13 APRIL 1944, Page 6

THE 10,000 COMMANDMENTS: I

By CARLETON KEMP ALLEN

MR. HERBERT MORRISON has recently given a picture of the kind of legislation of the future which he foresees and - applauds. It is to be an extension of the familiar war-time method by which Parliament merely draws "broad lines" and leaves all the " detail " to be supplied by the Executive by means of Statu- tory Rules and Orders. This is commonly known as "skeleton" legislation, and it raises the question whether the mass prcduction of dry bones is the proper function of the Mother of Parliaments.

• - I propose to glance briefly at the history of the matter, the present position and the problem of the future.

Of our constitutional law, perhaps more than of any other branch of our jurisprudence, it is true that its life has been "not logic, but experience." A rigid doctrine of the separation of powers could not be part of it, because centuries of evolution had to elapse before the powers of English government sorted themselves out. It is an anachronism to speak of delegated " legislation " at a period when the legislative was not clearly distinguished from the executive and the judicial functions. Delegation of authority, however, from the central to subordinate instruments of government is at least as old as the fourteenth century, and for a long period it usually took one of two forms—extraordinary or " emergency " powers (e.g., to meet outbreaks of diseUse or threats of war), or powers of local government (e.g., in the Justices of the Peace, Poor Law Guardians, Commissioners of Sewers, and the like). The expedient declined in the eighteenth century, when Parliament, smarting from the encounters of the seventeenth century and still suspicious of the Executive, attempted to cover every detail of government by 'its own enactments.

Delegation revived and expanded at an unprecedented rate In the nineteenth century, under various influences—the Benthamite philosophy, the continuous experiments in social reform, and the personal initiative of energetic Civil Servants like Edwin Chadwick, Southwood Smith, John Simon and Arthur Hassall. Powers to " implement " statutes, both by legislative and judicial functions, were freely given, and the process was com- mended by such experts as Lord Thring (Chief Parliamentary Counsel), Sir Courtenay Ilbert (Clerk to the House of Commons), and even the conservative Dicey, who was extraordinarily incon- sistent and confused in his ideas of administrative law. Neverthe- less, in islot, when Sir Courtenay Ilbert published his Legislative Methods and Forms, he was emphatic that delegated powers on- the scale employed in Continental countries would not be tolerated in England. They continued to grow apace, however, and soon reached an average annual total of between one and two thousand. In 1893 a hastily-conceived statute, the Rules Publication Act, made

certain incomplete and unsystematic provisions for the publicity of Statutory Rules and Orders. By 1914 secondary legislation vastly exceeded in bulk the primary legislation of Parliament.

The enormous extensions of D.O.R.A. are fresh in memory. During the war there was little poyver or disposition to question them, but with the return of peace the Courts at once showed a critical temper, and in 5920 the doctrine of ultra vires was applied with salutary effect in three leading cases. In succeeding years there were many severe comments from the Bench on the exclusion of their jurisdiction, while various other critics called attenticn to the arbitrary nature of many executive powers and to the harsh (not to say unconscionable) methods of the Crown in pushing its claims to the farthest degree of summum ius. Public opinion was gathering force when, in 1929, Lord Hewart, who had already been very outspoken on the Bench, published his New Despotism. The book was useful in arresting attention, but it spoilt a sound case by exaggeration and by finding the root of evil in an imaginary conspiracy for illicit power on the part of the Civil Service. In the same year the Lord Chancellor, Lord Sankey, appointed a strong and representative committee to inquire into the whole question of Ministers' Powers. This body, known as the Donoushmore Committee from its first chairman, took a great deal of illuminating expert evidence and reported in 1931.

It found "no cause for alarm" and nothing either dangerous or unprecedented in delegated powers in themselves. It re.'ected the notion of a separate body of Administrative Law as being neither necessary nor practicable within our system. It also rejected any dogmatic interpretation (which, however, no witness had advocated) of the sepiration of powers in our constitution. It regarded dele- gation as "inevitable," but, on the other hand, emphasised the vital importance of the Rule of Law. For the rest, it admitted the force of most of the criticisms which had been made and the necessity for the safeguards which -had been demanded. In very brief, .summary, it recommended:

(I) Clear statutory definition of delegated powers; (2) Severe limitation of the "Henry VIII clause," which enabled a Minister to "remove difficulties" and amend statutes in order to bring an Act into operation ; .(3) Preservation of the supervisory jurisdiction of the Courts in all but the most exceptional circumstances ; (4) Overhaul of the Rules Publication Act ; (5) Uniformity of period and procedure in laying proposed Rules and Orders before Parliament (the existing system was, and con- tinues to be, indefensibly erratic) ; (6) Uniformity of nomenclature of Rules, Orders and Regulations (again quite arbitrary at present) ; (7) A Standing Committee of each House to scrutinise Bills which propose to delegate powers, as well as to examine and report on Statutory Rules and Orders made thereunder ; (8) Departmental consultation of all interests likely to be affected by Rules and Orders ; (9) Improved drafting ; (to) Judicial functions normally to, be exercised by the Courts. but when clearly deputed by Parliament to the Executive, to be performed by a properly constituted Ministerial tribunal rather than by the Minister himself (i.e., by some anonymous official in the Department);

(n) Parties affected always to have the right of stating thc:- cases and reasons to be given, in a form available to all parties, f Ministerial decisions ;

(12) The reports of Inspectors, after holding "public local in- quiries" in housing matters and municipal schemes to be published and available to interested parties (the House of Lords, in a leading case, had held this not to be obligatory); (13) Appeal to the Courts from Ministerial tribunals on am questions of law, but not on questions of pure fact; (4) Simplification of legal procedure, especially in regard to the prerogative writs of mandamus, prohibition and certiorari, by which: the King's Bench, from time immemorial, has controlled the powers of subordinate authorities.

A few results are traceable to the labours of this Committee. The "Henry VIII clause" fell into disuse, and the more extreme forms of taking exclusive executive powers somewhat abated, though the powers themselves did not diminish. Several Acts passed after 1931 made a genuine attempt to adopt the recommendations of the Com- mittee. In 1938 the prerogative writs were given the form of Ccurt Orders, with a much simplified procedure. Otherwise the recom- mendations of the Committee were ignored, and more than half the statutes passed every year delegated powers on a very wide scale. Then came another war. The present position, and its implica- tions, will be examined in a later article.

The whole question is inseparable from what Lord Shaw once called the " enormous.leverage" of the Crown in all litigation with the private citizen. Our system of Crown procedure is unique among civilised nations for its survivals and anomalies and the handicaps which it imposes on the subject. A strong body of legal opinion condemns it. In 1927 a Crown Proceedings Bill, which would have made vast improvements, was drafted by a committee under the chairmanship of Lord Hewart. It is a dead letter, and all attempts to carry this or any other extensive reform into an anti- quated code of procedure, quite unsuitable for a modern society, have been resisted and defeated by the Law Officers of successive governments.