Thoughts on a British Conseil d'Etat
| DOI | http://doi.org/10.1111/j.1467-9299.1967.tb02026.x |
| Author | MAURICE H. SMITH |
| Published date | 01 March 1967 |
| Date | 01 March 1967 |
Thoughts
on
a
British
Conseil
d’Etat
MAURICE
H.SMITH
Mr.Smith
is
a
Princikal
in
the
Customs
and
Excise.
AN
EX
€1
U
MA
’I
I
0
N
In January
1966
the Inns
of
Courts Conservative and Unionist Society
produced a pamphlet1 criticizing the White Paper2 proposals
for
a
Parliamentary Commissioner for Administration and suggesting an
‘Administrative Commission’ instead. Conservative thinking had changed.
The Macmillan Government had turned down the prototype Parliamentary
Commissioner
(plus
an assemblage of administrative tribunals) suggested
by the Whyatt Report, partly on the ground that the established institu-
tions for redress of grievance were reasonably adequate. The authors
of
Let
Right
be
Done
were now seeing the reality of the situation differently:
‘whether or not existing procedures may in most cases produce redress in
the end, neither the public nor
we
can feel any conviction that effective
means of redress do really exist’.
As
an anti-Ombudsman tract the pamphlet was overtaken by the
general election, and little has been heard
of
it.
It
would be a pity, how-
ever, if its more positive side were to pass into oblivion unremarked.
Schemes prompting thoughts of a British Conseil d‘Etat are
so
seldom
seen that even the eight pages (of its twenty-three) that
Let
Right
be
Done
devotes to the Administrative Commission deserve a welcome. They seem
to have been intended as a peg for further ideas. ‘We have not sought to
spell out our proposal in any detail’, say the authors, ‘and indeed we
should expect that its discussion
.
.
.
may well lead to improvements being
proposed’. Compressed so severely, the presentation of the Administrative
Commission certainly required the effort of fairly close reading; a great
deal was left to be inferred, extrapolated, or dredged
up
from between the
lines.
The point of making the effort is this.
So
long as legal remedies against
public authorities in this country remain open
to
unfavourable comparison
with those allowed by more thorough-going public law systems elsewhere
-
‘Let
Right
Be
Dorze,
C.P.C.,
IS.
=The
Parliatncntary
Coinmissionerfor
Administration,
Crnnd.
2767,
I
965.
23
PUBLIC
ADMINISTRATION
notably the authentic
droit administratif
of
France
-
there will be room for
radical reform, and critics
to
urge
it.
Whatever may be done meanwhile
to meet the needs or appetites of the moment, finality depends upon an
institution capable of bringing the poverty of British public law to an end.
It
is not inconceivable,
of
course,
that
the Parliamentary Commissioner
may in time prove himself the man for the job. These are early days, and
it is impossible to tell. But a jurisprudence like that
of
the Conseil d‘Etat
is not usually associated with
an
Ombudsman. His is first and foremost a
lay office, whereas a scheme
of
redress analogous to the judicial process
would necessarily call for a more specialized technique. The system
visualized in
Let Right be
Done
would be under no such limitation. It could
be the framework
of
an out-and-out British
droit administratif.
Nothing short of this
is
likely to silence the critics who wish to see the
problem of keeping the ring between private individual and public
authority solved
for
good and all,
To
be sure, there is little about
a
Conseil
d’Etat to excite popular clamour. But the great post-Crichel Down debate
will go on, even though in
a
lower key. Not dead but sleeping, is perhaps
the epitaph if not for
Let
Right be
Done
itself then at least for some of the
ideas it expresses.
THE
ADMINISTRATIVE
COMMISSION
The design of the proposed Administrative Commission was to be not
so
much contemporary
as
traditional
:
‘we hope that constitutional means
might be found to graft the Commission on to the Privy Council; a revival
in a sense of the latter’s historic role
as
supervisor of the Executive’.
There would be two divisions
of
the Commission. The judicial division
‘would be drawn from the higher judiciary and the higher ranks of the
Civil Service, from industry and commerce, from the trade unions, from
the professions and from the universities’, somewhat like the Restrictive
Practices Court. The investigating division would be a lay infrastructure,
working, however, not
in
any way
as
the operational arm of the judicial
division but rather
as
the man in the street’s
idea
of
the Commission itself.
All complaints would go to the investigating division in the first instance,
to be filtered
off
as
beyond the Administrative Commission’s terms of
reference or taken up with the department complained against (‘the Com-
mission could
at
a
later date exercise jurisdiction over local and possibly
other authorities’). This would not be just
a
matter of preliminary spade-
work. In practice the investigating division would fully and conclusively
dispose
of
most of the cases
it
accepted on the Commission’s behalf. The
judicial division would remain very much
on
the uplands, and, with
it,
all
the Administrative Commission’s formal powers.
Let
Right
be
Done
expects
the investigating division to get on well enough without them. Common
sense
is
the key all round. A department would not baulk at showing the
investigating division
its
papers for no better reason
than
that
only
the
judicial division would have the right
to
demand them. Usually, too,
a4
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