ADMINISTRATIVE LAW

Hokitika Guardian, 22 November 1929, Page 8

ADMINISTRATIVE LAW

AND CIVIL SERVICE DOMINATION.

PARALLELS WITH ROMAN

EMPIRE

There is a growing fear, among lawyers and laymen alike, of the increase oil power exercised by permanent officials in various Government Departments—power to arrive at decisions requiring a special course ol legal training and legal experience (writes a correspondent in the London

“Times”)- These powers are conferred directly or indirectly by statute and it might be said that there is an end of the matter. Rut the mattei does not quite end there, since the application of administrative law t > use a much abused term —has never been directly beiore the electorate and if, by some miracle, it became a firstrate issue it is very likely that the electorate, duly enlightened, would not toler'ate the present system’.

Moreover, there is another aspect of the whole question of administrative action. What is the significance of the present position in its bearing on the future of the British .Empire ? Much light can. be.thrown on the present drift by comparing the Roman Empire in the third century of our era with the British Empire in the twentieth In the third century the Roman formulary system of procedure, was gradually eaten into, and the line between judicial and administrative action was gradually blurred, until the system of “Cognito Extraodinaiia was adopted altogether. But the action of the Magistrate was not merely administrative. Professor Buckland reminds us that it was still judicial “The Magistrate must abide by the law. The hearing was still a judicium, though a judicium extraordinarium. The main rules of procedure remained, from time to time modified by legislation.” 1 suggest that a general principle was operating in Roman procedure, and that this principle is rapidly operating in England and in the British Empire generally to-day The transference of judicial power to the Executive from the judiciary was a phenomenon specially manifested, in the second half of the third century in the Roman Empire, and it is also a phenomenon specially manifested in tii” British Empire to-day. There are no doubt, some parallels in the methods of, the two Empires, but the fundamental differences between them are very obvious, and therefore it seems highly probable that some general principle of growth in the relation between procedure and Government is to he seen operating in both cases. No doubt, as Professor Buckland says, the desire to centralise authority is one cause, and simplification of method another; but there must be some deeper cause, as the process is one that ocours in an Empire which was practically an Absolute Principate and in an Empire that is practically a Democratic Monarchy. What is there in common in these two vast Empires ? First, in each case there was or is a Common Law, which was the main check on Absolution in the one case and is the main check on Democratic Licence in the other. Secondly, there is the devolution of sovereignty to make possible in each case the government of vast acres from a single centre. Thirdly, there was and is the common difficulty of government in a society which; though a unity, was or is growing more and more complex with local needs and huge mercantile interests.

In such circumstances it was and is impossible to preserve what may be called slow judicial method in its entirety. There must be a tendency to substitute swift administrative action for civil procedure, such administrative action . being controlled on general principles from the seat of Government and by the Executive. It is not altogether a question of the retention of central control. It is a question of getting through' the work. The Itoman statesmen managed to secure gradually, through the agency of the Imperial Provinces, a compromise by which the Magistrates still delarod not their own opinions but the Law. In the British Empire at the present moment in the Crown Colonies the Homan method is increasingly applied and the Magistrates and the trained administrators apply the written law. In the self-governing Dominions, as well as in the United Kingdom, however, the stress of work involved in the carrying out of modern legislation has induced their Parliaments to entrust vast powers to this or that Department of State, .with no appeal to the judiciary from swift administrative action. The Roman safeguard, that the administrator must abide by the Common Law, is absent. Even in the Principate, however, the administrative system undermined the law. In our Empire it boldly sweeps it aside. France saw the danger and created a system of Administrative Law which ] has been a wonderful success in pro- j tecting the public from corrupt or fanltv administrative action. But such | a solution is not along British lines I or judical thought. What is possible among British peoples is the creation of Courts, in the strict sense of the word, which can review administrative action, while Parliament can lay down general principles of procedure which the various Departments of State must follow in deciding cases withheld by statute from the purview of the ordinary Law Courts. These Departments should appoint officials known to the public by name

and specially trained; and whenever difficulties of construction occur the cases should be tried in public and reported in the ordinary way, with special facilities for appeal to the Judicial Committee of the Privy Council. The difficulties that the Roman Empire felt in the third century we feel in a vastly increased measure today ; and it is essential that with us, as with tiro Roman Empire the universal Rule of Law should be preserved, and that no individual should be subject to any arbitrary power, prerogative, or., jurisdiction within or without the State,