ADMINISTRATIVE LAW

Dominion, Volume 23, Issue 46, 18 November 1929, Page 15

ADMINISTRATIVE LAW

AND CIVIL SERVICE DOMINATION PARALLELS WITH’ ROMAN EMPIRE There is a growing fear, among lawyers and laymen alike, of the increase. of power exercised by -permanent officials in various Government Departments—power to arrive at decisions requiring a special course of legal training and legal experience (writes a correspondent in the London “Times”). These powers are conferred directly or indirectly by statute, and it might be said that there is an end of the matter. But the matter does not quite end there, since the application of administrative law —tu use a much abused term—has never been directly before .the electorate, and if, by some miracle, it became a firstrate issue it is very likely that the electorate, duly enlightened, would not tolerate the present system. Moreover, there is another aspect of the whole question of administrative action. What is the significance of the present position in its bearing on the future of the British Empire? Much light can be thrown on the present drift by comparing the Roman Empire, in the third century of our era with the British Empire in the twentieth. In the third century the Roman formulary system of procedure was gradually eaten into, and the line between judicial and administrative action was gradually blurred, until the system of “Cognitio Extraordinaria” was adopted altogether. But the action of the Magistrate was not merely administrative. Professor Buckland reminds us that it was still judicial: “The Magistrate must abide by the law. The hearing was still a judicium, though a judicium extraordiuarium. The main rules of • procedure remained, from time to time modified by legislation.” « I suggest that a general principle was operating in Roman procedure, and that this principle is rapidly operating in England and in the British Empire generally to-day. The transference of judicial power to the Executive from the judiciary was a phenomenon specially manifested in. the second half of the third century in the Roman Empire, and it is also a phenomenon specially manifested in the British Empire .to-day. There are, no doubt, some parallels in the methods of the two Empires, but the fundamental differences between them are very obvious, and therefore it (seems highly probable that some general principle of growth in the relations, between procedure and Government is to be seen operating in both cases. No doubt, as Professor Buckland says, the desire to centralise authority is one cause, and simplification of method another; but there must. be some deeper cause, as the process is one that occurs in aii Empire which was practically an Absolute Principate and in an Empire that is'practically a Democratic Monarchy. What is there in common in these two vast Empires? First, in each case there was or is a Common Law, which was the main check on Absolutism in the one case and is the main check on Democratic Licence in the other. Secondly, there is the devolution of sovereignty to make possible in each case the government of Vast areas from a single centre. Thirdly, there was and is the common difficulty of government in a society which, though a unity, was or is growing more /and more complex with local needs and huge mercantile interests. , . In such circumstances it was and is impossible to preserve what may be called slow judicial method in its entirety. There must be a tendency to substitute swift administrative action for civil procedure, such administrative action being controlled on general principles from the seat of Government and by the Executive. It is not altogether a question of the retention of central control. It is a question al getting through the work. The Roman statesmen managed to secure gradually, through the agency of the Imperial Provinces, a compromise by which the Magistrates still declared not their own opinions but the LtyW. In the British Empire at the present, moment in the Crown Colonies the Roman method is increasingly applied, and the Magistrates and the trained administrators apply the written law, and to some extent the customary law. In the self-governing Dominions, as well as in the United Kingdom, however, the stress of work involved in the carrying out of modern legislation has induced their Parliaments to entrust vast powers to this or that Department of State, with no appeal to the judiciary from swift administrative action. The Roman safeguard, that the administrator must abide.by the Common Law, is absent. Even ,in the Principate, however, the administrative’ system undermined the law. In cur Empire it boldly sweeps it aside. France saw the danger and created a system of Administrative Law winch has* been a wonderful success in protecting the public from corrupt or faulty administrative action. But such a solution is not along British lines of juridical thought. What is possible among British peoples is the creation of Courts, in the strict sense of the word, which can review administrative action, while Parliament can lay down general principles of procedure which the various Departments of State’must follow 111 deciding cases withheld by Statute from the purview, of the ordinary Law Courts. ... These Departments should appoint officials known to the public by name and specially trained; and whenever difficulties of construction occur) the cases should be tried in public and reported in the ordinary way, with special facilities for appeal to tlie Judicial Committee of the Privy Council. The difficulties that the Roman Empire felt' in the third century wo feel in a viistly increased measure today; and it is essential that with us, as with the Roman Empire, the universal Rule of Law should be preserved, and that no individual should be subject to ally arbitrary power, prerogative, or jurisdiction within or without the State.