Art. 3.-BUREAUCRACY AGAIN.

The English Constitution in Transition, 1910-1924. By Sir J. A. R. Marriott, M.P. Clarendon Press, 1924.

SIR JOHN MARRIOTT'S study of English Political Institutions' has long been a valuable guide to historians, publicists, and lawyers. We wish we could add that it has also been the vade mecum of our politicians. The first edition appeared in 1910. Since that date very important constitutional changes have been going on, sometimes in the full glare of political controversy, more often by gradual processes scarcely perceived by the majority of the public. A number of these changes were indicated by the late Prof. Dicey in the more recent editions of his widely-known 'Law of the Constitution.' Sir John Marriott now finds the time ripe to summarise them in a new introduction to his work, published separately as a pamphlet. Its forty pages are packed with matter highly instructive to all-and they should be many-who are interested in the present transformations of the English constitutional system. Our only criticism of this succinct thesis, apart from some considerations which we venture to offer below, is not of its quality, but of its quantity. We trust it may be regarded as prolegomena to a fuller study which in due time will be incorporated in the parent work. But perhaps the author is wise to postpone this task. The transitionary processes are still palpably going on. It cannot, however, be long before a clear necessity arises for some publicist, as familiar as Sir John Marriott with the actual conditions of political life, to rewrite the law of our Constitution. When that time comes, it will be surprising if we do not find that a great many of our traditional principles have become so attenuated that it will be mere pedantic affectation to retain them in theory when they are so remote from practice.

We are concerned here with one only of the many questions with which Sir John Marriott deals. He writes as follows concerning the tendencies of legislation and bureaucracy:

'Menaced by the multiplication of external organisations, Parliament has itself not merely connived at, but contributed

to the infringement of its legislative monopoly. In former days Englishmen were said to be distinguished from their Continental neighbours by their "instinctive scepticism about bureaucratic wisdom." Consequently Parliament attempted, in making laws, to provide beforehand, by precise statutory enactment, for every contingency which might reasonably be expected to arise. This naturally rendered the form of English statutes exceptionally elaborate and detailed. Parliament has recently shown a marked tendency to abandon this tradition. In our legislative forms we have moved towards Continental methods. Partly owing to the increasing complexity of industrial and social conditions, partly under the subtle influence of Fabian Socialism, partly from the general abandonment of the principle of laissez-faire and the growing demand for governmental guidance and control in all the affairs of life, partly from sheer despair of coping with the insistent cry for legislation, Parliament has manifested a disposition to leave more and more to the administrative department. Many modern statutes are mere cadres, giving no adequate indication of their ultimate scope. They lay down general rules and leave it to the Departments concerned to give substance to the legislative skeleton by the issue of Administrative Orders. It is true that Provisional Orders require statutory confirmation, but Statutory Orders become operative after "lying on the table" for a given number of days. In both cases, therefore, Parliament retains formal control; in the latter case, it is little more than a form.'

One of the consequences is, inevitably, a formidable increase in the expenditure of public money. The recommendations of the Select Committee on National Expenditure in 1918 have been duly pigeon-holed and ignored. Those who have been taught to cherish the principle 'No taxation without representation' will be shocked to learn that, according to this Committee, they have been 'suckled in a creed outworn': 'so far as the direct effective (Parliamentary) control of proposals for expenditure is concerned, it would be true to say that if the estimates were never presented, and the Committee of Supply never set up, there would be no noticeable difference.' Sir John Marriott goes on to discuss the various solutions, all of them somewhat startling to a mere old-fashioned constitutionalist-Referendum, Syndicalism, and Direct Action-which are offered by different 'young' schools of thought. Of any less revolutionary

effort to solve a pressing problem Sir John is unfortunately unable to inform us. The millions of Englishmen who find no bright promise in any of the three desperate expedients mentioned above are apparently content with the principle solvitur ambulando-always a somewhat thin and comfortless creed.

On the whole, Sir John Marriott is not alarmed. On the Rule of Law and the growth of Administrative Law he makes the following observations:

'The multiplication of statutes almost inevitably tends to the curtailment of individual liberty, but liberty has been curtailed even more perhaps by the character than by the volume of legislation. . . . Bacon observed that there is "no worse torture than the torture of laws." If he was right the modern citizen is evidently obnoxious to that form of torture to a degree undreamed of by the victims of medieval tyranny. Apart from this, however, there has been in recent years an equally marked tendency to confer by statute judicial or quasi-judicial authority upon permanent officials. . . . To confer judicial authority upon the officials of administrative Departments, and at the same time to invest them with the power to make Orders which have the force of law, is plainly to confound the Legislative power with the Executive and the Judicial power with both. Moreover, it tends to blur the important distinction between what is and what ought to be. If those who are responsible for laying down the law are charged also with the duty of applying it, the menace to personal liberty must become acute, and the English citizen is likely again to incur risks from which the great contest of the 17th century was thought finally to have relieved him. The Judges may still be lions, but they are likely to become, as Bacon would have gladly made them, lions under the throne, though the throne is no longer occupied by a single monarch who can, at worst, be removed, but by the manyheaded bureaucracy which can be dislodged, if at all, only by a sustained and gigantic effort.'

Notwithstanding these grave animadversions, we have, in Sir John's opinion, 'passed through the ordeal of a great war with the minimum infringement of those safeguards for personal liberty of which Englishmen have been justly tenacious.' In support of this view, the Art O'Brien case is cited, with its energetic vindication of the principle of Habeas Corpus. This optimism, coming as it does from one who has a first-hand know

ledge of the political machine, will be gratifying to the many citizens who have begun to feel serious alarm at recent developments. A lawyer, contemplating the decay of age-long first principles of justice, cannot feel the same measure of confidence.

In the Quarterly Review' for October 1923 the present writer called attention to a number of recent examples from the Courts which seemed to him to show, first, that the principle of the Rule of Law needs candid and careful revision, and second, that the temper of the present bureaucracy is to press unmeritorious claims to the profit of the Crown and the unjust detriment of the subject. It was recognised that this was partly the result of necessary emergency legislation. But we are getting further and further away from the war, and the mischievous tendency should be diminishing. It shows no signs of doing so. The Art O'Brien case, in which the judges fortunately had a free hand, has been more than counterbalanced by a number of cases which further illustrate the helplessness of the individual amid the sleights and subtleties of administrative litigation.

Nobody has a better opportunity of enjoying departmental ingenuity than the house-owner; indeed, it is matter for wonder that anybody with money to invest will choose this form of property, which immediately involves him in a complex net of obligations to local authorities and to the Ministry of Health. In particular, the provisions applying to working-class dwellings are a masterpiece of muddledom. The relevant enactments are the Housing of the Working Classes Act, 1890, and the Housing, Town-Planning, etc., Acts, 1909-1919. These statutes are an amorphous mass of references and crossreferences casually thrown together, and their general effect has been well described as a mosaic of legislation.' More than one judge has confessed his despair of finding any consistent intelligible meaning in them. The houseowner himself cannot hope to understand their effect: he is between the upper and the nether millstones of the Courts and the Departments, who have to grind out between them the true or supposed meaning of the enactments. We may take one important provision as illustrating the difficulties of the landlord and the highly Protean performances of the Crown and its satellites,

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the local authorities. It is provided by the Act of 1919 that in the case of dwellings suitable for housing the working classes, the local authority may serve upon the owner a notice requiring him to carry out certain repairs in order to render the dwellings fit for habitation. A reasonable time for carrying out the work must be specified in the notice, and this must not in any case be less than twenty-one days. If the work is not done within the specified time, the local authority is empowered to carry out the repairs itself and to charge the owner with the expenses incurred. If they are not paid on demand, action may be brought to recover them before a magistrate. In the first case with which we are concerned (Ryall v. Cubitt Heath [1922] 1 K. B. 276) owners of extensive property in Bermondsey were served with a notice by the Borough Council calling on them to carry out repairs on a number of houses within twenty-one days. They failed to do so; the Council did the work itself and sued the owners for expenses amounting to more than 600l. It is obvious that in the present conditions of labour, twenty-one days is in many cases a wholly inadequate time in which to get building work executed; and the magistrate held that by no possible effort or diligence could the owners have done the work within that period. He therefore held that the Council's claim failed, inasmuch as the notices did not specify a reasonable time, as required by the Act. But the Council contended that so long as the minimum period of twentyone days was specified, the magistrate had no jurisdiction to inquire into the general question of reasonableness; and on this ground appealed. A Divisional Court of the King's Bench dismissed the appeal, holding that the twenty-one days was merely a minimum and that the Court of Summary Jurisdiction had power to examine the whole question of reasonableness, with due regard to all the circumstances of the case.

The next phase (The King v. The Minister of Health [1922] 2 K. B. 28) is that an owner in similar circumstances carries out (as he contends) repairs which he has been required to do, under the same Act, by the Paddington Borough Council. Six months after the work has been completed, the Council suddenly discovers that the repairs are not satisfactory; and the owner is thereupon