The Report on Ministers' Powers
| Author | W. Ivor Jennings |
| Date | 01 October 1932 |
| DOI | http://doi.org/10.1111/j.1467-9299.1932.tb01856.x |
| Published date | 01 October 1932 |
The
Report on Ministers’ Powers
By
W.
IVOR
JENNINGS
Reader
in
English
Law in the University
of
London;
Legal Editor
of
“
The
Local
Government Chronicle
”
I
HE
terms of reference of the Committee on Ministers’ Powers,
T
and therefore
its
Report? deal with
two
problems which my be
summarked as the constitutional consequences of delegating
(a)
legislative and
(b)
judicial, powers to Government Departments.
These problems have been the consequence of developments
in
con-
stitutional organisation during the last
sixty
years, and have therefore
been considered at length by nearly
all
constitutional authorities
of
modem times.
But
they were not regarded
as
sufficiently acute for
public
inquiry
until
the Lord Chief Justice published an attack upon
the whole system of delegation under the title
The
New
Despotism.
1
Committee
on
Ministers’
Powers.
Report.
Cmd.
4060.
Price
zs.
6d.
net. The
bibliography
is
immense:
see
especially
Carr,
Delegated Legislotion;
Freand,
Cases
in
Administrative
Low;
John
Dickinson,
Administrative
icstlce
and the
Suplemacy
of
Low;
&nard Henderson,
The
Federal
Trade Commission;
4.
A: Robson,
Justice
and Adminis-
trative
Law;
Port,
Administrative
Law.
Among the learned joarnals,
PUBLIC
ADMWIS-
TRATION
has
naturally devoted the closest attention
to
the problem;
see
in
particular the
;$lowing:
“Growth
of Administrative Discretion,” by H.
J.
Laski
(April,
1923):
Recent Tendenciw towards the Devolution of ,fRgislative Functions to the Administra-
tion,”
by
Sir
Josiah
Stamp
(January,
1924);
The Appellate Jurisdiction of
Central
Government Departments, by
F.
H. C.
Wiltshin
(October,
1924);
*‘
Appellate Juris-
diction,” by
I.
G. Gibbon
(Octobe?
1924);
”
The Expert and the Layman,” b
Sir
R.
V.
N.
Hoplsins,(January,
19251;
The Principles of Regulation,” by Garnham goper
(October,
1926);
The
Princi
les
of
Regulation,” by
W.
Tetle Stephenson (October.
1926);
‘‘
Some
Aspects
of
Engfmh Administrative Law.” by
K.
&.
Smellie (July,
1927);
“
The
Powers
of
Pablic De-ents
to
make Rules having the Force of
Law,”
by
I.
G. Gibbon
(October,
1927);
The Powers of Public De,Fartments
to
make
Rules
having
the Force of Law.” by
M.
L.
Gwyer (October.
1927);
The Powem
of
Pablic
Depart-
ments
to
make Rales
having
the Force of
Law,”
b
Pod
Andmn
(October,,,1g27):
1928);
Local
Inquiries,” by E.
H.
Rhodes
(January,
1928);
‘
Bureau~racy.”
by
Hon.
Sir
John
Anderson
(Janyuy,
1929);
‘’
Mainly about the
King’s
English,”
by
Sir
Ernest Gowers
(April,
1929);
The Limitations
of
the Judicial Functions of Public Authorities,” by
T.
M.
Coo
(Jaly,
1929);
“
Tb? Appellate Jurisdiction of Government Departments,”
by
1.
G.
Gbon
Udy,
1929);
The Administra tive
Control
of
Road
T&c,” by
Sir
John Brooke (Apf?.
1930);
The Method of
Social
Legislation,” by G.
D.
H.
Cole
(January,
1931);
by
Marshall
E.
Dimock
(October,
1931);
Jadicial
Functions
of
the
Adminutrator.”
by
E.
P.
Everest
(Jd%ost
of
these were pablished before the Lord Chief
Jasticds
book,
and none
of
thm
is
quoted
by
him,
except C.
T.
Carr’s
and (without mentioning the author’s
name)
W.
A.
Robson’s
books.
The
essays
which
C.
K. Allen
has
since collected under the title
of
Bureaucracy Triumphant
reveal
him
to
have
had
the
same
angle
of
appmach
as
the
Lord
Chief Jastice. name1 that of
a
private
lawyer
who
ha3
never
given
real
attention
to the problems of public
%Iw.
Legislative Powers
of
Pablic Authorities,” by HaroTrd Potter
(Jan
SOme,bpects of American Administra
tive
Law,’
1932)-
333
Public
A
dm
in
istra
fion
Actually, the Lord Chief Justice had nothing to say in that book
which had not been more temperately expressed before, and he did
not consider certain aspects of the problems which had been dealt
with by less eminent writers. When he was invited to give evidence
before the Committee, he replied that
‘I
he had at present nothing to
add
”
to
his
book. It is therefore evident that he either has not
read the criticisms which that work brought forth, or
(if
he has read
them)
that
they have not induced
him
to
mow
his
opinions.
In
any case, the Committee has removed the foundation
of
his
case
by
acquitting the Civil Service
of
sinister motives. There
has
been no
attempt
“
to cajole, to coerce, and
to
use Parliament.”2
It
has never been suggested, at least by those who have any
experience
of
delegated legislation, that any such legislation
so
far
issued has transgressed the .bounds
of
constitutional propriety. There
are,
it
is
true,
at
least
two
Orders in force containing provisions which
are probably
ultra
vires.3
But these appear to be due to misinter-
pretation rather than to deliberate misuse. Even the Lord Chief
Justice could not give examples of abuse
of
powers; he could only
tear
from
their contexts (knowing that any statute must be construed
as
a
whole) the special statutory provisions which grant the powers,
and made no attempt to prove any evil in their exercise. It is
significant that the most serious inroads upon the effective control
of
Parliament are contained in recent emergency legislation; and it can
hardly be suggested that some
‘‘
anonymous official
”
in the Treasury
has
been conspiring with his fellows to bring into
his
own hands
the powers of imposing duties on imports and
“
cuts
”
in
all sorts
of
official salaries. that delegated legislation
is
the inevitable consequence
of
the adoption of collectivist ideals
by
all parties during the last sixty years. Parliament has neither the
time nor the ability to discuss minor and technical details.
It
has not
the time because it has never adapted
its
procedure to meet the new
conditions, and because those conditions in themselves have enor-
mously increased the amount
of
legislation ne~essary.~ And it has
The truth is, as the Report points
2
The
New
Despotism.
p.
17.
3
They are referred to
on
p.
50
of
the
Report: one
at
least
is
well
known.
4
Page
22.
’Professor
C.
K.
Allen has tried to prove this statement false by comparing the
output
of
legislation
in
the years after
1865
and at the present time:
Bxrcavcracy
Triirm-
+ant,
pp.
145-6.
His
figures give
a
false impression,
for
he has forgotten severa1
important factors, including:
(a)
the Government
now
has to
take
nearly the whole
of
the
time
of
the
House
owing to the amount and complexity
of
its
own
legislation,
so
that
a
considerable number of small private members’ bills
is
no
longer possible:
(b)
much
of
the legislation classed
as
public
in
1865
is
now classed
as
private and local:
(c)
a great
part
in
bulk
of
the legislation in the early
period
was
made
up
of
the
Mutiny
and Naval
Discipline Acts which are
now
superseded
by
permanent statutes:
(a)
Gladstone had not
yet
begun
the ractice
of
putting all the financial measures into
two
Acts
only:
(8)
a
great many
of
tze statutes dealt with Scotland, Ireland, the Isle
of
Man. and the Colonies.
that unless they raised big political issues they were seldom discussed.
334
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