Three Blind Mice
| Author | J.D.B. MITCHELL |
| Date | 01 June 1972 |
| DOI | http://doi.org/10.1111/j.1467-9299.1972.tb00096.x |
| Published date | 01 June 1972 |
Three
Blind
Mice
J.D.3.MITCHELL
This article, by the Professor
of
European Institutions at Edinburgh University,
reviews the report ‘Administration under the Law’ published Justice
last
year.*
The title is suggested, perhaps indeed imposed, by three documents.
The first is the Report from ‘Justice’ called
Administration under the law;
the other two are the working papers of the two Law Commissions on
Remedies in Administrative Law. It is rather unfair to lump all three
together without distinction. Some mice are born blind: such were the
Committee on Ministers’ Powers and the Franks Committee, whose
blindness was imposed by their terms of reference. Some have blindness
thrust upon them: such are the two working papers. The Law Commission
(England and Wales) clearly wanted
a
broad inquiry, and had partial
vision thrust upon it by the then Lord Chancellor in
1969,
who declared
that the time was not ripe. (There was a fruit farmer who made the same
remark and that night the wind and the rain came and his strawberries
rotted in their beds and his plums fell and rotted
on
the ground.) Thus
both Commissions were condemned to tinker with procedure.
It
is
much
to the credit of the Law Commission that it makes clear its discontent and
its preference for full sightedness. (The Scottish one produced the best
survey of what the position is by Professor Bradley.) In other cases blindness
is self-inflicted. That is the case with the ‘Justice’ report and it must be
remembered that the
peine forte et dure
was reserved for those who were
mute of malice.
The judgement may seem harsh, but
I
believe it is justified. The report
ends up in tinkering again, and never really gets to grips either with the
philosophy or nature of administrative law. It turns smartly aside from
any examination of the pre-eminent administrative jurisdiction, the
French
Conseil
d’Etat,
because ‘it draws its strength from specifically
French history, tradition, etc.’ (Incidentally anyone who reads the report
should not be misled by the assertion that
I
have maintained that the
Judicial Committee of the Privy Council could be
a
suitable foundation
of such
a
Court.
I
have specifically denied it
(
(1967)
C.L.J.
55)
).
To
such
*Stevens,
1971,
pp.
40,
75p.
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