REVIEWS
| Date | 01 November 1958 |
| Published date | 01 November 1958 |
| DOI | http://doi.org/10.1111/j.1468-2230.1958.tb00504.x |
REVIEWS
LAW
AND
ORDERB.
An
Inquiry
into the Nature and Scope
Of
Delegated Legislation and Executive Powers
in
English Law.
By
SIR
CARLETON
KEMP
ALLEN,
M.c.,
Q.c.,
D.c.L.,
F.B.A.,
J.P.,
of
Lincoln’s
Inn;
sometime Professor
of
Jurisprudence
in
the
University of Oxford; Fellow
of
University College, Oxford.
Second Edition. [London: Stevens
&
Sons,
Ltd.
1956.
xxv
and
482
pp.
42s.
net.]
ADMINIBTRATIVE
JURIBDICTION.
By
SIR
CARLETON
KEMP
ALLEN.
[London: Stevens
&
Sons,
Ltd.
1956. 101
pp.
15s.
net.]
LAW
IN
THE
MAKING.
By
SIR
CARLETON
KEMP
ALLEN.
Sixth
Edition. [Oxford University Press.
1958.
xxxix
and
648
pp.
50s.
net.]
SIR
CARLETON
ALLEN
is
a
master of the English language, and makes Adminis-
trative Law more interesting than anyone
else.
No
mere academic lawyer,
he has judicial and administrative experience. His political leanings are
confessedly “to the Right,” though we should describe his geneml attitude
to the problems discussed in
Law
and
OfdefS
as
liberal
or
even libertarian.
Much has happened in English administrative law since the first edition
of
this well-known and stimulating book appeared in
1946.
The new edition has
been rewritten and greatly expanded to cover such topics
as
government by
emergency regulation after the end of the war, the Statutory Instruments
Act and
the
working of the Select Committee on Statutory Instruments, the
marked increase in Public Corporations, the reports of the Select Committees
on Parliamentary Procedure
(194.6)
and Delegated Legislation
(1953),
the
Crown Proceedings Act, the
Boundary
Commission.
cases and the
IVenturorth
Estates
case. Since its publication there have been the report of the Franks
Committee and the Administrative Tribunals and Enquiries
Bill,
and the
decision of the House of Lords in
Smith
v.
Eat
Elloe
12.
D.
C.
Some comment may be appropriate on the scope and arrangement of
Ima
and
Orders.
The principal topic, as stated in the preface, is delegated legisla-
tion, and this is the main subject of the
first
six chapters. The sub-title,
however, adds “and Executive Powers.” Chapters
7
and
8,
entitled “The
Courts and Delegated Legislation,” in fact cover remedies against public
authorities. Thus we find
a
discussion of m‘uldamus. prohibition and
certiorari. Chapter
9,
entitled “The Public and the Executive,” deds with
the civil service, and Chapter
10
with the Crown in litigation. The preface
adds that
a
corollary
to
the main theme of delegated legislation is the
question of its interpretation ,and application through judicid agencies.
Hence Chapter
8
discusses cases on
“
nnturnl justice,” though the description
of judicial agencies is relegated to a separate volume (noticed below). In
fact, in many passages
Sir
Carleton uses the expression delegation
”
rather
than
‘I
delegated legislntion.” Chapter
11,
besides discussing proposals for
the reform of administrntive tribunnls, examines -the nature of
“
adminis-
trative,” “judicial
’’
and
“
legislntive” functions. Mere the thmrcticnl
distinction between the kinds of governrncntnl powers is admitted, b1lt the
problem is found to be that of hybrid functions. Appendix
1,
on “Crown
privilege
”
in litigation, conveniently quotes Lord Kilniuir‘s stntcment in thc
685
686
THE
MODERN LAW REVIEW
VOL.
21
House of Lords on June
6,
1956.
Appendix
2
sets out
a
full report of the
appalling case of
Odlum
v.
Stratton,
which may lead lawyers who already
subscribe to the
Esktea
Gazette
to take in the
Il’iltshire Gazette
as well.
There is not
room
in a review to mention all the good things in this
book, which Sir Carleton appears to have enjoyed writing, while to mention
some
(e.g.,
legislation by reference,
pp.
200
et
seq.)
niigl!t be thought to
imply the exclusion of others. Among Sir Carleton’s useful proposals are:
a
Select
Committee to scrutinise Departniental
‘I
quasi-law
”
(p.
223);
a hear-
ing
in
Chambers where the Crown objects to the production of documents
(p.
384)
;
ns
regards administrative jurisdiction, legislation to prescribe what
is to be justiciable and by what means (p.
396);
and
a
supplement to the
Crown Proceedings Act to define
“
Crown status
”
(p.
406).
His penetrating and eloquent criticisms of the cases are written with the
zeal of nn advocate on behnlf of individual liberty rather than with
a
judicious
appreciation of the policy behind the statute; and yet he sometimes attacks
the Departments who drafted the legislation
or
the judges who interpret
it,
when the real culprit is the Parliament which passed or affirmed
or
failed
to
nnnul
it. And is he quite fair in his criticism of the
Stevmrage
and
Plymouth
cases,
as
compared with
Ernngton
v.
Minister
of
Health
(pp.
28&298)?
The reader needs to be made aware that different Acts with
different policies nre involved, that they are drafted in different terms
so
as
to confer different Ministerial functions and to prescribe different kinds of
procedure. Where
n
statutory function is classified as
I‘
administrative,”
the courts nowadays clearly recognise the responsibility of Ministers to
Parliament.
Is
there the same kind and degree of responsibility in the Prance
of the
drat adm’nirtratif?
Incidentally, section
10
(3)
of the Town and
Country, Planning Act,
1947,
expressly nullified the principle of
Errington’s
case
60
far
as
Ministerial approval of development plans is concerned. To
the sequel of the Crichel Down affair (pp.
848-851)
it may be added that
the Minister of Agriculture, although not personally implicated, resigned. As
regards the
Amphitrite
case (p.
368).
why are legal authors
so
sceptical of
the argument that the Crown’s statement was
a
mere expression
of
intention
and not
a
promise purporting to affect legal relations? The distinction is
nccepted
as
elementary in the private law
of
contract.
On
the other hand,
Appendix
I
on “Detention under Regulation
18B”
compels our sympathy
for Liversidge (alias Perlzweig), in spite of the support we have hitherto
given to the eight judges who decided in favour of the Home Secretary.
While preparing
n
new edition of
Luw
and
Orders,
Sir Carleton set
out
to survey the various kinds of administrative jurisdiction. The material
collected threatened to throw the book out of balance ,and was therefore
made into
a
separate work under the title
Administrative Jwbdictwn.
This
was published
ns
a
long article in the
first
number of
Public
Law
(1966,
pp.
13-109),
and then reissued as
a
slender book with the same format
ns
the periodical though with slightly different pagination. Personally we would
rather this material had been incorporated into
Law
and Orders,
at whatever
risk of unbalance, as we should then have had “Allen
on
Administrative
hw” under one cover. However, the decision having been made, we accept
it and are grateful for
Amministnative
Juri8diction
with its outline of over
one hundred types of administrative tribunal and Ministerial decision. Brave
industry was needed to survey this field before the Departments had pre-
sented their memoranda to the Franks Committee. Rent tribunals are not
criticised, but hard words are said about Agricultural Executive Committees
and we meet the unfortunate but courageous
Mr.
Odlum again
(pp.
18-21).
In his general observations,
Sir
Carleton discusses the number, complexity
md composition of tribunals, the problem of manning them, procedure,
evidence and appeals. His later views on reform will be found in the Minutes
of Evidence of the Franks Committee (Appendix
I,
pp.
8-4)
and in Appendix
I1
to the new edition of
Law
in
t‘he Making.
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