THE DONOUGHMORE REPORT IN RETROSPECT
| Author | D. G. T. WILLIAMS |
| DOI | http://doi.org/10.1111/j.1467-9299.1982.tb00480.x |
| Published date | 01 September 1982 |
| Date | 01 September 1982 |
THE DONOUGHMORE REPORT IN RETROSPECT
D.
G.
T.
WILLIAMS
The Report of the Committee on Ministers’ Powers
which
appeared
in
1932, was
principally concerned with problems of subordinate legislation and formal
administrative adjudication. Against a background
of
Dicey‘s views
on
parliamentary
sovereignty and the
Rule
of
Law,
the
Committee explored
a
variety
of
issues
and
made numerous proposals.
In
this article
an
attempt
is
made
to
consider
why
the
Committee
was
appointed and what has happened since 1932. Particular reference is
made
to
the
Report
of
the
Committee on Administrative Tribunals and Enquiries
which appeared
in
1957. The Reports
of
1932
and
1957 are important
in
identifying
significant developments
in
administrative law during
this
century.
Fifty years have gone by since the publication in April 1932 of the
Donoughmore Report (Cmd.
4060)
on
Ministers’ Powers;
and twenty five
years have elapsed since the publication in July 1957 of the Franks Report
(Cmnd.
218)
on
Administrative Tribunals and Enquiries.
These two Reports
are the product of the only investigations undertaken at government
initiative into general problems of administrative law. However, the r81e of
the courts was only considered incidentally in each Report, and the terms of
reference were such that it was the actions of central government rather than
of local government (or of other statutory bodies) which were under
consideration. The emphasis in the Donoughmore Report was on delegated
legislation and on ‘judicial or quasi-judicial‘ decisions under powers exercised
‘by
or under the direction of (or by persons or bodies appointed specially
by) Ministers of the Crown’; and the emphasis in the Franks Report was
solely on judicial or quasi-judicial proceedings of administrative bodies, now
more specifically categorized as ‘tribunals other than the ordinary courts
of
law, constituted under any Act of Parliament by a Minister of the Crown or
for the purposes of a Minister’s functions’ and as ‘such administrative
procedures as include the holding of an enquiry or hearing by or on behalf
of a Minister on an appeal or as the result of objections or representations’.
In drawing a clearer distinction between tribunals and inquiry procedures,
the Franks Committee was able to draw on the experience of increased
administrative adjudication since 1932; it commented (para.17):
At the time when the Donoughmore Committee was appointed there
already existed a number of tribunals, almost entirely in the field of
D.G.T.
Williams is President
of
Wolfson College, University
of
Cambridge and Reader in Public
Law at
the
University
of
Cambridge.
Public Administration Vol.
60
Autumn 1982 (273-292)
0
1982 Royal Institute of Public Administration
274
D.G.T.
WILLIAMS
unemployment insurance and contributory and war pensions; and local
authorities already possessed considerable powers to acquire or restrict
the use of private land. Since then the expansion of governmental
activities and responsibilities has led to corresponding developments and
innovations in our field on a large scale. Old tribunals have been adapted
to wider purposes, and new tribunals have been established. More extensive
powers exist, and more extensive,use is made of powers, to acquire land
and control its use.
Delegated legislation fell outside the remit of the Franks Committee, and the
only inquiries comparable to that undertaken by the Donoughmore
Committee have been those conducted by parliamentary committees. The
Joint Committee on Statutory Instruments, for instance, made several
criticisms
of
statutory instruments in a Report early in 1978
(HL
51,
HC 169,
Session 1977-78), but it was emphasized (para. 37) that ‘the Committee and
their advisers do always bear in mind that Parliament and Government
would grind to a halt if there were not built into our constitution an
adequate system of Executive legislation’. That last statement echoes the
Donoughmore Committee’s comment (1932, 23) that ’if Parliament were not
willing to delegate law-making power, Parliament would be unable to pass
the kind and quantity of legislation which modern public opinion requires’.
One
of
the principal aims behind the Donoughmore Committee‘s analysis
was to demonstrate the extent of and the need for the practice of delegation.
By 1955, when the Franks Committee was appointed, the scale
of
delegated
legislation had increased still further and there were continuing difficulties
associated with statutory instruments. There was no longer a problem
of
recognition and acceptance however, and
so
the Franks Committee was
relieved of the need to undertake
a
reassessment of the area covered by its
predecessor.
In the last 25 years other areas
of
administrative law, outside those
of
delegated legislation and
of
tribunals and inquiries, have competed
for
attention. These include the informal consideration
of
complaints against the
administration; the nature and exercise
of
informal discretionary power; the
proper scope of judicial control of administrative action; the remedies
available for judicial control of administrative action; and problems
associated with demands for open government. Yet, even though
assumptions change and emphases vary, few would doubt the major
importance of the subject-matter
of
the Donoughmore and Franks Reports.
Providing, as they did, the only opportunities for bringing together, at
official instigation, a variety of views about administrative decision-making
-
admittedly at a relatively formal level
-
the two Reports offer a valuable
insight on administrative law in general. The Donoughmore Report is
of
particular significance; it appeared at a time when Dicey’s constitutional
views were much in vogue although fifty years had gone by since they were
first expounded, and at a time when the country had become familiar with
an enormous upsurge in governmental activity during and after the First
World War, and lawyers in England and elsewhere in common law
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