The New Despotism (1929)

IIII1Ullllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllllnmmnnmmmllllmmmllllllllnmmmmn THE. NEW DESPOTISM BY THE RT. HOl'<. LORD HEWART OF BURY I§! Ie e ~ = i LONDOl'< ERNEST BENN LTD 5111I1111I 11I1111I111I11I11I111111111111111I1111111111111 1111I111111111111111I111111111111I11I11111111111111I11I11I111111111I1111111111I111I11I11I1111I1 rr.- THE NEW DESPOTISM by THE RT. HON. LORD HEWART OF BURY, Lord Chief Justice of England H I will be no party to the doctrine," Lord Hewart said in a recent speech, U that a Lord ChiefJustice, summoned to the House of Lords, as he is, not merely to vote, but also to advise. is condemned to a lifelong and compulsory silence on the affairs of State." THE NEW DESPOTISM. a book of quite exceptional importance, is, in effect, the sequel to that speech. Every citizen of this country, from the least to the greatest, is directly and personally concerned with the encroachments of bureaucracy on public life. .. Very few laymen are aware of the wide difference which exists between the rights of these parties (the Crown and the subjects of the Crown) as they survive to this day under the tradi tions of antiquated law and practice i and still less do they realise the gross injustice not infrequently inflicted uponindividuals by the harsh and unconscionable exercise of certain rights which Executive Depart ments enforce, and which the Courts of law are powerless to disallow. ... The existence of the fundamentally false and unconstitutional idea that the bureau cracy are a privileged class, not amenable in their official acts to the jurisdiction of the courts, is a danger to our traditional liberties which is obvious," said The Times in a leading article, and it is U these wide differences .. and U this danger to our traditional liberties It which the Lord Chief Justice examines and condemns. THE NEW DESPOTISM is fully docu mented and deals with these vital ques~ tions in a technical as well as a popular manner. 21s. net THE NEW DESPOTISM THE NEW DESPOTISM by THE RT. HON. LORD HEWART OF BURY Lord Chief Justice of England LONDON ERNEST BENN LIMITED 1929 FIRST PUBLISHED MCMXXIX PRINTED IN GREAT BRITAIN BY R. & R. CLARK, LID., EDINBURGH PREFATORY NOTE This little essay is obviously not intended to be more than a brief introduction to a topic of large, and un happily growing, dimensions. An exhaustive examination of the pretensions and encroachments of bureaucracy the new despotism-must await greater leisure and another occasion. Yet it seemed to be high time that, at any rate, a note of warning should be offered. Est quadam prodire tenus, si non datur ultra. H. v CONTENTS CHAP. PAGB I. THE NATURE OF THE QUESTION 9 11. THE RULE OF LAW 23 Ill. "ADMINISTRATIVE LAW" 37 IV. ADMINISTRATIVE LAWLESSNESS 43 V. THE SYSTEM AT WORK S9 VI. DEPARTMENTAL LEGISLATION 79 VII. THE INDEPENDENCE OF THE JUDICIARY 102 VIII. WHAT IS TO BE DONE? 143 IX. SOME LEADING CASES 16S X. EXAMPLES FROM STATUTES 239 vu CHAPTER 1 THE NATURE OF THE QUESTION Wordsworth begins a well-known poem with the words: "Oh! what's the matter? what's the matter?" A simple and prosaic question like that is not always easy to answer. Nor is it easy to express in a sentence, for the information of Lord Bowen's gentleman on the top of the Clapham omni bus, the precise nature of the present inquiry. Perhaps it may be well to offer at the outset a significant and recent example of the tendency which it is proposed to examine. On the zznd December 1925 there was added to the Statute-book an Act of Parliament, entitled the Rating and Valuation Act, 1925,1 which fills ninety pages in the auth orized edition of the statutes. It is described as an Act to simplify and amend the law with respect to the making and collection of rates. The marginal heading of section 67 of the Act consists, pleasantly enough, of the words "Power to remove difficulties", and the section provides that if any difficulty arises in connection with the appli cation of the Act to any exceptional area, or the prepara tion of the first valuation list for any area, "or otherwise in bringing into operation any of the provisions of this Act", the Minister "may by order remove the difficulty". More than that, the Minister may "constitute any assess- 1 IS & 16 Geo. V. c. 90. 9 THE NEW DESPOTISM ment committee, or declare any assessment committee to be duly constituted, or make any appointment, or do any other thing, which appears to him necessary or expedient for securing the due preparation of the list or for bringing the said provisions into operation". Finally, it is provided that "any such order may modify the provisions of this Act so far as may appear to the Minister necessary or ex pedient for carrying the order into effect". It would be difficult to imagine more comprehensive powers or more remarkable legislation. The Act of Parliament not only in terms empowers the Minister to "do any thing" which he may think expedient for the purpose named, but also in terms empowers him, if he thinks it expedient, to make orders which "may modify the provisions" of the Act of Parliament itself. These far-reaching powers were con ferred upon the Minister by the statute for a period of no less than three and a quarter years-that is, until the end of March 1929. In April 1927 this section was referred to in a case 1 which came before a Divisional Court of the King's Bench. The details of the case need not be repeated. The question turned upon an order made by the Minister under the Act approving a scheme for an assessment area, to which objection was taken on the ground that the con stituent authorities were entitled to decide among them selves on the size or number of the assessment committee and on the mode of representation of their own group. In the result the Court held that, in the particular case, 1 The King v, Minister of Health: ex parte Wortley Rural District Council, 1927. 2 K.B. 229. 10 THE NATURE OF THE QUESTION there had been no usurpation or excess of jurisdiction. In the judgement, however, which expressed the unani mous opinion of the Court, the following passage with reference to section 67 of the statute is to be found (at P·236): "This, I think, though I say it with some hesitation, may be regarded as indicating the high-water mark of legis lative provisions of this character. It is obvious that if this Court had taken another view of the case presented to us to-day and had decided to quash this order as having been made ultra vires, the Minister might to morrow, under the provisions of section 67, have arrived at the same end by making an order and removing the difficulty.', Now it will probably be admitted that matters must have gone rather far before a Minister thought fit to pro pose, and Parliament, either deliberately or by inadver tence, consented to approve, a scheme that empowered a Government department, on grounds of expediency, to make departmental orders modifying the provisions of the statute which conferred the power. A little inquiry will serve to show that there is now, and for some years past has been, a persistent influence at work which, what ever the motives or the intentions that support it may be thought to be, undoubtedly has the effect of placing a large and increasing field of departmental authority and activity beyond the reach of the ordinary law. Whether this influence ought to be encouraged, or whether it ought rather to be checked and limited, are questions into which, for the moment, it is not necessary to enter. But it does 11 THE NEW DESPOTISM at least seem desirable that the influence itself should be clearly discerned, that its essential nature and tendency should be quite plainly exhibited, and that its various methods and manifestations should not be allowed to con tinue and multiply under a cloak of obscurity. The citizens of a State may indeed believe or boast that, at a given moment, they enjoy, or at any rate possess, a system of representative institutions, and that the ordinary law of the land, interpreted and administered by the regular Courts, is comprehensive enough and strong enough for all its proper purposes. But their belief will stand in need of revision if, in truth and in fact, an organized and dili gent minority, equipped with convenient drafts, and em ploying after a fashion part of the machinery of represent ative institutions, is steadily increasing the range and the power of departmental authority and withdrawing its operations more and more from the jurisdiction of the Courts. In order to perceive clearly the nature of this influence or tendency, and the relation in which it stands to the essential foundations of the Constitution, it may be well to examine briefly, first, the meaning and implications, on the one hand, of the Rule of Law, and, on the other hand, of the Continental system of so-called "Administrative Law" with which the Rule of Law is sharply contrasted. The apologists of the growing system, or lack of system, which it is here proposed to explore sometimes permit themselves to speak of it as if it were "Administrative Law". But the description, it will be seen, is quite curi ously the reverse of the truth. The Continental system of 12 THE NATURE OF THE QUESTION "Administrative Law", profoundly repugnant as it is to English ideas, is at least a system. It has its Courts, its law, its hearings and adjudications, its regular and ac cepted procedure.

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