MARCHING ON

Evening Post, Volume CXX, Issue 86, 8 October 1935, Page 16

MARCHING ON

BRITISH BUEEAUCIiATS

REPORT WHICH FAILED

Of making regulations there is no end. The annual output of statutory rules and orders bulks.more than twice as large as the Statute Book itself and (the mere index to all such orders as are now in force occupies over a thousand pages, writes Dingle Foot, M.P., in "The Spectator." The rule of law has been limited by a series of statutory exceptions deliberately designed to oust the jiirisdiction of the Courts.

The Lord Chief Justice, in his fullblooded attack on bureaucratic encroachments, drew attention to three growing practices. The first was the insertion in Acts of Parliament of the so-called "Henry VIII clause," which I confers power on the appropriate Minlister to modify the provisions of the Act itself. The second was the use

of clauses designed to prevent the Courts from inquiring into the legality of a regulation or order. Such clauses usually take the form of a provision that the mere making or confirmation of an order "shall be conclusive evidence that the requirements oE this Act have been complied with and that the order has been duly made and is within the powers of this Act." [Thirdly, Lord Hewart characterised as "administrative lawlessness" the habit of vesting in public officials the power of deciding questions of a judicial nature.

"The New Despotism" was publish;d in 1929. The Committee on Minis,ers' Powers was set up later in the ;ame year, charged with the task of :onsidering the powers exercisable by Ministers of the Crown by way of (a) Jelegated legislation, and (b) judicial iv quasi-judicial decisions, and to resort on the safeguards desirable or necessary to secure the constitutional principles of the sovereignty of Parliament and the supremacy of the Law. Ihe Committee presented their unanimous report in March, 1932. \ IN AGREEMENT. Their phrasing was more cautious but in substance they endorsed the argument of the Lord Chief Justice. ■, Their recommendations were clear and emphatic. The "Henry VIII clause" should be abandoned in all but the most exceptional cases and then sub- j ject to a time limit. The "conclusive evidence" clause was objectionable and they doubted whether it was ever justified. In cases where it was deemed essential a period of at least three months and preferably six months should be allowed during which the order should be open to challenge in the Courts. A Standing Committee should be set up in each House of Parliament to watch over the exercise o£ p delegated legislative power and to consider and report on every BUI proposing to confer law-making power on a Minister. Judicial, as distinct from quasi-judicial or administrative, decisions should be confined to the ordinary law courts or to an independent tribunal. AN ILLUSION. Anyone who imagined Uiai these findings would materially affect the practice of the departments,, or the :orm in which their Bills were drafted, v/as cherishing the fondest of illusions. The major recommendations bave been consistently ignored. When Mr. Elliot introduced his Agricultural Marketing Eill in 1933 it was found to contain a "conclusive evidence" clause iv the precise form condemned by the Committee. It was only the vigorous protests of Sir Herbert Samuel and Lord Reading that led to-an amendment being accepted which granted a period of challenge of twenty-eight days. This was precisely a third of the minimum period required by the report. (It is interesting to note that even this grudging concession aroused the wrath of Sir Stafford Cripps.) No attempt has been made to set up the proposed Standing Committee to scrutinise delegated legislation. Every demand for the publication of inspectors reports has been met with a blank refusal. Finally, although three and a half years have elapsed since the appearance of the report, the Government has declined to allow the House of Commons a single opportunity to debate the subject as a whole. No one, of course, impugns the integrity or general excellence of our I civil service. Nevertheless, there is an old-fashioned distinction between a servant and a master. And, as Lord Acton pointed out, "All power tends to corrupt and absolute power corrupts absolutely." -