The constitution’s civil administrative direction

The constitution's basic shifts in a civil administrative direction were threefold— institutional, legal remedial, and political constitutionalist. The first shift was reflected in Dicey's later revisionist writings where he begrudgingly recognized the growth of what he called official law and its conceivably beneficial extension through the use of expert and independent administrative tribunals.

The constitution's first basic, institutional, shift in a civil administrative direc­tion was through the proliferation of administrative tribunals, variously associated with state departments. It was minimized by Dicey in later editions of Law of the Constitution as ‘a slight approximation to droit administratif ',^[114] which he funda­mentally rejected as contrary to the English rule of law. It has since been the subject of controversy.

In 1902, Dicey first noted the perplexity caused by the very inquiry into whether droit administratif had in any sense recently been introduced into English law.^[115] Dicey sought to allay concerns by asserting that the legislative innovations giving to officials something like judicial authority were ‘rare’, ‘suggested merely by consider­ations of practical convenience’, and did not ‘betray the least intention on the part of English statesmen to modify the essential principles of English law’.^[116] Although he later acknowledged that the approximation of English official law and French droit administratif was ‘very noticeable though comparatively slight’ and that it was ‘at least conceivable that modern England would be benefited by the extension of official law’,^[117] his conclusion in the main text of Law of the Constitution remained that there ‘exists in England no true droit administratif ^[118] But while edition after edition of Dicey’s Law of the Constitution reiterated that those principles of English law required the unitary application of the ordinary law of the ordinary courts, officials were increasingly exercising judicial authority in administrative tribunals that were proliferating to deal with the disputes arising from the expanding social services of the developing welfare state.^[119]

By the late 1920s, the perplexity caused by the proliferation of administrative tribunals, noted by Dicey almost thirty years earlier, had turned to fervent denun­ciation from within the legal profession.

Two Committees of Inquiry—the Donoughmore Committee and the Franks Committee—considered the opposing views and the pressing issues they raised. The Donoughmore Committee^[124] adopted neither Hewart's position nor that of Robson and Port. On the one hand, it accepted that the tribunals under the supervisory jurisdiction and an appellate jurisdiction of the ordinary courts had advantages such as administrative expertise, and, on the other, mindful of Dicey's rule of law, it rejected the proposal for administrative appeal tribunals and declared that establish­ing a system of administrative law was inexpedient.

The constitution's second basic, legal remedial, shift in a civil administrative direction had as its starting point Dicey's puzzling neglect in Law of the Constitution of the ancient prerogative writs of certiorari, mandamus, and prohibition issued by English courts.^[127] In his treatment of remedies, Dicey had two preoccupations—one with the personal liability of officials for official wrongdoing and the other with the writ of habeas corpus. In the one, he celebrated the personal liability of officials as exemplifying the second meaning he attributed to the English rule of law—‘that here every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals'.⁶⁴ In the other, he celebrated the writ of habeas corpus as determinative of ‘the whole relation of the judicial body towards the executive': ‘The judges therefore [through their power to release anyone imprisoned unlawfully] are in truth, though not in name, invested with the means of hampering or supervising the whole administra­tive action of the government, and of at once putting a veto upon any proceeding not authorised by the letter of the law'.⁶⁵

E C S Wade, the editor of the 9th and 10th editions of Law of the Constitution, observed that Dicey's failure to discuss the prerogative writs apart from that of habeas corpus seemed strange.⁶⁶ He suggested three possible explanations: first, that the writ of habeas corpus was naturally Dicey's primary concern because it is the ultimate guarantee of personal liberty; secondly, that Dicey had not been concerned to discuss administration as such and thus not the various remedies by which it was supervized; and, thirdly, that Dicey had been preoccupied with deterring the official who was a wrongdoer and who, at least when Dicey first wrote, did wrong mainly by interfering with liberty and property.⁶⁷ One might similarly speculate that, because habeas corpus had become a symbol of liberty and a source of educational inspiration, Dicey focused upon it, as did the whig histor­ians⁶⁸ who influenced him and similarly emphasized habeas corpus and neglected the other more mundane and technical writs.

Past speculation should now be reconsidered in the light of Dicey's as yet unpub­lished and unnoticed manuscript Note, mentioned above,⁶⁹ in which he expressed a high degree of admiration for French droit administratif in comparing it with English law. His stated reasons for that admiration were remedial. After citing the availability of a remedy against the French state for compensation as a general rule (ie. not limited to the exceptional circumstances in which a petition of right lies against the Crown), Dicey cited proceedings for the annulment of official acts:

Then too[,] what is a valuable part of the French system, a person has in many cases it would appear a right to get administrative or official acts annulled which are ultra vires even of certiorari's quashing function from the 17th to the 18th century, see A Rubinstein, ‘On the Origins of Judicial Review' 2 UJBC LRev (1964) 1; S A de Smith, ‘The Prerogative Writs: Historical Origins', Judicial Review of Administrative Action (J M Evans (ed.)) (London:Stevens, 4th edn, 1980),AppI.

⁶⁴ Dicey, Law of the Constitution (10th edn), n 2 above, 193.

⁶⁵ Dicey, Law of the Constitution (10th edn),222.

⁶⁶ Dicey, Law of the Constitution (10th edn), cxxxvi.

⁶⁷ Dicey, Law of the Constitution (10th edn), cxxxvi, xif. See also F H Lawson, ‘Dicey Revisited I' Political Studies [1959] 109: 120f.

⁶⁸ See generally Allison, English Historical Constitution, n 30 above,165ff.

⁶⁹ Dicey, ‘Conclusions as to French DroitAdministratif, n 49 above. where they have not caused him actual pecuniary damage. As far as I can discover no similar power exists under English law. If for example, the Home Office were to issue an order or notice which was ultra vires, i.e.

Beneath Dicey's neglect was not merely a preoccupation with habeas corpus, disregard for the administration as such, and an aversion to an English administra­tive law. At its root was a real ignorance or lost memory of the writ of certiorari by which an administrative act might be quashed. His sketchy knowledge of the prerogative writs of certiorari, mandamus, and prohibition still needs to be explained, whether with reference to Dicey's shortcomings or our own expecta­tions. Dicey may well not have had ‘a good memory for cases', the lack of which he lamented.^[129] In any event, Dicey's knowledge of remedies and their case law was certainly not as thorough and systematic as is now expected of a leading textbook writer.

The textbook corrective to Dicey's neglect of the prerogative writs as the remedial source for an English administrative law was initiated by E C S Wade in the editing of the 9th and 10th editions of Law of the Constitution and carried out by J A G Griffith and H Street, S A de Smith, and H W R Wade in their writing of new administrative law textbooks.^[130] It was brought about in clear view, it will be shown, of the French civil administrative jurisdiction to which more than merely passing references were made.

In the 9th edition of Law of the Constitution, E C S Wade recognized Dicey's responsibility for much misunderstanding about administrative law both in England and in France, recorded Dicey's reluctant recognition of an English administrative law in his later writings and authored a lengthy section on it in the Appendix.^[131] There he recognized the centrality of the prerogative orders or writs of mandamus, certiorari, and prohibition alongside the increasingly important ordin­ary remedies of the injunction and declaration in English administrative law and included a section entitled ‘ DroitAdministratifin France', authored by Rene David and ending with the full table of contents of Hauriou's French administrative law textbook.^[132] In his Introduction to the 10th edition of Law of the Constitution, E C S Wade incorporated an account of English administrative law centred on the avail­able prerogative and other remedies and, in the Appendix, an account of French administrative law by P M Gaudemet followed by Dicey's 1915 revisionist article on the development of administrative law in England.^[133]

I n his Introduction to the 10 th edition, for further detail on the remedial methods of judicial control, E C S Wade cited Principles of Administrative Law by Griffith and Street, first published in 1952 and the second English administra­tive law textbook after Port's.^[134] Griffith and Street in turn acknowledged their considerable debt to ‘the pioneers of the subject' and particularly to Robson and E C S Wade.^[135] In their treatment of administrative law, however, Griffith and Street differed significantly from Port, Robson, and E C S Wade. Unlike Port and Robson in the constitution's first shift in a civil administrative direction, Griffith and Street were not focused on administrative tribunals as the institutional means to administrative law.

First, Griffith and Street made far fewer references to French administrative law than did Port and E C S Wade. Apart from briefly mentioning Dicey's misunder­standing of French administrative law and his damaging denial of the existence of an English administrative law in consequence and occasionally referring, for example, to French innovations in the curtailment of administrative immunity,^[136] they elaborated on various domestic political and legal controls over the administra­tion. Secondly, they expressed their textbook's political constitutionalism in their substantive argument at the outset and in their formal presentation of the book's contents thereafter. They opened their introductory chapter in direct opposition to nineteenth-century individualism and laissez-faire thinking. For Griffith and Street, the ‘very success of laissez-faire was its undoing':

Concentrations of large sections of the population in overcrowded cities brought problems of housing, disease, and smoke that could not be ignored. The Administration had to inter­vene in the interests of public safety and health, an interference necessarily inconsistent with an unlimited freedom of property and of the person.^[137]

They therefore centred their analysis on the administration, which was to be account­able, subject to parliamentary and judicial controls. They gave much attention to judicial controls over the administration's legislative, administrative, and judicial powers through legal remedies^[138] but formally presented them in relation to each power only after^[139] parliamentary controls (and their limitations) and in addition to controls in administrative practice rather than in law or established convention.^[140] Their formal presentation of political controls as pre-eminent although limited in practical reality^[141] was true to their essentially political understanding of the constitution in which accountability was first and foremost to Parliament, and thus ultimately to the higher governing authority of the electorate in civil society, as well as to groups beyond Parliament and to the people in other ways yet to be developed:

The Administration is responsible and accountable for its actions. Finally its responsibility is to the people. In theory, and practice, its responsibility is to Parliament. But the Administration must listen to voices other than those of elected representatives or noble lords. It must listen to the voice of organised groups in the State and the pressure on the Administration outside Parliament is very strong... Responsibility to Parliament is not the only kind of responsibility to the people; but so far the other kinds have not been developed.^[142]

Griffith and Street furthered the third basic, political constitutionalist, shift of the constitution in a civil administrative direction. Parliamentary controls of the admin­istration were paramount but limited in practice and complemented by judicial controls. Accountability according to their political constitutional understanding was, in other words, to be civil and administrative as well as judicial.

Griffith’s domestic focus was again evident in his famous and much later Chorley Lecture ‘The Political Constitution’,^[143] but, it will be shown, did not preclude a significant, although indirect, French influence upon him. One leading influence, inter alia, was that of Jennings, under whom Griffith studied, particularly in the reaction of Jennings to Dicey’s legal view of the constitution mentioned above, and in Jennings’ orienting of public law to the development of the state and the pow­ers of public authorities.^[144]Another such influence upon Griffith, as upon Robson, Port, and Jennings, was that of Harold Laski.^[145] Consider Griffith’s basic tenets. He expressed them more polemically in his famous Chorley Lecture than in the textbook he authored with Street. One example in that lecture was his categorical assertion that the remedies to authoritarianism in government are political, not legal, so that ‘the responsibility and accountability of our rulers should be real and not fictitious’.^[146] Another was his insistence upon the centrality and power of the governments of the United Kingdom. For him in that lecture, the very heart of the constitution was that they ‘may take any action necessary for the proper government of the United Kingdom, as they see it', limited (in the absence of express authority under statute or the prerogative) only by the legal rights of others and the requirement that Parliament assent to changing the law.^[147] Both these tenets were already prominent in Laski's writings. Laski expressed a similar distrust in legal controls of government. He emphasized parliamentary controls and citizen participation through advisory committees rather than law as answers to adminis­trative problems.^[148] Laski's basic orientation was also towards government or the state administration and the needs to which it gave rise. Laski's influence upon Griffith brings into question the various influences upon Laski's legal and political thought. A leading influence was French. Laski initially derived ideas about the state from Leon Duguit, one of whose main works Laski jointly translated and thus made readily accessible.^[149] Duguit, who claimed that France ‘holds open the gate through which the sister nations pass', Laski presented as a source of ‘enlightenment and inspiration'.^[150]

Both the constitution's first, institutional, shift in a civil administrative direction through the proliferation of administrative tribunals, central to the work of Robson and Port, and its third, political constitutionalist, shift through the increased emphasis on parliamentary and other non-legal controls of the administration were within what is now commonly known as the functionalist tradition or style of public law thought.^[151] That tradition, centred on the LSE, involved, inter alia, the orientation of public law so as to facilitate the functioning of the state administration. Within that tradition, Duguit's influence directly upon Laski, and indirectly upon those influenced by Laski, was an enduring effect of French constitutional thought upon English constitutionalism.

The constitution's second, remedial, shift in a civil administrative direction focused increasingly on the prerogative and other remedies as domestic sources for the development of an English administrative law. Griffith and Street's textbook made a significant early contribution to that development, inter alia, by clearly rec­ognizing judicial controls through the prerogative and other remedies.^[152] In 1959, in his first edition of Judicial Review of Administrative Action, De Smith went much further than did Griffith and Street in focusing on the available remedies. De Smith briefly dismissed Dicey's account of the French administrative jurisdiction as misconceived and misleading but corrected, in effect, through the influence of the recent comparative studies of Jack Hamson and Bernard Schwartz inter alia; and De Smith added that English ‘imitation is precluded by three centuries of tradition and myth'.^[153] He also dismissed the related controversies about the propriety of English administrative tribunals as ‘mainly sterile' and stated that his textbook aimed ‘to expound the rules comprised within a single sector of English administrative law that has taken shape in a peculiarly insular manner.'^[154] Devoting half his book to the available remedies, he had a clear sense of their fundamental importance to judicial review in England. His spin on Maitland's famous remark was that ‘[i]n private law the forms of action may still rule us from their graves; in administrative law they retain a conspicuous vitality and a long expectation of life'.^[155] His book's success helped make of Dicey's puzzling neglect of the prerogative remedies a distant memory, as did that of H W R Wade's a couple of years later.

In the first edition of his textbook, H W R Wade asserted that Dicey's account of French administrative law had long been recognized to be wrong and reduced Dicey's denunciation of administrative law as contrary to the English rule of law to a mere verbal misunderstanding of ‘administrative law' to mean a special system of administrative courts.^[156] With equanimity and without expressing any inclination either towards rejection or imitation, he recognized great advantages both of the French method of control by administrative courts within the administration, thus with ‘deep official experience', and of the English method of external judicial con­trol by the ‘entirely different' ordinary courts.^[157] Only in one place, did he suggest that the English method was ‘more logical' than the French.^[158] His reason seems to have been that to entrust all judicial decisions to the ordinary courts, as in England (apart from the administrative tribunals^[159] to which Wade devoted a brief critical chapter), was to distinguish powers by their nature. In contrast, to prohibit the civil courts from interfering with the administration under the French separation of powers was to distinguish powers by the persons who happened to exercise them. Apart from his brief introductory comparison of the English and French methods of control, Wade devoted the bulk of his textbook to the prerogative and other remedies available to English courts and the various areas of substantive administrative law they had developed in granting them.

The textbooks of De Smith and Wade were influential products of the con­stitution's second basic shift in a civil administrative direction that had begun with Dicey's neglect of the ancient prerogative writs and rejection of administrative law. They recognized, refined, and thus strengthened a domestic English administrative law inspired, to adapt Dicey's words, by the constitution's ordinary legal spirit.

De Smith used features of French administrative law to provide a few points of comparison with English law, as did Wade in presenting the English method of judicial control by the ordinary courts.^[160] French administrative law has since remained a measure or source of comparison by which to assess the significance of later developments in English administrative law, whether in relation to procedure, the proportionality principle, or the renaming of the Crown Office List of ordinary judges hearing judicial review cases as the Administrative Court.^[161]

All three of the constitution's shifts in a civil administrative direction took place in view of the French administrative jurisdiction but were variously affected by it. In the first, institutional, shift, it was a source of inspiration to those advocating the refinement of the proliferating administrative tribunals into a uniform system. It was, however, a source that provoked official rejection of anything approximating to an English imitation. In the second, legal remedial, shift, it provided a measure or points of comparison by which to assess developments in English administra­tive law. In the third, political constitutionalist, shift, Duguit's theory of law and the state provided an early but enduring French influence on the functionalist approach to English public law.

G.