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The Constitutional Implications of Judicial Control of the Administration in the United Kingdom.*

Published online by Cambridge University Press:  16 January 2009

J. D. B. Mitchell
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Extract

When first I was invited to participate in this colloquium, I was given the title of “Constitutional difficulties to the introduction of a system of administrative law,” which I take to imply a full administrative jurisdiction. That subject was, in a sense, not exciting, except as a challenge to produce legal difficulties, under a system such as our own, to doing anything at all. Difficulties undoubtedly do exist, but they exist in the realm of psychology, not of rules of law. Even so they are important. A constitution does not live by legal logic alone, and the positive changes in law which the introduction of such a system would involve run counter to received, but unexamined, notions or myths, particularly those relating to Parliament. Such notions have surprising strength. It would have been difficult to persuade the Pontifex Maximus to lead the other Pontiffs into proclaiming the inadequacy of their mythology, let alone to lead them into propounding the virtues of a rival. Yet under our cult of Parliament this is precisely what the Prime Minister or the alternative Pontifex Maximus has to do. This change is beyond the scope of those subtle shifts which we can achieve by stealth, in the way in which we transferred power from King to Ministers. While these difficulties are real and must be mentioned, I take it that in the form in which the subject is now posed it is broader and that I can treat of the constitutional advantages as well as, and rather more than, these political difficulties.

Type
Research Article
Information
The Cambridge Law Journal , Volume 25 , Issue 1 , April 1967 , pp. 46 - 61
Copyright
Copyright © Cambridge Law Journal and Contributors 1967

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References

1 “The Causes and Consequences of the Absence of a System of Public Law in the United Kingdom” [1965] Public Law 95 which, together with “The State of Public Law in the United Kingdom” (1966) 15 I.C.L.Q. 133 and “The Ombudsman Fallacy” [1962] Public Law 24, forms the background to the present text. Many of the bald assertions in what follows are buttressed by the detail in these articles.

2 Syndicat Regional des quotidiens d'Algerie, C.E. April 4, 1952, R.D.P. 1029 and Brocas, C.E. Oct. 19, 1962, R.P.D. 123, A.J. 1962 626 and 612 (note Laubadère). No doubt there are also other political causes for the pattern of governments under the Third and Fourth Republics in France but this factor also appears to be significant.

3 Ridge v. Baldwin [1964] A.C. 40, 72–73Google Scholar.

4 See the articles referred to in note 1 above.

5 Both aspects can be seen elaborated in Sandevoir, Etudes sur le Recours de Pleine Jurisdiction and Debasch, Procédure Administrative Contentieuse et Procédure Civile.

6 Cmnd. 2767 (1965).

7 Stair Inst. IV: 1: 52–42.

8 Duncan, “The Central Courts before 1532” in Introduction to Scottish Legal History (The Stair Society).

9 Subject, of course, to the way in which the House of Commons interpreted the sub-judice rule in this context—a matter which has not yet been discussed in relation to the Parliamentary Commissioner, and which is likely there to prove to be a major stumbling block.

10 Auby, and Drago, , Traité de Contentieux Administratif, Vol. II, p. 587Google Scholaret seq: and the cases there cited. See too the argument, in Canadian Journal of Economics & Political Science (1965) Vol. XXXI p. 479Google Scholaret seq., and Vol. XXXII p. 77 et seq. and 84 et seq.

11 Much of the “Official” evidence to the Franks Committee illustrates this point, as does government reaction to the Report resulting, see Griffith, J. A. G. “Tribunals and Inquiries” (1959) 22 M.L.R. 125Google Scholar, 137.

12 See particularly “The Causes and Consequences of the Absence of a System of Public Law in the United Kingdom” [1965] Public Law 95.

13 This important question has also to be looked at in the light of changing political habits since the time when the main principles and techniques of parliamentary control were evolved. In arguing for an administrative jurisdiction one is paradoxically arguing a case which is in the interest of Parliament itself. The Parliamentary Commissioner would merely increase this centralising tendency and all the consequential problems.

14 Although there exist “wings” of both the main parties, theoretically capable of splitting from the parent party and joining to form a new viable party of substantial size and coherence, there are no signs that this process could now happen as it could even at the start of the century, see Jenkins, Asquith, Chap. X and XXVIII. It is of course true that the rifts in the two main parties have not coincided in time.

15 All the instances of control given in the White Paper occur there. This same political character has, of course serious, but still unexamined, implications for the proposed Parliamentary Commissioner scheme.

16 C.E., Oct. 19, 1962, D.(J) 687.

17 C.E., Dec. 10, 1962, Rec. 676.

18 The problems of such a course are conveniently summarised in Wechsler, “The Courts and the Constitution” (1965) 65 Columbia L.R. 1001.

19 The present state of public law in footnote 1 above, is particularly relevant, so too is The Contracts of Public Authorities.

20 Eventually, though a national pre-disposition to rely exclusively on the ordinary courts, separation, at least at first instance, was seen to be necessary in Belgium: Velge, Le Conseil d'Etat.

21 Again a long excursus would be necessary to justify this. For present purposes a reference to the swathe of cases dealing with the application of assets in the payment of a testator's debts will suffice. That the Administration of Estates Act was intended to be a reform was often a fact insufficiently noticed.

22 This should not be taken as implying the thought that the new body should sit exclusively in London. Above all, in this area of law, the case for uniformity throughout the Kingdom is strong.

23 Including those of local authorities (denied to the Parliamentary Commissioner). In the present state of the intermingling of central and local authorities in a wide range of decisions, any other solution is scarcely workable or acceptable.

24 The N.E.D.C. report Efficiency in Road Construction by the Economic Development Committee for Civil Engineering underlines the point.

25 [1908] 1 K.B. 170 and David v. Abdul Cader [1963] 1 W.L.R. 834Google Scholar. It is true that this head of jurisdiction is denied to the Belgian Conseil d'Etat, but the solution here urged seems preferable in logic and practice. So too does a careful reading of the reports of the New Zealand Ombudsman. Consider, e.g., cases 1896 and 1897 in his report of March 1966.

26 It is of course true that this quality of the House of Lords has been somewhat modified since these words were written.

27 The hopes thus expressed have been falsified by the Parliamentary Commissioner Bill.

28 The sad confession of impotence to carry out its statutory function revealed in § 22 of the Report for 1964 makes this point.

29 Neither in the French nor in the Belgian Conseil d'Etat does the exercise of this advisory function in any way impede the greatest freedom in quashing as a court.

30 See, apart from the articles already mentioned, “A Paper Mouse,” 1966 S.L.T. 65.

31 In the light of the seamen's strike the chapter “New Standards of Accommodation for the Crews of Merchant Ships” in Rhodes, Administration in Action, should be read as a cautionary tale.

32 [1965] 1 W.L.R. 755.

33 [1964] 1 Q.B. 395.

34 See generally Raymond, Aron, Essai sur les Libertés.Google Scholar

35 See The Times, July 2, 1966.Google Scholar

36 Elaborate documentation (which could have been provided) has become unnecessary. The Parliamentary Commissioner (a guardian one had supposed of legality) is appointed and named before the Bill creating the office had even had a second reading. Quis custodiet.

37 If it be thought that this advocacy of an administrative jurisdiction is wildness carried to extreme, the reader should refer to Sir Guy Powles' Clifford Clarke Memorial Lecture in Canada where the New Zealand Ombudsman concedes that the view “is not without its attraction.” See now Canadian Public Administration, Vol. IX, p. 133 at 156–157. I would like in this note to acknowledge the courtesy and help of Sir Guy to a critic of a system which he operates so admirably.