The Dominion SATURDAY, MAY 8, 1943. A DEFENDER OF THE PEOPLE’S RIGHTS

Dominion, Volume 36, Issue 190, 8 May 1943, Page 4

The Dominion SATURDAY, MAY 8, 1943. A DEFENDER OF THE PEOPLE’S RIGHTS

The late Lord Hewart, Lord Chief Justice of England from 1922 to* 1940, whose death was announced this week, is perhapfhbetter known outside the legal profession in which he attained high honours and distinction, through his celebrated protest, in his book The New Despotism, against the persistent encroachments by ministerial and departmental authority upon the sphere of the judiciary mid the rights and privileges of the citizen. This book, published in 1929, will well repay perusal, for it constitutes a warning to the public of the dangers to democratic institutions and to individual liberties of a/tendency which, marked enough in England to evoke such a protest there, is even more strongly in evidence in this country now. This tendency, which Lord .Hewart points out is, a depai ture from the Rule of Law which safeguards the rights of the citizen, is in the direction of establishing some such system as is known in certain European countries as Administrative Law. But, he adds, in the mannei of its development in British countries through regulations by Ordeis-in-Council, and powers of final decision reserved to Ministers without recourse of appeal to the courts of justice, there is no parallel in principle, for the Continental system “has its courts, itsjaw, its hearings and adjudications, its regular and accepted procedure.” To the impartial eye of the fearless citizen (he says on this point), it is obvious that the official just as surely seeks to escape the jurisdiction of the courts when he takes power to make regulations having the force of a statute, as when he in terms provides that ' his decisions shall not by any method be open to review. This puts the positiom plainly and bluntly, but it is simply stating in' clear language what the present system of bureaucratic law-making amounts to in effect. The citizen is shorn, deliberately shorn, of hi? inherited right to seek the protection of the couits of justice a light gained, says' Lord Hewart, at the cost of “much toil and not a little blood.” And he goes on: All great constitutional lawyers have recognized that it is the rule, or the supremacy of the law, administered by independent'judges, that is the basis of our constitutional liberties, and it is this characteristic of the British Constitution which, above all, makes that Constitution admired throughout the civilized world. Arbitrary power (he emphasizes), is certain in the long run to become despotism, and there is danger, if the so-called method of “administrative law,” which is essentially lawlessness, is greatly extended, of the loss of those hardly-won liberties which it has taken centuries to establish. It is a tribute to Lord Hewart’s courage and candour in exposing this unhealthy drift that the questions raised by him were referred to a Parliamentary Committee, under the chairmanship of Lord Donoughmore for examination and report. The Committee in its report (1932) agreed with Lord Hewart “that the principle of delegated legislation could be accepted as part of modern Government procedure only ij effectively safeguarded against abuse.” Furthermore, “the limits of the powers and discretion conferred should be expressly defined tn clear language.” . , r , On the subject of clauses in measures conferring powers ot final decision upon Ministers the Committee was uncompromising and emphatic : The use of such clauses (said the Committee), should be abandoned in all but most exceptional cases, and when such cases occur, there should be an initial period of three, or preferably six months, during which the regulation or order may be challenged in the courts. It will be observed here that the Committee accepted the view so strongly stressed by Lord Hewart throughout his book that in no circumstances should the citizen be deprived of his right of access to the courts of justice. Present tendencies are undermining that right. The judiciary is being thrust into the background to further the power and aggrandizement of Ministers and officials. That is the “new despotism” which, in this country, is battening on the indifference of citizens to its cumulative effects. «