and collection ?f Was no~ their sole purpose to enforce their policy. It was at !~at POInt,in my opinion, that he fell into error, for, even if development charges. It will be apparent that this case 111 ~ w~s not their sole purpose, nevertheless if it was their pre- reality raises the fundamental question whether the Central iom:~ant purpose, as it clearly was, that is sufficient to Land Board has a general commission compulsorily to n~a Idate their action. acquire the land of private owners, whenever such private ..After all is said and done it come to this: the Central Land i.e .. in this case at first instance, in the King's Bench Division. • [1951J 2 K.B. 284. THE PASSING OF PARLIAMENT MENACE OF DELEGATED LEGISLATION 79 Board required this landowner to conform to their policy of opinions during the de?ate on the prayer for annul- "sales at existing use value only", and because he refused they took his land compulsorily at that value. I do not think that Finally, it may be provided that an order shall lapse they had any right to do this. If it is to be the law of this specified period, unless the House, or both Houses, country that landowners are to sell their land at existing Use er ssly affirm it. In such a case, it may further be provided values only, that law should be enacted by Parliament. It thatrethe order shall not be ettectiveccc.:«: unn·1 an affirmatrve. is often said that Parliament can do anything, but I do not ,lution has been carried. This is obviously the most know that even Parliament can so divest itself of its functions as to leave the making of such an important enactment to a ,. ctive method of Parliamentary control, and opinions have government department without any consideration of it by en expressed that it should be employed oftener than it is. Parliament itself.' In <,.dditionto these various forms of procedure in relation lIDrules and orders, the House of Commons in 1944 set up The other two members of the Court of Appeal, it would the Select Committee on Delegated Legislation, for the seem, thought this was precisely what Parliament had done purpose of considering all Statutory Rules and Orders, and the House of Lords was of the same opinion. ' in order to discover whether the special attention of the Sufficient has been written to show that, under the wide House should be drawn to it on any of the following grounds: forms of legislative delegation recently practised, the control of the Courts has been so greatly weakened that in the '(i) That it. ~mposesa. charge on the public revenues or contains provisions reqwrmg payments to be made to the majority of cases, they can no longer assist a subject who Exchequer or any Government department or to any local considers himself to be aggrieved. To what extent does or public authority in consideration of any licence or consent, Parliament retain control, independently of the terms of or of any services to be rendered, or prescribes the amount of the Acts delegating legislative power themselves? Here it any such charge or payments; (ii) that it is made in pursuance must be mentioned that the procedure governing the promul- of an enactment containing specific provisions excluding it from challenge in the Courts, either at all times or after the gation of departmental legislation is not uniform. Some expiration of a specified period; (iii) that it appears to make rules and orders must be laid before the House 'as soon as lOmeunusual or unexpected use of the powers conferred by the may be'. This means that forty days notice of them must be Statute under which it is made; (iv) that there appears to given. During that time a Member may ask a question, but have been unjustifiable delay in the publication of it; (v) that Parliamentary procedure does not allow this to be followed for any special reason, its form or purport calls for elucidation.'

by discussion and amendment. If this method is used, the I The importance of such a committee, provided that its rules come into operation at once. An alternative practice fUnctionsare effectively discharged, may perhaps be gathered is that the rules shall be laid before the House, but they shall ~ the proceedings in which it originated. In 1941, the not come into force until the expiration of a specified period, PII'e Services (Emergency Provisions) Act gave power to which again is usually forty days. Here the suspensory =:Ho~e Secretary to issue regulations amalgamating local condition again allows questions to be asked, but no other serVIces,and to create a war-time National Fire Service. effective action can be taken. Again, the Act may provide that Act provided that the regulations were to be laid rules or orders shall lie before Parliament for a given time, btfo~e Parliament 'as soon as may be', and if either House during which they are exposed to the possibility of a resolu- 10 twenty-eight days resolved that a regulation should tion that they shall be annulled. Meanwhile, the rules are annulled, it should thereupon cease to be operative. operative. If this method is used, there is the possibility of :ulations were made under the Act, but three years later an effective debate in the House of Commons, and there Morrison, as Home Secretary, revealed to the House the have been a number of instances when rules framed too that they had never been laid before Parliament. The widely have been modified, following the expression of Was an Act of Indemnity freeing the Home Secretary 80 THE PASSING OF PARLIAMENT from all liability for failure to comply with the requirements of the Act, and the debate which resulted in the creation of Chapter 7 the Select Committee on Delegated Legislation. The Committee set up in 1944 owed its establishment primarily to the Active Back Benchers Group in the House of Commons. This group has, for a period of over ten years Administrative Tribunals at Work examined every Statutory Instrument, and its vigilance ha~ been exercised by raising frequent Questions, and moving innumerable Prayers, which in many cases have brought about modifications. Twas shown in the last chapter that the Departments have been increasingly con~erned, in securing grants ?f Ilegislative power from Parliament, to ensure that their exercise of it should, as far as possible, be immune from the supervision of the ordinary courts. Their exercise of legis- lative power, however, has also been accompanied by the exercise, in a very wide range of cases, of the judicial func- tion. Indeed, to a very considerable degree, the two are 8IIOciated in the mind of the administrator. If there is conferred on a Ministry the power to organise an industry, and to make regulations governing the conduct of that industry, then undoubtedly it will be convenient if the .Ministry has power to nominate persons who can adjudicate upon alleged violations of those regulations. Again, a Min- istry, in the exercise of powers conferred on it, may wish to execute a policy which adversely affects the property ora citizen. Once again, it will be convenient if the Ministry bas power to nominate persons who can decide whether !he person aggrieved should be compensated by the Min- -try or not. It was for these and similar reasons that, imperceptibly ~o~t at first, there grew up the practice of conferring J'Ildiclal powers upon the Departments in ever-widening . ' until today the Departments have, either formally 1~ practice, replaced the ordinary courts in the decision dlS~utes in wide fields of social obligation. This process ntInUous. A few years ago, it was decided by Parliament ,t the wide field of Workmen's Compensation should be nsfpr~ed from the ordinary courts (who had admittedly It with a greater degree of technicality than Parlia- had originally intended) to the Ministry of National 8, THE PASSING OF PARLIAMENT ADMINISTRATIVE TRIBUNALS AT WORK Insurance, by the National Insurance (Industrial Injuries) ib nal. If the insurance officer's decision is based solely on Act, I946-an Act which confers a very wide rule-making ! uecial question', then it will be necessary for the claimant power upon the Minister. An elaborate code of procedure SPbtainleave of the chairman of the appeal tribunal before largely excluding the jurisdiction of the ordinary courts' o appeal can be proceeded with. From the local appeal is set out in the Act, and this is supplemented and amplified '~unal either the insurance officer or a claimant may by Regulations made by the Minister under the Act. Under . peal further within three months to the Industrial In- Section 42, an Industrial Injuries Commissioner is to be ap ies Commissioner. This further appeal can only be appointed, together with a number of deputy commissioners. ught with leave either of the local appeal tribunal or These are lawyers often years standing or more. The regula- of the Commissioner. In certain cases also, the trade union tions under the Act provide that questions of law or special of which the claimant is a member may also appeal. difficulty may be decided by a tribunal of three commis- The 'special questions' which have been referred to are sioners, and for questions of fact of special difficulty to be enumerated in Section 36 of the Act. Their importance considered with the assistance of one or more specially lies in the fact that after the remedy by way of successive qualified assessors. Section 43 provides that local appeal appeals has been exhausted, the Minister himself may tribunals are to be set up by the Minister, one or more review the decision in the case of certain 'special questions', persons representing the employer, and a similar number if' new facts are brought to his notice. Moreover, on some of persons representing insured persons. The regulations 'special questions' there is an appeal on a point of law from provide that the Minister may appoint one or more doctors the Minister to the High Court, whose decision is final to sit with the tribunal, either as additional members or as (i.e. there is no possibility of a further appeal to the Court assessors. Panels of persons representing employers and of Appeal or the House of Lords). insured persons are set up by the Minister for different areas, It will be seen, therefore, that the National Insurance and members of a local appeal tribunal are drawn from Industrial Injuries) Act, 1946, establishes a complete these panels. aystem of administrative courts to deal with industrial in- Section 44 provides that full-time insurance officers are juries. Possibly also because the topic of workmen's compen- appointed by the Minister for the various districts. In .. tion has a long and complicated history in the ordinary addition, the Act provides that the Minister shall appoint COurts,the system established contains several noteworthy, medical boards of two or more doctors, one of whom serves and wholly admirable features. For example, in addition as chairman; and the Minister also appoints medical to the balance of interest in local appeal tribunals between appeal tribunals, composed of three doctors, one of whom employer and employed, it is provided that the Industrial acts as chairman. ~uries Commissioner and his deputies shall have adequate Let us see how this machinery works in practice. A claim legal. experience, Moreover, there is completely adequate for benefit must in the first place be made to an insurance proVISlOnfor rehearings, and there is finally the possibility officer, who must consider the claim immediately. If he or a further appeal on a point of law to the High Court. decides that no 'special question' arises, and that th.e '!'he f~ly-developed scheme established by this Act in an claim should be wholly or partially allowed, then benefit IS ~edIngly important field of industrial law therefore st awarded. If he is not satisfied, he must either decide agalll :::=ts very nearly all the criticisms which have been lodged the claimant or refer the case to the local appeal tribunal, as .In_st .administrative tribunals from time to time. It does far as possible within fourteen days of the claim being su~- -.i It IS true, provide for the legal representation of the mitted to him. If the award of the insurance officer I~ Inant, but it is at least doubtful whether this is by any adverse, the claimant may himself appeal to the local appea ns generally desirable, particularly as in case of necessity, THE PASSING OF PARLIAMENT ADMINISTRATIVE TRIBUNALS AT WORK he will be advised by a member of his trade union, who is kers of Departmental policy through this regular contact. familiar with the work of the tribunals. fl~in ways such as this, and not by the cruder methods of The problem of administrative tribunals is one which p~::sure that Departments profit through the tribunals today goes to the very roots of our constitutional system they have created. (or lack of it). The 'classic' constitutional lawyers were The problem of administrative tribunals may be examined apt to condemn the growth of administrative tribunals re closely still. Professor Robson, in his classic Justice and simply because they merged or confused the executive with r;;ministrative Law has explained in detail in what way the the judicial function. This view, in fact, implied an accepj; ·udicial outlook differs from that of the administrator. ance, either express or implied, of Montesquieu's theory of ~he two are applying completely different techniques. the separation of governmental power, which was based on The function of the judge is to secure the proper enforce- a misreading of the English constitution in the eighteenth ment of legal rights and duties. The primary function of century. It would in any case, however, be difficult to argue the administrator is the execution of a policy. Over large in favour of the eternal validity of Montesquieu's hypothesis, fields of social legislation these two functions must today even if it were well founded. Different social conditions may stand in sharp contrast. From the standpoint of the admin- well demand a change in constitutional machinery. The istrator, a policy once agreed upon, must be carried out. argument from the past may be, and sometimes is, an He will attempt to carry it out intelligently and with the argument against all significant change. minimum disturbance of individual rights, but from his Nevertheless, it is well to remember that there are other point of view, a private right too sharply asserted against and deeper problems underlying the question of the exercise his policy is a blemish to be removed. If necessary, he will of judicial power by administrative departments. All govern- seek a grant of wider powers to secure the success of his ment, in the last resort, depends upon the consent of the efforts. This has been done over and over again-for ex- governed, and if large enough numbers of people feel a ample, by successive Housing Acts. The administrator's sufficiently deep sense of injustice against the existing regime, task is therefore to promote a policy; the judge's, to admin- they will in the long run rebel. That is why the impartial ister justice. The two, therefore, do not merge. When an administration of justice is one of the main ends of govern- attempt has been made to do this, the result has generally ment, and why it may often be used to test the stability of been unsuccessful. In the long run, one function has super- a regime. Therefore, if a Department appears to be at once seded the other. Thus, in the early period of its evolution, prosecutor, principal witness and judge in its own cause, a the Court of Chancery was a mixture of law court and deep conviction of injustice will remain in the minds of those administrative department. In the long run, however, its adversely affected by its activities. The demand for really !",~~istrative functions were completely subordinated to its independent judges in administrative tribunals is therefore JUdI.cIalactivities, and eventually, the bulk of its adminis- deep-rooted and genuine. No-one doubts that the officials tratIve work was abandoned altogether. Wolsey, during his appointed for this purpose by the Departments are men of

of the development corporation established under Section :1 den of her bungalow at New North Road, Hainault, of the Act. I am of opinion that no judicial duty is laid on the x yesterday. respondent in discharge of these statutory duties, and that the 'The widow, 73-year-old Mrs. Florence Attridge, has resisted only question is whether he has complied with the statutory for nearly four years a compulsory purchase order by the directions to appoint a person to hold the public inquiry, and C.C. to acquire the bungalow-where she lives alone--and to consider that person's report. On this contention of the an acre of garden. appellants no suggestion is made that the public inquiry Was 'The L.C.C. offered £1,300 and said the land was needed for not properly conducted, nor is there any criticism of the report council houses. by Mr. Morris." In such a case the only ground of challenge 'Yesterday several m~n, arrived at the bungalow by car. must be either that the respondent did not in fact consider One said he was a sheriff s officer, and that the others were the report and the objections, of which there is here no bailiffs. evidence, or that his mind was so foreclosed that he gave no genuine consideraion to them, which is the case made by the One watched appellants. Although I am unable to agree exactly with the 'Mrs. Attridge watched from her bedroom window as her view of the respondent's duty expressed by the learned judge two married sons, Claud, 49, and Laurence, 38, challenged or with some of the expressions used by the Court of Appeal the visitors. in regard to that matter, it does appear to me that the issue 'Several council officials arrived, and began to measure the was treated in both courts as being whether the respondent garden. Sai~ La~rence:. "Xou are no~ taking from my mother had genuinely considered the objections and the report, as yet. It,!s a violation of justice to deprive an old woman of her directed by the Act.' living. Such a line of argument offers an easy way of escape for 'Mrs. Attridge-her husband was a docker-supplements her old-age pension by hiring her garden to summer campers. the Courts from the dilemma created by the conflict of 'Laurence caught hold of the tape, and struggled with the Departmental policy and private right. Once a proceeding bailiffs. A police sergeant and two constables intervened, and has been declared to be administrative, and not judicial, then there was a further struggle. the only legal question which can arise is whether the admin- istrative forms prescribed by the Act have been followed. too watched The effect of the judgment in the Franklin Case is therefore 'By this time more than 100 people were looking on and Mrs. to shift the duty of control of the Department in such case Attridge's four-year-old grand-daughter Marion stood sobbing in the garden. from the courts to Parliament-which has already abdicated 'Claud Attridge tried to remove a pole hammered into the in favour of the Department! In these circumstances, it is garden, and Laurence again struggled with the police. not altogether surprising that the subject should sometimes 'He was taken into custody. His mother, with a red dressing- come to the conclusion that he is being ground between the gown over her nightdress, ran into the garden. upper and the nether millstones. The following consequences "You thieves, robbing an old woman," she shouted. 'A lorry arrived with fencing, and workmen, surrounded of a compulsory purchase order, made by the London by officials and police, fenced off 700 ft., leaving Mrs. Attridge County Council under the Housing Acts were reported in a small strip near her bungalow.' the Daily Express of August 24, 1951: POSSibly it is wrong, in these enlightened mid-twentieth 'WIDOW'S GARDEN IS "SEIZED" BY THE COUNCIL century years that citizens should wish to retain their MEN' property, when it has been compulsorily acquired for totally Son struggles with police ~uate consideration by a local authority, although 'A widow's two sons struggled with police and bailiffs while CUrioUsly enough in earlier times this would have been London County Council workmen fenced off 700 ft. of the =ed as Oppression and extortion. Nevertheless, it re-

6 Who held the inquiry. true that a substantial number of citizens have not yet 94 THE PASSING OF PARLIAMENT ADMINISTRATIVE TRIBUNALS AT WORK 95 been educated to the point where they can view their OWn is he is bound to apply it. He has no discretion MMe\'3UL law , dispossession as a highly praiseworthy incident in the on- dispense with it. .. . ward march of progress. Certainly Mr. Claud Attridge did uasi-judicial process, says the Comrmttee, exhibits not, for on the day following the events recorded in the fi;st and second characteristics, sometimes the third, newspaper extract given above, he was charged at the t ever the fourth. The quasi-judge must know the two

Stratford police court, and was remanded on bail for I n and the facts supporting them, but he need not con- fourteen days on a charge of obstructing a police sergeant. lid r' arguments about them, and his final decision is not It is unfortunately true that no clear line of distinction can editioned by relevant ruler. of law. The formal difficulty, be drawn between judicial, quasi-judicial, and adrninisr-j; It will be seen, c.oi~cid:s ~ith the .d!ffi~u~tywhich judges tive functions in the wide powers conferred on government rience in distinguishing quasi-judicial from purely departments. As Sir C. K. Allen points out," there are few .mninistrative acts: Nevertheles~, one may be subject to administrative actions, except the most mechanical and judicial control, whilst the other ISnot. trivial, in which a judicious balancing of considerations is The difficulties and uncertainties to which this attempted not necessary. On the other hand, there are judicial pro- classification may lead are plainly apparent in the decision cesses, judicial in form, which are in substance administra- of the Court of Appeal in Cooper v. Wilson.7 The facts of this tive, e.g. directions to trustees for the administration of a case were extremely simple. The chief constable of Liverpool trust. Acts such as these, as we have seen, are survivals had provisionally dismissed a police sergeant, and the watch from the days when the Court of Chancery was very widely committee confirmed the dismissal. Under various Police concerned with administration. Furthermore, as Sir Carleton Acts, the power to dismiss a constable in a borough police Allen also points out, even if it were possible to classify the force is vested solely in the watch committee, and the question powers exercised by Ministers, it will be found in practice to be decided was whether the fact that the chief constable, that Statutes have classified as administrative, powers which who had issued a provisional dismissal, sat with the watch are predominantly judicial or quasi-judicial, and conversely, committee through the hearing invalidated the proceedings. they have sometimes treated asjudicial, powers which equally Both Greer and Scott L. JJ. thought that this hearing was a clearly are administrative. Nevertheless, the Committee quasi-judicial proceeding, and both learned Lords Justices on Ministers' Powers heroically sought to establish such were avowedly making an effort to apply the definitions distinctions, and the courts have sometimes attempted to ~Dtained in the Report of the Committee on Ministers' follow the classification put forward by the Committee. ~wel:S. Scott L. J. indeed observed that the police regula- The judicial process, says the Committee has four character- ~ns Issued by the Home Secretary made the watch com- istics: (I) There must be a presentation, either orally or in DUtteea domestic tribunal. writing, of the case of each party; (2) the facts must be ascer- :to try an~ decide very important issues of fact, of guilt or tained by means of evidence, adduced by each party, and ~ocence It may be on grave criminal charges, and anyhow cross-examined by the other; (3) there must be argument by :. all cases, where the chief constable has proposed dismissal, the parties on any points of law which may arise; (4) there . c~arges of great seriousnessto the accused constable. On a must be a decision upon the matter, based on stated conclU- ::n~nal charge, presumably the watch committee would not do' ut Ieave the matter to the ordinary criminal adrninistra- sions concerning the facts, and the application of the relevant ~[ justice; an.d in any case the decision of the watch rules of law, by which the judge is bound. It is that last 'bet ttee would, In my view, be no bar to a trial of an issue characteristic which is often decisive in respect of the c:rUn}ve1nthe King and the prisoner" on the same charge in a judicial process. Once the judge has determined what the na COurt.But as between the constable and the police , [1937] 2 K.B. 3 9. • Laws and Orders, p. 6g. 0 96 THE PASSING OF PARLIAMENT ADMINISTRATIVE TRIBUNALS AT WORK 97 authority-the watch committee itself-which employs him . t nd drink quasi-beer before taking lunch consisting of is the decision of the watch committee on a trial under regula~ :iIIW'I OU a h h h th . . 'e- . hl'cken croquettes. T ey t en go orne to err quasi- tion 20 that the accused is guilty of the offences charged an qUa5I-C e~top'pel against an actio? for either da~ages for wrongful lves.' dismissal or for declarations that he did not commit the offences charged? That question does not arise here as the The great pr~blem presente~ by th~ pr.olifera~o~ of form of the action brought seems to me tacitly to have assumed administrative tnbu~als. ~f all kin?s, their .Wld~ variations that the watch committee was, by the regulations, given • mposition and judicial techmque, their miscellaneous exclusive jurisdiction over the question of guily or innocence IDrovisionco for appeals an d their. re latiatIO~ t? th e .ordim~r.y of the three charges of offences against the discipline code of p rts is the subject of Professor Robson s stimulating cnti- the police regulations. But if this view be right-and I repeat ~ in Justice and Administrative Law, which has profoundly that I express no opinion-it makes the function of the watch committee in point of degree approximate to the judicial inBuenced all study .of the question. Professor R?bson's rather than the quasi-judicial.' approach is an exceedmgly balance~ ~ne. ~e re~ogmses the advantages which a system of administrative tnbunals can Applying this view, the Lords Justices had no difficulty give in so closely integrated a society as that of the West in holding that the requirements of natural justice had not now is. He has a number of important reforms, both proce- been satisfied, so that the decision of the watch committee dural and substantive to suggest, but also, from the date could not stand. The third member of the Court of Appeal, of the appearance of the first edition of his book (and before), Macnaghten J., on the other hand, whilst accepting the he has argued in favour of the creation of an administrative fact that the proceedings of the watch committee were either court of appeal, with mixed administrative and judicial judicial or quasi-judicial, could not find that they were personnel, and sitting in a number of divisions. This would unfair or biased. replace the existing lack of system in the organisation of The decision has provoked strong, and justified criticism appeal tribunals. from Professor Robson." He points out that the watch com- Although Professor Robson put forward this view with his mittee is certainly not a domestic tribunal. usual lucidity to the Committee on Ministers' Powers, it 'If we regard the watch committee, in respect of part of was frigidly received. The lawyers thought it would weaken its work, as an administrative authority exercising judicial the already slender control exercised by the courts. The functions, and thus acting as an administrative tribunal, we administrators, no doubt, preferred the present formlessness shall be nearer the truth and we shall have cleared the air of and lack of system as leaving more autonomy to each of the much ambiguous and nebulous phraseology. The functions Departments. There were no grounds for the complacency which it exercises in that capacity are those in which it is called upon to hear and determine a controversy between parties, of the lawyers, however, for in the next two decades, the either in the first instance or on appeal or by way of an apphca- administrators increasingly outwitted them, and today they tion to confirm the chief constable's decision. ~me even.more insistent that the remaining checks upon 'This is surely simpler, more lucid and nearer the truth eu absolutism should be relaxed. Accordingly, Professor than the picture conjured up of a quasi-judicial court preside~ .,bl(m's proposal which, twenty years ago, was brushed over by a quasi-judge administering quasi-law in quas1- disputes. The quasi-parties give their quasi-evidence; the to!: as an 'unnecessary Continental innovation' would tribunal finds the quasi-facts and considers the quasi-preced.ents • ~ be accepted as a safeguard; but, as Professor Robson and the quasi-principles. It then applies the quasi-law 111. a ~nly conscious in his third edition, it is today the admin- quasi-judicial decision which is promulgated in a quasi-offiCIal iD.~o.rs who are highly suspicious of the purity of his document and given quasi-enforcement. The members of the "'IOIIlhons. tribunal, having concluded their quasi-judicial business, then

8 Justice and Administrative Law. grd Ed., PP.494-6. THE COURTS AND THE EXECUTIVE 99 to examine more closely one or two cases in which the Chapter 8 of such clauses has prevented the Courts from ectively intervening on behalf of a subject. Of necessity, ch cases are somewhat technical, for having regard to the The Courts and the Executive ide powers conceded to Departments, the only obvious )ine of attack open to the subject is to claim, either that the action of the Ministry is beyond the purposes for which the t was passed (necessarily a somewhat vague and often .conclusive enquiry) or that the Minister has failed to HE last two chapters have been primarily concerned comply with the requirements of the Act, usually by omitting with the extent of the judicial and legislative powers lOme step in the procedure prescribed by Parliament. Twhich have been progressively secured by the Depart- ccessive Housing Acts have provided a battleground for ments, and in the course of the discussion, it has been Department and subject, for the powers conceded have been necessary to refer incidentally to the degree of control increasingly extensive, their exercise has often involved the exercised by the Courts over the executive. In order to make compulsory acquisition of the citizen's property, usually for the picture plainer, however, it will now be necessary to an inadequate sum. Thus, Section 40 (2) of the Housing consider the functions of the Courts in somewhat greater t, 1936 (repealing the provisions of earlier Acts) directed detail. that The superior Courts in England, it has been noticed, have 'the compensation to be paid for land, including any build- no great constitutional power entrusted to them to invalidate ings thereon, purchased as being land comprised in a clearance Parliamentary legislation, as the American Supreme Court area shall be the value at the time the valuation is made of has, and it is perhaps fortunate that they have not, for the the land as a site cleared of buildings and available for develop- exercise of this power by the American Supreme Court has ment in accordance with the requirements of the building byelaws for the time being in force in the district.' more than once made it the storm-centre of controversy. At the time of the New Deal legislation, indeed, it appeared This is the infamous 'site value' clause under which for a time as if the executive would be satisfied with nothing widespread injustice and spoliation has been done to a less than the curtailment or abolition of this great power. thrifty and numerous section of the community. It meant, Even though it is regularly exercised, however, it is interest- for example, that if a shop was built on a quarter of an acre ing to notice that it has not prevented the growth to major aite, and was included in a clearance order, the shopkeeper proportions of a situation similar to that which exists in got nothing at all for the destruction of his business, and Great Britain. Something will be said about the American nothing at all for the shop premises which were demolished. problem in a later chapter. In England, the Courts can He ~ot the estimated price of quarter of an acre of land; exercise a somewhat similar power in respect of delegated aQd If he held his shop on a lease, he got nothing at all, as legislation by the invocation of the doctrine of ultra vires. he. Was not the owner of the site. Since, therefore, ruin and Something has already been said on this point, and upon ~truction of livelihood could follow upon a clearance order, the efforts of the Departments to escape from the restricti~ns It II s~a.rcelysurprising that those affected by them sometimes imposed by it through the insertion into statutes grantlllg hUlsed the circumstances of their promulgation closely. legislative power to the Departments of a power to amend n so, and even if they could show that the local authority the Act itself, or even of a power to amend the Act and an.y ~.not proposing to proceed with clearance for some years, other Act as they may think fit. It will be profitable at thiS id not follow that they had any remedy. As Robins v. 98 100 THE PASSIKG OF PARLIAMENT THE COURTS AND THE EXECUTIVE ro r Minister of Healthi showed, a local authority might confiscate th hole of the scheme. In order to consider this question, a man's property, and then relet it to him for a high rent! . e wears to me to be desirable to read, not only the clause, This case also illustrates a further point, viz. that the ~ a~~ read also the clausesimmediately preceding and follow- Ministry is prepared to take a wide view of its functions, and •ut (The three clauses were then read). The respondents will confirm schemes prepared by local authorities, even lng·tended in the Court below that the penultimate clause ~onalidatedthe scheme, because (I) it did not comply with the when there is no prospect at all that they can be carried out InVvisions of Section 35 of the Act, which requires that an at an early date. In this way, local authorities, actively pro rovement scheme must be a scheme "for the reconstruction encouraged by the Ministry of Health (and now by the lrn Prearrangement of the streets and houses within the area an d dh "() .. Ministry of Town and Country Planning) have carried out or some of such. str~ets an 01:lses; 2 It was In any large-scale expropriation of property-owners. One such event too indefinite-s-it left undecided what was to be done with the area. The Act conteJ?plates a defini~escheme, under scheme, under the Housing Act of 1925 was tested in Court which it will be shown what ISto be done WIththe area after 2 in R. v. Minister of Health; Ex parte Davies. The Act of 1925 demolition, and the authority cannot reserve to themselves was drafted in narrower terms than the Housing Act of a power to dispose of it at a future time for any purpose they 1936, on which Robins v. Minister of Health- was fought, and think fit.' accordingly the Courts were able to intervene effectively The Divisional court of the King's Bench Division held on behalf of the subject. The points in issue in this case are that the scheme did not comply with the requirements of very concisely set out in the opening paragraphs of Lord the Act. It provided that the area when cleared 'should be Justice Greene's judgment, which read as follows: ad, leased, or otherwise disposed of as the local authority 'This appeal raises a question of great importance and may think fit', whilst the Act required that the local authority, difficulty with regard to the true interpretation of several ill the scheme, should specify the use to which the land sections of the Housing Act of 1925. It is worthy of note in was to be put. The Court of Appeal unanimously took the passing that that Act takes the place of four statutes which it repeals in whole or in part, and which were known as the lame view as the Divisional Court. Apparently, therefore, Housing of the Working Classes Acts of 1890, 1894, 1900, a victory for the subject had been recorded, but the success and 1903.The title of the Act affords some ground for expect- was fleeting. In the Housing Act of 1936 the Department ing that it is wider in its scope than the provision of housesfor iDlerted a clause providing that the local authority should the working classes, the demolition and rebuilding, and the have complete discretion from the standpoint of user. The regulation of such demolition and rebuilding, and the letting s and occupation of such houses. t was the decision in Robins v. Minister of Health. Once 'After receipt of an official representation by the medical -.un the Ministry had outmanoeuvred the Courts. officer made under Section 35 of the Act, the corporation of I!is important to notice that in Davis's Case, the aggrieved Derby took it into their consideration and made what pur- lUbject had moved swiftly, and had invoked the assistance ported to be an improvement scheme for an unhealthy area ~e Courts after the local authority's scheme had been in their city, which for convenience be referred to as Area No.2. William Davies, an owner of one of the houses affec~ed publIshed, but before it had been confirmed. The result by the scheme, after a public inquiry by an inspector, apphe~ the ~ase was that the subject was granted a prohibition to the Court of King's Bench for a writ of prohibition direc~e which something will be said later) restraining the Min- to the Minister of Health prohibiting him from proceedmg . from ~onfirming the scheme. What could the subject further in the matter of an Order confirming the scherne. e done If the Minister had confirmed the scheme, having The Court, on December 18, 1928, made an Order A~solutf for such prohibition. This is an appeal by the Mimster d d to the fact that the Act of 1925, like the later Acts, Health against such Order Absolute. It is unnecessary to rea that the order, when confirmed by the Minister,

1 [1939] I K.B. 537, Ante chapter n, have effect 'as if enacted in the Act'? In the Divisional s [1929] I K.B.619. • ('939] I K.B. 537. 102 THE PASSING OF PARLIAMENT THE COURTS AND THE EXECUTIVE Court, in Davis's Case, Lord Chief Justice Hewart had the result that the Ministry did not automatically expressed the view that if the scheme had been confirmed finn the scheme, but made suggestions that many of the by the Minister, the Courts would then have been powerless. improvements could be achieved by repairs and This exact point came before the Divisional Court in R. v. 'I>1ecOnanioning. The J arrow Corporation, however, pressed Ministry of Health; Ex parte Yaffe two years later,' when the entire scheme to be confirmed, and eventually, a Lord Hewart and Talbot J. followed the view expressed ,r resentative of the Ministry, together with the Inspector by Lord Hewart in Davis's Case. Swift J., however, thought ,Ko held the inqury, met representatives of the Corporation that even at that stage, the Courts could effectively inter- illJarrow, where they inspected the area, in the absence of vene, and the Court of Appeal reversed the decision of the e objectors, or any representatives of them. The result of Divisional Court, and substantially accepted the opinion of .is inspection was that the Minister confirmed the scheme. SwiftJ. This time, however, the Ministry pursued the question the Court of Appeal were able to hold that the Minister's as far as the House of Lords, which held, by a majority tion in confirming the scheme after public inquiry was of four to one, that when the scheme, as modified by the ~asi-judicial, and that since in this case the requirements Minister, was confirmed by him, it took effect as if enacted • natural justice had not been fulfilled, the Order must be in the Act, notwithstanding its earlier defects. The Court of quashed. Appeal, on thc other hand, had taken the view that if a It is not often that a Ministry trips up so obviously, scheme failed to satisfy the requirements of the Act, it was wever. Moreover, Errington's Case opened up a number of ultra vires, and therefore there was no effective scheme for ing problems upon the question when a Minister may be the Minister to confirm. The House of Lords, it will be seen, id to be acting quasi-judicially, and when administratively. took the view that there was a scheme, albeit a defective IIlmost immediately after Errington's Case had been decided, one, which the Minister modified, and effectively confirmed. iItost v. Minister of Healfh6 was argued before Swift J. This Thus, the protection given by the Courts in Davis's Case out of a clearance order relating to Birkenhead. After was applicable only when no valid scheme at all was pre- Corporation had made its draft order, and before pared by the local authority, and in any event, even this objections had been lodged, the Ministry of Health possible redress was swept away in the wider terms of the -V1~ed the Corporation to omit a number of houses Act of 1936. the scheme, without any fresh resolution being passed With the substantial failure of the onslaught on schemes the local authority. This was done, and the draft order themselves, as reflected in the judgment of the House of published omitted the houses mentioned by the Min- Lords in Yaffe's Case, the point of attack changed, as might Later, objections were lodged, and after they had been have been anticipated, to the conduct of public enquiries. at a public inquiry, the Minister confirmed the scheme. Assuming that in holding a public enquiry, the Minister "'rpllT""'~, some of the objectors sought to have the order was discharging a judicial or 'quasi-judicial' function, then the scheme quashed. SwiftJ. held that he had no the Court might enquire into the proceedings to discover to do this. The amendment of the scheme did not make whether the requirements of 'natural justice' had been under the Act, and when the Minister tendered satisfied. This was done with some success in Errington v, ~d~ce, before objections were lodged, he was acting Minister of Health.6 The appellant in this case, had lodg~d lUlstratively, not judicially or quasi-judicially. Twelve objections against a clearance scheme relating to land III .later, a variation of this mode of attack again the centre of Jarrow. A Public Local Inquiry was held, Ineffective. In Offer v. Ministry of Health,7 the facts

• [1931] A.C. 494. 6 [1935J 1 K.B.249. 104 THE PASSING OF PARLIAMENT THE COURTS AND THE EXECUTIVE were similar, except that before the public inquiry was held deputation had interviewed the Minister on a the Minister had sent an official to make a preliminary in, -"fferent Act, and generally on a subject-matter of which the spection of the area, the result of which was to encourage the ulsory purchase order was a specific instance. The Corporation to declare it a clearance area. The COurt of ~~t of Appeal held that her~,. to~, .the Minister was ac~ing Appeal held that this did not invalidate the order. In their ministratively and not quasi-judicially, so that the subject view the Ministry was acting administratively before the without redress, and common sense would appear to dispute between citizens and local authority had arisen. coincide with the Court of Appeal's decision. As Scott L. J. These decisions, however, by no means covered the diffi- id in his judgment, culties which can arise from the merging of administrative 'the administrative duties have to be carried out as part of and judicial functions in an executive Department. In the policy of Parl~ament.i~po~ed upon the !Viinisterby the Horn v. Minister of Health': the Court of Appeal was called statute which ~e IS administering, ~nd Parhament mu~t be upon to make the attempt to sort out a number of episodes taken quite deliberately to have decided that the exercise of into their respective spheres-administrative and quasi- the quasi-judicial functions of the Minister is compatible with the performance of his administrative duties under the Act.' judicial-and opinions have differed widely upon the results of their efforts. In this case, the Sunderland Corporation That may not be an ideal solution, but there it is, and made a compulsory purchase order in respect of farmland once it has been settled that the Department is acting admin- owned by Horn. This was under the Housing Act of 1925. iltratively, the subject is beyond the protection of the Courts. Horn objected, and a public local inquiry was held, at which This was also the conclusion reached in Franklin v. Minister Horn developed his objections. After the inquiry closed, of Town and Country Planning,9 a case which has already been but before the Minister had confirmed the compulsory pur- discussed earlier in this volume. In that case, it will be re- chase order, a deputation from the Sunderland Corporation membered, the original decision of Henn Collins J. was not had an interview with the Minister, not to discuss the in- supported by higher Courts, which took a narrower view of quiry, but to discuss the plans of the local authority to abate their powers to control the Departments than the judge of instance, who had expressed the same view in other overcrowding under Section I of the Housing Act of 1935· lint Nothing appears to have been said at the interview about decisions. Thus in Re Plymouth (City Centre) Declaratory Order, the confirmation of the compulsory purchase order then IfH610 an application was made to quash an order made pending, but Horn asked for the order to be quashed on the under the Town and Country Planning Act, 1944, by the ground that the Minister had failed to observe the principles nister of Town and Country Planning, and relating to of natural justice in receiving representatives of the corpora- property in the centre of Plymouth. Section I ( I) of the t provides: tion in his absence. The question to be resolved was whether this case came within the principle of Errington's Case or 'Where the Minister ... is satisfied that is requisite, for the within that of Frost's and Offer's Cases. In Errington's Case, Ihrpose of dealing satisfactorily with extensive war damage in it will be remembered, the Minister had been in contact e a::ea of a local planning authority, that a part or parts of th~Irarea, consistingof land shown to his satisfactionto have with the local authority in the absence of objectors between IUStamed.war damage, or of such land together with other the time of the inquiry and the time when the order was ~d contIguousor adjacent thereto, should be laid out afresh confirmed-as was the case here. In Frost's and Offer's Cases i:dr.edevelopedas a whole, an order declaring all or any ofthe the contact had occurred before the dispute between citizens n ha such a part of their area to be land subject to compulsory ;c. ase for dealing with war damage may be made by the and council had arisen, when it was clear that the Minister mIster.' was acting administratively. In Horn's Case, however, the ~.[1937J 1 K.B. 164. • [1937] 1 K.B. 164. [1947] L.J.R. 527. 106 THE PASSING OF PARLIAMENT THE COURTS AND THE EXECUTIVE 107 The Plymouth order related not only to _war-damaged prop_ , tion although it may have some bearing on the question erty, but also to sound property contiguous to it. Henn discreof bona fides. In e:cerclSlng., hiIS.d'Isc.retlOn. he cannot be confined Collins J. held that the Minister had no jurisdiction to make the evidence given ';l-tthe H~qUlry,~uch I_I1attersform ~nly the order, since there was no evidence that he had satisfied to t of the consideratlOns which he IS entitled to take mto himself on reasonable grounds that it was necessary for the par unt He may have and is entitled to have present to his accO. d'. his own VIewsas to generaI poliICYas weIIas materia. I redevelopment scheme. The order was therefore quashed to :u~ired in a purely executive ~a~acity, su~h as repo:t~ an~ the extent that it related to the sound property. In effect op[nionsobtained from sourceswithin or outside the Ministry. Henn Collins J. was maintaining that phrases such as 'i~ Here, therefore, we ha~e the doctrine of departm~nt~l satisfied' and 'has reasonable cause to believe' are phrases _ sponsibility expressed In very broad terms, and It IS which entitled the Courts to enquire into the propriety of administrative action. . I:~ructive to compare the language of the case with that -.sed by the courts in Davis's Case and Yaffe's Case in order This view of the matter did not commend itself to the to assess the extent of judicial abdication which has occurred Court of Appeal in Robinson v. Minister of Town and Country in the course of fifteen or sixteen years. Its effects in relation Planning,ll an appeal from another judgment of Henn to industry may be studied in the decision of Sellers J. in Collins J. in another Plymouth case, later in the same year. Tlwrneloe and Clarkson v : Board of TradeP In that case, the In that case the Minister had made a declaratory order under effect of s. I (4) of the Industrial Organisation and Develop- the Act of 1944 providing for the compulsory purchase of ment Act, 1947, was under consideration. This subsection nine houses, three of which had been destroyed by enemy provides that a development council order action, one damaged, and the other five were undamaged. Once again, Henn Collins J. quashed the order, but the 'shall not be made unless the Board of Trade is satisfied Court of Appeal reversed this decision, and Lord Greene that the establishment of a development council for the industry is desired by a substantial number of the persons engaged in M. R. conceded the freedom of the executive in these matters the industry.' in very wide terms. The Board of Trade, by the Clothing Industry Development 'The words "requisite" and "satisfactorily" (he said) clearly Council Order 1949 made an order establishing a develop- indicate that the question is one of opinion and policy, matters ment council for the clothing industry, and clothing com- which are peculiarly for the Minister himself to decide. No panies brought an action alleging that the order was ultra objective test is possible. If confirmation of this view is sought, rJiru. It was shown that the order was desired by 1,000 it is to be found, for example, in the provisions of the First Schedule, under which the Minister, although bound to consider 6nns out of a total of 24,000, and that it was opposed by objections, is entitled to make his decision without any private 5.000 firms. Out of 474,000 employees in the industry hearing or public inquiry. In making his decision he may ob- 150,000 had expressed their desire for a development council. viously be guided by his own views as to what is "expedient" Sellers J. held that, in the absence of bad faith, the courts for the purpose of dealing "satisfactorily" with extensive war had no power to control the Board of Trade in the exercise damage, assisted, of course, by any advice which he may obtain from his own staff or from outside advisers. But the alits discretion, or to test whether the desire was substantial decision and the principles and policy which lead him to it not. In the light of the decision of the Court of Appeal are such as to commend themselves to him. This cannot be III the Plymouth case, no other decision could have been affected by the fact that he decides to order a public inquiry. :::"h~d; but. the case throws an interesting light on the The object of such an inquiry under the First Schedule can . mdustnal democracy' in action. only be to elucidate matters upon which he desires to be bett~r informed. Nothing that is said or done at it can bind hIS 'WIth these decisions in mind, it will be valuable now to uss briefly the mechanism by which the subject tests the 11 [1947] L.J.R. 1285. • (1950) 66 T.L.R. (Pt. 7) 1117. THE COURTS AND THE EXECUTIVE 108 TIlE PASSING OF PARLIAMENT 109 action of a department in the courts. The most commo Having regard to the wide scope of this writ in early times, mode of procedure is by seeking an order in the nature of • might have been expected that the courts would frequently one of the prerogative writs. ~ e availed themselves of it to test the decisions of govern- Until the Administration of Justice (Miscellaneous Pro- a:t departments. For some time this was not the case, and visions) Act, 1938, it was in fact the prerogative writs of ~~iorari played a smaller part in the struggle between the certiorari, prohibition, and mandamus themselves which were urts and the executive than might have been expected. used. That Act substituted an order in the nature of the I effect, the courts have remained content with the restric- appropriate writ, and simplified the procedure to Some :On of the writ to judicial proceedings, although they have extent, but this did not affect more widely the actual working given a wide interpretation to the phrase 'judicial proceed- of the writs themselves, and accordingly, it will be conven- ings.' Thus, it is now clear that the granting of licences is a ient to discuss them, as if the writs themselves were still in judicial proceeding for this purpose.P and in R. v. London operation. County Council, ex parte The Entertainments Protection Associa- Whether or not these writs are correctly described as tion,ta Scrutton, L. J. said: 'prerogative' writs we need not inquire, although it may 'It is not necessary that it should be a court in the sense be noticed that Mr. de Smith has lately examined their that this court is a court; it is enough if it is exercising, after history, and has reached the conclusion that this general hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition; description can be ascribed to Lord Mansfield, thus linking and it is not necessary to be strictly a court; if it is a tribunal them with habeas corpus, which had been regarded as a pre- which has to decide rights after hearing evidence and opposi- rogative writ from the time of James 1.13 Each of them, tion, it is amenable to the writ of certiorari.' however, has a separate history, and its own distinctive In the same case, Fletcher Moulton L.J. defined the scope procedural characteristics. Certiorari was in origin a royal of certiorari possibly even more clearly. He says: demand for further information on some governmental matter. At an early date, it was used for the purpose of 'The procedure of certiorari applied in many cases in which removing to the King's Courts at Westminster for trial the body whose acts are criticised would not ordinarily be cases which had been initiated before inferior courts of called a court, nor would its acts be ordinarily termed "judicial acts". The true view of the limitation would seem to be that record. This function was progressively extended until, as the term "judicial act" is used in contrast with purely minis- Mr. de Smith observes, the Court of King's Bench, which terial acts. To these latter the processof certiorari does not apply, monopolised the issue of the prerogative writs became as for instance to the issue of a warrant to enforce a rate, even though .the rate is one which could itself be questioned by 'a supreme court of administration, supervising much .of certiorari, In short, there must be the exercise of some right or the businessof local government by keeping subordinate bO~I~S duty to decide in order to provide scope for a writ of certiorari within their legal limitations by writs of certiorari and prohibi- at common law.' tion, and ordering them to perform their duties by writs of mandamus. The modern High Court had succeeded to much Within the past few years, however, the Courts have shown of this jurisdiction, and there can be no doubt that the absence gr.owing firmness when faced with the problem of con- in the common-law systems of a distinct body of publi~ law, trollIng the proceedings of administrative tribunals. In the whereby proceedings against public authorities are instItute~ only before special administrative courts and are gover~e A tremely.important case of R. v. Northumberland Compensation by a special body of rules, is directly traceable to the extenS,I~e ippeal Trzbunal,17 a clerk, named Shaw, lost his employment use of prerogative writs by the Court of King's Bench. UR 11 [' v. Woodhouse [1906] 2 K.B. 501. 17 1931] 2 K.B. 215. 1S The Prerogative Writs in (1951) Cambridge Law Journal, pp. 55-56. [1952] 1 K.B. 338. 14 Ibid .• p, 48. 110 THE PASSING OF PARLIAMENT THE COURTS AND THE EXECUTIVE III under the West Northumberland Joint Hospital Board i • the early part of the seventeenth century, and prohibi- consequence of the passing of the National Health Ser~icn ~ ns granted by Coke whilst Chief Justice confined the Act. He was dissatisified with the compensation awarded t~ . tivities of the ecclesiastical courts and the Court of Admir- him by the Gosforth U.D.C., and accordingly he referred the scty within narrow limits. Of its later history, Bankes L. J. matter to the tribunal designated by the National Health ys in R. v. Ele~tricity Commissioners: Ex parte London Elec- Service Regulations, 1948, claiming that only part of his ,"city Joint Committee: service had been taken into account. The tribunal dismissed the appeal, and its order specified the period of service in 'Originally, no doubt, the writ was issued only to inferior terms identical with those adopted by the local authority. courts, using that expression in the ordinary meaning of the word "court". As statutory bodies were brought into existence Shaw then applied to the Divisional Court for an order of exercisinglegal jurisdiction, so the issue of the writ came to be certiorari to have the order brought up in the King's Bench extended to such bodies. There are numerous instances of this Division and quashed. At the hearing, counsel for the tribunal in the books, commencing in quite early times. In the case of admitted that there was an error on the face of the tribunal's R. v. Glamorganshire (Inhabitants), decided in Trinity Term, 12 decision, but he argued that certiorari would only lie to such Will. 3,20 the court expressed the general opinion that it would examine the proceedings of all jurisdictions created by Act an administrative tribunal for want or excess of jurisdiction. of Parliament, and if, under pretence of such Act, they pro- The divisional court held that it would lie for an error oflaw ceeded to usurp jurisdiction greater than the Act warrants, on the face of the order, and granted the order for certiorari. the court could send a certiorari to them to have their pro- The Court of Appeal upheld the decision of the divisional ceedingsreturned to the court; to the end that the court might court, and refused to allow counsel for the tribunal to with- see that they keep themselves within their jurisdiction, and, if they exceed it, restrain them. It would appear from the draw the admission of error. In this way the ancient super- judgments in Re Tstradgynlais Tithe Commutationv and Re visory jurisdiction of the King's Bench was reaffirmed where Appledore Tithe Commutation= that in both these cases the court the administrative tribunal sets out its reasons on the record. was willing to assume that a writ of prohibition could lie What, however, if the tribunal does not set out its reasons, against the Tithe Commissioners. In Chabot v. Lord Morpeth,23 but simply announces its decision? In Barnard v. National the court certainly proceeded upon the assumption that a writ of prohibition might be issued to the Commissionersof Woods Dock Labour Board's the Court of Appeal held that a person and Forests.' aggrieved by such an administrative decision might bring an action for a declaration. R. v. Electricity Commissioners: Ex parte London Electricity Certiorari and prohibition are often claimed together. Joint and Otherss« shows the limits of the application of In Short and Mellor's Practice of the Crown Office,19 prohibition mtiorari and also the application of the ultra vires doctrine is described as to the activities of a statutory body functioning under the 'a judicial writ, issuing out of a court of superior jurisdict!on Board of Trade. Under the Electricity (Supply) Act, 1919, and directed to an inferior court for the purpose of preventmg ~o statutory bodies were set up, the Electricity Commis- the inferior from usurping a jurisdiction with which it was not _ners and the Joint Electricity Authority. By the Act, the legally vested, or, in other words, to compel courts e~tr,!st~d lectricity Commissioners were empowered to formulate a with judicial duties to keep within the limits of their Juns- lCh~me enabling the Joint Electricity Authority to delegate diction.' theIr powers to committees. The Commissioners had powers Historically, prohibition played a great part in the struggle 10 ( 1700) I Ld, Raym 580 11 (18 . . between the Common Law courts and the prerogative courts I, 44) 13 L.J.Q.B. 287. II ~1845) [7 L.J.Q.B. 59. 18 [[953] 2 W.L.R. 995. I. (850) 19 L.J.Q.B. 377. ,. znd Ed .. P.252. [1924] I K.B. 171. tI2 THE PASSING OF PARLIAMENT THE COURTS AND THE EXECUTIVE 113 to make an order giving effect to the scheme, such order and prohibitio? would b.e ~pplicable to the deter:r:inations being subject to confirmation by the Board of Trade. For f the ElectriCIty Commissioners under the Electricity Acts. the purpose of creating a single electricity authority for o either certiorari nor prohibition, however, can be used London and the Home Counties, the Commissioners, pro- 'nquire into the bona fides of a purely administrative act. to I . dv j d. Thi pounded a scheme, which created the London and Home F r this the approprrate reme y IS man amus. IS IS a Counties Joint Electricity Committee. The scheme also d?ectiod from the High Court to a public body or an provided that this committee should appoint two committees ~cial who is under an absolute, as distinct from a dis- to which it should delegate its powers and duties under the ~etio~ary, du~y to perform an act.' to do it. Where, howev~r, scheme. Each of these committees had assigned to it a the duty is discretlOnary, the HIgh Court cannot exercise portion of the entire district. The Court of Appeal eventually control. The act need not necessarily be administrative. held this scheme ultra vires the Act of 1919. In this case, both Thus by means of mandamus, a lower court can be prohibition and certiorari had been asked for, and the Court com~elled to exercise jurisdiction which it is prepared of Appeal granted prohibition. wrongfully to renounce. In R. v. Barkerw Lord Mansfield Lord Justice Atkin, in a notable judgment, continued the said: discussion of the two prerogative writs which had been 'A mandamus is a prerogative writ; to the aid of which the initiated by Bankes L. J. He said: subject is entitled, upon a proper case previously shown, to the satisfaction of the court. The original nature of the writ, 'The matter comes before us upon rules for writs of pro- and the end for which it was framed, direct upon what occa- hibition and certiorari which have been discharged by the sionsit should be used. It was introduced, to prevent disorder Divisional Court. Both writs are of great antiquity, forming from a failure ofjustice, and defect of police. Therefore it ought part of the process by which the King's Courts restrained to be used upon all occasionswhere the law has established no Courts of inferior jurisdiction from exceeding their powers. specific remedy, and where in justice and good government Prohibition restrains the tribunal from proceeding further in there ought to be one. Within the last century, it has been excessofjurisdiction; certiorari requires the record or the order liberally interposed for the benefit of the subject and advance- of the Court to be sent up to the King's BenchDivision,to have ment of justice.' its legality enquired into and, if necessary, to have the order quashed. It is to be noted that both writs deal with questions evertheless, as Lord Wright pointed out in Stepney Bor- of excessivejurisdiction; and doubtless in their origin dealt OfIgh Council v. J. Walker & Sons Ltd.,26 mandamus will not almost exclusivelywith the jurisdiction of what is understood be granted where there already exists a sufficient and con- in ordinary parlance as a Court of Justice. But the operati?n venient remedy. of the writs has extended to control the proceedings of bodIes Besides these three prerogative writs, other legal redress which do not claim to be, and would not be recognised as, Court of Justice. Whenever any body of persons having large may be available to the subject. The legality of a rule promul- authority to determine questions affecting the rights of subject:', gated by a Department may be tested in advance by an action and having the duty to act judicially, act in excess of.t~elr for a declaration. This procedure was until recently limited in legal authority, they are subject to the controlling jurisdIctIOn pe, and it cannot be initiated without the Attorney- of the King's Bench Division, exercised in these writs.' Gen~ral's fiat.27 In some circumstances also, a subject might He then cites decisions to show how certiorari and prohi- btam an injunction to prevent a public authority acting bition have been used in respect of decisions of Justices of :: (1762) 3 Burr. 1265, 1267. the Peace, Poor Law Commissioners, Boards of Guardia~s, " [1934] A.C. 365. e the Board of Education, Licencing justices, Tithe CommIS- ~~o; ;C examples of its use, see Dyson v. A.G. [1911] I K.B. 410; China """ V M . o. Ltd. v. Machay [1918] I K.B. 33; Bombay and Persia S.N. Co. sioners, Inclosure Commissioners, and Light Railway Corn~ 40. [193iJh6h.[;~~0] 3 K.B. 402; Nixon v. A.G. [1931] A.C. 184; Thomas v. missioners, and he reaches the conclusion that both certiorarz 114 THE PASSING OF PARLIAMENT THE COURTS AND THE EXECUTIVE 115 illegally in respect of him. Somewhat surprisingly, this species Observations such as these suggest that the judicial of equitable relief seems in the past to have been asked for ttitude towards administrative tribunals is hardening, and only rarely, and then not always successfully, although iliat the day when such tribunals. could make final decisions Professor Hanbury, in a stimulating essay,28has suggested n questions of law may be passmg. As yet, however, such that the limits of equitable assistance to the harassed subject ~ssibilities .are .by no means generally realised, and f?r th.e have perhaps not yet been reached. In Barnard v. National present, it IS still true to say that normally the subject IS Dock Labour Board,29 however, the Court of Appeal served - ed to the three prerogative writs and an action for a notice that the scope of actions for a declaration might be and the effectiveness of his remedy will depend widely extended in the future, and at the same time gave two things: (I) the extent to which the Departments, striking proof of the accuracy of Professor Hanbury's fore- framing the legislation by virtue of which powers are cast. In a dispute about the way in which lighter-men should to them, can so frame those powers as to make work in the Port of London, some men were suspended by to these remedies ineffective, and (2) the vigour the London Dock Labour Board, acting through the port- which the courts are prepared to scrutinise the conduct manager. The statutory appeal tribunal set up under the the executive. Dock Workers (Regulation of Employment) Order, 1947, In a recent essay in The Canadian Bar Review,so Mr. Clive dismissed the lightermen's appeal without stating reasons. has. suggested that in recent years, the province The lightermen then instituted proceedings claiming declar- the Common Law has expanded, through the precedents ations that they had been wrongfully suspended, and that .Lablished by the use of the prerogative writs in respect of the original notices of suspension were ultra vires and invalid. strative law. He goes so far as to suggest'" that On behalf of the Dock Board it was argued that the Court 'the most significant legal development of the past fifty years had no jurisdiction to inquire by way of declaration, and that is the almost complete absorption of administrative law in only certiorari was available, although it was not applicable the fold of the common law. This development is an event of here. The Court of Appeal rejected this restricted view of the the first magnitude, which is comparable to the incorporation Court's functions, and unanimously held that an action for a of the law merchant into the common law in the eighteenth century.' declaration would lie, whilst Lord Justice Denning went further and held that the Court could also exercise juris- he suggests, has been accomplished by extensions in the diction by way of injunction. He said: of the three prerogative writs discussed in this chapter. One could only wish so general and so optimistic a state- 'I know of no limit to the power of the court to grant a declaration except such limit as it may in its discretion impo~e t were true. Unfortunately, it is the precise converse of upon itself; and the court should not, I think, tie its hands 111 truth. Lord Hewart, as has been pointed out, was pro- this matter of statutory tribunals. It is axiomatic that when.a y concerned by the steady expansion of the areas in statutory tribunal sits to administer justice, it must act mr administrators operated entirely free from legal accordance with the law. Parliament clearly so intended. \ t. Professor Robson and Sir Carleton Allen, widely the tribunal does not observe the law, what is to be done. The remedy by certiorari is hedged round by limitations and though their viewpoints are, concur on this point. may not be available. Why then should not the court mter- more recently Lord Justice Denning, in Freedom Under vene by declaration and injunction? If it cannot so intervene, Law, the first series of Hamlyn lectures, devoted an entire it would mean that the tribunal could disregard the law, to a discussion of the limits of the power of the which is a thing no-one can do in this country.' courts to intervene between the subject and the

28 Equity in Public Law, in Essays in Equity. ~951) 29 C.B.R. p. 469. 28 [1953] 2 W.L.R. 995. . 470. 116 THE PASSING OF PARLIAMENT THE COURTS AND THE EXECUTIVE I 17 State. After noting the frequency with which appeals to th . ich as to enable it to correct many of the faults or injustices ~hich may arise, unless the Statute gives an appeal. The High courts from decisions of administrative tribunals are pro- Court proceeds on the footing that if Parliament had thought hibited, Lord Justice Denning continues: fit to entrust jurisdiction on all these new matters to new 'If any proof were needed that there should be an appeal to a tribunals without any appeal from them, then, so long as the superior court it is provided by cases which have been recently tribunals do not exceed or abuse their jurisdiction, the High reported. One of them will undoubtedly rank as a leading Court should not interfere with them. If a tribunal should case.P" It arose in connexion with the new tribunals which have come to a wrong conclusion on the fact, or, indeed, if there is power to fix the rent of furnished lettings. The underlying no evidence on which it could come to its conclusion, the principle of this legislation is that the landlord has in his control High Court cannot interfere; nor, if the tribunal comes to a an essential supply, and it is his duty only to charge a reasonable wrong conclusion in point of law, can the High Court interfere. rent. Not only the tenant, but the local authority, can compel So long as the tribunal keeps within its jurisdiction, and is him to perform this duty. They can apply on their own in- not guilty of any flagrantly unjust procedure, its decision is itiative to the tribunal to fix a reasonable rent, and, thereafter final both on facts and the law."33 the landlord is tied down to this amount. There is no appeal Nothing could more clearly demonstrate the untenability to the courts from the decision of the tribunal, nor even to the of Mr. Schmitthoff's hypothesis. It is historically unsound for Minister. But the courts, as you will hear, have some degree two reasons: (I) the machinery of control by the prerogative of control so as to prevent them exceeding or abusing their jurisdiction. writs has been part of English law for centuries, and in the 'Let me, however, go on with the story. There is, as you time of Lord Mansfield was used over a wider area than it know, a large block of flats in Paddington called Park West. is today, as Lord Mansfield's own language shows; (2) the In 1947 two of the tenants referred their tenancy agreements procedure whereby the law merchant was incorporated into to the tribunal and got their rents reduced. Thereupon the English law was one whereby the Common Law courts took Padding ton Borough Council referred 302 of the other flats straightway to the tribunal. In eight of them the tribunal over a jurisdiction previously exercised by non-Common reduced the rents. Several points arose in the case, but the Law courts, extending English law to include mercantile only one for present purposes is this: when the tribunal reduced law in the process. There is no sign at all that the courts the rents, they did not give the landlords any credit for the today are incorporating the 'jurisprudence' of adminis- fact that the landlords were providing a lift, a swimming pool trative tribunals, if that be the term, into the Common Law. and many other amenities for the tenants, which were obviously of considerable value. The tenancy agreements contained If judicial pronouncements are any guide most of them would nothing to bind the landlords to supply these amenities, and recoil in dismay at the prospect. Instead, the courts are so the tribunals thought that, in consequence of recent de- seeking with difficulty to set limits beyond which admin- cisions, they could not take them into account. Now that is a istrative usurpation shall not pass. Very far from the Com- typical point of law upon which the High Court could have mon Law replacing administrative tribunals, more and ruled, if there was a right of appeal to the Court. Itwas obviously desirable that there should be an authoritative ruling more are being created outside the Common Law year by upon it. So the Solicitor-General did invite the Court to express year, and some of the cases discussed earlier in this book an opinion on it for the guidance of tribunals; and the Court will show how, in spite of obvious willingness, the courts did so. But if that had not been done, the tribunals might have ~ave. n_ot ye.t succeeded in holding back the onward rush of gone on indefinitely acting on a wrong view of the law-all dmllllstratlVe lawlessness although plain signs of a counter- because the Statute did not provide for any appeal to the attack can now be seen. courts. 'It should be clearly understood that, although t~e .High Court has some degree of control over the tribunals It IS not 33 Freedom Under the Law, pp. 92-4.

S2 R. v. Paddington and St. Marylebone Rent Tribunal: Ex parte Bull [19491 1 K.B. 666. TAXATION AND FREEDOM 119 fees ('xacte~ by the Crown in litigation; he co~l~ sell rights Chaoter 9 f jurisdictIon to towns or other local authorities, and he oxacted heavy fees from those appointed to offices and dig- eities. Even today, some of these rights still survive. Fees are Taxation and Freedom still exacted from litigants, and there exists a half-forgotten ~heory that the Courts of Justice, as far as possible should be self-supporting; and although the Crown has long since ceased to rely upon them, fees are still exacted in some cases from those who are granted dignities. Nan age which has become accustomed to the presenta- Nor was this all. At some period subsequent to the Norman tion of an annual budget exceeding four thousand Conquest, it had become accepted doctrine that the Crown Imillion pounds sterling, and in which the screw is turned could levy certain customs duties. It was by no means clear ever more tightly upon the taxpayer, it is well to recall the how far this prerogative right extended, and its existence original conceptions underlying our modern system of was the cause of much controversy in early Stuart times, taxation. In theory, even today, the King asks Parliament for but the right certainly existed, since Magna Carta attempted the means to carryon his government. This procedure is to draw a distinction between those customs duties which now no more than a historic relic, but it recalls the initial could lawfully be imposed, which it termed antiquae et theory of our constitution, in the first centuries after the rectae consuetudines, and unjust customs dues (maletolts), Norman Conquest, that the King should 'live of his own'. which it would be lawful to resist. For generations, the King was the greatest landowner in Not unnaturally, strong Kings attempted to press their the realm, at a period when land was the principal source rights of revenue to the furthest possible limits, and there of wealth. It followed, therefore, since the King's ministers were frequent irregularities. The great significance of Magna were in fact, as well as in form, his servants, that the Carta in its fiscal aspect is that it defines what dues can be revenues of his estates should go far towards payment for the levied by the King under the medieval feudal law of the services which they gave him. This, however, was by no land. Unfortunately, the conduct of government became means the full extent of his revenues. By the feudal law, the ever more costly, and increasingly, the King was unable King was entitled, independently of any grant, to certain 'to live of his own'. More particularly, foreign wars were customary 'aids', or payments from his feudal tenants. expensive, and the Kings (even Kings such as Edward III) These aids were leviable for the knighting of his eldest son, were often hard pressed to raise sufficient revenue for the for the marriage of his eldest daughter, and for the ransom execution of their policies. Loans were an obvious expedient, of the King's person. An 'aid' of the third kind, it will be and several of our medieval Kings were compelled to have remembered, was levied to rescue Richard I from captivity recourse to Jewish or Lombard moneylenders. But the sustained on his return from the Crusades. Beyond this, the ~cords of monarchs in the matter of repayment were not feudal law granted the king certain other valuable rights- Illlpressive, and security was frequently demanded. Thus, He could, for example, exercise the rights of wardship and the ~rownjewels were upon occasion pawned. When security marriage in respect of infant tenants-in-chief; he could Was Insufficient, a strong King was sometimes compelled forfeit the lands of those convicted of treason, and he could ~f1 exact 'forced loans' and 'benevolences' (i.e. enforced exercise the right of 'primer seisin' (i.e. to the reven~es tts). These were resented and, where possible, resisted. for the first year) on the succession of a tenant-in-chief. ere was a long controversy whether these were to be Over and above these rights, the King was entitled to the Itgarded as taxation (in which case they failed to conform 118 120 THE PASSING OF PARLIAMENT TAXATION AND FREEDOM 121 with the terms of Magna Carta) or whether they were Some addition, he had the. benefit of an unusually large number special type of exaction. Even as late as the reign of f escheats and forfeitures from the baronage, due to the Henry VII, the question was still unsettled. Wars of the Roses, and to sporadic revolts during his reign. The existence of this type of exaction, however, emphasises Yet another source of revenue was the heavy fines exacted one important characteristic of medieval taxation. Insofar from the nobles for breaches o~ the .Statute~ of Livery and as the Kings required revenue beyond what was permitted Maintenance. Finally Henry, like hIS Yorkist predecessors, by ancient custom under feudal law, it was regarded as a was compelled to resort increasingly to benevolences, first gift from the subject. If a subject did not consent to the im- from the nobility, and later from the mercantile classes, position, he was not technically bound by it, and occasion- whose wealth and power were growing rapidly as a result ally, as Maitland notices,' a powerful prelate or baron might of his diplomacy. successfully resist payment. Gradually, however, in the Thus, Henry VII was one of the few sovereigns who was reigns of Henry III and Edward I, it became customary to able to bequeath a full treasury to his successor. This secure the consent of representatives of each order of the accumulated wealth was rapidly dissipated, however, and realm. The greater barons and prelates assembled in Parlia- Henry VIII in turn was compelled to look for additional ment agreed on behalf of their order to an additional tax. sources of revenue. An effort was made to increase the rev- In the Commons, representatives of the lesser landowners, enue derived from the feudal dues, one aspect of this being and of the towns and boroughs did the same on behalf of the passing of the Statute of Uses in 1535. The preamble to their orders. Until the Restoration in 1660 the lesser clergy this statute expressly recites that the practice of putting lands voted their taxes separately in Convocation. So, progres- to use has, in the past, deprived the King of revenue. Much sively, the idea that representatives could bind their con- additional wealth fell in to the Crown on the dissolution of stituents in matters of taxation gained ground, and in this the monasteries. This, however, was also squandered, as his way Parliament was born. If the King will redress his father's treasure had also been, and Henry VIII was com- subjects' grievances, his loyal subjects in return will grant pelled to resort to the debasement of the coinage (the con- him extra revenue to carry out his policy. Nevertheless, down temporary equivalent to inflation) and to repudiation of to the Restoration in 1660, when the Crown surrendered debt for temporary relief. Both these expedients produced many hereditary sources of revenue, two ideas remained depression in commerce and in agriculture. Yet it is interest- implicit in all taxation: (I) that Parliamentary grants were ing that even so powerful, and so feared a monarch as exceptional; and (2) that the King's hereditary revenues Henry VIII was prepared to adopt these expedients, rather should be made to go as far as possible. Unfortunately, the than lay the full extent of his financial embarrassment growing complexity of government, the decline in the value before Parliament. of money, and the passing of feudalism all served to make In many respects, Elizabeth restored and extended the the hereditary royal revenues less adequate than they had financial policy of her grandfather. She, too, encountered been at first. Hence there arose frequent and increasing great. resistance in Parliament to any general extension of friction between Crown and Parliament over the extent and :Xation. She, therefore, resorted cautiously to benevolences, adequacy of the royal powers of taxation. All this ",:ould e sold monopolies, and she extended customs duties by in any event have come to a head at the close of the MIddle :-ocl~mation. At every imposition of such extraordinary Ages, but the struggle between Crown and Parliarnent r xation, there was resentment, but no general resistance. was delayed for a time by the sagacity of the Tudors. •Or t~e greater part of the reign the menace of a Spanish Henry VII administered his realm with extreme frugality. In :vas1on was very real, and responsible men hesitated to 1 Constitutional History, p. 95. Wart measures upon which the safety of the realm might £ 122 THE PASSING OF PARLIAMENT TAXATION AND FREEDOM 123 depend. Moreover, all the Tudors showed commercial 'no man hereafter be compelled to make or yield any gift, acumen in their imposition of customs duties. These hered], n benevolence, tax, or such like charge, without common Ioa , f P I' , tary duties were automatically granted to each sovereign consent by Act 0 ar lament. for life on his accession, but each of the Tudors sought to The struggle was as yet by no means at an end. In the extend them. In so doing, they gained additional revenue great Ship-money Case in 16373 the Crown sought to enforce but the nominal reason for their action was to protect th~ the payment of a direct tax, in the form of ship-money, on English merchant and craftsman. So long as these customs all subjects, by virtue of the prerogative. Once again the dues hit the foreign merchant importing into the realm issue was by no means so clear as is sometimes supposed, and protected the English merchant, such a protective for ship-money had been frequently imposed by virtue of policy was distinctly popular. It was frequently reinforced, the prerogative on seaports in times past, and once again throughout the Tudor period, by legislation in a similar the tax could be said to arise out of the King's overriding sense. duty to secure the safety of the realm. By a majority of seven However, the entire question of levying customs duties to five, the Court of Exchequer decided in favour of the by prerogative (other than the traditional hereditary duties Crown. Accordingly, writs for the levy of ship-money con- permitted by Common Law) was raised in Bates's Case in tinued to be issued annually until the assembly of the Long 1606,2 early in the reign of James I. Bates had refused to Parliament in 1640. That Parliament specifically declared all pay an additional duty of 5s. per cwt. on currants, over and leviesoftaxation without Parliamentary authority to be illegal, above the statutory poundage of 2/6 per cwt. The four and that verdict was repeated in the Bill of Rights in 1689. Barons of the Court of Exchequer, who tried the case, Thus, the Crown's claim to independent taxing power was were unanimous that the impost was lawfully levied, since finally abolished, but with the acceptance of Parliamentary the customs were an incident of foreign commerce, which omnipotence in this, as in other fields of government, came were in the absolute power of the King. Although the the coincident responsibility of Parliament for the public decision, and the judges who delivered it, were frequently revenue. Even Charles II was expected to conduct the denounced by Parliamentary apologists, Mr. Hubert Hall, national business from his hereditary revenues, with only in his History of the Customs Revenue in England has shown that occasional assistance from Parliament. It is therefore not sur- it correctly represented the constitutional position at the prising that neither revenue nor expenditure was accurately time. Nevertheless, the movement of the age was against known, nor that Charles was compelled to resort to such the exercise of prerogative powers of taxation, and in 1610 discreditable expedients as gifts from Louis XIV to meet the Commons staged a four-day debate upon the question, his expenditure. In the period between the flight of James from which there emerged the Petition of Grievances, II and the accession of George III many important changes which advanced the broad thesis that took place. The King's personal income and expenditure w~re separated from the public finances of the realm, the 'all impositions got without consent of Parliament may be King's annual revenue was stabilised and made payable quite abolished and taken away.' Out of the hereditary revenues, whilst the King's Ministers A Bill in this sense passed the Commons, but was lost in the ~came responsible to Parliament for the raising and spend- Lords. Both James I and Charles I therefore continued to ~ng of public money. Until late in the nineteenth century, exact, as opportunity offered, both customs duties and ben- owever, the aim of all Chancellors of the Exchequer was evolences by prerogative, and accordingly, the Petition of :? ~eep the public expenditure within the narrowest possible Right in 1628 enacted that 'nuts, and to repay part of the National Debt as often as

2 (1606) 2 St. Tri. 371. • R. v, Hampden (1637) 3 St. Tr. 825. 124 THE PASSING OF PARLIAMENT TAXATION AND FREEDOM 125 opportunity offered. Even so late as 1874, at the conclusio . dividual of virtually all possibility of achieving financial of Gladstone's great Ministry, income-tax had been reduce~ ~~dependence, by the thrifty accumulation of annual sur- to gd. in the pound, and Gladstone, who regarded it as an luses. He has been reduced to the status of a State-depend- exceptional tax, imposed originally in time of war, Was ant and even his hope of enjoying such a pension as the looking forward to its final abolition. State may choose to allot him when his capacity to work Two factors made this aspiration impossible to realise. has gone depends upon the continued workability of State In the first place, Germany was about to undertake that insurance schemes, and ultimately upon the capacity of process of industrialisation and preparation for world, future governments to raise taxation of these staggering power, which made her feared throughout the world, and proportions. It is too often overlooked, in considering State which was directly responsible for the division of Europe into insurance schemes, that sums raised by way of contributions two armed camps. Into this struggle Great Britain was very are not retained in any fund. They are swept away into reluctantly drawn, with the result, as has been pointed out the general expendible funds of government, and the security in an earlier chapter, one section of the electorate demanded that the commitment will eventually be honoured is exactly insistently that our armaments should be improved. The the same as that which supports the Post-War Credits of second factor was the progressive extensions of the franchise, war-time finance. which resulted in the transfer of political power at the It is quite clear that today, we are passing through an era polls to a class which was without a substantial stake in the of financial chaos, in which all standards are progressively country. The aspirations of this class required to be satisfied swept away. We have seen that, in origin, a tax was an ex- by successive developments of the social services, and by ceptional impost, levied to supplement a royal revenue that financial measures which became ever-increasing transfers should normally have been adequate. After the Revolution of wealth from one section of the community to another. of 1688, it became the means of carrying on the public Although the struggle between the adherents of the two administration, to be used with every possible economy. policies was continuous, it had the consequence that whatever At the end of the nineteenth century, it became a means government was in power, expenditure soared. When, as of transferring an increasing share of the national wealth occurred in the Liberal Government of 1906, both views from one section of the community to another. Today, it has were strongly represented in the same Cabinet, expenditure become a means of achieving a planned economy in which mounted faster than before. The search was unceasingly for the individual is no more than a cog in the machine, whose new sources of taxable wealth. No matter how many of these precarious existence depends no longer on his own efforts, were discovered, expenditure constantly outran revenue, but on the success of the master-plan, It follows that the and indebtedness has continued to mount. It is worth State .takes ever-more extensive powers to enforce this pre- while remembering, however, that the national budget ConcelVedplan upon the community as a whole. Progressively, only passed the £100,000,000 mark at the beginning of the therefore, personal liberty is curtailed, and controls become a present century, and that the first £1,000 million budget normal instrument of government. The ordinary citizen will dates from the late thirties, when rearmament for the Second no doubt have noticed that spokesmen of the Labour Govern- World War was already embarked upon. The year 1951 :nent described the abandonment of these controls as saw the first four thousand million budget. Even when full concessions', and Dr. Dalton whilst in office described his allowance has been made for inflation and a depreciated removal of various irritating restrictions on domestic comfort currency, the figure is still staggering. It is plain that a : an 'experiment in freedom'. This attitude of mind is budget of these proportions, with a peace-time standard ontre~ely significant. Freedom, it would seem, today exists rate of income-tax of 10/- in the pound has deprived the su crance. If citizens are too exuberant, their fetters will THE PASSING OF PARLIAMENT TAXATION AND FREEDOM 127 be re-imposed. Mr. Harold Wilson, it will be remembered but to government generally, for oppressive use of power. suspended negotiations with the Argentine to restore mea~ A suggestion was made in contemporary newspaper dis- to the Englishman's diet as a penalty for the independence cussion that because similar clauses could be found in earlier of a section of the trading community. Clearly, dictatorship Finance Acts, then the practice was sanctified by 'precedent' is in the air. This, however, should provoke no great surprise -an argument which, if conceded, would legalise successful for it is an inescapable consequence of a rigidly-planned burglary. Further, it was suggested that the rule against economy. 'The Plan' is a Procrustean bed, and if the retrospective legislation applies in reality only to criminal individual fails to fit it, then he must be pruned to shape. law and finally, that capital payments of the kind made From this standpoint, therefore, the difference between taxable in the Budget of 1950 were 'anti-social', and should the planned State of East and West is a difference in degree therefore be suppressed, whether or not in fact they were only. In the West the State has so far stopped short of technically legal when made. This last argument merits physical compulsions (other than that which follows failure careful attention. It bears all the hall-marks of totalitarian to comply with anyone of innumerable regulations) to doctrine, and it implies that anything of which the ruling enforce conformity with the plan. Moreover, the Western clique disapprove can be suppressed without going to the State still admits that the authors of the plan may be replaced trouble of passing special legislation to condemn it. by others, professing different ideals, by constitutional means. There can be no doubt that taxation statutes have in the Nevertheless, both for employer and employed, the plan past always been regarded as governed by the rule restraining substitutes a remote and imperfectly conceived objective retrospective legislation, even though that principle was for individual effort, with the consequence that the sense occasionally infringed in the inter-war years. Indeed, the of frustration develops, and responsibility and initiative claim now made by the Executive to catch for purposes of decay. Consequently, the attention of the planners has been taxation sums of money which under the existing law are turned increasingly towards a search for 'incentives'. Should not taxable is precisely the same as that made by the first that enquiry prove insufficiently rewarding, there remains two Stuarts, and which was then decisively rejected by only the question of compulsion. So long, however, as Parliament. Today, however, the Executive possesses a docile political opinion remains as evenly balanced as it is today, Parliamentary majority which exists to give legislative force compulsion remains outside the range of political activity. to ministerial exhortations. Hence the present controversy. Even though physical compulsion as yet remains unused o one questions the legal right of Parliament (i.e. the Cabi- as an instrument to enforce conformity with a plan which net) to legislate on any topic it likes so long as it retains seeks to control, not only the individual's property and live- sufficient discipline over its followers. The question is simply lihood, but the incidents of his daily life, the weapons at its one of constitutional ethics; and lest this aspect of the matter disposal are already numerous and formidable. Prominent should be lightly dismissed, it must be added that today amongst them is retrospective legislation in the field of taxa- constitutional ethics have become more important than tion. In the Finance Act of 1950 there appeared such a pro- constitutional law. With the destruction of the House of vision, retrospectively making liable to tax certain capital Lords as an important political force, any Government can payments which admittedly were not subject to tax at the pass any legislation whatever, which it considers to be time when they were made. It may be conceded at once ne~e~sary. What legislation it will enact depends upon the that precedents for the course taken by the Chancellor of °PllUons it holds upon the rights of citizens, and whether it the Exchequer in 1950 can be found in Finance Acts. ~f ~rop?ses to continue in office by the normal processes of inter-war years. This, however, proves only that the cntI- U:ctlVe g?ve~nment. If its opinions are absolutist, then the cisms now made apply, not to some particular government, e and lIvelIhood of every citizen are at its mercy. THE PASSING OF PARLIAMENT TAXATION AND FREEDOM 129 The aspect of the provisions in the Finance Act of I950 Each successive Finance Act puts an end to various schemes which received the most attention was that the practices f tax-avoidance, and a new crop promptly emerges. aimed at were a serious example of tax-avoidance which ~hancellors of the Exchequer, in curbing them, can some- it was the duty of the Chancellor of the Exchequer to stop. times secure a little fleeting po~ularity by describing them To this, the reply was promptly made: By all means stop it as 'anti-social', and by suggestmg that such methods of by a clause suppressing the practice in the future, but do not tax-avoidance, if successful, make it more expensive for the make taxable retrospectively something which was untaxable rest of us. From a financial point of view, this is a gross at the time when it was done. This limitation, in turn, Was exaggeration, and from the standpoint of political ethics, described as a technicality, unworthy of serious consideration. it overlooks the fact that it is solely the extent of the Govern- One point must be made at the outset. The attack is not, ment's exactions from those possessing rather more wealth or at least should not be, concentrated upon the then Chan- than the rest of us that has made this game of hide and cellor of the Exchequer, Sir Stafford Cripps, or even upon seek necessary. No more need be said on this point than the Labour Government. Mr. Neville Chamberlain, as that the schemes of tax-avoidance now practised were com- Chancellor of the Exchequer, in his speech on the Finance pletely unknown until taxation became so penal in incidence Bill of 1936 (in times less difficult than those following the that Prime Ministers were paid a portion of their salaries Second World War) expressed himself in stronger terms than tax-free in order that they, at least, might be able to meet Sir Stafford Cripps, and in fact made a clause in the Act of their obligations. Even this, however, does not go to the 1936 retrospective in operation for the previous year-thereby root of the matter. The rule against retrospective legislation giving just one more illustration of his quite remarkable lack in the sphere of taxation strikes at the foundations of our of political instinct. During the same debate, no less eminent legal and political existence. It is one of the most important a lawyer than Sir John Simon (as he then was) expressed manifestations of the basic principles of our Common Law. himself as being in full agreement with what was done. Magna Carta laid down the broad principle that no taxes The question therefore cannot be regarded as a party could be imposed without Parliamentary consent, and question. Both parties have sinned, and this can scarcely be although, as has been shown earlier in this chapter, a limited regarded as surprising. Whilst in office, they possess a weapon power to impose customs duties remained vested in the -taxation-of virtually unlimited power. Since the need Crown, the extent of this power was one of the main causes of modern governments is always for more money, it is not of contention between King and Parliament in Stuart times, remarkable that the weapon is relied on ever more exten- and the Bill of Rights in 1689 finally settled the question sively. For this reason, it is regrettable that the instrument against any imposition of taxes, of whatever kind, without by which taxes are levied is precisely the same as our instru- ~arliamentary authority. Taxation, therefore, must be levied ment for legislative change. It has become progressively 1Il statutory form, and a statute which imposes a tax is a easier to manipulate during the past century. Undoubtedly statute which removes from the subject property to which this has encouraged governments to become increasingly Government would otherwise have no title. Accordingly, extravagant and wasteful. The last Chancellor of the !here~ore, the onus is always on the revenue to show that what Exchequer to make any stand against this tendency was ~ cIalme~ is within the words of the statute. The Courts Sir Michael Hicks Beach, at the end of the nineteenth Have agam and again affirmed this principle. As Lord century, and his failure to evoke any response from his anworth put it in Dewar v. Inland Revenue Commissioners:' colleagues has already been noticed. Ii ~ither in the clear words of a taxing statute the subject is The present relationship between taxpayer and Treasury ia e or, if he is not within the words, he is not liable.' has often been compared with a game of hide and seek. F.*. [1935] 2 K.B. 351,360. THE PASSING OF PARLIAMENT TAXATION AND FREEDOM From this it follows that if the subject so arranges his The doctrine of 'the substance' is a pernicious doctrine, proprietary and contractual obligations that tax is not which, if conceded, would threaten all financial security. assessable where otherwise it would be, then provided he It could be used to attack any transaction which the officials, contravenes no other rule of law (e.g. penalising fraud) he or Government of the day, chose to call 'anti-social'. is beyond the reach of the Revenue. This, too, has been otwithstanding some hesitation by some judges in recent repeatedly affirmed in a succession of judicial pronoun--, years, it remains the case that the courts have unanimously ments of the very highest authority. For example, in Levene pronounced against it. Hence the eagerness of the Treasury v. Inland Revenue Commissioners" Lord Sumner said: to attack specific transactions retrospectively. It is, of course, common knowledge that a high degree of 'It is trite law that His Majesty's subjects are free if they can to make their own arrangements so that their cases may fall ingenuity is now exercised to place transactions in such a outside the scope of the taxing Acts. They incur no legal form that they attract as little taxation as possible. The penalties and, strictly speaking, no moral censure if, having draftsman is not always successful, however. Indeed, his considered the lines drawn by the Legislature for the imposition failures are probably more important than his successes, and of taxes, they make it their business to walk outside them.' of one recent example of failure, Lord Greene said in Lord Again, in Inland Revenue Commissioners v. Duke of West- Howard de Walden v. Inland Revenue Commissioners:" minster." the Revenue made a determined effort to establish 'For years a battle of manoeuvre has been waged between the proposition that, although the transaction under con- the legislature and those who are minded to throw the burden sideration did not fall formally within the provisions of any of taxation off their own shoulders on to those of their fellow- taxing legislation, nevertheless, in substance it was taxable. subjects. In that battle the legislature has often been worsted by the skill, determination and resourcefulnessof its opponents The House of Lords, however, would have nothing to do of whom the present appellant has not been the least successful. with this doctrine, and Lord Tomlin commented: It would not shock us in the least to find that the legislature has determined to put an end to the struggle by imposing the 'Every man is entitled if he can to order his affairs so as that severestof penalties. It scarcelyliesin the mouth of the taxpayer the tax attaching under the appropriate Acts is less than it who plays with fire to complain of burnt fingers.' otherwise would be. If he succeeds in ordering them so as to secure this result, then, however unappreciative the Com- It is, however, worth while enquiring why tax-avoidance missioners of Inland Revenue or his fellow-taxpayers may be occupies such an important place in the legal and commer- of his ingenuity, he cannot be compelled to pay an increased ciallife, not only of this, but of every other important trading tax. This so-called doctrine of "the substance" seems to me to nation outside the Soviet Union, and also why it is simply be nothing more than an attempt to make a man pay notwith- standing that he has so ordered his affairs that the amount of a twentieth-century phenomenon. Is not the reason that tax sought from him is not legally claimable.... There may, taxation, as a method of State-intervention in the lives and of course, be cases where documents are not bona fide, nor commercial activities of its manufacturing and commercial intended to be acted upon, but are only used as a cloak to classes, has now reached the point where it is considered conceal a different transaction. No such case is made or even to be a form of oppression? If it is said that industrialists, suggested here. The deeds of covenant are admittedly bonafide, and have been given their proper legal operation. They cannot merchants and others ought not to feel that way, that is no be ignored or treated as operating in some different way ~nswer to the fact that they do. Indeed, the merchant or because as a result less duty is payable than would have been Industrialist feels about taxation precisely what the employee the case if some other arrangement-called for the purpos,e feels about a controlled economy, in which inflation is a of the appellants' argument "the substance"-has been made. ~~ndition of daily existence, and in which high paper wages

5 [1928] A.C. 217. 227. all to produce him the things he wants, but which the • [1936] A.C. I. 7 [1942] 1 K.B. 389, 397. THE PASSING OF PARLIAMENT TAXATION AND FREEDOM 133 Government thinks either that he ought not to want, Or of the present-day exactions. Nor is this by any means all, alternatively, that he ought to want only in strictly limited in an instrument of extortion which transcends 'Morton's and rationed amounts. The employee reacts in one way to Fork' for ingenuity. Clause 32 attempts to deal with those excessive control, the employer in another. It is quite idle who, aghast at the pace with which the spoliation of England to denounce both as 'anti-social'. Abuse does not alter facts. is proceeding, seek to move their businesses overseas. Since Further, each successive Budget makes additional and 1939, it has been the position that such transfers need Treas- grave inroads, not only upon personal liberty, but upon ury authority, if they are within the regulations governing principles which lawyers for centuries have regarded as foreign exchange. This, however, did not affect transfers essential features of English political life. It has been shown within the sterling area. By Clause 32, however, a new test how the Finance Act of 1950 violated the principle forbidding is introduced-the avoidance, real or supposed (and it should retrospective legislation. In his first Budget, Mr. Gaitskell be remembered that Clause 28 applies to this, too) of United ventured further along the road to totalitarianism than Kingdom taxation. Such a provision, it need scarcely be his predecessor, Sir Stafford Cripps, ever chose to do. Three added, goes as far as any restriction ever attempted in Nazi separate clauses were completely at variance with previous Germany. That it was economically unsound can scarcely be constitutional practice. Thus, Clause 23 gave a surveyor of questioned, for as the City Editor of the Sunday Times taxes power to require anyone, including a banker, to make pointed out, a return of all interest paid by him to his clients or customers, 'it is to the public interest that new businesses should come provided that the interest paid exceeds £15. This provision to this country, bringing with them new money and work. strikes at the root of the relation of banker and customer. Unless they are free to go, they will not come. Again, it is to At one blow, one's banker becomes the agent of the tax- the public interest that businesses in London should be en- gatherer, as usual unpaid. Again, Clause 28 triumphantly couraged to operate overseas. That is one of the ways in which we both earn income and foreign exchange and ensure our overrides the repeatedly-expressed views of the Courts, and supplies of raw materials.' gaily concedes to the Treasury the doctrine of 'the sub- stance' for which it has in the past unsuccessfully agitated, How far Clause 32 can be pressed is shown by an example and in addition gives them this power retrospectively. given by a correspondent to The Times of May 12, 1951• Clause 28 gives the Commissioners of Income Tax power to He points out that if a man and wife who possess a controlling disallow any transaction effected before or after the passing interest in a United Kingdom company should chose to live in Jersey and conduct their business from there, they of the Finance Act, 195 I, if they think that one of the main purposes of this transaction was the avoidance or reduction might expose themselves to a penalty of £10,000 and or of liability to profits tax. Thus, the subject may no longer two years' imprisonment. It is true that such penalties take any active steps to avert the rapacity of the taxgatherer. might not normally be claimed, but the fact that they exist He can merely stand mesmerised awaiting his doom. It is indicates how far, simply by means of financial control, the perhaps, a trifle in the middle of the twentieth century Treasury has now destroyed personal freedom of move- that this single clause destroys the security which the subject ment. Commenting on Clause 32, The Times, in an important leading article on May 14 said: has laboriously won from arbitrary power in the seven cen- turies which have elapsed since Magna Carta was wrested 'The control and the taxable capacity of overseas enterprises from a corrupt tyrant. It would seem that so long as these han no doubt be imprisoned in this country if they are already ere; but control of new enterprises will certainly not be things are done in the name, not of a tyrannical King, but brought here so long as this constraint prevails. This can mean of an omnivorous State, the public conscience is not outraged, only that this country, as time goes on, will control a wasting or perhaps it is drugged into apathy by the relentlessness and agemg body of oversea resources, whilst the new, vigorous, 134 THE PASSING OF PARLIAMENT TAXATION AND FREEDOM 135 and virgin resourceswill pass into other hands-at a time When and destroyed its lesser competitors. In some States the process with the supply and control of raw materials so important t~ has already reached the point where one party alone is the nation, the advantages of close and continuing association tolerated. In Great Britain, the British Dominions, some with oversea resources are clearer than ever before.' parts of Western Europe and the United States, however, In other words, this clause is another step, and an ex- we have the two-party State which can survive only so long tremely important one, on the road to national bankruptcy. as the underlying assumptions of our political association On Clause 28, The Times commented: are accepted generally by both parties. But the maintenance 'Where a person has carried out any transactions, one of the of that agreement in Great Britain and the British Domin- main purposes of which (in many cases it might not be a ions is becoming increasingly difficult because of the increas- "purpose" but only a result "to be expected") is to reduce liabil- ing range of official intervention in every aspect of human ity to profits tax, this clause empowersthe Revenue to rearrange life, and because the rigidity of party discipline gives the the person's affairs in retrospect so as to ignore anything which Government in power (in reality, a small group of its leaders) he has done which would diminish his tax liability. Hitherto it has been only retroactive legislation that has seriously im- quasi-dictatorial powers. Such powers tend to become ever paired the citizen's right to arrange his affairs within the law more extensive. In their financial aspect, because of the so as to attract the least amount of tax. To give retroactive increasing elaborateness of the machinery of control, the executive power to the Revenue to arrange the citizen's affairs powers tend to be used more comprehensively to appropriate by selecting out of the past that particular arrangement of his an ever-larger amount of the individual's income, and to affairs which would best suit the taxgatherer is a strange and important innovation. This and some other parts of the Finance fetter the spending of the fraction that remains. It is only Bill will be critically examined by those who still believe that necessary to think of the use in Great Britain during the tax law should not hamper or frustrate the ordinary actions past thirty years of such (originally temporary) taxes as of business life and should even conform to Adam Smith's entertainment tax, purchase tax, and betting tax, and the first principle that "the tax which each individual is bound to enormous increases in income-tax and surtax, and in the pay ought to be certain and not arbitrary" '. duties on alcoholic drinks, tobacco and petrol to appreciate To say that this clause is an example of financial what has been happening. One needs to be no prophet of tyranny is to make a serious understatement. At long last doom to realise where this may eventually end. The finan- the Revenue have broken down the citizen's last line of cial history of France in the two decades which preceded resistance, and they can now plunder him almost at leisure. the French Revolution is a valuable pointer. Unfortunately In facing the omnipotence of the State in its exactions the it is the case that the appetite for control and taxation grows citizen no longer has the security of the law. He must make with what it feeds upon. That appetite is perhaps at its most what terms he can with the taxgatherers who alone will voracious in the Soviet Union, but the appetite of Govern- decide the extent of their demands on him. Even Charles I ment in the Western world grows apace. It is also true that did not venture so far. These clauses in the Finance Act of ~h: efficiency of control descends sharply with each increase 1951 simply emphasise once more that we are suffering today In Its complexity. In Imperial China the machinery developed [rom the disease of over-government. Just as the capitalist to such a point that, in theory, the magistrates controlled world has seen the great combine drive out the small enter- ~very aspect of the citizen's life from the cradle to the grave prise, so that great monopolist trusts have developed, cul- In accord with the principles of Confucian philosophy. minating in the gigantic State-monopolies of this country The result was that large numbers of officials were busily and the Soviet Union, and as in the industrial world the big engaged in writing to one another either about nothing at unions have eaten up the lesser unions, so in the political all, o.r about totally fictitious episodes, such as wars against world the great party machine has steadily grown in power frontier tribes in which the writer scored imaginary victories, 136 THE PASSING OF PARLIAMENT or domestic perils successfully averted by the exercise of great resource. The citizen, for his part, had perfected his Chapter 10 own technique for the purpose of circumventing authority. The result was a destruction of all sense of public responsi_ bility, and a cult of family preservation which, though un- Land in Chains derstandable, has been one of China's main weaknesses in modern times. It would be an odd conclusion to so much Western planning if we were to achieve a similar result. To preserve a balance between freedom and control in the mid- I twentieth century conditions of economic and political oclaim for originality can be made for the title of insecurity is a task of immense difficulty; but it must be this chapter, for it was used by more than one legal attempted, if the modern State is to remain a satisfactory_ Nwriter in the nineteenth century, when advocating or even an endurable-setting for the social activities of the reform of the land law. This circumstance may serve as a individual. reminder of the services rendered to the community by a succession of eminent conveyancers who alone were in a position to tell the public what the defects of the existing land law were, and how they could be most effectively removed. The condition of the land law at the end of the nineteenth century was remarkable. From the time of the first Reform Bill until the end of the century there had been a succession of important and carefully-drafted Real Property Statutes. In spite of them, however, the fundamentals of the land law remained unaltered. In the words of Professor Dicey, in a notable contribution to the Law Q,uarterly Review in 1905:1 'The paradox of the modern English land law may thus be summed up: the constitution of England has, whilst preserving monarchical forms, become a democracy, but the land law of England remains the law appropriate to an aristocratic State.' Maitland, in his lectures on Constitutional History which were delivered at Cambridge during the session 1887-8, has explained some of the main reasons for this remarkable paradox. Although in the Middle Ages, the land law was the basis of all public law at first, the vigour of the English people, coupled with the power of a centralised royal admin- Istr~tion, succeeded in separating the land law from the busl~ess of government at an earlier date than was generally ~osslble on the Continent, with the result that our constitu- tional development was continuous, whilst the land law tended to remain a repository for outworn forms. As Maitland observes 1 VI 0.2[, Law Quarwly Review, p. 22[. 137 THE PASSING OF PARLIAMENT LAND IN CHAINS 139 in his review of the place offeudalism in English constitutional always been frustrated by the attachment of landowners development, feudalism was probably at its zenith in the land to a system of private conveyancing. In this field, even the law during the eighteenth century. In the political sphere at strictures of Bentham proved to be ineffective to achieve a this date, the consequences of the great constitutional seul-. major change, even though the conscience of Parliament ment of 1688 were already profound, and the essentials of was sufficiently stirred, just before the passing of the first the modern constitution had been established. Reform Bill, to appoint a Real Property Commission to study At the time when Professor Dicey pointed out the unsatis- the whole question. The conclusions reached in their first factory state of the land law, in 1905, it was still feudal in report, which appeared in 1829, governed the reform which form, even though it had been slowly and painfully adjusted was undertaken during the next seventy years. The com- to the needs of an industrial society; and all critics started placency with which the Commissioners surveyed even the from the proposition that more fundamental changes than unreformed fabric is strikingly reflected in their opening any which had hitherto been attempted must speedily be remarks. They observed: brought about. Even at the dawn of the present century, 'We have the satisfaction to report that the Law of Real the two basic doctrines upon which the land law was built Property seems to us to require very few essential alterations; were those of Tenure and of Estates. In the first centuries and that those which we shall feel it our duty to suggest are after the Conquest, Tenure had been a reality. Indeed, it chieflymodal. When the object of transactions respecting land is accomplished, and the estates and interests in it which are was the chief characteristic of land-holding. Land was recognised are actually created and secured, the Law of Eng- enjoyed in return for services to the overlord; and one of the land, except in a few comparatively unimportant particulars, main causes of the decline of feudalism was the decline in appears to become almost as near to perfection as can be value of the feudal services. In 1660 an Act had been passed expected in any human institution. The owner of the soil is, formally abolishing feudal services which had long been of we think, vested with exactly the dominion and power of little economic significance; yet the intricacies of tenure disposition over it required for the public good, and landed property in England is admirably made to answer all the remained, and by the art of conveyancers, they had been purposes to which it is applicable. Settlements bestow upon gradually developed to a condition of almost intolerable the present possessor of an estate the benefits of ownership, complexity. Nor was this all. Our law knew two entirely and secure the property to his posterity. . . . In England different kinds of tenure-the free and the unfree. Originally, families are preserved, and purchasers always find a supply of the distinction had a far-reaching social and economic land in the market. A testamentary power is given, which stimulates industry and encourages accumulation; and while significance. In the nineteenth century, the existence of two capricious limitations are restrained, property is allowed to be kinds of tenure was an unnecessary complication, which moulded to the circumstances and wants of every family. legislation sought to minimise, but declined to abolish. When no disposition is made by will, the whole landed estate Superimposed on both was the conception of leasehold descends to the son or other heir male. This, which is called tenure and the abstruse complexities of equitable and legal the ~aw of Primogeniture, appears far better adapted to the constttution and habits of this kingdom than the opposite Law estates. In these circumstances, it was not surprising that the of Equal Partibility, which, in a few generations, would break establishment of title-a necessary condition precedent to d?~~ the aristocracy of the country, and, by the endless sub- the transfer ofland-was a cumbrous and expensive business. dlvlslon of the soil, must ultimately be unfavourable to agric- One method of simplification would have been the establish- ulture, and injurious to the best interests of the State.' ment of a national register of titles to land. This had been h This extract from the Report really goes to the root of contemplated from the time of Edward I onwards, as Pro- ~ e who.lequestion. The general law of descent was reinforced fessor Holdsworth shows," but legislation to this end had Y a WIdespread use of the family settlement to secure the llnd' . I 'The Reform of the Land Law,' Essays in Law and History, p. 100. IVlded descent of the great estates of the landowning THE PASSING OF PARLIAMENT LAND IN CHAINS aristocracy; and this preserved, at one and the same time the 'tenant for life') powers wide enough to permit develop- the privileges and power of an aristocracy and also a remark~ ment or, with the consent of the trustees, the sale of the land, ably efficient system of agriculture. without at the same time prejudicing the rights of those Unfortunately for the order oflandowners, however, their entitled to interests following upon that of the tenant for life. hour had already struck when the real Property Commis- Little by little, the functions of the tenant for life changed. sioners reported. The first Reform Act transferred their He became a trustee of a complex of valuable rights and political ascendancy to the manufacturing middle classes, interests for all those who were granted interests in the settle- who demanded an increasing supply of cheap and well fed ment, and accordingly, the ownership ofland became simply labour. This demand denuded the countryside of its reser- one aspect of this comprehensive function. The Settled Land voir of agricultural labour, and at the same time made Act of 1925 has given express recognition to this principle. inevitable the repeal of the Corn Laws, the growth of Free These changes, and many others, which were brought Trade, and the importation of agricultural produce. Thus, about by nineteenth century statutes, failed to touch the as the nineteenth century progressed, land ceased to be core of the problem. Land transfer became easier, and either the chief source of wealth, power, and privilege, and with the trustees of a settlement, with the concurrence of the the introduction of the limited liability company, it became tenant for life, or the tenant for life himself, could sell settled possible for the aristocracy to participate extensively in land; but land transfer was still cumbrous and costly. A industry and commerce. register of title was instituted in the second half of the nine- With this change in the national economy which was due teenth century, but the registration of land titles remained to the growth of industry and commerce came a changed almost a dead letter, since the initiative lay with the land- outlook upon the ownership of land. It was no longer a owner himself; and he and his legal advisers still preferred foundation of privilege and a symbol of political power; a system of private conveyancing. The land law was still nor was it an inheritance to be transmitted in almost the unnecessarily complicated by the co-existence of freehold, identical condition in which it had been received. It was copyhold and leasehold tenure, and by the development of increasingly a commodity to be developed. Some parts of an intricate system of legal and equitable estates and interests it might be needed for housing development; some might in land at different periods of history. Moreover, new con- be the subject of compulsory purchase for the construction ceptions of the social responsibility of the landowner, em- of railways; other parts again might be leased for the opening bodied in the first Town Planning Acts, were gradually intro- of collieries or factories. When any of these developments ducing a further complicating factor into a law which was had taken place, the character of the neighbourhood might already unduly complex. The powers given to local authori- have changed to such an extent that the sale of the remainder ties by these Acts to control the use ofland were factors which of the land might be desirable. Even where the character prospective buyers of land must take increasingly into of large estates remained substantially unaltered, it might account when considering purchase. Accordingly, the local still be a matter for consideration whether it might be wise land charge became yet another circumstance for which to sell land and invest the proceeds in industry. In all these c~rcful search must be made, thereby adding to the expense, cases the family settlement, hitherto regarded as the guaran- dIfficulty, and uncertainty of transfer. tee and charter of family ascendancy, might sink to the level of an obstacle to development. It followed, therefore, t?at 2 in the second half of the nineteenth century, a succesSIOn The conclusion of the first World War marked an im- of statutes grappled with the problem of the family settle- portant change in the national outlook upon the land law. ment, with the object of giving the limited owner (usually Amongst other things, it had shown that land was still a 142 THE PASSING OF PARLIAMENT LAND IN CHAINS 143 national asset, upon the productivity of which, in an emer- against it. Few people today, however, doubt that a national gency, the survival of the nation might depend. Moreover system must be introduced at an early date. the sharply-ascending rates of taxation and death dutie~ Again, the legislation of 1925 preserved two distinct accelerated the pace at which the great estates were broken methods of settlement-the 'strict' settlement, which is the up; whilst large landowners themselves sought to transfer traditional settlement of the great landowner, much modified their wealth from land to commerce and industry. Accord- to meet the changed conditions of the twentieth century, ingly, when the Scott Committee reported on land transfer and the settlement by way of trust for sale. Many lawyers in 1919, its main conclusion was that the land law itself have doubted whether such duplication is necessary, and needed far-reaching reforms and simplifications, in order today, the survival of the strict settlement seems a little that the process of transfer might be progressively assimilated archaic. Discussions in Parliament upon the Bill to abolish to that governing the transfer of personal property. The restraints on anticipation has shown that modern rates of result was the comprehensive property legislation which taxation may cause even the settlement of great funds of was enacted in 1925, and which owed much to the energy personal property to work out very differently from what the of Lord Birkenhead. The reforms which those acts brought creator of the settlement anticipated. At the present time, about were far-reaching, and in many respects they were the whole machinery of trusts and settlements is working also overdue. For example, they reduced the number of under increased strain. estates and interests which could exist in land, and the Act Surprisingly, one great branch of the land law was not of 1922 abolished copyhold tenure altogether. No more than widely affected by the legislation of I925-the law of land- the empty shell of freehold tenure remained, and at this lord and tenant. One section of it, which governed the rela- late date, it became the practical equivalent of the absolute tions of house owners and short-term tenants-had been ownership of chattels. At long last, primogeniture was subjected to statutory control as a consequence of the abolished, and common rules of descent for real and personal cessation of building during the war, and the post-war property were introduced. Moreover, compulsory registra- shortage of houses. Control remained, with successive modi- tion of many charges on land (but not title to land itself) was fications, during the inter-war years. It was widely extended widely extended. Even so, however, some reforms which again in 1939, and after the war, it was extended to furnished might have been expected, were not undertaken. Yet another dwellings, when jurisdiction to reduce rents on the application Land Registration Act was placed on the statute-book, of a tenant was vested in rent tribunals. Throughout its but once again the opportunity to institute a national system existence, however, rent restriction has preserved a number of registered titles was missed. The Act simply continued of unsatisfactory features which are attributable to the fact the system of voluntary registration with the addition of that it was introduced as an emergency measure; and an machinery whereby local authorities could, if they wished, investigation of the whole question, leading to a new and declare their areas compulsory registration areas. Only simpler body of legislation, is urgently needed. limited use has been made of this power, although London, Altogether apart from this special question, however, the Middlesex, Surrey, and the County boroughs of Croydon, law of landlord and tenant had many anomalies and ob- Eastbourne and Hastings are now compulsory registration Scurities in 1919, and it may be regretted that an opportunity areas. At the end of the recent war, during which numeroUs to. modernise and simplify the branch of the law was then documents of title disappeared as a result of enemy bombing, ~lssed: The result has been that piecemeal modification has a committee under the chairmanship of the late Lord RUSh£- ».om .tIme to time been achieved in successive Agricultural cliffe, again considered the question of a national system 0 L oldmgs Acts and, for urban business tenancies, in the registration of title, and once again, disappointingly, reported andlord and Tenant Act, 1927. Such acts, however, do not THE PASSING OF PARLIAMENT LAND IN CHAINS

cover the whole of the ground, and where they do not, the sense of dissatisfaction with its condition. Once again, the law on such questions as compensation for fixtures, and for need for the fullest utilisation of our national resources had loss of goodwill, or for failure to renew a lease, preserves a been demonstrated, and this time public opinion had reached number of features which reflect the social conditions of an the conclusion that no anti-social assertions of private right era which has gone. One temporary alteration was introduced should be permitted to stand in the way of such utilisation. by the Leasehold Property (Temporary Provisions) Act, As a necessary condition precedent to such utilisation, how- 195I, by virtue of which a tenant of a long leasehold which ever it followed that there should be planning on the national expires may hold over on similar terms for a period of two scal~. Accordingly, the Town and Country Planning Act years. Meanwhile the Government is seeking the appropriate of 1947 gives powers of planning and control on a scale not solution for this difficult problem. Today, however, these hitherto contemplated. Moreover, in view of the importance questions are of rapidly diminishing importance in agricul- of agriculture in the national economy, the Agriculture tural tenancies, in view of the provisions of the Agricultural Act, 1947, and the Agricultural Holdings Act, 1948, have Holdings Act, 1948. revolutionised the position of the entire farming community. Because public dissatisfaction with the Town and Country 3 Planning Act has grown rapidly in intensity, the equally It will be apparent from what has already been written far-reaching provisions of the Agriculture Act and the that the seventy years of reform which followed the report Agricultural Holdings Act have not been so generally appre- of the Real Property Commissioners in 1829 removed a ciated. Nevertheless, they cut right across the traditional number of archaisms from the law of real property, and development of agriculture in this country, and as the extent achieved a number of improvements in detail in the system of the powers conferred upon the Ministry of Agriculture of land transfer, although in this period none of the funda- are more widely appreciated, there can be little doubt that mental changes, which were widely advocated, were brought criticisms of this Act, and dissatisfaction with the regime about. During the next three decades, rapidly changing it creates will increase sharply. These two Acts, and the conditions and the first World War were responsible for Town and Country Planning Act, 1947, leave little more a new approach to the land law in the Property legislation to the owner of land than the empty shell of bare title. of 1925. This legislation brought about many important The text-books of legal practitioners have not, in the past, and far-reaching reforms, although in some respects it been conspicuous for their awareness of social trends. For probably did not go far enough. Notwithstanding this that reason, the following observations from the Preface to criticism, however, it is true to say that the 1925 legislation the tenth edition of Jackson's Agricultural Holdings, which had at long last struck off most of the feudal fetters which was published in 1949, is of considerable significance. had so seriously impeded the transfer of land. Today, how- DiScussing the effect of the Act of 1948, the learned editor, ever, land is once again in fetters, which are clogging its Mr. Aggs, writes: full utilisation to a degree which has not been experienced 'From a perusal of the Act it will be realised that the age- for over a century. How has this paradoxical and unexpected ~ong relationship of landlord and tenant under which the result been achieved? Industryhas in the past been carried on has largely disappeared, If, as Professor Holdsworth has pointed out, the first ~d that there has now been introduced into that relationship World War produced a new social consciousness of the t .e o,:,erriding powers of the Minister of Agriculture and Flsher~esacting through the county agricultural executive unsatisfactory state of the land law," the second World War C°IlUnittees. was responsible for a more widespread and far-reaching I 'Thus scarcely any freedom of contract remains for either a 'The Reform of the Land Law', in Essays in Law and History, P- 121. andlord or tenant and even the terms of the tenancy are THE PASSING OF PARLIAMENT 146 LAND IN CHAINS 147 prescribed for them and, if not adopted, can be varied by to the points of incomprehensibility. Thus Section I I (I) of arbitration so as to accord with the statutory requirement. 'Landlords will find themselves under severe restrictions the Act states: regarding notices to quit, and though this may mean a greater 'For the purposes of this Act, the occupier of an agricultural measure of security for the tenant, yet instead of having to deal unit(!) shall be deemed to fulfil his responsibilitiesto farm it in with the landlord and his agent whom he often regarded as a accordance with the rules of good husbandry insofar as the helpful partner in his undertaking, he will now have to comply extent to which and the manner in which the unit is being with the orders and directions of the Minister and the officials farmed (as respects both the kind of operations carried out of the agricultural executive committee and he will frequently and the way in which they are carried out) is such that, having have to take professional advice as to what are his rights and regard to the character and situation of the unit, the standard obligations. of management thereof by the owner and other relevant cir- 'It is thought that the result of this trend in legislation may cumstances, the occupier is maintaining a reasonable standard be that the "tenant farmer" will gradually cease to exist and of efficient production, as respects both the kind of produce instead a relationship of owner and manager will take the and the quality thereof, while keeping the unit in a condition place of the former relationship of landlord and tenant. Some to enable such a standard to be maintained in the future.' such new arrangement will probably be adopted on the larger estates as farms become vacant.' It will be seen that this clause, when translated into English, has the effect of putting a farmer into the hands of As some indication of the change which has come over his neighbours, with whom he may be on the worst of terms. the face of agriculture since the war, it may be pointed out These very wide and ill-defined powers are being freely used. that before 1939, the staff employed by the Ministry of Down to the middle of 1951, no less than 2,750 farmers had Agriculture was less than 2,000. Today it exceeds 15,000, come under the supervision of the county committees, and i.e. there is one official for every twenty farmers. Nearly 130 had been dispossessed. Thus, 130 farmers had been 7,000 of them serve on country agricultural committees, deprived of land and livelihood by amateur tribunals from which were war-time creations which have become a per- whom there is no possibility of appeal to the courts. manent feature of British farming. Another 1674 run the One notorious example of their activities is afforded by National Agriculture Advisory Service. This unquestionably the case of two farmers named Rowsell, farming 1,570 acres does a great deal of immensely important work, but at the at Mundon, in Essex, near the Blackwater Estuary. The other end of the scale, it has been responsible for pamphlets estate was ajoint enterprise, undertaken in 1940 at a time of of which two are 'How to Build a Bonfire', and 'How to acute national crisis, and it involved the reclamation of a make Sandwiches'. The county committees, of which there large area of derelict land, which was then brought into are over 60, each with its staff of technicians, and office cultivation. After the war, differences arose between the two staffs, include within their province the task of telling farmers farmers and the county agricultural committee, and the what crops are to be grown, the hiring out of machinery and ~arms were placed under supervision orders, so that various casual labour, looking after the various subsidy schemes, Improvements specified by the committee could be carried and the allocation of feeding stuffs. Possibly their most out. The brothers declined to comply and the county important function of all, however, is the holding of enquiries Committee then advised the Minister of Agriculture to issue at the direction of the Ministry to establish cases of bad three dispossession orders. The first asked for possession of management, leading to a supervision order or a disposses- the entire estate of 1,570 acres, on the ground of bad manage- sion order. Such enquiries are classic examples of admin- ~ent. The second sought possession from EdwinJohn Rowsell istrative tribunals at their worst. They are staffed by neigh- or the farms of Brick House, Brickworth, and New Hall, and bouring farmers, who therefore are necessarily interested ~e third asked for possession from William James Rowsell of parties. In addition, their terms of reference are ambiguOUS undon Hall Farm. The brothers appealed to the Land THE PASSING OF PARLIAMENT LAND IN CHAINS 149 Tribunal, which allowed the appeals in respect of the first 1947 has done even more for land capable of non-agricultural two orders, but confirmed the Minister's order in respect of development. Indeed, until its amendment in 1953 it repre- Mundon Hall Farm. Not unnaturally Edwin Rowsell sented a very formidable obstacle to the development ofland proposed to take over Mundon Hall Farm, but he was at the present time. Broadly, it rests on two general principles: prevented from doing so by the county agricultural com- (I) that the development of all land in the country should mittee. Cases such as this illustrate the disasters which may conform to an overriding plan, and should not be spasmodic; fall upon farmers who disagree with their county agricultural (2) that the increment in value arising from development committees. should accrue to the State and not to the individual owner. Inasmuch as freedom of contract has virtually disappeared, On the other hand, since the vesting of this development and as a farmer can now be evicted at the instance of the value in the State would remove from the landowner wealth Ministry for failure to farm 'efficiently,' or in accordance previously vested in him, the Act fixed a global figure of with the plan, it is plain that, after a brief absence of a £300,000,000 from which all existing owners ofland capable quarter of a century from our land law, feudalism has now of development could draw compensation. How this round returned in a new and ominous form. Moreover, some figure was reached does not appear. At this stage of the nat- of the other trends indicated by the editor of Jackson are ional development, there are probably few who would already appearing. Today, there is a steady change from question the wisdom of the first principle. Almost every individual ownership of agricultural land, to ownership by modern town, and many adjacent areas, could furnish a company; and farming in compliance with the orders of illustrations of the evils of absence of planning in the past. the State, as feudal overlord, is being carried out by skilled As far as this aspect of planning is concerned, therefore, and highly-paid managers. It is not difficult to see in these the issue is not one of planning or non-planning, but of land companies, owning substantial areas, the successors the reasonableness or unreasonableness of the planning of the majores barones of an earlier feudal age. The ensuing which is being undertaken. It was said of Guy Fawkes, struggle between them and their feudal overlord will be when arrested after the discovery of the Gunpowder Plot, interesting to watch. At present, under the Acts of 1947, that he was interrogated before being racked, during and 1948, the last word appears to be with the State, through racking, and after racking. The plight of the unfortunate the Ministry of Agriculture, but the history of our land law who wishes to undertake the development of land today shows such a situation to have existed on several previous is little better. He is interrogated before planning, during occasions. Yet major barons, whether individual or cor- planning, and after planning. Indeed, Great Britain today porate, are a stubborn race, and farming, like the medieval illustrates in acute measure the misfortunes of a country profession of arms, is not learned in a day. Throughout which has surrendered unconditionally to the planners. the history of the land law the pendulum has swung between Very soon, it will be impossible to place a dustbin in the public control and private interest. There was a considerable backyard without planning permission. It has already been element of public control after the Norman Conquest, and held that planning permission is necessary before a board the Domesday Survey might not inaptly be regarded as a can be exhibited announcing a sale of property. A house- medieval counterpart to a Royal Commission on the use and owner has been directed to paint the tiles of his house another taxable value of the land. Today, once again the elerne?t colour to conform with a local 'plan'. To place a heap of of public control is dominant; but the pendulum is still stones on land is a change of use, which requires planning per~ission. As yet, it is not necessary before opening or swingmg. If the two Acts mentioned above have placed agricultural closmg a hole in the ground to obtain planning permission, land again in fetters, the Town and Country Planning Act and therefore planning permission is not as yet necessary THE PASSING OF PARLIAMENT LAND IN CHAINS in order to be buried in land which has been designated a conversion of two flats back to the single house from which burial ground, although presumably, if at some future date they had been made by the removal of inner partitions was the planning authority decides upon a better site for the a change of use attracting development charge. The Act, as burial ground we shall all run the risk of being dug up again. drafted, had the effect of sterilising land at its existing use, This may, perhaps, seem a somewhat extreme case, but it until owners were able to assess their right to compensation is worth while remembering that today, local authorities from the £300 million fund. When it was sold, prices were in pursuan~e of obligations laid upon them by the Ministry; substantially higher than the anticipated "current use" are preparmg 'over-all' (blessed word) plans of their areas , value, whilst the purchaser for development had also to and in so doing, are not unnaturally viewing their responsi- contemplate the payment of a development value represent- bilities in the widest terms. In one plan with which I am ing the capitalised value of the improvement. Accordingly, acquainted, it is suggested that the gas-works should be the imposition of development charge amounted to a sub- transferred to the other side of the city! No doubt there are stantial measure of inflation, both of land values, and of the good reasons for such a suggestion. There may also be good price of articles manufactured in newly-constructed factories. reasons for moving the city bodily to some healthier neigh- Further, this tax by way of development charge was levied bourhood. It is, as was suggested above, entirely a question without the possibility of appeal to any Court, and was of reasonableness, and reasonableness in planning is a arbitrary in incidence, since it was based upon the fallacy question of degree. that development value might be calculated. Few Acts have Unfortunately, such an idealistic view of the future as is so quickly frustrated the purpose for which they were passed involved in this 'over-all' plan has a deterrent effect on in- as this part of the Town and Country Planning Act, 1947, dustry today. As many plans are as yet incomplete, and if and accordingly, the abolition of this quite unworkable complete, are not yet presented to the Minister, many plan- scheme, in the Town and Country Planning Act, 1951, has ning permissions are today given with a time-limit, so that received general approval, and has done something to abate the developer is told his buildings may have to be demolished the harm created by the Act of 1947. at the expiration of that period. That may not deter the The unrepealed parts of the Act of 1947 still contain boldest, but valuable developments have been abandoned sinister possibilities, however. in face of such a risk. The decision in Earl Fitzwilliam's Wentworth Estates v. When the Act of 1947 was under discussion, there was Minister of Town and Country Planning." to which reference has little public appreciation of what was involved. It was only already been made in an earlier chapter shows that, in effect, since the impact of this imposition upon members of all the possibility of land nationalisation has been conceded to classes was experienced that public opinion showed strong the Ministry, without this fundamental question ever resentment. Where the nature of the impost was understood having been discussed by Parliament. Section 43( I) of th at all, it was widely assumed at this time when the Act was Act provides: before Parliament that a small percentage tax alone was 'that the Minister may authorize the Central Land Board involved. It is certainly true that the framers of the Act ~oacquire land compulsorily ifhe is satisfied that it is expedient made the nature of the charge plain, but public opinion III the public interest that the board should acquire land for was not conscious of the comprehensive nature of the any such purpose as aforesaid, and that the board are unable to acquire the land by agreement on reasonable terms'. legislation. It was not contemplated, for example, that a cobbler who erected a small lean-to shed behind his house In the case under consideration, the Board exercised to carryon his trade more efficiently would have to pay compulsory powers of purchase when the Estates Company • [1951) 2 K.B. 284. £400 development charge. Nor was it appreciated that the 152 THE PASSING OF PARLIAMENT failed to sell land for building at existing use value, as in- dicated by the Board in a circular. As Denning L. J. said Chapter II in a dissenting judgment in the Court of Appeal, this had the effect of giving to the Board, or the Ministry, or both, a power to legislate independently of Parliamentary control, The Problem of State Monopolies for which there was no warrant in the Act. The majority of the Court of Appeal, however, thought that the Act gave the Board the general power of compulsory purchase which they claimed to have exercised in this case, and the House ~f Lords agreed with them. Few people, however, could have Twas pointed out in Chapter 2 that this country since appreciated the full significance of this, when the Act was the end of the fighting in 1945 has gone a considerable being placed on the Statute Book in 1947· Now that the Iway upon the Moscow road through the setting up of scheme based on existing use value and development value gigantic State monopolies in which the ownership of most has been abandoned, the actual effect of this decision may of our essential services and heavy industries-transport, not be wide, but the case stresses the importance of scrutin- fuel and power, coal, iron and steel-is vested. Moreover, izing grants of powers of compulsory acquisition with great it is gradually becoming apparent that neither Parliament care. nor public is either satisfied or fully informed about these The whole question of land law urgently needs fresh gigantic and unprofitable enterprises. It is also a matter investigation, in the course of which the economic con- upon which the curious may reflect that so far the lawyers, sequences of the existing legislation should be fully examined. whether academic or practising, have been extremely hesi- tant to analyse the legal implications of successive national- isation Acts.' Looked at from one point of view, the setting up of State monopolies in activities in which the amalgamation of competing enterprises has already proceeded very far is simply the final stage in the history of commercial and in- dustrial enterprise in the West in the last two centuries. In the earliest phase, when it is national policy for industrial- isation to proceed as rapidly as possible, conditions are estab- lished in which highly competitive enterprises can be set up with moderate capital. Later there follows the state of consolidation, in which redundancy is to a considerable degree eliminated, and in which uneconomic units are either merged or dissolved. For example, the railway boom in the middle of the nineteenth century produced a large number of railway enterprises, most of them highly competitive and Some of them weak and ineffective. Rationalisation by way

d1Two notable exceptions are contributions by Professor W. Friedmann ~n C. Winter, LL.M., to Law and Contemporary Problems (Duke University, 951). And see Sir Alfred Denning, The Changing Law pp. 25-30. F 153 154 THE PASSING OF PARLIAMENT THE PROBLEM OF STATE MONOPOLIES 155 of amalgamation had already proceeded very far when resemblance to the corporation sole that It does to the cor- after the 1914-18 war had demonstrated the importance of poration aggregate. unified control in time of war, the merger of 1921 reduced It will be valuable to examine what is constituted by a the ordinary railway companies of this country to four, nationalisation Act by examining the Iron and Steel Act, each with a fairly clearly-defined area of operation. From 1949, by virtue of which, after bitter conflict, the iron and that point to nationalisation after a second war in which steel industries were nationalised, until on the passing of the our transport system had functioned under even greater Iron and Steel Act, 1953, the industry was denationalised. strain than during the war of 1914-18 could therefore be Part I of the 1949 Act established the Iron and Steel Corpora- regarded, and was widely regarded, as no more than the tion of Great Britain, a monster compared with which the last step in a process which had been going on for over half greatest steel combine which existed before the Act was an a century. infant. The Corporation, says Section I (2), consists, not as Such a view does not take all relevant factors into account, one would expect from such a name, of persons having some however. An alternative route by which this movement financial stake in the industry but of a chairman and not less could have reached its conclusion would have been by a than six nor more than ten other members, merger of the four railway companies, either of their own 'and the chairman and all other members shall be appointed initiative, or at government prompting, into a single com- by the Minister from amongst persons appearing to him to be pany, comprising the shareholders of the pre-existing com- persons who have had wide experience of, and shown capacity panies. The fact that this apparently simpler method was in, the production of iron ore or iron or steel, industrial, commercial or financial matters, administration or the organ- not adopted indicates that the recent changes have occurred isation of workers.' in response to the operation of some social or political theory. They are, in fact, the product of that brand of Socialism to The so-called corporation, therefore, was not a corporation at which organised labour was converted thirty or forty years all, except that it had legal personality so that it could sue or ago by the Fabians, acting under the leadership of the Webbs. be sued as a unit. It was, in fact, an emanation of the Ministry This is an aspect of the matter to which we will return later which, by a pleasant trick of nomenclature well known to in this chapter. For the present, however, we will examine government departments, was called something else to the mechanism by which nationalisation has been carried make it more palatable to the public at large. out. This has sometimes been described as the establishment This point is made plain beyond the possibility of of public corporations. Such a term is very misleading. ambiguity by the terms of Section 4, which reads as follows: The proceedings of these State monopolies are a good deal more private than the proceedings of public companies. '(I) The Minister may, after consultation with the Corpora- tion, give to the Corporation directions of a general character Further the outstanding characteristic of a corporation, as to the exercise and performance by the Corporation of the whether public in the true sense (e.g. a local authority) or functions (including the exercise of rights conferred by the commercial, is that it is an aggregate of persons, united in holding of interests in companies) in relation to matters which membership for the achievement of some purpose. The appear to him to affect the national interest, and the Corpora- modern State monopolies, however, have no members to tion shall give effect to any such directions. whom they can be made responsible. It is true that English '(2) In carrying out any such measure of reorganisation or any such work of development as involves substantial outlay law also knows the corporation sole, which is the result of on capital account, and in securing the carrying out by the incorporation of a succession of persons occupying the publicly-owned companies of any such measure or work, the same office. Such a type of corporation is somewhat anom- Corporation shall act in accordance with a general programme alous, and in any event, the State monopoly bears no more settled from time to time with the approval of the Minister. THE PASSING OF PARLIAMENT THE PROBLEM OF STATE MONOPOLIES '(3) In making or securing provision for the training and in this sectionreferred to as "the consumers")who are consumers education of persons employed by the Corporation or any of the products of any of the principal activities of the Corpora- publicly-owned company, and for research, the Corporation tion and the public-owned companies.' shall act in accordance with a general programme as aforesaid. If it were suggested that a legislative body should be '(4) Without prejudice to the preceding provisions of this selected (the word elected cannot be used) in the manner section, the Minister may, after consultation with the Corpora_ tion, direct the Corporation- in which this shadowy Consumers' Council was, the adjective '(a) to discontinue or restrict any of their activities or to 'dictatorial' would be rightly applied to the process. Even so, dispose of any part of their assets; or however, the Act took every possible precaution to prevent '(b) to secure the discontinuance or restriction of any of the the Council from doing anything effective. By Section 4, activities of a publicly-owned company, or the disposal of the the Council may 'consider', 'consider and report', 'con- whole or any part of the assets of any such company, or the winding-up of any such company; sider and make recommendations', and finally 'make 'and the Corporation shall give effect to any such direction.' representations' concerning various matters. The reader will observe the fine shades of distinction introduced by the de- All this is very clear. The Departments under Acts such as partment in respect of these nebulous functions. It is hardly this, having to an important and increasing degree emanci- surprising that Consumers' Councils have been still-born. pated themselves from the control of Parliament and the Few people have heard of them, none but Departmental Courts, now enjoy a stranglehold upon the economic life of officials know how they are selected, and their representa- the country, operating through dummy monopolies, whose tions and considerations remain in the files of the appropriate officials are appointed by them and are responsible to them, State monopoly whilst prices continue to rise, and deficits to and whose activities are subject to control and supervision by increase. The unchallengeable fact is that the ordinary the Departments on all questions of broad policy. The Iron citizen has very considerably less share in the operation of and Steel Act, 1949, reflecting as it does the fierce struggle nationalised enterprise than he had in the operation of the which preceded it, was completely clear in its statement of enterprise before nationalisation. The last element offreedom both the legal position, and the situation in terms of power. of choice as a consumer has been removed from him; it is It is perhaps, unnecessary to add that Section 7 of the Act no longer possible for him to buy any shareholding in the gave the Corporation power to purchase compulsorily. enterprise. Officials are appointed without any reference 'any land required for the exercise and performance of their whatever to him, even indirectly; the consumers' councils function or the carrying on of any activity by a publicly-owned company.' are selected by, and responsible only to the nationalised industry and its parent Ministry, and in any event, they do May it not be, however, that somewhere in this gigantic not possess anything beyond the most shadowy of advisory power complex, the interests of the ordinary public were powers. The nationalised industry has the appearance of remembered? Section 6 is instructive on this point. It provided some Frankenstein monster, groping in a world in which, for the establishment of an Iron and Steel Consumers Council, from the standpoint of intelligence, it is scarcely safe to be to comprise an independent (sic) chairman appointed by the let at large, insensitive to opinion, and seeking to escape Minister, two members of the Corporation (i.e, the Board of from departmental fetters which, in the last resort, will Control appointed by the Department) nominated by the bring it to ruin. Corporation and finally It is very important indeed to appreciate that the corporate 'not less than fifteen nor more than thirty other perso.ns structure of the State monopoly is merely a facade behind appointed by the Minister, after consultation with such bodies (which may include organisations representing workers) as which nominees of a State department operate. In an ordin- he thinks fit, to represent the interests of persons (hereinafter ary public company, the shareholders have certain rights THE PASSING OF PARLIAMENT THE PROBLEM OF STATE MONOPOLIES 159 guaranteed by law. They appoint and remove directors, and this meant either that the consumers supplied by the York- they can proceed against the directors in the Courts for shire Electricity Board will have to pay the fine, or that the negligence and misfeasance. It may be that even today the taxpayers as a whole will have to pay it by way of a subsidy rights of the shareholder against a director are not so exten- for a deficit. It would seem, therefore, that a very desirable sive as some would wish. Nevertheless, their existence may alteration in the law would be a statutory provision giving operate as a check upon the activities of directors. There is power to surcharge the members of the Board personally nothing to correspond with this in the structure of State where penalties imposed upon the Board can be traced monopolies. Members of their Boards can only be responsible either to the personal and wilful misfeasance or to the cul- to the Departments which appoint them. Remembering that pable negligence of its members. A further unsatisfactory in the view of many, the standard of diligence required from feature of the case was the tacit assumption of all parties that the directors of public companies is still surprisingly low, the lavish scale even of lawful expenditure at Scarcroft was and that presumably no higher legal standard of duty is re- justified. It was assumed that large-scale additions to build- quired from the members of boards of nationalised industries, ings, and lavish equipment were appropriate for these the position in law appears extremely unsatisfactory. mighty potentates of State monopolies. Their estimates of It may, perhaps, be suggested that although there is expenditure are apparently not subjected to the scrutiny to no possibility of control by shareholders, and although which the estimates of such essential services as the Army, the consumers councils have proved completely ineffective Navy and the Air Force must submit. There appears to be to influence the policy of the giant State monopolies, an no justification whatever for such an irresponsible procedure. adequate protection of the interests of the general public Reviewing the Scarcroft case in a leading article, the is provided by the control exercised by Departments of Evening Standard of November zoth, 1950, after pointing State. Unfortunately this is not the case. The failure of out the double check of democratic control and strict and the ground nuts scheme threw into sharp relief the com- impartial financial scrutiny which exists in respect of central placency and incompetence of a public department when and local government, draws attention to the privileged faced with novel problems, whilst the prosecution and position enjoyed by the State monopolies, and after discussing conviction in November 1951 of the chairman and deputy- the laxity which was responsible for the Scarcroft case, added: chairman of the Yorkshire Electricity Board, as well as 'Presumably it was hoped that control from Whitehall the Board itself, for violation of building regulations by would prevent such a situation ever arising. But the futility of building in excess of the limits imposed by licences to the setting one bureaucracy to watch over another appears from xtent of over £30,000 showed in striking fashion the the part played by the Ministry of Fuel in the affairs of the extent to which members of these Boards now regard Yorkshire Board. The details have yet to be exposed, but on the best possibleinterpretation the Ministry knew little of what themselves as a privileged caste, above the rules of law was happening in Yorkshire and cared less. which govern ordinary citizens. Unfortunately also the 'The Scarcroft scandal throws light on reformswhich should case demonstrated how utterly ineffective the alleged control be brought into immediate effect. exercised by a government department can be. Even apart 'I. The finances of all Boards should be made subject to the from the deliberate law-breaking proved in this case, the full inquisitorial powers of the Select Committee on Public trial had two other disturbing features. The Lord Chief Accounts or of a similar committee of Parliament set up for this particular purpose. Justice not only punished the persons principally responsible '2. Ministers should be made responsible to the House of for law-breaking by the Electricity Board. He also impose? Commons personally, and not as agents passing on information a fine of £20,000 upon the Board itself. Inasmuch as this supplied, for answering questions on the operations of Boards was not to be paid by the members of the Board personally, under their iurisdiction.' 160 THE PASSING OF PARLIAMENT THE PROBLEM OF STATE MONOPOLIES 161 This is sound criticism. Further reference will be made One is surprised to find that these sentiments appear, not to it in the final chapter. in the works of the well-known novelist, Mr. Hall Caine, but If we seek the origin of the mania for nationalisation which in those of persons who had undertaken a good deal of social continues to impair the judgment of left-wing publicists, it research, and who were intended to be taken seriously. will be found ultimately in the writings of the Webbs, and By some astonishing abeyance of the critical faculty, they particularly in A Constitution for the Socialist Commonwealth have been taken seriously by many persons who are con- of Great Britain, published in 1920. By no stretch of the siderably their intellectual superiors, and who are not usually imagination can this be regarded as an inspired work. It is lacking in the critical faculty. For example, some of the crude in technique, and it shows regrettable ignorance of arguments used by Sir Stafford Cripps in the debates on the the principles either of constitutional history or political Steel Bill in 1949 appear to have been drawn directly from science. For example, the authors put forward the naive this treasure-house of inaccurate generalities. However, suggestion that the 'essentially political functions of govern- as the climax of this emotional approach, the Webbs ment', whatever that may mean, should be concentrated observe: in a Political Parliament, with an executive responsible to it, 'What the Socialist aims at is the substitution, for this while 'all the other functions of the House of Commons' Dictatorship of the Capitalist, of Government of the people and should be transferred to a second national assembly, with a for the people, in all the industries and services by which the second executive responsible to it. The primary function people live. Only in this way can either the genuine partici- of the second assembly would be to exercise control over the pation of the whole body of the people in the administration nation's economies and social activities, including taxation, of its own affairs, and the people's effective consciousnessof consent to what is done in its names, ever be realised.' the social services and property. One can well imagine the constitutional conflicts which would arise from the establish- What the Socialist has got, as distinct from what he aimed ment of such a quaint mixture. Their upshot can be predicted at, is the exact opposite of those noble aspirations. He has with some confidence, for the whole of English constitutional got a rigid mechanism, remote from and indifferent to history confirms the hypothesis that he who controls the public opinion, operated at a handsome loss by department- purse controls the State-more especially as the setting up of ally appointed officials with salaries as large as those ever such a constitution was to be an incident in the nationalisa- paid to capitalist directors, with the added advantage that tion of industry. It is no novelty to suggest that the Webbs their losses and official expenses can be underwritten by a had the outlook of industrious civil servants. Their writings beneficent State. On these points, the reports so far published afford abundant proof of it; yet it is remarkable that they by the Public Accounts Committee of the House of Commons nowhere stop to consider the extent to which, even at the on the finance of nationalised industries make illuminating date when they wrote, the departments were encroaching upon reading. Parliamentary sovereignty and personal freedom. Elsewhere It will be evident that the Webbs, and following them in the same volume, they purport to analyse, in terms borrowed left-wing publicists, have advocated the nationalisation of from Marx, the economic inequalities that exist in a capitalist industry on three main grounds: (I) that private ownership society. They somewhat plaintively observe: has resulted in a great waste of productive power; (2) that it was necessary to reduce great inequalities of wealth, and 'The continued existence of the functionlessrich-o~ personJ (3) that public ownership of the means of production has who deliberately live by owning instead of by working, a? whose futile occupations, often licentious pleasures and Ind removed from a small minority a complex of power which herently insolent manners undermine the intellectual an, threatened personal freedom. Not one of these arguments moral standards of the community-adds insult to InJury. bears prolonged examination. For example, as Lord Brand p. THE PASSING OF PARLIAMENT THE PROBLEM OF STATE MONOPOLIES has pointed out," if the first were true, it would follow that of the ordinary citizen become increasingly precarious, for the Soviet Union would be industrially considerably more as the enjoyment of power by those in possession fails to efficient than the United States, which few believe. Public bring to the rank and file the benefits which have been so ownership of industry and transport may have an important widely promised, there remains only the possibility of taking part to play in backward economies, where investment still more power, either to make a last effort to procure the surpluses are very small, but that does not prove it to be a elusive benefits for which change was instituted or else to remedy of universal application. The second argument has control their disappointed rank and file when the futility ceased to have relevance in a community in which taxation of the proceedings at last becomes manifest. The history of has reached the heights which exists in England today. the French and Russian Revolutions is very instructive on Moreover, nationalisation has not abolished wide disparities this point. The conception of the great pool of wealth which between the wages and salaries of the rank and file, and the is available for universal distribution is a recurrent one in salaries of the heads of the bureaucracy and industry; and the mind of the revolutionary, but as Lord Brand has pointed it is interesting to notice that there has been no visible out, nationalisation of industry has, in fact, no bearing even reluctance amongst trade union leaders and others in Britain on the great problem of the central control of the nation's to accept the high salaries paid to members of the Boards money structure. Post-war governments in England have of nationalised industries. Finally, insofar as the third argu- forgotten Lord Keynes' conclusion that ment is concerned, the effect of nationalisation has been to 'it is not the ownership of the instruments of production remove power from one group to another, which operates which it is important for the State to assume. If the State is in response to the promptings of the government of the day able to determine the aggregate amount of resources devoted operating through the departments. Whether this is a to augmenting the instruments and the basic reward of change for the better or not still remains to be seen. As is those who own them it will have accomplished all that is necessary.'3 plainly apparent from the language of the nationalisation Acts themselves, the departments have no intention whatever The establishment of the State monopolies, therefore, is of allowing public interest the power to make effective inter- intended to represent the practical realisation of Socialist vention in the liaison between State monopoly and the parent theories, as formulated by the Webbs and by the Fabians department. The reason for this is also clear. Industry round about the time of the war of 1914-18. must operate subject to an over-all plan, whether in war or The source of their inspiration is not open to argument, peace. In a period of rearmament, it is armaments which for Professor Friedmann notices: will secure priority. At other times, the entire country will 'The Soviet Union proceeded, only a few years after the be repeatedly spurred on to greater efforts in the field of Revolution, to develop the institutions of the State Trusts for exports. The acceptance of the principle of 'the plan' for the running of major industrial State enterprises. These trusts are constituted as autonomous legal units; they received their the country's economic life of necessity excludes the element charter from the Supreme Council of National Economy, of personal choice. It takes us a long way on the Moscow which also appoints the members of the board, they have two road, and brings us within sight of the day when the indi- types of capital assets which roughly correspond to the dis- vidual will be a 'unit of production' and no more. If!t tinction between fixed and floating assets of British company should be that the planners, after all, have made a gigantIc law. The fixed assets belong to the State, the floating assets belong to the trusts. That is to say, they are State property mistake, it will not be difficult to know where to place the at one remove and can be freely disposed of. The trusts enter responsibility for it. Unless the urge to power can be con- into contractual and other legal transactions and legal disputes trolled within reasonable limits, the security and freedom between them are settled by State arbitration which appears

I 'Nationalisation' in Lloyd's Bank Review April, 1949. I Lord Brand loco cit. THE PASSING OF PARLIAMENT THE PROBLEM OF STATE MONOPOLIES to have developed principles of mixed contract and adrnin, qualities which belong to corporations of other kinds to which istrative law." we have been accustomed. It has, for instance, defined powers which it cannot exceed; and it is directed by a group of men There, in fact, are to be found all the essential character_ whose duty it is to see that those powers are properly used. istics of the British State monopolies, which now control the It may own property, carryon business, borrow and lend nationalised industries. Professor Friedmann opens his inter- money, just as any other corporation may do, so long as it esting analysis by remarking that keeps within the bounds which Parliament has set. But the significant difference in this corporation is that there are no 'the Public Corporation is emerging as the chosen legal shareholders to subscribe the capital or to have any voice in instrument of the Labour Government for the public control its affairs. The money which the corporation needs is not raised of basic industries in an economy still based on private enter- by the issue of shares but by borrowing; and its borrowing is prise.' not secured by debentures, but is guaranteed by the Treasury. If it cannot repay, the loss falls on the Consolidated Fund of Exactly. Professor Friedmann makes the point even clearer the United Kingdom; that is to say, on the taxpayers. There when, at a later stage in his study, he points out that it is not are no shareholders to check the directors or to fix their re- easy to classify public corporations. They may be regarded muneration. There are no profits to be made or distributed. as parts of, or extensions of, the executive; as a new type The duty of the corporation is to make revenue and expenditure of public company; or as analogous to statutory public balance one another, taking, of course, one year with another, but not to make profits. If it should make losses and be unable corporations, e.g. local authorities. Discussing the possibility to pay its debts, its property is liable to execution, but it is that they can be regarded as a new species of public company, not liable to be wound up at the suit of any creditors. The he remarks: taxpayer would no doubt, be expected to come to its rescue before the creditors stepped in. Indeed, the taxpayer is the 'Although there is a certain similarity in form, the public universal guarantor of the corporation. But for him it could not corporations are essentially instruments of public policy under have acquired its business at all, nor could it now continue it the direction of the Government, which is responsible to for a single day. It is his guarantee that has rendered shares, Parliament. The public function overshadows the private form debentures, and such like all unnecessary. He is clearly entitled but even the formal similarity is limited, because of the absence to have his interest protected against extravagance or mis- of private shareholders and the appointment of the managing management. board by the Minister." 'But there are other persons who have also a vital interest in its affairs. All those who use the services which it provides- A word may perhaps be added upon the legal status 0, and who does not?-and all whose supplies depend on it, in public corporations. It was decided by the Court of Appeal short everyone in the land, is concerned in seeing that it is in Tamlin v. Hannafords that they do not rank as government properly run. The protection of the interests of all these- departments, with the immunities, derived from the Crown, taxpayer, user and beneficiary-is entrusted by Parliament that such executive departments enjoy. So in that case it to the Minister of Transport. He is given powers over this corporation which are as great as those possessed by a man was decided that the Rent Acts applied to houses owned who holds all the shares in a private company, subject, however, by the Transport Commission. Lord Justice Denning, as such a man is not, to a duty to account to Parliament for his delivering the judgment of the Court described the status stewardship. It is the Minister who appoints the directors- of the Transport Commission as follows: the members of the Commission-and fixes their remuneration. They must give him any information he wants; and, lest they 'The Transport Act, 1947, brings into being the British should not prove amenable to his suggestions as to the policy Transport Commission, which is a statutory corporation of a they should adopt, he is given power to give them directions kind comparatively new to English law. It has many of the of a general nature, in matters which appear to him to affect

4 'The New Public Corporations', in The Modern Law Review, 1947, pp. 233-4' the national interest, as to which he is the sole judge, and they • Ibid, p. 379. are then bound to obey. These are great powers but still we 6 [1950J I K.B. 18. cannot regard the corporation as being his agent, any more 166 THE PASSING OF PARLIAMENT THE PROBLEM OF STATE MONOPOLIES than a company is the agent of the shareholders, or even of a I understand the position, the decision at which I have sole shareholder. In the eye of the law, the corporation is its arrived is more likely to provide efficient and suitable own master and is answerable as fully as any other person or towage services at this important port than if the defendant's corporation. It is not the Crown and has none of the immunities claim for a monopoly had prevailed.' or privileges of the Crown. Its servants are not civil servants and its property is not Crown property. It is as much bound By the terms of their creation, however, it has been shown by Acts of Parliament as any other subject of the King. It is that the State monopolies are, in effect, subject to the control of course, a public authority, and its purposes, no doubt, are and direction of parent departments, and they are therefore public purposes, but it is not a government department nor no more democratic, in the sense of being responsible to do its powers fall within the province of government.' popular opinion, than the departments themselves are. The public corporation, in fact, is not a sub-department May it not be argued, however, that in spite of this structure of an Executive department; it is its creature. One further they are responsible to Parliament, as the 'Grand Inquest of point may be added. Being the creation of statute, a public the Nation'? This is a question concerning which Parlia- corporation is subject to the doctrine of ultra vires, and it ment, Press and public have all been increasingly concerned can therefore be restrained if it seeks to go beyond the terms in recent years. It has become, since the programme of laid down to limit its activities." nationalisation took effect, a major constitutional question. The potential dangers inherent in this form of state It will be profitable, therefore, in discussing this question monopoly, insofar as private citizens are concerned, is to consider what constitutional machinery already exists, sharply emphasised by the fact which gave rise to Pigott v. whereby control or influence in the working of these vast Docks and Inland Waterways.s Following the nationalisation monopolies can be exerted. Each of them prepares an annual of the docks, the Dock Executive sought to exclude a firm of report on the year's working, and following its approval by tug owners who had provided tug services for over sixty the Minister, and its subsequent publication, a date is speci- years from Immingham Dock, on the ground that the tugs fied for a debate in Parliament on the report. Of necessity, owned by this firm were fully employed, whilst the tugs this involves a considerable time-lag. Thus, the first report owned by the Dock Executive were frequently idle, having of the British Transport Commission, covering the year lost trade to the private owners who were supplying a more 1948, was published on September 7th, 1949, and the debate attractive service. The tug owners brought an action for a on it in the House of Commons took place on December rst, declaration, and in their defence the Dock Executive 1949. Thus, a whole year elapsed before the opportunity admitted that their motive in excluding the privately owned arose for an informed discussion, even on the general prin- tugs was to prevent competition. Sellars J. decided that the ciples in accordance with which the Transport Commission private tug-owners were entitled to a declaration that they was working. Manifestly, the evils of this system are greater were entitled to use the docks and that the Dock Executive when the monopoly is working uneconomically or ineffici- were not entitled to exclude them, and he added: ently, and the weaknesses of this procedure were fully exposed 'The interdepartmental correspondence of the defendants in the catastrophic muddle produced by the Overseas Food to which I was referred revealed less desire on the part of Corporation in its notorious ground-nuts scheme. Even so, those responsible for the port's administration to have the however, when after adverse criticisms on the accounts of tug services at Immingham highly efficient and adequ~te the enterprise from the Public Accounts Committee of the than to statify competition to benefit their own tugs, which House of Commons, this unfortunate episode was debated in apparently could not hold their own in a busy port. So far as the House of Lords on December 14th, 1949, Lord Hall took 7 Smith v. London Transport Executive [1949] 2 All E.R. 295; National Coal the disturbing view that in spite of the gross waste of public Board v: Hornby [1949] 2 All E.R. 615. money, there was no point in having an inquiry. What was 8 [1953] I W.L.R. 94. 168 THE PASSING OF PARLIAMENT THE PROBLEM OF STATE MONOPOLIES 169 past was past, and the financial situation would be clearer to get the advantages of commercial management and it was when the Public Accounts Committee made its report to the freed from meticulous Parliamentary control, then details of Parliamentary question and ministerial management and super- House of Commons. The extent to which this complacency vision and control would have to be given up.' was justified may be discovered by those who care to do so by perusal of the illuminating volume on the Ground Nuts A few months later on July 4, 1951, the House of Lords adventure which was published shortly afterwards. debated the same question, this time with particular reference At the present time, the position of the members of State to the position of peers who served on the Boards of nation- boards and of the Minister in charge of the parent depart- alised industries. This raised the question whether such peers ment may be summed up as follows: The Minister answers should be called upon to answer in the House of Lords for in Parliament on the general running of the Board. It is no the work of their monopolies. Speaking on behalf of the part of his duty to answer questions relating to day to day Government on this point, Viscount Alexander said: administration. 'Nothing should be done which might impair the respon- It will be generally agreed that any other principle would sibility of Ministers to Parliament or prejudice the freedom of make the Minister's position almost untenable. Nevertheless, the Boards from meticulous political supervision of their day- there is a real and growing danger than in these circum- to-day management. Ministers alone were responsibleto Parlia- ment for the way in which the Boards were conducted. The stances Parliamentary control will be completely illusory. chairman and members of any Board were responsible to the Even Mr. Morrison appeared to contemplate that situation Minister by whom they were removed. Anything which weak- without undue concern in opening a debate on the control of ened the position of Ministers ipsofacto weakened Parliament, nationalised industries in the House of Commons on October and no Board member should be expected to assume a role of 25th, 1950, for he said: accountability to Parliament which was proper to the respon- sible Minister." 'It was often argued that when it came to sheer businessof This makes somewhat clearer than Mr. Morrison's state- commercial matters the machinery of the State necessarily worked slower than that of ordinary commercial concerns. ment did that the official view is that the Boards are the There was truth in that, not because of any inherent incom- creatures of the Ministries. This adds point to the comment petence in the Civil Service or in State administration but of Mr. Bird upon the course of debates on reports of nation- because Ministers were absolutelyresponsibleto Parliament for alised industries: everything that happened in their departments. It was right that that should be so. The Civil Service machine must there- "The Minister opens the debate with a formal statement fore be cautious and careful because of the possibilityof Parlia- which need do no more than recapitulate some of the main mentary trouble, or trouble with the public, or criticism in the points in the Public Relations Officer's summary of the report. Press. He then turns to more current topics--coal prices or transport 'There was a series of economic, industrial, or commercial charges-and by the time the first Opposition speaker has made concerns regarding which it was appropriate that they should his much interrupted reply, the stage is set, not for a sober be managed by public corporations rather than by State review, but rather for a display of backbench backbiting. departments. When Parliament set up public corporations.It It becomes a rambling and incoherent debate, to which even was trying to get the best of both worlds; and sometimesgot It. the sheepishsilence of the average shareholders' meeting might It was trying, on the one hand, to have a public concern .or be preferred." public authority, and on the other to graft on to it a commerCl.al It requires a more lively imagination than the ordinary or business management capable of acting with speed and. III a situation whereby it could make mistakes without causmg citizen possesses to see in this an effective Parliamentary an immediate Parliamentary crisis or embarrassment for a control. Indeed, scepticism with regard to the operation Minister. • 'Public Boards and Public Accountability', in Lloyd's Bank Review,January, 'It followed that if a public corporation was set up in order 1950, p. 15· THE PASSING OF PARLIAMENT THE PROBLEM OF STATE MONOPOLIES 171 of nationalised industries is now widespread amongst those of Boards.ll In this way, of course, the possibility of Parlia- who have the best opportunities for observing them at close mentary scrutiny of what is decided is avoided altogether. quarters. The various nationalisation Acts contain provisions This situation is the more unsatisfactory inasmuch as the for consultation between Boards and workpeople. Thus, effect of such discussions is frequently to modify policy which Section 95 of the Transport Act, 1947, makes it the duty of may be commercially sound in the light of the political or the Transport Commission to consult with workers' organ, social economic theories favoured by the Minister. If the isations concerning the safety, health and welfare of persons result of such persuasion is a heavy financial loss, then the employed by it. There is, unhappily, little evidence that Board of the monopoly is not unreasonable in expecting this duty has been widely exercised. Thus, during 1950 and the Ministry to underwrite it, and to undertake the defence 1951, railwaymen of the Western Region of the Transport of the policy in Parliament. Commission's railways were seeking to discuss with the Two further points in the working of nationalised indus- Commission the abandonment of safety-signalling devices tries should be noticed. The first relates to the reference of in operation before nationalisation. Failing in their purpose, their affairs to the Public Accounts Committee of the House they asked the Minister of Transport to receive a delegation of Commons. This only occurs when they get into financial to discuss the matter-a request which was refused. Again, difficulties, and must therefore be rescued by fresh grants the National Union of Mineworkers has been so disturbed of public money. Even the most confirmed enthusiast for by the working of the National Coal Board that it has set nationalisation can scarcely visualise this as a permanent up an investigation into the expenditure of public money by condition of their existence. Since they are monopolist, the Board. These things are scarcely indicative of 'that they can ultimately fix the prices in exchange for which the participation of the whole body of the people in the admin- public can enjoy their services. Yet the fixing of rates to istration of its own affairs', so naively predicted by the obliterate deficits will be no guarantee of efficient manage- Webbs. ment, nor any assurance that the public interest has been A further point of constitutional importance has emerged safeguarded since the possibility of alternative service has during the debates on nationalisation. It is that the Minister been destroyed. This involves therefore consideration of a may refuse to disclose to Parliament directions given by him second point. In 1948, there was placed on the Statute to a public corporation, where he considers that it is contrary Book the Monopolies and Restrictive Practices (Inquiry and to the national interest to make such a disclosure. Professor Control) Act, which provides for the setting up of a Commis- Friedmann rightly attacks this privilege as a violation of sion of Enquiry, to investigate particular trades and indus- British constitutional practice. As he observes: tries whose activities appear to fall within the terms of the 'The cases where the disclosure of the directors to a public Act. For reasons which are by no means apparent, the State corporation would be against the national interest should be monopolies have been excluded from the purview of the rare indeed. Where they do exist, it should not be beyond the Commission, whose activities in respect of them might ingenuity of Parliamentary procedure to provide for secrecy.P" possibly have embarrassed the parent Ministry in the manner Actually, however, it would seem that in practice, Ministers indicated by Viscount Alexander in the debate in the House have preferred to avoid giving formal directions on policy of Lords in July, 1951. wherever possible, but have preferred to exercise their un- The remarkable immunity of State monopolies from the doubted power to influence the working of the monopoly supervision of the Public Accounts Committee of the House by means of a consultation or a conference with members of Commons is accompanied, as we have seen, by their

11 E. Davies, 'Ministerial Control and Parliamentary Responsibility of 2 10 'The New Public Corporations', in The Modern Law Review, 1947, P: 39 • Nationalised Industries', Political Quarterly, 1950, p, 150. THE PASSING OF PARLIAMENT THE PROBLEM OF STATE MONOPOLIES 173 exemption from the requirement to submit to audit by the has appeared to him to search too closely into the mechanism Comptroller and Auditor-General. This second immUnity of monopoly-departmental relationship. applies only to the monopolies which control industrial Although in the debates in the House of Commons and in undertakings. It does not extend to such bodies as the New the House of Lords, anxiety over the unsatisfactory working Town Development Corporation to which the public author_ of nationalised industries has been general, the Labour ity analogy is applicable to a greater degree. The defence Government repeatedly rejected proposals for a higher of this additional immunity, advanced by Labour Ministers, degree of Parliamentary or public control than exists at was based on the fallacious analogy between State monopolies present. At bottom, the issue is again a constitutional one, and public companies, an analogy which, as we have seen, for as Lord Salisbury put it, in the House of Lords, is utterly misleading. There is no responsibility to any body of shareholders, and insofar as responsibility exists at all, 'if an industry was privately owned the shareholders could at the annual meeting outvote and, if necessary, dismiss the it is to a government department, and through that depart- directors or they could sell their shares. Once an industry was ment, to Parliament. There can thus be no justification for nationalized the shareholders could not get out of the concern the continuation of this immunity, which has rendered and if they endeavoured to exercise some control through their situations such as that revealed in the Scarcroft scandal elected representatives in Parliament it was unlikely, no matter possible. how badly an industry was being administered, that the directors, who were ultimately the Government, would be The nationalised undertakings are bound by the Acts defeated in the House of Commons.' creating them to prepare annual reports at the end of each financial year for presentation to the Minister, who is under It is only necessary to express the problem in these terms a statutory obligation to lay it before Parliament. Such to expose the fallacy of comparing the position of the public reports will normally include any directions by the Minister in respect of nationalised industries to that of shareholders. unless, as has been mentioned above, he has informed the A shareholder has, in any circumstances, some minimum of corporation that it is against the national interest or, in rights conferred by law. the cases of electricity, transport or gas, it is against the The only concession which the Labour Government made interests of national security to do so. The reports so far to rising public feeling was the suggestion that each national- published, have been voluminous, extending to several ised industry might be the subject of a seven-yearly enquiry, hundred pages. They have been widely commented on in the although neither Mr. Morrison nor Mr. Noel-Baker, who Press, although only a brief account of their contents could be both put forward this suggestion in the debate on October given. The presentation of the reports to Parliament has been 25th, 1950, specified how the enquiry should be conducted, accompanied by a debate of one-day's duration, during which who should conduct it, or what their powers should be. Government and Parliament have attempted to grapple This certainly falls very far short of what many want to see. with the problems that the establishment of these monopo- Mr. Butler, speaking for the Opposition, advocated the listic leviathans has created. This procedure has proved far reference to the activities of the State monopolies to the from satisfactory, however, since of necessity, the Minister Monopolies Commission, and the laying of their accounts has appeared before Parliament in the role of defender of 0e before the Public Accounts Committee. He also wanted to monopoly, and of his department's policy in respect of .It. see the Consumers' Councils made effective. For that, they This has prevented the debate from doing more than raIse should be independent of the department, and representative a wide variety of points, to which no precise answers need of local associations. In the House of Lords, Lord Strabolgi be given. In the last resort, the Minister has been able to pointed out that three methods of Parliamentary control had rely on the governmental majority to ward off scrutiny that been widely advocated: (I) a permanent standing committee 174 THE PASSING OF PARLIAMENT of members of both Houses, with power to examine Ministers and members of nationalised Boards; (2) the setting up of a Chapter I2 select committee every three, four or five years to examine each nationalised industry. Such a committee should have the assistance of the Comptroller and Auditor-General' (3) the reference of the affairs of nationalised industries to The Control of Administrative Power the Monopolies Commission. He himself favoured the third Abroad course. Whatever method of control be ultimately adopted, it will be apparent that State monopolies have so far been a further adventure in departmental irresponsibility. Behind the facade of public ownership, departments have pursued EFORE the task of summing up the constitutional their respective policies in industry and trade, not always changes which have been described in the preceding with conspicuous success, and very largely immune from Bchapters is attempted, it will be profitable to say some- constitutional check. This has been a strange consequence thing briefly of the treatment of similar problems abroad. of the rather crude delineation of the control of industry by Obviously the experience of no two countries is exactly the the people three or four decades ago. same, but some picture of differing modes of approach can be obtained from a rapid consideration of French and American practice.

I. The Administrative Problem in France In many respects the French approach to this problem stands in sharp contrast to our own, and this difference can be traced ultimately to a different political and constitutional evolution. For example, one striking feature of French ex- perience is the progressive and orderly development of a genuine administrative law in the past century and a half, precisely at the time when there have been numerous and widely-different experiments in government, most of them unsuccessful. Possibly it may be that political instability has brought home to the French people the necessity for a partially autonomous administration, with a fully developed theory of administrative responsibility for its acts. Again, the weakness and impermanence of French governments has made it all the more necessary that administration should proceed, largely unaffected by changes in the political arena. The point of departure in the evolution of the modern French administrative system is to be found in the various constitutional experiments which followed the outbreak of the French Revolution in 1789. That revolution was 175 THE PASSING OF PARLIAMF.NT CONTROL OF ADMINISTRATIVE POWER 177 necessary because, although French had faced similar system differs sharply from our own, in which, in theory, constitutional problems to those which overshadowed the administration enjoys simply those functions which are English politics in the seventeenth century, they had been conceded to it by Parliament. Moreover, as a result of the solved in a different way. In France, as in England, in the reorganisation of French administration carried out during Middle Ages, representative institutions had gradually taken the First Empire, some of which had proved permanent, the shape in the States-General, but this had failed to achieve central administration is admittedly supreme in respect of the organic unity which Parliament had done in England local administration, although in the past half-century there by the close of the Middle Ages, and it therefore proved an has been some tendency towards decentralisation. Thus, ineffective barrier to royal despotism. Accordingly, in the in the local administration (the commune), the Mayor is eighteenth century, France was a centralised, and almost elected by the Municipal Council, which is also elected, but absolute monarchy. Whereas in England in 1688 the prin- the Mayor's function is dual. 'As a representative of the ciple of Parliamentary sovereignty had finally triumphed, commune he has autonomous powers, which include an ordain- so that the legislative power of Parliament had superseded ing power in matters of police; as an agent of the State he the rival claims of the Crown, in France legislative power is the lowest link of the hierarchical order and is subject to had been concentrated in the King and therefore the distinc- hierarchical discipline and hierarchical control. The Muni- tion between law and ordinance had ceased to be of import- cipal Council is mainly concerned with local finance and ance. Both emanated from the King, so that whereas in local expenditure, but is, as a rule, not responsible for public England the legislature had triumphed, in France it was the order and matters of police.P executive which had become all powerful, as it did again Above the commune is the department, whose administra- under Napoleon. This explains, to a considerable degree tive representatives are the prifet, who is the representative why the various constitutional experiments embarked upon of the central government, and as such is subject to control before the advent of Napoleon, sought to establish as from the centre, and a General Council elected by a direct complete a separation of powers-legislative, judicial and adult suffrage. Both commune and department have, in executive-as was possible. It explains also why even today addition, local administrations which, though not formally France tolerates the existence of a relatively weak executive subject to the hierarchical control of the superior central with equanimity, and why, in addition, it is necessary for administration, are nevertheless subject to its tutelle admin- the departments to have the power to keep the administra- istrative, which expresses itself in the power to annul de- tive machine in motion, to a considerable extent independ- cisions of communal and departmental councils, where it ently of political change. Failure to understand the political would appear that they have trespassed upon the functions background of the modern French administrative system of the central administration. is possibly the main reason for Dicey'S profound misunder- Probably the most striking point of contrast between the standing of it.! English and French administrative systems, however, is Throughout the various constitutional changes which to be found in the autonomous powers of the French Central France has experienced since the outbreak of the first revolu- Departments of State. We have seen that this is due to a mix- tion at the end of the eighteenth century, the practical ture of causes-to the fact that the French Royal executive application of the theory of the separation of powers h~s during the period of the monarchy was never brought under preserved the conception of an administration which IS Parliamentary control as it was in England; it was also due independent in its own sphere. In this respect the French to the practical application of the doctrine of the separation of powers at the time of the first revolution. Finally, it has 1 The chief features of successive French constitutions are admirably sum- marised in Part II of Go "ernmenl by Decree by M. A. Sieghart. I Sieghart op. cit. p. 207. THE PASSING OF PARLIAMENT CONTROL OF ADMINISTRATIVE POWER 179 been due to practical necessity, for France has undergone of personal freedom. As Mr. C. J. Hamson noted recently a long succession of constitutional experiments since I789, in his special articles in The Times," the fact that in France and even during the Third and Fourth Republics, there the ordinary police are regarded as part of the judiciary, and has been the recurrent difficulty of establishing a stable not of the executive, has meant that their acts are frequently ministry. Through all these changes, the permanent ad- subject to no judicial scrutiny. In this respect, therefore, ministration has continued to function, and in order that it our system today works more effectively in protection of might do this effectively, it has been necessary to concede individual liberties than the French. On the other hand, what to it autonomy within its own sphere. One important prac- the French have done, and what we have so far failed to do, tical consequence of this is that in France the departments is to bring a wide range of administrative acts within the possess a power of law-making which is not the consequence scrutiny of the Courts. This it has done through the creation of concession from the Assembly, as it is in England. It is of the Conseil d'Etat. Of this court (though it is in reality autonomous, and it extends, not only to those spheres in more than a court) Mr. Hamson says: which the departments can be regarded as implementing, by means of more detailed regulations, the commands of 'The Conseil d'Etat has, in the critical particular, been spec- tacularly successful.Not only has it subjected to its control the Parliament, as expressed in general laws, but also to spheres whole of the administrative machine of a modern State but where the Assembly may not have legislated, but which are it has established itself as a Court in every sense of the word, regarded as traditionally, by constitutional usage, within with its judges holding office, in fact, during good behaviour the sphere of activity of that department. Such regulations until a retiring age and free from any subservience to the are described by Duguit, in his treatise on the French con- executive. Indeed, if they have any bias it is in favour of the subject and of what they term the equality of sacrifice. Having stitution as riglements autonomes, and they deal with either the established its jurisdiction, the Conseil centralized and uni- organisation of the administrative service itself, or with versalized it, as the King's Courts once did in England; it is police matters, in the Continental, as distinct from the Eng- leJuge de droit commun en matiere administrative; there is no admin- lish, sense of the word. These include not only public security istrative act which it may not examine and sanction, if needs and public order, but also many matters of public health. be by annulation and the award of damages; full appeal (appel) lies to it as of right from any administrative tribunal, and even Two things must be noticed in connexion with this autono- if that tribunal is speciallyempowered to render finaljudgment, mous power of the administration, however. Where import- a recours en cassation (which may roughly be translated as an ant extensions of it are contemplated (e.g. in connexion with appeal upon point of law or of form) is always open. So firmly modern extensions of the social services), these are embodied established is itsjurisdiction that it would seem barely credible in statutes. Indeed, this must be the case where a new depart- to a Frenchman to attempt to withdraw from the administrative court cognizance of any administrative act.' ment is created. Secondly, the legislation of the departments is limited by existing Statute Law. Unless a statute otherwise The Conseil d'Etat combines in itself a number of distinct provides, departmental ordinances have no power to alter judicial functions. It hears at first instance claims by a it. Finally, the Courts are frequently called upon to deter- subject that a branch of the administration has acted ultra mine whether a department has trespassed beyond its true vires, and also all cases in which the subject seeks annulation limits. For the determination of these questions either a of some administrative decision. Further it decides all those special tribunal of conflicts with equal numbers of ordinary conteniieux de pleine jurisdiction (which may be described as and administrative judges or the Conseil d'Etat is the forW? proceedings to secure redress against damage caused by an The logical division of governmental powers into legis- administrative decision, where annulation itself is not usually lative, judicial and administrative, and the achievement of available), for which no special administrative tribunal the autonomy of each, has not necessarily worked in favour a February !:1O,1951: February !:II, 1951. 180 THE PASSING OF PARLIAMENT CONTROL OF ADMINISTRATIVE POWER 181 has been established. Again, the Conseil d'Etat has appellate that the allegations of the plaintiff attacking the Depart- jurisdiction in respect of those contentieux de pleine jurisdiction ment are correct. Recently, the Court has gone even further. which are decided at first instance by the Councils of the If the Department alleges for the exercise of a discretionary Prefect and by some special and colonial administrative power a reason which on the fact of it is adequate, the Court courts. Lastly, the Conseil d'Etat has jurisdiction en cassation may nevertheless annul the order, if it appears to be based in respect of every decision of an administrative tribunal for on a fait materiellement inexact. which there is no ordinary appeal to the Conseil d'Etat. The It will be evident even to the non-specialist that we are principal difference between an appeal and jurisdiction here in territory into which we in England have not as yet en cassation is that where the latter is invoked, the appellant entered. In England, as we have seen, as soon as the character is asking for annulation of the administrative decision on the of an Act has been determined to be administrative and not ground of ultra vires. In form, however, it is not a complaint quasi-judicial, the Courts are powerless to aid the subject. against the act of an administrator (as the Conseil's jurisdic- Moreover, the extent of the control exercised by the Conseil tion at first instance in respect of annulation is). It is an d'Etat can be perceived from examples drawn from the appeal against the ultra vires act of an administrative judge. decisions of that Court. They show a detailed scrutiny of In view of this complete and powerful system of admin- administrative motives from which the English Courts have, istrative courts in France, it is very nearly true to say that upon occasion, ostentatiously dissociated themselves. As for every administrative wrong there is a remedy, which Mr. Hamson has remarked: can be pursued, not in the ordinary Courts, but in the 'We seem to have fallen between two stools: anxious to Administrative Courts. Much of the effectiveness of the maintain a theoretically universal rule of law, we preserve system necessarily depends upon the vigour and vision of merely the fiction of a formal legalism and in fact abandon the the administrative judges themselves, and in particular, executive to its own unattractive instincts.' those of the Conseil d'Etat. The testimony of recent writers It hardly needs to be added that it is principally of the is that they have shown no hesitation in maintaining and Conseil d'Etat that Professor Robson is thinking when he in extending their jurisdiction in respect of the activities advocates the establishment of an administrative Court of of the departments. Thus, both Mr. Hamson and Mrs. Appeal in England. Sieghart notice that the Conseil d'Etat exercises jurisdiction, not only where the claim is in respect of exces or detourne- 2. The Administrative Problem in the United States ment de pouvoir (which occurs when an authority, though American experience in the control of administrative acting within its competence, uses its powers for a different power has some striking lessons for the English reader. purpose from that for which they were conferred), but also In the first place, he is conscious from the outset that he is in respect of administrative non-discretionary acts if they are dealing with social experience not too dissimilar from his deemed to be insuffisamment motive, that is to say, if the ad- own. Moreover, that experience has taken place in a legal ministrative order does not set out upon the fact of it correctly setting which is derived from the same source as our own- and sufficiently the grounds for the order. In the case of the Common Law which was continuously developed by discretionary powers, if an order based on such a power is judicial wisdom and political tolerance in the period between attacked by a subject, the Conseil d'Etat requires the Depart- the Norman Conquest and the American War of' Independ- ment to set out its reasons for acting, and the Court then has ence, at the time, significantly, when Lord Mansfield was power to enquire into their sufficiency. Should the Depart- Lord Chief Justice, and when Blackstone's Commentaries had ment persist in refusing to give reasons for its action, t~e just been published. On the other hand, the English reader Conseil d'Etat will now proceed to judgment on the basis is conscious from the outset of the overriding importance THE PASSING OF PARLIAMENT CONTROL OF ADMINISTRATIVE POWER of the American Constitution, and of the doctrine of separa- of a written Constitution, attributing specific functions to tion of powers which it embodied, in all legal and political President, Congress, and the Courts, and with a division of discussion. Finally, he is aware of the vigour of American power between federal and states governments. To the thought in its readiness to accept the existence of new Supreme Court there has been attributed the function of pre- problems, calling for precise methods of investigation, to venting encroachments by one part of government against be followed by remedial measures. It is fashionable today another through its interpretation of the constitution, to regard American society as less responsive to the need for Inevitably in its decisions it has not escaped criticism, and social change than our own. Such criticisms are superficial on more than one occasion, it has appeared to provoke a and inaccurate. A distinguished young American lawyer major constitutional crisis by adopting an interpretation whose researches upon English and American administra- which has failed to satisfy the desires of powerful interests tive law have recently been published, concluded his survey or persons. Nevertheless, the fact that, over a long period, of American Administrative Law with the following observa- the balance has been fairly evenly preserved, and that on tions: the whole, the desires of the American people have been 'The role of the State has expanded as much in America correctly reflected is shown by the fact that these crises in the past century as it has in this country,' and has been have not issued either in abridgment of the function of the accompanied by as great an expansion of governmental power. courts, or in an overthrow of the system established by the It is significant, however, that this new development-the Constitution. Many of President Franklin Roosevelt's growth of administrative law-had proceeded along different measures in the achievement of a 'New Deal' involved lines in America from those it has followedhere. The tendency in America has been towards the judicialization of these new far-reaching extensions of the functions and powers of the forces of social control-towards fitting them into the existing administrative departments and agencies. It was no doubt as constitutional framework, and, above all, towards their sub- galling to the American Executive as it would be to their ordination to law. American administrative agencies thus bid English counterparts to find that some of what they proposed fair to repeat the history of the executive tribunals of the six- was invalidated as too great an encroachment upon indi- teenth century, which, in time, were fitted into their place in the pre-existing legal order. The Executive in this country,' vidual rights. Nevertheless, it should not be overlooked that on the other hand, has become by far the dominant agency of the Courts had accepted an important part of the Executive's social control, upsetting the historic balance between the measures when, on a narrower interpretation of the Con- branches of government. The real power of the Executive has stitution, it would have been possible to hold that bad as been growing enormously at the expense of the theoretical well. The Courts, that is to say, were not hostile either to parliamentary hegemony. This shift in the "constitutional centre of gravity" is not peculiar to this country.' It is a charac- social change, or to an extension of the powers of the admin- teristic of the present century, and when carried to an extreme, istration; but, under the American Constitution, they were leads to the authoritarian state. It is surely of some significance charged with the duty of preventing the overthrow of the in the evaluation of supposedly inevitable developments here, balance which the Constitution had sought to establish, and that this trend has been resisted in America to a much greater when they considered the point of danger had been reached, extent than it has on this side of the Atlantic. It is in the prob- the Executive's measures were declared void. lem of the canalization of executive power that the ~~rica~ experience should prove of the greatest value as a gUIdein this The possession of such a power by the Courts may seem country."! strange to English eyes, yet it has been constantly exercised In facing the problem of administrative encroachment, in America. It is applicable alike to encroachments by the the United States has started with the very great advantage Executive and to encroachments by Congress, and finally, to encroachments by both, as was the case with much of that • i.e. Great Britain. part of the New Deal legislation which was invalidated by 5 Schwarz, American Administrative Law, p. B18. THE PASSING OF PARLIAMENT CONTROL OF ADMINISTRATIVE POWER the Courts during the first Presidency of Franklin Roosevelt. the Interstate Commerce Act of 1887. Such commissions, like In the United States there are two types of administrative the departments, have the power to make rules binding on organ which exercise general governmental powers giving the community within the terms of their delegation, and they rise to the problem of effective control. In the first place, also possess the power to adjudicate in respect of breaches some federal government departments themselves exercise of those rules. On the other hand, the federal Commissions wide powers. Professor Schwarz points out that there are differ sharply from the British national monopoly corpora- nine of these, of which the most important is the Depart- tions, in that their Boards enjoy security of tenure. Their ment of Agriculture, which exercises powers under about members are appointed for a fixed term, are irremovable by forty-four regulatory statutes. the President, and unlike the heads of the administrative 'The most important ofthese are the Packers and Stockyards departments, they are not accountable to him. The result Act (fixingof rates and charges of stockyards, and commission is that, within the sphere of activity committed to them by men, and prevention of unfair practices by packers), the Com- Congress, they tend to become independent specialists, modities Exchange Act (supervision of exchanges on which independent of politics. This may, upon occasion, lead to grain, butter, eggs and potatoes are dealt in), the Agricultural Marketing Act (orders fixing the price of milk to be paid difficulties in co-ordinating the policy of the executive with farmers and marketing quotas for fruits and vegetables), the that of the commissions, but it is a further illustration of the Agricultural Adjustment Act of 1938 (marketing quotas for American distrust of centralised omnipotence. Moreover, wheat, cotton, corn, and tobacco), the Sugar Act (marketing unlike the British nationalised monopolies, the Commissions quotas for sugar), the Pure Food and Drugs Act, the Tobacco do not own the industries which they regulate. Inspection Act, the Poisonous Insecticides Act, and so on." If we turn to the powers of adjudication possessed by the Where federal departments exercise functions such as administrative agencies, we shall again find some striking these, there are fairly close resemblances between them and differences from the English system, or rather lack of system. their British counterparts. It should be pointed out, however, The American system of administrative adjudication is a that rule-making by the American department runs the good deal more formal, although it is recognised that the risk of being invalidated on one of two distinct grounds. primary object of departmental activity is not an adjudica- In the first place, the department in legislating may have tion of private rights, but the promotion of a social policy. gone outside the terms of the statute conferring power on it. It is here that the American counterpart to the English This is an ordinary ultra vires question, such as constantly concept of 'natural justice' has scope for operation. The arises with regard to departmental legislation in England. federal and state constitutions provide that no person may Even if the rules are within the statute conferring rule- be deprived of life, liberty or property otherwise than by making power, however, the statute itself may be invalidated, 'due process of law'. Accordingly the federal courts are as being beyond the competence of Congress to pass. In free to scrutinise the proceedings of administrative tribunals practice, departmental legislation is most frequently invali- in order to ensure that this constitutional requirement has dated on the first ground, but the second is always there, and been satisfied. Hence, the administrative agencies, in order some of the New Deal legislation failed because it was held to protect themselves, have evolved a procedure for hearings to be unconstitutional. which, though it avoids the technicality of the procedure The second type of American administrative agency is in the ordinary courts, has nevertheless clearly defined the Commission, of which the first to be created was the stages and characteristics. In this way, some of the worst Interstate Commerce Commission, which owes its origin to mistakes of some of our English administrative tribunals

6 op. cit. pp. 9-10, citing Feller, Administrative Justice (r 938) in 2 7 Survey are avoided. Nevertheless, most American administrative Graphic 494. agencies are open to the same fundamental criticism as their G 186 THE PASSING OF PARLIAMENT CONTROL OF ADMINISTRATIVE POWER English counterpart that they combine within themselves of power by Congress. For example, the desirability of the functions of legislator, prosecutor and judge. This is a consultation and conferences with interests affected by the striking departure from the principle of the separation of proposed sub-legislation has been stressed, and progressively powers, upon which the American Constitution is nominally that this has tended to become a characteristic of the rule- based. Americans, however, have recognised that in a swiftly- making process, as practised by the agencies. Again, the changing society, it is impossible to apply this principle American Administrative Procedure Act of 1946 has laid with rigidity. They have admitted the fact of successive and down certain minimum conditions of publicity for proposed increasing delegation of legislative power to administrative rule-making, where the proposed rules are substantive in agencies. Nevertheless, it is always possible for the Courts nature. Following publication of such notice, the agency to hold any specific example delegation void as too wide. must give interested persons an opportunity to present their This is in fact what occurred in the celebrated case of views, either orally or in writing. In many cases this occurs Schechter Poultry Corporation v. United States, 7 when the Supreme at a public hearing. Such hearings are most frequently Court invalidated a large part of the National Industrial informal, but where the hearings affect clearly-defined and Recovery Act of 1933. Section 3 of the Act authorized the competing interests, they may assume an 'adversary' President to approve 'codes of fair competition' for partic- character, in which case they will tend to assume a judicial ular trades and industries. When the code was approved, character, with pleas for the exclusion of documents, cross- its provisions constituted the 'standards of fair competition' examination of persons giving evidence, and so forth. It for the trade or industry, and breach of such standards was may be that this type of procedure is not ideally suited for punishable by penalties. In the majority of the Supreme important questions, but it should be remembered that, Court invalidating this Act, judges so different in outlook since the independent administrative agency is not under as Chief Justice Hughes and Mr. Justice Cardozo concurred the direct control of the department, and since neither an in the view that delegation in such terms could not occur independent agency nor a rule-making department is directly under the constitution. Where in any particular case the responsible to Congress, Congress does not ordinarily possess line is to be drawn will remain a matter of judicial decision, the power to approve or annul administrative regulations, but the Schechter Case, and similar decisions of the Supreme such as is possessed by Parliament here, although in the case Court stress the fact that there exists in the American of the Reorganisation Act of 1939, which gave the President Constitution a power in the judiciary to prevent excessive wide powers to reorganise the executive by Presidential order, delegations of power by the legislature to the executive-a the procedure which is usual in Britain was followed, and provision which is conspicuously lacking from the English Congress retained the power to nullify Presidential orders. constitution. The American administrative agencies exercise a wide One other important safeguard in respect of delegated power of adjudication in matters comparable in variety and legislation exists in the United States. No American admin- importance with those which come before administrative istrative agency has power to amend a statute, either that tribunals in England. In the United States, however, control which conferred power on it, or any other. Accordingly, over administrative tribunals by the ordinary Courts is nothing similar to the 'Henry VIII clause' can appear in wider and more effective. Indeed, as Professor Schwarz American legislation. The result is that in the United States, points out," it has been assimilated to appeals from lower cliscussion upon the question of preventing the abuse of courts. In the first place, the statute conceding power to the rule-making power has concentrated upon the procedure agency often provides, directly or indirectly for judicial to be followed, and not upon the question of abdication review. Thus, the agency may have to seek the assistance of p. 109. 7 (1935) 295 U.S. 495. • op. cit. o· 188 THE PASSING Of' PARLIAMENT CONTROL OF ADMINISTRATIVE POWER 189 the Court to carry out its decision. Alternatively, the statute of fact. Both the American and English Courts, however, may provide that the administrative decision should be proceed upon the basis that where jurisdiction is conferred operative unless the person affected seeks to obtain judicial on an administrative agency in certain circumstances, it is review of it in the ordinary Courts. This is now the most for the ordinary Courts to determine whether those circum- common method of dealing with administrative decisions. stances exist. This is, of course, a finding off act, but collateral Where, however, the statute is silent on the question, the to the decision upon the facts in issue in the case.P subject may seek the assistance of the Courts by applying How important it is that an administrative agency should for some specific remedy, which is normally the injunction. not be able finally to decide the limits of the power to ad- This remedy has been very widely used to restrain admin- judicate conferred upon it by statute may be seen from the istrative activities in the United States, and the almost determined efforts of the worst of English administrative complete absence of any similar development in England tribunals, the Rent Courts, to escape from the limits pres- therefore stands in sharp contrast with American experience. cribed by the Furnished Houses (Rent Control) Act, I946.n Undoubtedly it is due to the fact that the American Courts, under the Constitution, occupy a more powerful position, 1? Per. Coleridge J. in Bunbury v. Fuller (1853) 23 L.J.Ex. 29; and per Lux- more L.J. in White and Collins v. Minister of Health [1939] 2 K.B. 838. vis-a-vis the executive, than their English counterparts. 11 A recent example is R. v. Fulham Rent Tribunal: Ex parte Marks [19511 Since they have the power to declare either Congressional W.N·405· legislation or a Presidential act invalid as unconstitutional, their exercise of a general power of review over administra- tive decisions has been regarded as a matter of course, and the general principle ofjudicial review has been emphatically reaffirmed in the Administrative Procedure Act of 1946, and its function has been defined as 'a check on the administra- tive branch of government-a check against excess of power and abusive exercise of power in derogation of private right.'! Indeed, in the United States the problem has been rather to define the limits of the power of the Courts to over- throw the decisions of administrative agencies, and the Courts themselves have developed a 'substantial evidence' rule-i.e. that the ordinary Courts will not disturb a finding of fact of an administrative tribunal, if it is supported by substantial evidence. The question of deciding the weight of the evidence is one for the administrative agency itself. How far, under the limits of this rule a Court can, or should, re-examine the findings of fact of the administrative agency is a question which has been extensively discussed in the United States, but the position may be sharply contrasted with that which exists in Great Britain where, in the bulk of cases coming before administrative tribunals today there is no appeal to the ordinary Courts either on questions of law or • Report of the Atlorney-G_al's Committee, p. 76. THE CONSTITUTIONAL PROBLEM TODAY 191 ments. Under the conditions which now exist in Great Chapter I3 Britain this can be quickly and legally achieved by continuing the present process of delegating governmental powers, legislative and judicial, to government departments, and by continuing either to exclude or to confine within narrow The Constitutional Problem Today limits the right of recourse to the ordinary courts. It is not sufficiently appreciated here that this is exactly how the majority of continental authoritarian regimes of the inter-war period came into existence. As contrasted with HE purpose of the preceding chapters has been to the stable conditions of the pre-war years, the experience of draw attention to the existence in Great Britain of a the inter-war years appeared to be so abnormal that it Tmajor constitutional problem directly affecting the could only be faced with the assistance of special powers future welfare of every citizen. The problem may be shortly to meet emergency situations. But these situations lasted defined as the difficulty of maintaining either any constitu- longer, and their inroads upon social life proved to be more tional system in the real sense of the word, or any security, far-reaching, than had been expected. Thus the use of emer- either of person or property, in face of the continual and gency powers came to be regarded as normal. Nor was relentless encroachments of the executive. It may perhaps Great Britain entirely immune from this habit of thought. be suggested by way of minimising the gravity of the situa- Reference has already been made to the writings of an in- tion in which we now stand that as British people are habit- fluential group within the Labour Party during the inter- ually reasonable people, the formal dangers of our position war years, who wished to transform English society by do not accurately reflect the true situation. This, however, precisely the methods which were being widely employed is no answer. No one doubts that the vast bulk of the popu- upon the Continent, even though the objects in view may lation of these islands are, not only reasonable, but politically have differed. mature. By that is meant primarily that they can endure Describing the rise of the Nazis to power in Germany opposition, even when it is based upon premises which they during the inter-war period, a German legal writer of reject, and that they can act with restraint in the day of eminence describes exactly this revolution in governmental power. Unfortunately, however, we live in a century in which technique. He points out that even in a community where political maturity and political tolerance are qualities which the Rule of Law has won general acceptance, there may be are not necessarily so widespread as they were a century ago, emergency situations (e.g. a general strike) in which the and when the dangers arising from the accession to power of normal guarantees of personal liberty may have to yield an intolerant body of extremists is greater. In the days of to fuller grants of governmental power. Even so, however, prosperity and stability, all political activity is confined the Rule of Law has been impaired if the grant goes further, within fairly narrow limits, since there is a natural reluctance or endures longer, than the necessities of the situation to disturb a system which is obviously working well. It is in justify. He continues in his account of inter-war Germany: times of difficulty that the dangers from extremists are 'The Rule of Law was broken often and for some years greatest, as the experience of Continental Europe since continuously by the various German emergency measures. The decisivething was not the invalidation oflaw by emergency 1919 abundantly shows. It is then that desperate remedies powers during the critical days of 1923, but the getting used have the best chance of being tried, and when there may be to it. In the most quiet times between 1924 and 1929 it would a general disposition to entrust a group, or even a single have been possible to draw some conclusions from the ex- man, with uncontrolled powers to make far-reaching experi- perience gathered and to bring the problems of emergency

190 THE PASSING OF PARLIAMENT THE CONSTITUTIONAL PROBLEM TODAY 193

measures under legal control by defining conditions and limits, 'In connexion with these problems of control it has to be review and repeal, and by regulating the relations between the kept in mind that under German law there was not always and different authorities concerned. But neither the parliament nor not even regularly an appeal to the Courts against infringe- the government and its professional legal advisers nor the ments of law by government officials and public authorities. lawyers energetically endeavoured to create such a legal order. 'Delegations were often of such a wide compass that nearly There was no feeling for the necessity of law and rules in face all measures the government wanted to carry through could of these doubtful and dangerous situations. When after 1930 be covered by its wording. Consequently regulations could be Germany was continuously ruled by emergency legislation, issued which had nothing to do with the purpose of the dele- when Chancellors changed, but the emergency powers re- gation and which entered spheres which, for political reasons, mained, people did not know and became indifferent to were closed to ordinary legislation. The classic example is whether the emergency measures were within the law, hard at the reform of the law of procedure by order in council, issued its border or beyond its limits. Acknowledgment of half-legal under a law which contained an especially broad delegation government made illegal government possible.'! (1924), The reform of civil and penal procedure, whether good At a later point in the same essay, the writer draws cer- or bad in itself, was not necessary in order to overcome the inflation or the difficulties brought about by it and it was for tain other conclusions from German experience, having these Jurposes that the delegation was given. The reform was a startling relevance to the position in Great Britain today: an 01 and deep desire of the high officials of the Ministry of Justice. For many reasons it was never possible to get the 'Delegation of power does not necessarily conflict with the parliament actively interested in the reform bills. Then, in Rule of Law, but the danger is always near. A certain separa- 1924, the delegated powers were a gift from heaven for the tion of powers, both in local and higher administration, is the civil service. The government, which was governed by the best way to avoid arbitrary decisions. The aim of achieving bureaucracy in all matters without obvious political interest, the highest efficiency was stronger in Germany than the con- issued the new statutes. This was, if not against the law, against ception of dangers connected with an almighty bureaucracy. its spirit and it was certainly not compatible with the Rule So, by virtue of delegated authority, legislative, executive and of Law in its political meaning.O judicial powers were often concentrated in one hand. In the struggle against scarcity of dwellings, for instance, the same These, and similar episodes will help to explain why the magistrate might combine three functions which are normally transformation of government in Germany from the Weimar under separate controls. He might have to issue the regulations governing conditions under which rooms had to be placed at Republic to the fully developed authoritarianism of the his disposal, he could order a certain individual to give up a Nazis was carried out with complete legality. Indeed, the certain room in favour of another individual and pass judg- Social Democrats who were the backbone of the Weimar ment on a complaint connected with such an order. Delegations Republic, prepared their own downfall by the easy recourse of this kind may often be necessary and sometimes harmless. to wide delegations of power to achieve social reform which The harmlessness depends on the working of controls, either bureaucratic or democratic. Parliamentary committees of an ambitious bureaucracy suggested to them. Hence it enquiry and the activity of a vigilant opposition may control followed that although the judiciary of Republican Germany the administration as effectively as the Courts. But without had a high sense of judicial independence (which was guaran- controls delegation in the long run demoralizes the officials and teed by the Constitution) and although the German repub- embitters and injures the individuals. This was the German lic and civil service was as able and as incorruptible as our situation in 1918 when the arbitrary decisions were unavoidable in such a system, the general fear of arbitrary decisions and own, neither was in a position to offer prolonged resistance the distrust of all decisions whatsoever totally destroyed respect to the authoritarian onslaught. for law and government. In critical times the common man's It may perhaps be objected, however, that the Germans ordinary experience of the public administration is of the sam , have a predisposition towards authoritarian rule (a highly importance as matters of high politics. debatable assertion) and that with them 'Might is Right'. 1 'The Place of Law in Germany', (1943) 59 Law Quartn-?1 R4uilw p. 134. 143-4. • Ibid., p. 147. 194 THE PASSING OF PARLIAMENT THE CONSTITUTIONAL PROBLEM TODAY 195 Whatever may be the truth upon these topics, it cannot be doned as soon as the emergency had passed. Such a reaction questioned that the democratic tradition in France is as to extreme danger is a sign of vigour. It differs fundamentally deep-rooted as it is with us, or that their attachment to from the steady and insidious curtailment of freedom which personal freedom is as great. Yet after the collapse of French occurs under the plea of social necessity. resistance in 1940, the National Assembly on July roth was A survey of our political and social history during the past content to confer the widest powers upon the French execu- three-quarters of a century suggests two important general tive, until a new constitution should be adopted. Thus, conclusions: by a delegation of power in comprehensive terms, the French (I) That the increasing fondness for executive power is Assembly created an authoritarian regime by completely not the monopoly of anyone political party. It is, or has legal and constitutional means. Thereafter, Marshal Petain been a characteristic of all, though with different degrees of governed by decrees, which derived their formal validity emphasis. from the law ofJuly roth, 1940. By this means, also, Marshal (2) The usurpation of government by the departments is Petain would have enjoyed full powers to enact a new Con- dangerous per se. It becomes very much more dangerous, stitution for France, had it not been for the saving clause however, when it is allied with a collectivist philosophy, for that any new Constitution must be ratified by referendum. at that point the barriers which might otherwise prove in So long as two-thirds of French territory remained under ordinary circumstances adequate are swept away. German occupation, such a referendum was impossible. These two conclusions will be elaborated in turn. Mait- Accordingly, in his constitutional changes, and in them only, land, it will be remembered, writing in the second half of Marshal Petain broke the link of continuity and exceeded the nineteenth century, remarked that we had become a the terms of the delegation of power to him. SIt is significant much-governed people. This was at a time when the newly- that in neither Germany nor France did any hint of resist- aroused social conscience was giving effect to its aspirations ance proceed from the bureaucracy which was able to hold in legislation designed to improve the common lot. This itself free from responsibility by political neutrality. resulted in the creation of boards of many kinds-for Both Germany and France possessed written constitutions, example, school boards and boards of guardians, charged making it necessary to comply with special provisions in with the duty of executing social policy under special statutes. order to secure constitutional change. In Great Britain, This expression of democratic freedom in local activity was however, the process would be easier. A simple Act of Par Iia- in harmony with our long tradition of local government. ment would do all that is necessary. Indeed, in our own hour Since then, however, the scene has been transformed. In of peril, in 1940, we established something like a formal the first place, these local boards have progressively been dictatorship of the Executive. Yet this dictatorship was merged in all-purpose units of local government. This has superimposed upon our normal Parliamentary government, been accompanied by the development of efficient municipal and was subject throughout to Parliamentary criticism. civil services, whose functions have steadily expanded at Much of the apparatus was abandoned at an early date after the expense of effective control by local councils. Today, the hostilities had ceased. It is not from such measures, taken to elected councillor is to a substantial degree in the hands of counter a ruthless foe in time of war, that democracy has his permanent officials. This is partly because the nature of reason to be afraid. In that respect the English people have their work has increased enormously in bulk and complexity qualities similar to those of the Romans, who did not hesitate with the steady extension of social legislation, and because to givc a dictator unlimited powers so long as the enemy the local officials themselves must work in close association was at the gate, but who required the powers to be aban- with Whitehall, which not only exercises constant super- • M. A. Sieghart, Gooemment by Decree, pp. 193.194. vision over what they do, but also supplies much of the 196 THE PASSING OF PARLIAMENT THE CONSTITUTIONAL PROBLEM TODAY 197 finance, on the fulfilment of specific conditions. The result too violently disturbed. With the Tudors, the Executive is that the local councillor feels an increasing sense of showed plain signs of emancipating itself from medieval frustration, and there has been in consequence, a progressive limits. Parliament could be used as a convenient instrument decline of interest in local government, which directly cor- to ratify any change, no matter how far-reaching. Thus responds with the increase in central control. It is difficult to Parliament could separate the nation from Rome, suppress see what alternative could exist, however, so long as social the monasteries, change the national religion, and modify services are planned on a national basis. Yet a glance at a the order of succession. Behind its apparently unlimited modern statute, such as the Housing Act, or the Education legislative competence, however, was the force of royal Act, will show how little initiative today remains either power which, by means of an active council and prerogative to the local official or the local councillor. As the patterns courts with jurisdiction which increasingly encroached upon of conduct traced by Whitehall become ever more clearly that of the Common Law Courts, constantly checked undue defined, it remains only for the local authority to ensure assertions of Parliamentary independence. The seventeenth that these patterns are being adhered to in the area over century struggle ended the royal assertions of executive which they exercise powers of local government. power independently of Parliamentary control, and from It is possible to regard the present emergence of the execu- 1688 until the second half of the nineteenth century, Parlia- tive as the dominant factor in our political life from two ment not only exercised an unlimited legislative power, but distinct points of view: (I) as a phase in the struggle between to a considerable degree controlled the Executive as well. Parliament and the Executive which is the main theme of When, during the reign of George III, and in response to royal our constitutional history, or (2) in its wider context, as a prompting, the Executive again showed signs of challenging phase in modern political evolution, for, as we have seen, this control, both Parliament (and especially the House of this problem recurs in the recent political history of the Commons) and the Courts were strong enough to defeat it. United States, France, Germany, and indeed, of every Since the middle of the nineteenth century, however, the considerable State. Executive has again shown the plainest signs, not only of Ever since the Norman Conquest it is possible to trace in emancipating itself from Parliamentary control, but of dom- our political life the desire of representatives of the commu- inating Parliament to an extent that neither the Stuarts nity at large to set limits to the power of the Executive. nor George III were able to do. Some reasons for this have This has found expression in several ways. The medieval already been noticed. The progressive extensions of the Common Lawyers elaborated the theory of a common law franchise have made the individual member far more de- which bound the sovereign as much as it bound the subject. pendent upon his party organisation than was formerly the The King ruled, but in accordance with laws which could case, and have enabled political leaders to appeal directly only be changed with the consent of all. Such changes could to the electorate at large, over the heads of their represen- only be expressed in formal compacts between King and tatives. This has been facilitated by the spread of popular nation, of which Magna Carta is the supreme example. education, the increasing mobility of all classes of the But once the principle of representation was established, community, and the development of such inventions as the it was possible for a deliberative body, which ultimately telegraph and telephone, the radio, and now television. became Parliament, to speak on behalf of the nation. So Side by side with these changes, there have been others. for a time during the Middle Ages, the King actually did A transfer of power from one class of the community inevit- legislate with the advice of the representatives of the people, ably involves also a change in social outlook. Although assembled in Parliament, the balance between them, though we have travelled a long way from the days when the electors fluctuating with the personality of the sovereign, not being of closed corporations put up their votes for public auction, 198 THE PASSING OF PARLIAMENT THE CONSTITUTIONAL PROBLEM TODAY 199 a dominating class still requires tangible rewards from its and ineffective. Parliament, in fact, is predestined, if present representatives. If the class is a wide one, the organisation tendencies continue, to become merely a ratifying body and needed to satisfy its desires will be elaborate. Thus, education, a suitable forum for the ventilation of grievances. The process national health insurance, housing and the other social of evolution is interesting and significant. In Parliament, services have prompted the creation oflarge and highly-skilled the House of Commons has swallowed the House of Peers, public services operating under the control of a State depart- insofar as effective governmental power is concerned. Now ment, and each possessing a strong sense of corporate loyalty. the Departments are swallowing Parliament. It is idle to assume that the political chiefs of the departments Continental, and especially German, experience has concerned effectively control this vast machine. Today, it shown, however, that this is not the whole story. Every is indeed much if they even understand how it works; but modern department cultivates neutralism in politics, not to a considerable degree, it continues of its own momentum. only because that way safety lies, but because many of the It possesses a capacity to make and modify the rules day-to-day questions of government are questions which governing its activities which makes it, to a substantial can be, and often are, decided independently of party views degree, independent not only of Parliamentary control, upon them. The relation of the political heads to the per- but also of effective Ministerial supervision. In any event, manent officials thus becomes clear. The political heads set the steady growth of departmental tradition, and the folklore the course, and the permanent officials navigate. Their of departmental outlook upon administrative problems services are equally at the disposal of any government, within its sphere, quells all but the boldest. A century ago, whatever its complexion. They are, that is to say, an when the departmental staffs were still in their infancy, additional instrument of almost unlimited potentiality, at and when there still existed a sharp cleavage between a the disposal of a party in power. In Germany and in France, ruling class and the instruments of government, depart- and indeed in other European countries, they have provided mental employees were in a very real sense the Minister's a secure bridge upon which parties either of the Left or the servants. Now he is lucky if he is not theirs. Right have been able to cross legally from Parliamentarian- Accordingly, no real picture of the government of Great ism to authoritarian rule. Britain can be obtained until it is realised that outside the At this point it should be emphasised that the extra- hurly-burly of popular elections, unchanged by fluctuations Parliamentary powers possessed by the Departments cannot in the political climate, well over a million civil servants be attributed to the activities of any single political party. now industriously carryon the work of government, looking to All three have helped to disturb the balance of the constitu- their permanent departmental heads for guidance, approval tion, and the blame can be fairly accurately apportioned. and ultimate promotion. To them, the political head is Putting the matter another way, it can be said that all three a remote, and sometimes troublesome, phenomenon, whom have responded to the dominating social forces of the age. the permanent heads will do their best to bring under proper When the Liberals, in response to the insistent promptings control. At all costs, and in spite of all complications, the of the newly-enfranchised working class, especially as ex- machine must continue to work smoothly, and since the pressed by the trade unions whose growth they had fostered, interventions of the uninitiated are apt to show a lamentable turned from social reform to social reorganisation, they lack of comprehension of the objectives to be attained, the swept away progressively the barriers which impeded the more they are left in the dark the better-especially if achievement of their aims. The strongest was the House of they are Members of Parliament. Thus, as the independent Lords, and this was under constant attack from 1880 on- sphere of activity of this vast and ever-growing machine wards. It capitulated in the great constitutional struggle widens, Parliamentary control becomes increasingly formal of 1909-10, and with the passing of the Parliament Act 01 200 THE PASSING OF PARLIAMENT THE CONSTITUTIONAL PROBLEM TODAY 201

191 I the era of one-chamber government was inaugurated. Nothing could be clearer, therefore than that the Liberal In this respect the Labour Government, in its Parliament Party at this date contemplated the establishment of an Act of 1949, merely carried the policy of its Liberal predeces, effective Second Chamber on a popular basis. Such a body sor one stage further. The Act of 191 I, however, must be would no doubt have possessed powers comparable with those considered in association with other items of Liberallegisla_ possessed by the American Senate, or the second chambers tion. The Finance Act of 1894 laid the foundations of modern of the British Dominions. To have solved this problem confiscatory legislation in its graduated scale of death duties. during the inter-war years would have been to have shown In the following half-century the great accumulations of political foresight, and to introduce a badly-needed element wealth have been remorselessly destroyed. The Lloyd of stability into our constitutional structure. The Conser- George budget of 1909 traced the outlines of the modern vatives, however, appeared to be ignorant that a problem 'social service' State; whilst the statute book for the period of any importance existed. Today, it is almost certain that 1880-1914 shows how readily the departments availed them- the opportunity no longer exists. selves of the changed social outlook to enlarge their spheres It will be evident, therefore, that when the Labour Party of freedom from Parliamentary control. came to power in 1945, they found an instrument ready Not all these advances took place under Liberal Govern- forged to their hands. The by-passing of Parliament by the ments however. The period of Conservative rule from departments was already advanced. So was the domination 1885 until 1905 shows no perceptible change in governmental of Parliament by the Executive. What the Labour Party outlook. Equally in the inter-war period of Conservative since 1945 did was to make abundantly plain, even to the dominance, successive governments availed themselves with non-expert, the almost unlimited possibilities for social revolu- the same freedom as their Liberal predecessors of the powers tion within the formal framework of our constitution. It of departmental legislation and adjudication which docile was not necessary for them to put Parliament in commission, majorities in the House of Commons were so ready to con- as the Nazis did after 1933, and as Sir Stafford Cripps and cede. Similarly Conservative leaders as we have seen,' were his colleagues suggested might be necessary here. For one as ready to press the claims of the Executive in respect of thing, the powers of the vested interests which might have taxation to their furthest limits as their Liberal predecessors been expected to offer stubborn resistance were already had been. But the most serious criticism of Conservative crumbling as a result of the inroads of the past half-century, policy which can be made in this respect is that during the and of the upheavals of two world wars. In particular, whole inter-war period, they made no effort whatever to although the House of Lords in 191 I had still been left solve the constitutional problem which had been avowedly with a by no means negligible power to delay unwelcome left unsolved in 1911. The preamble to the Parliament Act legislation, even this power had atrophied during the long of 191 I says: period of Conservative rule in the inter-war years and after 'Whereas it is intended to substitute for the House of Lords the second war, the Lords were too weak to attempt to revive as it at present exists a second chamber constituted on a popular it. The second Parliament Act of 1948 was therefore no more instead of a hereditary basis, but such substitution cannot be than a measure of insurance on the part of the Labour immediately brought into operation. Party. Although the House of Lords discharges many useful 'And whereas provision will require hereafter to be made by governmental functions of a minor character, it is powerless Parliament in a measure effecting such substitution for limiting and defining the powers of the new Second Chamber, but It to impede the achievement of major governmental policy. is expedient to make such provision as in this Act appears for No-one at this date would suggest that it should be otherwise, restricting the existing powers of the House of Lords--' for today the only effective brake which can be placed upon , ante. pp. ,8-[9, 1l15. the policy of an all-powerful Executive is one which must 202 THE PASSING OF PARLIAMENT THE CONSTITUTIONAL PROBLEM TODAY 203 proceed from the consciousness of wide-spread support, and The leader-writer argues strongly for a redefinition of this the Lords, as a body, demonstrably, do not possess. Socialist policy in the light of post-war experience, and he It is only the natural order of things that the Labour concludes: Government should have exploited the technique of depart- 'Two lessons stand out clearly. The first is that the un- mental aggrandisement to an extent not attempted by their questioning faith in the power and activity of the State, in- predecessors. A social service State, owning vast State monop- herited from the Webbs, has proved illusory. The second is olies in the field of industry and trade, requires powerful that the redistribution of income cannot solve the problem of departments, responsive to official promptings to control poverty or bring equality of opportunity appreciably nearer. them. Simply through the achievement of this policy, the Like their opponents, the Labour Party must seekan economic policy which will release the potential productive energy of power of the Government of the day has increased enor- the country. The State must be envisaged as stimulating enter- mously since 1939. It controls the lives and welfare of every prise for the social good, instead of confining and controlling one of us. As successive crises in nationalised industries have it. The pursuit of equality must be redefined-not as a de- shown, we are now dependent for our very existence as a pressing, levelling process, but as the creation of a genuine community upon the capacity of the departments to keep equality of opportunity which will encourage and reward effort, instead of cramping it. There is no reason why such a them running at any rate with some semblance of success. policy should not be conceivedin Socialistterms. It will require If there are signs that the powers already possessed are a clear-headed and unemotional approach to contemporary not adequate, it cannot be doubted that a Parliamentary problems; and a start could best be made by abandoning the majority will be prepared to concede still more. As The Times great fallacy of modern Socialist thought-that the State and well expressed it in a leading article upon the future of the the community are synonymous.' Labour Party on May 15th, 1951: Very far from being synonymous, State and community in Britain are now in open conflict, for the State is manifestly 'At its annual conference in 1919 the Labour Party took a strangling the community. Nor is this surprising. The Webbs fateful step when, following the lead of Sidney Webb, it com- mitted itselfnot only to Socialism,but to one particular defini- had as their ideal for Britain a paradise for the routine- tion of Socialism which happened at the time to have found bound administrator, an ideal which is repugnant at once acceptance with the Fabian Society. By this definition Social- to the British character and tradition. Limited by nature to ism is identified with the increase (almost unlimited in the a restricted territorial area, the British in the past three economic field) of the State's power and activity. It is a direct centuries have extended their energies and their commercial consequence of this decision that an important element among those in the Labour Party who doubt the direction which the and industrial talents to every corner of the globe by their party has taken consistsof those who lookedfor more power for resource, adaptability and initiative. It is manifestly ludi- the workers and for ordinary people and have been given crous to imagine that they will maintain their position by the instead the huge, impersonal and management-controlled development of opposite qualities. In this respect the ground- public corporation. Mr. Bevan, in his indictment of the nuts scheme is a suggestive pointer to our future overseas. "economists", partly voices their vague but real resentment against the State managers who, as they see it, have annexed Even this, however, is by no means the full story. The con- Socialism.There is nothing in the history of Socialistthought to centration of industry and commerce in State-monopolies suggest that the State is the natural and inevitable instrument implies the existence of a master-plan, into which the activ- by which Socialism is to be attained. From Proudhon to ities of these unwieldy enterprises can be fitted. No doubt William Morris to the Guild Socialists,distrust of the State has the construction of such a plan calls for the exercise of in- been a constant element in the development of Socialist ideas. It is the tragedy of the Labour movement that it has been so itiative and inventiveness on the part of the planners. For intent on extending the authority of the State that it has the rest of the community, it implies a routine-bound exist- overlooked the purpose of its existence.' ence which is made bearable by the offer of State benefits 20 THE PASSING OF PARLIAMENT 4 THE CONSTITUTIONAL PROBLEM TODAY 205 at every stage in exchange for the capacity to shape one's to its own agents. Instances of sub-delegation to the fourth own destinies. It is, in fact, the policy of 'Mother knows and fifth degree are not uncommon. In addition, the case best', carried by logical deduction, to the point of absurdity. of Earl Fitzwilliam's Wentworth Estates Co. v. Minister of Town Unfortunately, there are even graver implications. When and Country Planning illustrates how what has been called the process of constructing State-monopolies has been carried departmental quasi-legislation by circulars and explanatory to its furthest point, we shall have an electorate which is memoranda, can acquire compulsive force. To what extent predominantly composed of their employees. These will this was developing was shown by Mr. R. E. Megarry in a have a vested interest in the maintenance of the system for note in The Law Quarterly Review as long ago as 1944,6where their own benefit. To change will not only be hazardous, he remarks: but politically impossible. In fact, therefore, the continuation of the policy which is now being brought into force to its 'No lawyer will view with pleasure a process whereby statutes may acquire an administrative gloss both between logical conclusion inevitably involves the establishment, by State and subject and between subject and subject (the State progressive stages, of the one-party State. This may be easier intervening), and the unrepealed words of the statute book than is sometimes supposed, for with the decline in the im- may be emasculated, not by the Legislature or the judiciary portance of Parliament, and by the steady recruitment of but by mere administrative process.' the more highly trained members of the community to the This process has been pushed a good deal further since departments and State-monopolies, the standard of party Mr. Megarry wrote. A particularly audacious recent example organisation may also be expected to decline. In any event, was discussed by the City Editor of the Sunday Times on with the progressive curtailment of individual initiative by September 9, 1951. In the preceding week, Sir Wilfrid Eady, official planning, much of the purpose of party conflict passes. Joint Second Secretary to the Treasury, wrote to Lord Already the revolt against etatism has made its appearance Kennet, the Chairman of the Capital Issues Committee on in all parties. The struggle to curb it, and to maintain what the Chancellor of the Exchequer's dividend limitation pro- remains of our personal freedom, is being progressively posals in relation to the terms of new capital issues. Sir recognised as more fundamental than mere differences in Wilfrid pointed out that companies which raised money party programmes. through an issue with a substantial bonus element might The problem which therefore faces all peoples which are get an advantage over permitted dividend distributions as still attached to the democratic way of life is to find some compared with companies raising money through an issue means of curbing the power of the executive, and preventing to the market. He therefore suggested that this point should it from usurping the entire functions of government. The be borne in mind by the Committee when considering the nineteenth century assumption that this would be achieved terms of a new issue. As the City Editor pointed out, this by successive extensions of the franchise has proved com- comes dangerously near to a usurpation of legislative func- pletely fallacious. The executive, as it has ventured to interfere tions by the Treasury. No Bill to limit dividends at this date increasingly with the lives of its subjects, has at the same time had even been drafted, much less introduced into Parlia- taken care to ensure that its servants and dependents (including ment or passed. Nevertheless, the Capital Issues Committee the State-monopolies) are removed from the sphere of popular was being invited to act as if the Bill had already been passed, control. Its techniques grow ever more audacious. Today, and a leading Civil Servant sees nothing incongruous, to put in Britain, it is not only that wide powers of legislation, it no more strongly, in acting as an instrument whereby in fact if not in theory immune from Parliamentary control, Parliament is by-passed. This, it will be remembered was have been granted to the departments. In addition, these precisely the process whereby Parliamentary government powers in turn are habitually delegated by the departments , 60 Law Quart"/y R'IIilW, pp. 125-8. 206 THE PASSING OF PARLIAMENT THE CONSTITUTIONAL PROBLEM TODAY 207 was overthrown in Germany in the inter-war period. Even such safeguards could not be effective. Everyone of them in Great Britain such semi-dictatorial techniques already could be swept away by a Parliamentary majority. It is, pass almost without comment. in fact, the very existence of a formally unfettered Parlia- It is plain, therefore, that we are already approaching the mentary sovereignty that is the main source of weakness in dangerous half-light in which the boundaries of what is our existing institutions, when the legal sovereign has shown legal and what is not are barely perceptible. Nor should itself so willing to delegate its powers as Parliament has done we take comfort in the fact that most modern States are during the past half century. If the temper of the times facing similar problems. That is undoubtedly true, but most remains favourable to increasing interference with the lives of them are facing these problems within a stronger con- of citizens, towards the destruction of individual initiative, stitutional framework than our own. We have no written and towards the concentration of economic wealth in the constitution, and no special constitutional machinery. Any State, then any safeguards which legal and political inge- change, no matter how far-reaching, can be achieved by nuity may devise will remain as ineffective as consumers' ordinary legislation. For all practical purposes, that change Councils within State-monopolies are today. Behind the depends upon votes of a single Chamber, in which the major- high sounding generalities of present-day politics, the issue ity party is closely-controlled by the Government of the day. is really a very simple one. It is whether we should accustom The United States, for example, has a written constitution, ourselves to the ant-like existence of the fully-integrated and changed only by special constitutional machinery. It has planned State, or whether we believe that individual initi- an effective Senate, as well as States Governments with ative and increased opportunity are more likely to produce spheres of activity upon which the Central Government more tolerable conditions of life for the bulk of our citizens. cannot trespass, and finally, Congress has greater independ- In the long run, it is impossible to preserve freedom of the ence of the Executive, headed by the President, than our own mind when the power to choose has been removed from the House of Commons enjoys. It should also be added that the citizen in more and more areas of his daily life. In the end, legal accountability of Ministers for their public conduct there will have been produced something approximating has ended with the passing of impeachment. Political to the planned stagnation of the Chinese Empire. That would accountability, in theory to the House of Commons, is in be an odd fate for a people who built the Common Law and practice to the Government of which they are members. who were responsible for Magna Carta, habeas corpus, and Thus, Great Britain today is a country in which an all- dominion status. Yet the threat is real, and the hour late. powerful Executive, acting through a subservient Parliamen- Our present predicament presents a challenge which it is tary majority in one sphere, and subservient Departments, impossible to ignore. interfering with the life of the citizen at all points, and oper- ating gigantic State-monopolies, exercises despotic power. It is therefore not to be wondered at that Communists and other political extremists assure us that they are prepared to work constitutionally. If they had fashioned the con- stitutional machinery themselves, it could scarcely have been apter for their purpose. It is for this reason that no attempt has been made in this book to discuss at length the safeguards, actual or possible, which could check the relentless advance of administrative tyranny in Great Britain. Within the existing framework, SOME RECENT TENDENCIES 209 and it affords proof of the possibility of adapting the existing Chapter 14 structure of an industry to changing national and inter- national conditions, which is more in harmony with the traditional English methods of evolution than the creation of Some Recent Tendencies the giant, over-centralised organisations which came into existence between 1946 and 1951. Unfortunately, amongst certain Labour leaders, the prosecution of nationalisation has become an article of faith which is not capable of being tested by experience. Re-nationalisation has been threatened, HE change from a Labour to a Conservative Govern- and some irresponsible utterances have suggested that it ment in 1951 brought with it a change of tone, and should be achieved without compensation for expropriation. Twith it, a slackening in the pace of legislative change. Should such threats be carried into effect, this country The Iron and Steel Act, 1953, denationalised the iron and would have taken several further steps along the Moscow steel industry, and the Road Transport Act, 1953, returned road. Moreover, in spite of plainly spoken warnings from Sir road transport to private ownership. Both these Acts pro- Hartley Shawcross and others, the more doctrinaire members vided interesting experience of the technique of denational- of the Labour Party have framed proposals for nationalising isation. Thus, the Iron and Steel Act dissolved the Iron and rented land, thus bringing into the open possibilities which Steel Corporation of Great Britain, the creation of which was were implicit both in the Agricultural Holdings Act, 1948, described in Chapter I I, and returned its assets, for appro- and the Town and Country Planning Act, 1947. priate payment, to private ownership. In most cases, the These questions are, however, matters of high policy, undertakings were returned to their original owner. For the upon which the electorate will, in due course, have an purpose of carrying out this transfer, the Act created an Iron opportunity of pronouncing at the polls. As such, they are and Steel Holding and Realisation Agency. The alternative to only indirectly within the scope of this book. It is of more nationalisation offered by the Act is supervision of the industry permanent significance to discover whether the encroach- by an Iron and Steel Board, appointed by the Minister of ments of bureaucracy upon private rights have shown any Supply. The Minister and the Board must consult on matters signs of abatement in recent months. In this sphere, it must affecting the European Coal and Steel Community. The be said at once that the Courts have shown considerable Board is under an obligation to consult with producers in anxiety and, by making more widely available to the subject order to secure necessary capital development, and if it reports such remedies as certiorari, mandamus, prohibition, and actions that necessary development cannot be secured, the Ministry for a declaration, they are seeking to set bounds to adminis- of Supply may undertake it. The Board has power to fix trative lawlessness. Decisions such as Pigott v. Docks and maximum prices for sales, and also power to arrange the im- Inland Waterways,! R. v. Northumberland Compensation Appeal portation of raw materials if home supplies are inadequate. Tribunal' and Barnard v. National Dock Labour Board" are plain It also has a duty to promote research, training and education, illustrations of the new trend in the judicial outlook. One and it may make grants for these purposes. The Act further other may be given. As Lord Justice Denning has recently provides that neither the Board nor the Realisation Agency pointed out,! in the days before hospitals were nationalised, is a servant or agent of the Crown, or a public authority for the purposes of the Public Authorities Protection Act, 1893. 1 [1953] 1 W.L.R. 94. 2 [1952] 1 K.B. 338. This system instituted by this Act is an interesting example • [1953] 2 W.L.R. 995· of a possible alternative to the creation of state monopolies, , The Changing Laui pp. 29-30. 208 210 THE PASSING OF PARLIAMENT SOME RECENT TENDENCIES 2 I I the Courts went some considerable way towards relieving ference with the Corporation's own right to deal with their them of liability in respect of claims for negligence, and in own problems in such order as they thought fit. Hillyer v. St. Bartholomew's Hospital" it was said that a hospital 'It is, of course, open to the corporation to submit all or any of these propositions, including the most extreme of was not liable for the negligence of doctors or nurses in the them, to the Court. But it is also open to the plaintiffs, course of their professional duties. Now, however, the whose rights, as it has been proved, have been seriously Courts have taken the opposite view. A nationalised service, damaged, to come to Her Majesty's courts, and to ask for that is to say, cannot expect to receive the indulgent treat- (and, if possible, obtain) redress for those wrongs. In the ment that voluntary hospitals, often struggling for funds, circumstances, I was startled that the corporation thought fit through their counsel to submit that it was not 'sensible'- previously received. If the State sets up a national service, it that was the word used, according to my note-of the must pay for the consequences of its inefficient operation. plaintiffs to sue the corporation in these courts; and not Out of this new attitude of the Courts, much good may only that, but to make the extravagant suggestion that the ultimately emerge. Official pretensions have been pushed action was one brought by the solicitors for the plaintiffs for very far, as the highly important Court of Appeal decision in the sole purpose of making for themselves a profit in the way of costs. It is only fair to Sir Andrew Clark to say that he Pride of Derby Angling Association v. Derby Corporatiou" shows. withdrew unreservedly that last imputation; but the fact The plaintiffs were the owners of a fishery in the Rivers that these charges were made on the part of the corporation Trent and Derwent, and they claimed an injunction against cannot, I think, be forgotten.' the Derby Corporation and other defendants to restrain The rebuke was strong, but well-merited. The extra- them from polluting the waters by sewerage. The Derby ordinary thing is that a corporation should have thought fit Corporation admitted pollution, but amongst other defences, to put forward such arguments in a court of law. they put forward the astonishing plea that as the Corporation In one respect, the position of the subject in maintaining was responsible to the Minister of Local Government and his rights against the State has improved considerably in Planning, they ought not to be liable to be sued in any court recent years. The Crown Proceedings Act, 1947, removed for damage they did in carrying out their functions. Some immunities from liability of the Crown in a very great illustration of the lengths to which organs of central and local number of cases, placing the Crown (i.e. the Departments of government are now prepared to go in their attempts to State) in substantially the same position as the ordinary place themselves beyond reach of redress by persons seeking person in this respect. Such a development was heavily over- to enforce their rights against them may be gathered from due, having regard to the increasing intervention of the the remarks of the Master of the Rolls in delivering judg- state in the day-to-day affairs of the citizen. In one impor- ment. Sir Raymond Evershed said: tant respect, however, there has been no improvement. The 'But Sir Andrew Clark (for the corporation) went to the privilege of Government Departments to refuse to disclose length of arguing, if it were necessary, that no injunction documents in their possession to the other party (a privilege ought ever to be granted against a local authority in any not shared by the subject) has remained. The way in which circumstances, at any rate in regard to its sewage works. He this adversely affects the position of the other party was shown argued further than an injunction, though negative in form, by the case of Ellis v. Home Office.1 A prisoner serving his being mandatory in substance was a measure of bringing, as I understand him, some sort of improper pressure to bear sentence was injured by a fellow-prisoner, and he claimed upon the Minister in the exercise of his duties in granting damages against the Home Office for negligence. The Home licences and so forth, and, further, was a wrongful inter- Office refused to produce documents relating to the adminis- tration of the prison which were essential to his case. As a [1909] 2 K.B. 820. e [1953] 2 W.L.R. 58. 7 [1953] 3 W.R. 105· 212 THE PASSING OF PARLIAMENT Lord Justice Singleton pointed out, the administration of the law would become impossible if such refusals were general. Unfortunately, the House of Lords in 1942, in Duncan v. Cammell, Laird & Co.,s conceded the privilege in such wide terms that the Government Department has only to say that the documents must remain secret for the proper functioning Index of the public service for the subject to be left without a remedy, and The Times, in a leading article on the case, rightly pointed out that "in this regrettable respect the supremacy of the law had not been maintained in this Administration, conflict with Benevolences, I 19. country in recent years." law, 11-12. Bentham, Jeremy, 65. Summing up, therefore, it can be said that there are some Administrative Agencies, Betting Tax, 135. signs of public awareness to the seriousness of the threat to American, 187-89. Bevan, Mr. Aneurin, 202. Administrative Justice, In Bill of Rights, 1689, 129. freedom now presented by the encroachments of the bureau- U.S.A., 185-86. Birkenhead, Lord, 142. cratic and all-powerful State. It can also be said that the Administrative Law In Black Prince, 47. Courts have initiated a counter-attack in order to set limits France, 175-81. Blackstone, Sir W., 6, 181. to administrative lawlessness. These are encouraging symp- Administrative Procedure Board of Trade, 74, 107. toms, but as yet there is no sign of any important change in Act, 1946, American, Brand, Lord, 161-63. 187-89. British Transport Com- the habits of government. The most that can be said is that Administrative Tribunals, 30 mission, 167-70. we are enjoying a brief respite, but the dangers discussed in et seqq. 81 et seqq. Buckingham, Duke of, im- earlier chapters are still present. Agriculture Act, 1947, 145. peachment of, 45, 49. Agricultural Holdings Act, Bureaucracy, German, 191- 1948, 145-48. 93· 8 [1952] A.C. 624. Agriculture, Ministry of, 145, Burke, Edmund, 6, 48. 146. Butler, Mr. R. A., 173. Aids, feudal, 118. Alexander, Viscount, 169, 171. Cabinet, dictatorship of, 56. Allen, Dr., C. K. (now Sir --, evolution of, 4 I. Carleton Kemp Allen), 6, Capital Issues Committee, 10-1 I, 72, 94, 115. 205. American Constitution, Cardozo, Mr. Justice, 186. 181-83. Catering Wages Commission, American War of Indepen- 72• dence, 181. Central Land Board, 151-52. Anderson, Sir John, I. --, powers of, 76-8. Assembly, French, 178. Certiorari, writ of, 108, 109, Attainder, Act of, 41, 44, 45. II 0, I I I, 112, II3. Austin, John, 65. Chamberlain, Joseph, 19. Chamberlain, Neville, 128. Chancery, Court of, 85-87, Bacon, Francis, impeachment 94· of,45· Charles I, 21, 34 et seqq., 44, Bagehot, Walter, 6. 45, T34· INDEX INDEX

Charles II, revenues of, 123. Declaration, action for, I 13- Entertainment Tax, 135. Hamson, C. j., 179-81. Civil War, 35, 44· 115· Evidence, rules of, in adminis- Hastings, Warren, impeach- Clergy, taxation of, 120. Defence of the Realm trative tribunals, 89. ment of, 46, 48, 52, 53. Coke, Sir E., 8. Regulations, 26-7-8-9-30. Exchequer, Court of, 87. Henn Collins J., 25. Commerce, growth of British, Delegated Legislation, dan- Executive, growth of power Henry III, 120. 17-8. gers of, 64 et seqq. of, 14-5, 184-95. Henry VI, 36. Commissions, in U.S.A., 184- -- --, limits of judicial --, leaders of majority Henry VII, 120, 121. 189. control, 74 et seqq. party, 56. Henry VIII, 44, 65, 120. Common Law, Courts of, 37 -- --, volume of, 20. Executive power, attempts to "Henry VIII" Clause, 24, 73. et seqq. Democracy, growth of, 18. control, 196-98. --, does not exist in U.S.A., --, as obstacle to despot- --, meaning of, 55. --, growth of, 194-95. 186. ism, 35-6. --, parliamentary, 58. Hereditary revenue of Crown, Commune, in France, 177. Denning, Lord Justice, 77-8, 118-20. Conseil d'Etat, 178-8 I. 116-17, 152, 164-66. Family Settlement, 140-41. Hewart, Lord Chief Justice, Conservative Party, and Departments, control of --, function of, 143. I, 2, 5, 6, 8-9, 10, 115. growth of executive power, nationalised industries by, Fees, in litigation, 119. Hicks-Beach, Sir Michael, 18- 200-01. 156 et seqq. Finance Act, 1894,200. 19, 128. Constitution, American, 206. --, growth of, 41-3. Fisher, Sir Warren, I. High Commission, Court of, Forced Loans, 119-20. --, British, 56. --, extension of functions 39-40. Consumers' Councils, 156-57, of, 58, 61, 62, 66, 67. Fox, Charles James, 48. Holdsworth, Sir William, I, 173, 207. --, legislative power of, 2 I. France, problem of adminis- 10, 16, 138, 144. Convocation, 120. --, federal, in U.S.A., 184. trative power in, 175-78. Housing Act, 1936, 26. Copyhold tenure, 141. --, local, functions of, in --, surrender of, 1940, 194. Housing Acts, 85, 92-94, 100 --, abolition of, 142. France, 177. Franchise, extensions of, et seqq. Corn Laws, repeal of, 140. Departments of State, in 197-98. Hughes, Chief Justice, 186. Free Trade, 140. Corporations, Public, 3 I et France, 177-78. seqq. Development value of land, French monarchy, power of, Cotton Industry Board, 72. 149· 176. Identity Cards, 29-30. Courts, American, powers of, Dicey, Professor A. V., 6-7, 8, French Revolution, 1789, Impeachment, 41, 44 et seqq., 183, 188-89. 15,21,22, 137, 138, 176. 175· 206. --, Ordinary, control of Dictatorship, advance to- Friedmann, Professor W. Income Tax, 124, 135. administrative courts, '98 et wards, 33. 153, 163, 164, 170• Industrial Injuries, Com- seqq. Divorce and Matrimonial Fuller, Nicholas, 38. missioner, 83. Cripps, Sir Stafford, 10, 27-8, Causes Act, 1937, 62. Industry, growth of, 140. 128, 161. Dominion Status, 207. Gaitskell, Mr. Hugh, 132- Iron and Steel Corporation, Cromwell, Lord Chancellor, Duguit, Leon, 178. 6 134· 155-5 . 44· General Elections, 56, 6 I. Crown, claims to legislate, 35 General Warrants, 40. Eady, Sir Wilfrid, 205. et seqq. George III, 123, 197. Jacobites, 44, 45· --, struggle with Parlia- Edward I, 120, 138. Gladstone, W. E., 124. --, impeachment of, 50. 8 ment, see Parliament. Edward III, 45, 47, 4 , Il9· Gloucester, Duke of, uncle James 1,21,34 et seq., 122. Customs duties, Crown's Edward IV, 38. of Richard II, 50. --, accession of, 15-6. claim to, 119,122-23. Eggleston, Sir Frederic, 2-3· Goddard, Lord Chief Justice, James II, 39-40, 123. Elizabeth I, 34, 35· --, flight of, 16. 29-30. __ , financial policy of, James IV, of Scotland, 34. Dalton, Dr., 125. 121-22. James V, of Scotland, 34. Danby, 41. Emergency Powers Act, 1920, Habeas Corpus, Writ of, J08, Jay, Mr. Douglas, 86. Davies, Clement, 28. 27· 2°7· Jennings, Sir 1., 10. 216 INDEX INDEX 217 John of Gaunt, Duke of Magna Carta, 129, 130, 196, Nazis, rise to power, 191. Proclamations, Statute of, Lancaster, 47. 207. Nevill, Lord, impeachment 1539, 65· Johnson, General, impeach- --, and customs duties, of, 47. Prohibition, Writ of, 110-14, ment of, 49. 120. New Deal, 183-84. Proudhon, 202. Juvenile Courts, 88. Mainwaring, Dr. impeach- New Despotism, The, I. Public Accounts Committee, ment of, 45, 46. Noel-Baker, Mr. Philip, 173. 161, 167, 171, 172, 174. Maitland, F. W., 16, 20, 50, North, Lord, 49, 51. Public Corporations, nature Kennet, Lord, 205. 51, 120, 137, 138, 195· of, 154 et seqq. Keynes, Lord, 163. Mandamus, Writ of, 108, I 13. Pupils Registration Regula- Mansfield, Lord, 108, I 13, One-party State, 13, 55. tions, 1948, 68-70. 117,181. Orders, provisional, 68. Purchase tax, 135. Labour Party, and growth of Marketing Boards, 72. --, special, 68. executive power, 201-04. Mary, Queen of Scots, 34. Orders in Council, 67. Mayor, functions of, in Land charges, registration of, Ordinances, 64. Quasi-judicial process, 94-6. 142• France, 177. O'Sullivan, Richard, 86. Land law, 137 et seqq. Megarry, R. E., 205. Overseas Food Corporation, Land Registration Acts, 142. Melville, Lord, impeachment 167. Land transfer, difficulties of, of, 46, 50, 52, 53· Real Property Acts, 1925, 1 141. Middlesex, Earl of, impeach- 14 -43. Landlord and Tenant, law of, ment of, 45. Parliament, control of state Real Property Commission, Report of, 139-40, 144. 143· Minister of Health, 3 I . monopolies by, 167-74. Laski, Harold, I, 10- I I. --, powers of, 3. --, in Middle Ages, 196-97. Reform Bill, 1832, 2 I, 58, 59, Latimer, Lord, impeachment Minister of Town and --, struggle with Crown, 60, 137, 140. Rent Tribunals, II, 31, 189. of,47· Country Planning, powers 15 et seqq., 34 et seqq., 44 Laud, Archbishop, 41, 44, 46. of, 24-5. et seqq. Retrospective legislation, and Leasehold tenure, 138. Ministers' Powers, Com- Parliament Act, 191 I, 22, taxation, 128-29. Legislation, growth of, in 19th mittee on, I, 2, 10, 24. 200-01. Revolution of 1688, 21, 33, 0 1 century, 2 I. Mitchell, impeachment of, Parliamentary Sovereignty, 6 4 - , 51, 52, 53, 129, 197. Richard I, ransom of, 1I8. --, Delegated, present 45· et seqq., 15, 16, 17, 21, 64 scope of, I. Mompesson, impeachment of, et seqq., 67. Richard II, 48, 49. Liberal Party, and growth of 45· Party conference, 6 I. Right, private, in modern executive power, 199-204. Monopolies, State, 32-3. Peel, Sir Robert, 19. law, I I. Liberty, decline of, 57· Monopolies Commission, 174. People's Courts, 3 I. Robson, Professor W. A., 5, Livery and Maintenance, Montesquieu, 16, 84. Petain, Marshal, 194. 6, 8, 9, 10, 85, 96-7, 115, 181. 12 I. Morgan, Professor J. H., 9· Pitt, William, the Elder, 59. Local Government, decline Morley, John, 51. Pitt, William, the Younger, Roosevelt, President F. D., 18 of, 195-96. Morris, William, 202. 52,53,59. 3-84. Rule of Law, 6 et Long Parliament, 38-9, 45· Morrison, Mr. Herbert, 79, Planned Economy, 13, 125, seqq. Lovat, Lord, impeachment of, 168-69, 173· 126, 162-63, 202. --, curtailment of in Ger- many, 191-93. 46. --, and State monopolies, Planned State, 207. Lords, House of, 22. 32-3. Port, Dr., 5, 8-9, 10. --, functions of, 201-02. Prefet, functions of, 177. __ , decline of, 60, 61, 66, Press, importance of freedom Salisbury, Lord, 173. I!Z7, 199· Napoleonic Wars, 17. of, 62. Scarcroft Case, 158-60, 172. National Debt, 123. Prerogative Courts, 37 et seq. Schmitthoff, Clive, I 15- 17. National Fire Service, 79· Pretender, Old, 46. Schuster, Sir Claud, I. MacKinnon, Lord Justice, National Insurance (Indus- Primer seisin, 118. Schwarz, Professor, 182, 184, 25-6. trial Injuries) Act, 1946,82. Privilege, Parliamentary, 63. 187. 218 INDEX Scott, Lord Justice, 4· Tax avoidance, 128-32. Scott Committee on Land Taxation, growth and func- Transfer, 1919, 142• tion, of 18-9. Second Chamber, decline of, --, origin and development of 118, 56. et seqq, Select Committee on Dele- Tenure of land, 138. gated Legislation, 79· Thring, Lord, 20, 2 I. Select Committee on Statu- Town and Country Planning tory Rules and Orders, 62. Act, 1947, 23, 76-8, 145, Senate, American, 201. 148-52• Separation of Powers, in Town and Country Planning France, 176. Acts, 141. --, in U.S.A., 183, 186. Town and Country Planning Settled Land Acts, 141. Regulations, 1948, 70-1. Sheridan, Richard, 48. Treason, 45. Ship-money, Case of, 42-3, --, impeachment for, 46. Two-party system, in Great 123. Sieghart, M. A., 14, 180. Britain, 15. Simon, Viscount, 128. Social Democrats, German, Ultra Vires Doctrine, 22 et 193· Socialism, modern, 202-03. seqq., 67, I I 1-12. Soviet system, chief charac- U.S.A., administrative power terics of, 13· in, 181-89. Spencer, Herbert, 57· U.S.S.R., 55. Star Chamber, 16,38-9,40-1, 85-6. Voltaire, 16. State, and community, 203. __ , and monopolies, 203, 204, 206, 207. Walpole, Robert, 48, 49, State monopolies in nationa- 51-2, 53, 59· lised industries, 153 et seqq. War of American Indepen- States-General, 176. dence, 49. Statute Law, in France, Wars of the Roses, 35,44,50, 178. 121. Statute of Uses, 1535, 121. Webb, Beatrice and Sidney, Strafford, Earl of, impeach- 154, 160, 161,202-03. ment of, 41, 44, 46. Wellington, Duke of, 59· Stuarts and Parliament, 64· Weimar Republic, 193· Suffolk, Duke of, impeach- Whig Party, 52. ment of, 45, 55· Whitelocke, James, 38. Suffolk, Earl of, impeachment William III, 45. Wilson, Mr, Harold, 126. of, 48, 49· Supreme Court, American, Workmen's Compensation, 97, 183-84. 81-4· Printed by C. Tinling & Company Limited, Liverpool, London and Prescot SOUTHERN UTAH UNIVERSITY LIBRARY CEDAR CITY. UTAH 84720

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JN 550 .K4 1954 Keeton, George Williams, 1902- rThe passing of Parliament