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BUREAUCRACY

"SYSTEMATIC AND RELENTLESS ENCROACHMENTS."

WARNING BY LORD CHIEF

JUSTICE.

In a recent address to the American d Bar Association, the largest and per,t haps also the most influential body of i- its kind in the whole world, the Lord r Chief Justice of England said that it s was "interesting to discover that good .£ citizens in the United States groan no less than good citizens in England 0 under the systematic and relentless encroachments of bureaucracy." J We reprint from "The Times" those s portions of his speech, as supplied by Lord Hewart himself, which bore di- • rectly on that remark —his general ) subject was "Law and Democracy"— e and also extracts from the editorial b comments of "The Times" and of the "Star." > s The Rule of Law. * "It is a commonplace to say that the i Rule of Law involves at least two J things. One is the absence of arbitrary i power on the part of the Government. t The other is equality before the law. i In other words, every man, whoever 1 he may be and whether he be an offi- : cial or not, is subject to the ordinary > law of the land, administered by the > ordinary tribunals. That is our sys- > tern—the system which we owe to the i Common Law. The other and opposite system, which is familiar on the Continent of Europe, implies and requires " what is called "droit administratis" Pleasantly enough, we have not even a name for it. But it is, as you know, that body of rules and regulations [■ which has to do with the position and the liabilities of State officials, the rights and the liabilities of private \ individuals in their dealings with officials as representing the State; and), finally, the special procedure by which , those rights and liabilities are enforced. Under that system, of course, the rights of the State are determined by an extraordinary code; the consequential case-Jaw is made by Government officials; the Law Courts, properly so called, have no jurisdiction in matters concerning the State; and, on the contrary, questions concerning the State are decided by administrative bodies which have an official character and are composed exclusively of official persons. That is the exact opposite, the negation, the antithesis, of the system which we proudly call our own. But is it certain that this system of ours—the Rule of Law, equality before the law, and the exclusion of arbitrary power—is quite free from risks of invasion and diminution? _ No doubt, there is not, and there is not likely to be, any open return to certain notions which were current in the 16th and the 17th centuries, from the time of the accession of the Tudors to the time of the expulsion of the Stuarts. Has there not been during recent years, and is there not now, a marked and increasing development of-bureau-cratic pretensions, the essence and the aim of which are to withdraw more and more matters and topics from the jurisdiction of the Courts and to set them apart for purely official determination ? "It is not possible on the present occasion to enter into detail. But in England, at any rate, nobody who has eyes to see can fail to discern this mischievous purpose, which exhibits itself in at least three ways. One is to provide in express terms by statute that the decision of certain questions belongs to this or that Government Department, that the Departmental decision is to be final and binding upon all parties, and that that decision is i not to be questioned in a Court of Law by proceedings in mandamus, certiorari, case stated, or otherwise. ' "Another way is to confer upon a J Government Department power to ] make rules and regulations which, ' when they are made, are to have the \ force of a statute. And yet a third ] way is by statute to empower a Gov- ! eminent Department to make or- ] ders for the removal of difficulties, as it is pleasantly called, i and actually for that purpose I even to modify the provisions of i the statute itself. It may he that be- i fore long the legality of acts done, : or purported to be done, by virtue of i powers of some of these kinds, will 1 have to be considered by the Courts, i Meantime it seems to be important to c watch very carefully the influences 1 which are at work. c The Price of Liberty. j "After all, the price of liberty is un- r ceasing vigilance, and it would', indeed t be a strange and distasteful paradox a ir, while we look askance at 'droit ad- ] ministratif under that name, we were < to permit the restless pretensions of bureaucracy to establish in our midst what would be in effect a more arbi- i tary 'droit administratis* unfettered, even by the tribunals, such as they are, which form part of the Continental system. "The name 'self-goverinnieat' would be 'a mockery, and an irritating mockery, if it should come to mean government by a vast army of anonymous officials, hidden from view but placed above the law, and administering a topsy-turvy system whereby the servants of the public had made themselves its master." c Comment. \ "The Times" devotes a leader to J Lord Hewart's article, in the course of ' l which it says this: c "The Lord Chief Justice declares j broadly that equality before the law is 1 the essence of the system we owe to ii the Common Law. Under that law s; officials of whatever description or rank r are subject to the ordinary law admin- i istered by the ordinary Courts. They ri have no privileges and no exemptions, s save in the rare cases where the public v interest invests them with certain a quite exceptional rights. In all others c< they stand upon the same footing as c the meanest of their fellow-subjects. t 'They are the servants of the a Crown, but they are answerable in the King's Courts for wrongs they may do = the private citizen. The procedure where the Crown is plaintiff, or defendant is \ in some cases archaic, and occasionally it inflicts hardship on the subject or « loss on the taxpayer. But the general principle is that the rights of the liti- V gants shall be as nearly as possible the + same." "

At the conclusion of its leader "The Times" sums up:— "Lord Hewart's fears are probably exaggerated, but nobody who has watched the steady increase of the bureaucratic tendency in many different branches of administration can pronounce them to be unfounded. The danger is insidious, for, whereas the tendency of administrative bodies to acquire wider powers and more stringent means of enforcing them is constant, it rarely excites attention except when some unusually gross abuse of official position is brought before the Courts. "Instances of such gross may be rare, but the Law Reports show that they are more frequent than is commonly believed. Judges have had occasion to complain that public Departments have taken action 'without any nice consideration whether it is legal or not,' that they have 'exercised their power for collateral objects,' and that they have made claims which were 'grotesque' or 'tyrannical.'

"More significant still, Judges have declared that they 'take up the position of an autocrat.' free to act as they please, and 'claim the right to act without regard to legal principles and without appeal to any Court.' The Lord Chief Justice says that this warning

against the subtle encroachments of the bureaucratic temper 'seemed to touch a responsive chord in the United States.' It is to Ij© hoped that it may strike the same chord sharply and loudly among the body of his countrymen to whom he submits it to-day." "During the war," says the "Star," there is no doubt many things were done by the Government which were illegal, some of them flagrantly so. The plea of national necessity was used to justify the grossest infringements of the law, but the war is over now, and we ought to get out of the habit of allowing what Lord Hewart calls 'a vast army of anonymous officials' to be a law unto themselves.

"Apart from its imperilling the interests of justice, which is mainly though not entirely Lord Hewart's point, we must save. We shall never cut down expenditure while we allow this horde to increase, and until we do cut down expenditure we shall not be able to cut down taxes.

"Eear-Admiral Magrudcr, wh'o has just startled Washington with his critic isms of the Navy Board) says: 'The inertia and conservatism of a bureaucracy are well known. They are exceedingly difficult to overcome. In a bureaucratic form of administration, to expand is always easy; to retrench almost impossible. ' Our main difficulty is that reform in this matter is left to the Ministry, and they, whatever their intentions, are in the hands of the bureaucracy."

Permanent link to this item
Hononga pūmau ki tēnei tūemi

https://paperspast.natlib.govt.nz/newspapers/CHP19271114.2.54

Bibliographic details
Ngā taipitopito pukapuka

Press, Volume LXIII, Issue 19157, 14 November 1927, Page 8

Word count
Tapeke kupu
1,491

BUREAUCRACY Press, Volume LXIII, Issue 19157, 14 November 1927, Page 8

BUREAUCRACY Press, Volume LXIII, Issue 19157, 14 November 1927, Page 8

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