REVIEWS

Publication Date01 January 1949
Date01 January 1949
DOIhttp://doi.org/10.1111/j.1468-2230.1949.tb00115.x
11,
E
v
I E
\v
s
JUSTICE
AND
ADMINISTRATIVE
LAW.
By
W.
A. ROBSON.
Second
Edition. [London: Stevens
&
Sons, Ltd.
1947.
554
pp.
(index).
255.1
THE
second edition of
Dr.
Robson’s pioneer work on Administrative Justice
in
England is overdue and very welcome. When first published in
1928,
the
book presented three revolutionary theses
:
firstly, that England hod
a
large
number of administrative courts; secondly, that these tribunals were developing
a
body of administrative law; thirdly, that this was a good thing provided
that
a
number of reforms proposed by
Dr.
Robson were carried into effect.
It cannot be said that
Dr.
Robson’s propositions are now accepted without
question, but they have ceased to appear revolutionary. In this second edition
Dr.
Robson has developed in the same luminous and persuasive style the same
general arguments, with
a
great wealth of additional illustrations, and a history
of the dispute, on the whole subject, which has continued from the
Lord
Chancellor’s Committee on Ministers’ Powers in
1929
until the publication of
Dr.
Allen’s
Law
and
Orders
in
1946,
and is likely to continue until Hayek is
proved either right
or
wrong.
It
seems to be the fate of contemporary works on this subject to possess
a
polemic character and to be deficient
in
the kind of practical detail which
is
particularly interesting to lawyers and students. The polemic is less obvious
in
Dr.
Robson’s book than it is in the works of Lord Hewart and
Dr.
Allen,
but
it is there.
Dr.
Robson starts, generally speaking, with assumptions
opposite from those of Hewart and Allen. His assumptions are that the
collectivist state is not only inevitable but desirable, and that systems of
administrative justice, improved as suggested by him, are not only inevitable
in such
a
state but are desirable for their own sake. Whether one agrees with
these assumptions
or
not, one cannot deny that by acting on them
Dr.
Robson
has been able to produce a much more careful and scholarly survey of the fleld
than the writers who have started from the opposite assumptions. It
is
to be
regretted that
Dr.
Robson could not And space for
a
more detailed investigation
of the actual procedure of administrative tribunals and of the rules governing
judicial review of their activities; this
is a
field of law developing
so
rapidly
that we urgently need
a
book which supplies both
a
technical analysis
of
’misting law and
a
more general study of the social process influencing its
development. Perhaps
a
Mami
of
Adminirtratiue
Jwtice
from the same pen
is indicated.
There are many points of detail in this book which one could discuss at
length without criticising its main theses. For example, judges can sometimes,
like administrators, initiate proceedings (p.
70).’
Advisory opinion procedure
2
and the Australian extension of the remedy in
Dyson’r
Case3
(both develop-
ments to meet the requirements of a Federal Constitutional system) enable
courts to determine classes
of
cases in advance, and furthermore it may be
doubted whether administrators can dispose of
a thousand cases with but a
single wave of the pen’ unless they are legislating (pp.
78-9).
It
may be
doubted whether
Dr.
Robson hns differentiated with sufficient care (pp.
226-7)
1
R.
V.
Fed.
Court
of
Bankruptq
(1938)
59
C.L.R.
655,
noted
in
Sewer.
2
Att.-Gen.
of
Ontario
v.
Att.-Gen.
of
Canada
[I9121
A.C.
571.
3
Att.-Den.
of
Victoria
V.
Commonwealth
(1946)
71
C.L.R.
237;
Samer,
op.
cit.
115
Auatralian
Constitutional
Casea,
at
p.
463.
399.
116
THE MODERN LAW REVIEW
VOL.
12
between
doniestic
tribunals which have become sufficiently public in character
to attract the prerogative writs and those which can be controlled only by
injunction. In the latter case
it
is by no means true that the courts can always
interfere where there
is
denial of
natural justice
’,
since the only formal ground
for
interference is failure to observe the rules of the association in question
4;
the rules of natural justice may be embodied in those rules
or
be introduced
into them by fictions
of
interpretation. It may also be doubted whether judicial
review of the substantive merits of the decision of domestic tribunals would be
desirable in the case
of
all such tribunals. Where industrial courts of special
experience and outlook exist, as in Australia, there is no difficulty in providing
a
valuable supervisory jurisdiction over trade union committees, but union
members and officers might rightly regard with grave suspicion
a
proposnl
that their domestic disputes be subject to the heavy-handed and sometimes
unsympathetic interference of the ordinary courts. It has peihaps not occurred
to
Dr.
Robson that the reluctance of administrative tribunals to give reason
for
their decisions is to some extent the product of the kind
of
judicial control
which at present exists; an administrative tribunal which accepts the pressing
invitation of Lord Halsbury to give its reasons may find that the more reason-
able those reasons are administratively, the more likely they are to be used
as the basis for a quashing orders (see pp.
273-6).
Dr.
Robson might have
analysed further (pp.
276-8)
the difficult distinction between ‘automatic
following of a
settled rule
’,
prohibited to administrative tribunals, and the
flexible
application of a
general policy
’,
which
is
permitted. The distinction
is not nearly
so
clear as
Dr.
Robson would suggest, and it is obviously necessary
to work out the distinction before his proposal for separate tribunals working
subject to
a
published ministerial declaration of policy could be carried into
effect. When does
a
settled policy
become a piece of legislation
?
Reverting
to
publication of reasons for administrative decisions (p.
SOa),
it
may be doubted
whether the Common Law technique of precedent, even on a persuasive basis,
is necessarily the best way of developing legal principles and creating predict-
ability
of
decision.’ Something like an edict of an administrative praetor
might be preferable.
However, one major analytical problem on which it is possible to differ from
Dr.
Robson is whether
judicial
and
executive
justice can be distinguished
from each other along the lines indicated by the Committee on Ministers’
Powers-that is, by reference to the presence
or
absence of ‘policy’ considera-
tions at the stage of decision.
Dr.
Robson will have none
of
this kind of
distinction between ‘judicial
and ‘quasi-judicial
function, and in his anxiety
to discredit it he even descends (p.
403)
to that substitution of incantation for
thought of which he elsewhere (p.
488)
rightly accuses
Dr.
C.
K.
Allen. There
is
more in the distinction than
Dr.
Robson concedes. It should be said first
that disputes may be clarrsifiedin different ways for different purposes, and
the legal habit of using the word ‘judicial
in all such contexts is unfortunate.
If
Dr.
Robson had examined more carefully the context of the decision of the
Privy Council in the
#hell
Case
‘-8
decision which puzzles him-he would have
seen the possible validity of the distinction between ‘judicial power’ in
n
narrow sense (as contemplnted by Chap.
3
of the Australian Federal Constitu-
tion) and ‘judicial power’ in
a
wider sense
(e.g.,
as contemplated by the rules
4
Maclean
v.
Workers’
(,*tiion
[1!).2!3]
1
Cli.
60‘2.
5
Estate
d
Trtrsfr
Ayency
v.
Singapore
Improvement
Trust
[1097]
1
A.C.
89A:
R.
v.
Milk
Board
r19441
V.TJ.R.
187.
This conaideration,
of
coursc, supportn
__
Dr.
Robson’s
case
lor
a -qpecisl system
of
administrative courts,
6
See
a
discussion
by
Paton and Sawer
in
63
L.Q.R.
461.
7
[1931]
A.C.
275.
If
this decision
~88
unsatisfactory,
it
wan
only because the
Board
repeated the very
aniliguous
definition
of
judicial power given
by
Griffith
C.J.,
which
Dr.
Rokon
quotes
with apparent ap roval (pp.
74,
and
because the Board
did
not
have the
courage
to
overruL the unsatisfactory
decision
of
the High Court in the
B.I.O.
Caae
(1925)
35
C.L.R.
422.

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