Administrative Discretion and Judicial Control
| DOI | http://doi.org/10.1111/j.1468-2230.1947.tb00052.x |
| Author | G. E. Treves |
| Published date | 01 July 1947 |
| Date | 01 July 1947 |
ADMINISTRATIVE DISCRETION AND
JUDICIAL CONTROL
I
A.
V.
DICEY,
considering the merits
of
the French
droit
administratif
which
‘
escape the attention, and do not receive
the due appreciation of English constitutionalists
’,
referred
to the decisions
of
the
Conseil d’Etat
‘in which individuals
have obtained compensation
for
government action, which
might possibly be considered of technical legality, but which
involves in reality the illegitimate use
of
power conferred upon
the government
or
some governmental body
for
one object,
but in truth used for some end different from that contemplated
by the law
’.’
The cases Dicey had in mind deal with the
remedy on account
of
dttournement de pouvoir
developed
by the
Conseil d’Etat
to enable
it
to annul acts
of
an adminis-
trative authority issued
for
motives
or
purposes other than
those
for
the fulfilment
of
which a discretionary power was
granted. Typical are the instances
of
orders made
for
a
political
or
fiscal purpose, while the power
of
the administra-
tion could only be used on police gro~nds.~ Dicey’s views
seem to be open to criticism under both French and English
law.
As
to French law, without going into details,
it
has to be
pointed out that Dicey attributes to the
Conseil d’Etat
powers
which
it
does not possess. The action
for
dttournement de
pouvoir
belongs to the
contentieux d’annulation,
as
opposed
to the
contentieux de pleine juridiction.
The
Conseil
may
either reject the appeal
or
pronounce the annulment
of
the
administrative act, if found illegal. But
it
cannot enter into
further questions, such as award
of
compensation.
THE
MOTIVES
OF ADMINISTRATIVE
ACTS
The Law of the Constitution
(9th ed.,
1939),
p.
398-401.
2
Port,
4dministrative Law
(1927),
p.
315,
translates it
as
‘misapplication
of
power
,
but this is much too general.
In
the English legal language ther,e
is
no
appropriate expression to denote this particular shade
of
‘
misapplication
.
3
See, in general, Laferrihre,
Trait6
de
la
juridiction administrative
(2nd
ed.,
1896),
Vol
11,
pp.
548-560;
Hauriou,
Pr6cis de droit administratif
(9th
ed.,
1919),
pp.
503514
;
Alibert,
Le contrdle juridictionnel de l’administration
(1926),
pp.
236-258
;
Appleton,
Trait& 616mentaire du contentieux administratif
(1927),
pp.
621-639.
Recent comprehensipe surveys
of
the French system
for
English readera
are given
by
David,
Droit Administratif
in France
,
in Wade, Appendix
to
Dicey,
op.
cit.
(9th ed.,
1939),
pp.
495-504;
hlibert, ‘The French
Conseil
d’Etat
’,
in
MoD.L.REv.,
Vol.
3 (1940),
pp.
257-271.
276
JULY
1947
ADMINISTRATIVE
DISCRETION
277
As
to English law, it
is
wrong to lay stress on the
dttoumte-
ment
de
pouvoir
as
a
characteristic feature of the
droit
administratif
without counterpart in this country.' LaferriCre,
too, in
a
classic work on French administrative justice, which
fist
appeared
at
the same time
as
Dicey's, declares that neither
English nor American Courts can exercise such an extensive
control over the administration
as
is done in France,
for
they
'
ne peuvent pas dCclarer non avenu un acte de l'adminis-
tration, que
s'ils
relCvent contre lui une infraction formelle
A
la
loi, tandis que le Conseil d'Etat peut
. .
.
atteindre des
infractions plus d6tournCes
'.5
Despite all the well-known
limitations which make English administrative law
so
different
from the French, the English Courts of law are,
as
far as
the remedy
for
dttournement
is concerned, vested with powers
similar to those held by the
Conseil d'Etat
or
the administra-
tive tribunals of other Continental countries.' The Courts
have developed
a
series of rules-often based on principles
having little in common with those used by French lawyers-
which in some instances even seem to allow
a
more far-reaching
control
of
the use of discretionary power.7 At a time when
the problem of the relations between the judiciary and the
executive is
so
much discussed,
it
might not, perhaps, be
without interest to consider the equivalent of
dktournement
de
pouvoir
in this country.
I1
JUDICIAL
CONTROL
OF
MOTIVES
An
inquiry into the motives of an administrative act must
not overstep what lies within the discretionary power of the
authorities and cannot be reviewed by the Courts. The
principle governing the matter is expressed in
R.
v.
Vestrg
of
4
This appears to be done, for instance, by Wade and Phillips,
Constitutional
Law
(2nd ed., 1935), p. 328, but not
in
the subsequent edition (3rd ed., 1946).
5
Op.
cit.,
ii, pp. 558-559.
6
See Keir and Lawson,
Ca
es
in Constitutional Law
(2nd ed., 1933),
pp. 13€?-139; Hart and Hart,
Law
of
Local Gonernment and Administrat$on
(1934),
p.
381;
Wade, Appendix,
cit.,
p.
523; Jennings!
The Law and the
Constitution
(3rd ed., 1943), pp. 209,
217;
Wade and Phillips,
op.
cit.
(3rd ed.,
1946),
p.
271.
The
statement by the authors of the Ministers' Powers Report (Cmd. 4060,
19323,
who
felt bound to confess that Continental critics are justified
in
their
contention that under the rule of law in England the remedy
of
the subject
against the ExeFutive Government
is
less complete than the remedy of subject
against subject (p. 112), ought to be understood with some qualification.
It
must
not
be overlooked that the English Courts have powers, such as that
of
issuing orders to administrative authorities, which are unknown
in
France
and elsewhere.
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