THE SOVEREIGNTY OF PARLIAMENT

Dominion, Volume 23, Issue 80, 28 December 1929, Page 5

THE SOVEREIGNTY OF PARLIAMENT

-—. —* AND THE THREAT OF THE » BUREAUCRACY “NEW DESPOTISM” ASSAILED The British Government recently appointed a Committee of Inquiry with an instruction “to report what safeguards are desirable or necessary to secure the constitutional principles of the sovereignty of Parliament and the supremacy of law.” The announcement anticipated by a day only the publication of a book, by Lord Hewart, Lord Chief Justice, ‘‘The New Despotism,” which has been widely discussed. “It is significant,” says the Morning Post,” “that before even the first blast of Lord Ilewart’s bugle has resounded in Whitehall the Government have capitulated—or appeared to capitulate. “They have not stopped to argue the point or answer the very formidable indictment brought against our Executive and Parliamentary system, but have appointed a committee, on which permanent officials and eminent lawyers are to sit side by side to consider the whole subject. “The lawyers, we hope, will be on the side of the angels on this question; but whether they will carry the officials and politicians with them remains to be seen.” A Harcourt Story. “In the course of his formidable arraignment of “The New Despotism.” the Lord Chief Justice recalls a story which indicates the theme of his book,” writes Mr. A. G. Gardiner in the “Star.” „ “A certain Chancellor of the Exchequer (it is Sir William Harcourt, I think, of whom the story is told), after a rather unsatisfactory day m Parliament, was talking to a Treasury official who was bewailing the fact that the work of the Departmental experts should be at the mercy of the ignorant amateurs in Parliament. “ ‘Seriously,’ he asked, ‘could not this country be governed by the Civil Service?’ ‘Undoubtedly it could, replied the Chancellor. ‘Undoubtedly it could. And I am quite sure that you and your colleagues would govern the country remarkably well. But, let me tell you this,' my young friend: at the end of six months there would not be enough lamp-posts in Whitehall to go. round. “It is Lord Hewart’s thesis that w-e are drifting to the tragedy that Harcourt foreshadowed as the result ot the rule or bureaucracy. Nor can it be denied that the cumulative case he presents ot the growth of the power and pretensions ot the departmental expert is. calculated to communicate to the public the alarm whicli he so acutely feels. Mill s famous phrase about ‘the price of liberty was never more apposite than it is today, when tyranny in its various guises is challenging the ideas of freedom which, until lately, we had assumed to be finally established. . “Fascism iii Italy and Sovietism in Russia have discarded Parliamentarism with open scorn, and have trampled on the democratic idea of liberty and selfgovernment as sentimental nonsense. Throughout Europe popular rights are on the defensive, and even here, in the birthplace of that Liberal philosophy with which we believed we had indoctrinated the world, freedom is being subtly and profoundly undermined. Pillars of Freedom, "The pillars of that freedom are two: (1) The legislative supremacy of Parliament; (2) the rule of law vested in an independent judiciary. It is the burden of Lord Hewart’s case that both these defences are crumbling before the ceaseless sapping and mining of the bureaucracy. “He has no animus against the Civil Ha agrees thajt iti» t£» boot

Civil Service in the world.. But he holds that it is arrogating to itself powers which belong to Parliament and the judiciary, and that just as in other days the power of the Crown was the foe of liberty so to;day it is the power of the executive which is the enemy.’ Lord Hewart referred in a speech at Lincoln to his new book and, reports the “Yorkshire Post,” said:— “What I have ventured to suggest to the British public is that there is not the slightest good reason why these Orders and Regulations should be made Behind the back, without the control, and without the assent of Parliament. There is no reason why these Orders and Regulations should be given the force of Statute so that no Court can inquire whether they are or are not ultra vires the -A-Ct. “There is no. reason why the Statute should provide that the Minister’s decision should be final and not open to review; and, above all, there is not the slightest reason why, when a Bill in Parliament, afterwards becoming an Act, has provided with punctilious care in section after section that the rights of individuals who may be affected shall be to some extent safe, the Act in some subsection of an obscure later clause should go on to provide that when the Minister has made his decision the fact that he has made it shall be conclusive evidence that all the requirements of the Statute have been complied with. “That, I venture to suggest, is a provision which renders all the protective provisions in the Act a mere mockery.

Judges as Departmental Solicitors.

“We know very well that in the bad old days there were kings in this country tvho, when a question was mooted, attempted, and not always in vain, to secure the opinions of the judges beforehand. Sections have been passed in this country which enabled a Government department, when a question seemed likely to arise, to state a case for the opinion of the judges. What is the effect of a section like (hat? It is a section that would reduce His Majesty’s Judges to the position of departmental solicitors, and departmental solicitors giving their decision on the suggestion of one party and upon material stated by him in the absence of the other party. Is it fair play? “That is the kind of thing against which this littje book is directed.” Here are one or two telling extracts from Lord Hewart’s book : — “It is not, but it ought to be, common knowledge that there is in this country a considerable number of statutes, most of them passed during the _ last twenty years, which Ijave vested in public officials, to the exclusion of the jurisdiction of the courts of law, the power of deciding questions of a judicial nature.” “The public official may, and often does, decide without any evidence at all, and he may act on ‘ex parte’ statements Is it too much to say that such proceedings are a mere travesty of justice?” “There is now, and for some years past has been, a persistent influence at work which, whatever, the motives or the intentions that support it, may be thought to be, and undoubtedly has the effect of placing a large and increasing field of departmental authority and activity beyond the reach of the ordinary law.” “The whole scheme of self-government is being undermined, and that, too, in a way which no self-respecting people, if they were aware of the facts, would tolerate.”