The Press Saturday, January 26, 1924. The State and the Law.

Press, Volume LX, Issue 17981, 26 January 1924, Page 12

The Press Saturday, January 26, 1924. The State and the Law.

An. important contribution to the discussion of the problem of the State in relation to the law and the larger question of the State as a tyrant is made in the "Quarterly Review" by Mr C. Iv. Allen, who is evidently an authority on law. Those problems become larger every year with the extension of the activities of the State. That the citizen's remedy at law against the Crown should be more restricted than his remedy against his fellows mattered less in tho old days, when the State confined itself "to collecting taxes, defending the country, maintainiog law and order, and looking after foreign relations, than it does to-day, when in addition the State touches the life of the citizen at so many other points, and may actually compete with him in industry and trade. Mr Allen's contention is that the state of English law and practice in respect to remedies against the Crown is very unsatisfactory. Law students, beginning the study of constitutional law, "form the "impression that Prance lives under "a system of bureaucratio tyranny "little short of Tsarism." The truth is, ho declares, that "the remedies of "the subject against the State in " Eranoe are easier, speedier, and in-' " finitely cheaper than they are in "England to-day." Many of our readers are aware of the limitations placed by English law on the remedy of the eubject against the Crown, limitations based on the old maxim that the King can do no wrong. In matters of contract there is a remedy known •as the petition of right. Action cannot be taken unless the Home Secretary pleases, but refusal is rare, says Mr Allen, when there is any substance in the claim. The trouble is that " Government Departments exhibit an " increasing tendency to arbitrary and "unconscionable action." "Where tho claim is for tort, that is, an ordinary civil wrong such os libel, or trespass, or false imprisonment, there is no direct remedy against the Crown. The servant of the Crown can be sued, but not his employers. If you are injured by a Post Office van you may obtain damages against the driver, and the Department may, and often does, furnish the funds to satisfy the judgment, but it is not legally bound to dp so. Having sefc forth these principles, Mr Allen proceeds to a citation of directions in which the privileges of the Crown are abused. For ©sample wide legislative powers are granted to local bodies by the State, but the right of appeal to the Courts against action taken under these powers is very limited. Departmental tribunals have powers which seem to bo opposed to. vital principles of English law. A property owner is ordered to close & house, on the ground that it is unfit for habitation. He appeals to the Local Government Board, a "public "enquiry" is ordered, and an inspector, after hearing the evidence, reports to the Board, which acts on that report. The owner does not see that report, is not heard before the Board, and cannot appeal against its decision. In 1921 Parliament actually passed an Act by which a mfcre resolution of both Houses ' could set up a tribunal on any matter, "with practically all the "powers of a Court of law, including " the right to institute proceedings " for contempt of Court, and the power " to excludo tho public from its sessions." Mr Allen cites impressive instances of injustice and of "bureau- " cracy overreaching itself." The Crown has twice attempted to establish the right to expropriate the subject without compensation. The lessee of a house who was bound by the terms of his lease to insure and to rebuild with the insurance money, was dispossessed by tho military during the war. The house was destroyed by fire during the occupation, and both the lessee and the owner looked to the War Office for reimbursement. The War Office denied all liability, and while the Court "did not conceal its disgust at this "'conduct,'' it had to find against the injured parties. Whether the War Oflic© paid up as an act of grace is not known. The worst case cited, however, concerns the Colonial Office. A concession owner in the Malay State of Kelantan, who obtained his right in tho days when tho territory was attached to Siam, went to litigation with tho Government of Kclantau over an alleged breach of contract. In 1!)09 Kelantan had become a British protectorate, and, as is well knowu, in such cases the Colonial Office supplies the real government of the country. Alter long and expensive litigation, the concession owner won his case, whereupon the Colonial Office refused to pay. Plaintiff took further proceedings, whereupon, the Colonial Office produced

a certificate from the Secretary of Stat© to the effect that Kelantan -was ail independent sovereign State ana therefore not amenable to English jurisdiction. The Court had no option but to dismiss the action, but it did not conceal its opinion of the scandalous nature of the Government's action. One has only to look at the "States"man's Year Book" to understand the hollowness of the State's plea, -which would not be entertained for a moment if it were put forward by a foreign Power in respect to Kelantan. "The examples I have cited," Gays this writer, "are but a drop in the ocean "of the cases which never come to judg- " ment. Men are well aware By this "time that if they have the hardihood or misfortune to engage in litl- " gation with the Crown, they must be " prepared for all the chicanery in '' which the Law Officers make it their "business to excel.'"'

All this has a wider significance. It shows how bureaucracy tends to become a tyranny. It shows tho falsity of the argument that the State is necessarily more just in its dealings than is the citizen or the private corporation. Mr Allen remarks that "many an official " who would not dream of deliberate " injustice in his private relationship " is quite without conscience when it " comes to scoring a point for his department." This proves that the making of profit in commerce and industry, which Socialists tell us is tho root of all evil, is not the only cause of injustice. The appetite for power grows by what it feeds oil. These abuses of the State's privileges in law ore largely the product of the war, and our prediction has been fulfilled that it would be very difficult for the community to recover the liberties with which it was forced to part during the crisis. The whole question is of great interest to New Zealand. It is for a lawyer to say how far our own legal procedure and practice differ in this respect from the English ; this country has adopted the basic principle of State privilege. Our dim impression is that New Zealand law and practice are more liberal than English. But here, where State activities are 60 many, we cantiot afford to be indifferent to the principles that govern remedies against the Crown and to the spirit in which the law is administered. Devefopments in England, whence we derive the basis of our law, should therefore be watched. Some time ago a Committee was appointed in England, under the chairmanship of the lawyer who was then Attorney-General and is now Lord Chief Justice, {o consider the whole question of proceedings against the Crown. Its report will be important for the whole of the Empire.