LAW‐MAKING IN WHITEHALL
| DOI | http://doi.org/10.1111/j.1468-2230.1946.tb00995.x |
| Published date | 01 April 1946 |
| Author | |
| Date | 01 April 1946 |
26
LAW-MAKING IN WHITEHALL
No
subject has so much engaged the attention of English
lawyers, both the jurists and the practical variety, during
the past generation
as
that of the relationship of the newly
fashioned executive towards the Legislature on the one hand
and the Courts on the other. Judges have thundered from the
bench against the
‘
advancing tide
of
bureaucracy
’,
and one
of
them, no less than
a
Lord Chief Justice, has descended into the
arena where his efforts redounded
so
little to his credit that
one was tempted to renew allegiance to the old rule that
judges should not write books about law. Several
of
the most-
discussed volumes of the inter-war years dealt with this topic,
which has become even more burning during the years
of
the
war.
The complexion of English Constitutional Law has been
very much coloured by the events of the seventeenth century
when the legislature triumphed over the executive which then
had the judiciary very much
in
its pocket. This triumph was
not,
of
course, really
a
triumph of the legislature but of those
social forces, surgent in the mercantile community and its
allies, which were then expressing themselves through the legis-
lature. During the following century this class, in co-operation
with the great Whig landowners, was able to achieve
a
remark-
able series
of
successes against foreign powers ostensibly much
better equipped in the sphere
of
government. Remarkable
because the classes triumphant in this political and social
revolution did not trouble to build up any effective organ
of
government
;
contenting themselves with
a
quasi-independent
judiciary largely drawn from their
own
ranks, and with
a
rule
of thumb governmental machine which nevertheless produced
a
number
of
administrators of
first-class
calibre.’
It
was possible for
a
land-owning and mercantile community
desiring
as
little government
as
possible in the countries where
they held sway, and even less on the high seas over which they
drew their business, to rub along in this way, though the
penalty was paid in such unsuccessful wars
as
that of American
Independence. With the coming
of
the Industrial Revolution,
however, things changed, and though the theory of
laissez-faire
1
See
The New Despotism,
by
Lord
Hewart,
1929.
a
See
Tk
Structure
of
Politics
at
the Accession
of
George
III,
by
L.
B. Nemier,
APRIL,
1946
LAW-MAKING
IN
WHITEHALL
27
which was the formulation by
a
fine thinker of the unconscious
philosophy of the mercantile classes was pushed almost to its
theoretical limits during the industrial period, the rapidly
altering economic and social conditions, and the very needs of
the new industrial classes, fast becoming dominant, called
almost at once for
a
much more highly elaborated form of
government. The result was the creation
of
a
large number of
new departments
of
State, and, what was of even greater
importance, the growth of an entirely new Civil Service.
All this was largely empirical, but while the new governing
class in Whitehall was finding its feet, the new social philosophy
of industrial England, of which Fabianism may perhaps be
taken
as
a
typical leftist example, was beginning to oust
Zaissez-
faire,
and
it
eventually lingered on only in the dim recesses
of
the universities. By the turn of the century the Civil Service
had awakened to the needs of the new situation, and par-
ticularly for
a
much more powerful and flexible machinery
of
government; and the public had begun to feel the influence
of
the new philosophy. The result was the great Liberal adminis-
tration
of
1906-14,
which was indeed but
a
prelude to an era
of
strong government.
Even in the high summer period
of
laissez-faire
a sturdy
experimental start with
a
positive social policy had been
made,3 and something
of
the necessary executive power had
been placed in the hands
of
the Civil Service. As the technique
became better understood the stream of legislation increased in
volume, and the powers correlative to it were bestowed upon
Whitehall. The requirements of modern war brought out the
essential structure of the modern State, which is nothing if not
dynamic. From that time there has been no question
as
to
the dominance of the executive
in
the set-up of present-day
England.
This, of course, entailed
a
diminution in the power and
importance
of
the legislature. Under the earlier system it had
been able to give directions to the executive in some detail, but
the new executive found that it could not effectively accomplish
its task under these conditions, just
as
had the new monarchy
of the Tudors. In order to carry out the new social policy,
which it must always be remembered was not the invention
of
the executive but the demand of the people, it required
an
elastic authority which would enable it to mould its perform-
ances to the working requirements of the policy. The simplest
3
See
H.
L.
Besle’s
Hobhouse
Lecture,
1945.
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