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Published online by Cambridge University Press: 16 January 2009
The decision of the Eden Government in November 1955 to appoint a Committee on Administrative Tribunals and Enquiries initiated a review of administrative procedures which throughout was confined to those areas of the administration where either an administrative tribunal or the ministerial inquiry procedure was already available. The Franks Committee's terms of reference, and it is possible that they were intentionally limited to reduce the scope of the inquiry to reasonable proportions, did not allow any consideration of those administrative decisions not subject to one or other of these procedures. One critic of the Committee's Report, Professor J. A. G. Griffith, commented that the inquiry had been directed in exactly the wrong direction, the procedures under examination already being predominantly open, fair and impartial; but “into the closed, dark and windowless procedures the Committee was not asked to let air and light.”
1 For the implementation of many of the Franks Committee recommendations, see Tribunals and Inquiries Act, 1958Google Scholar, Town and Country Planning Act, 1959Google Scholar (Part III), and Ministry of Housing and Local Grovemment circulars 9/58, 38/58, 43/58 and 51/58. See also the first two annual reports of the Council on Tribunals, for 1959 and 1960.
2 See H.L. Debates, Vol. 206, col. 575.
3 See the Franks Report (Cmnd. 218, 1957), paras. 10–15.
4 (1959) 22 M.L.R. 125 at p. 127.
5 Cmnd. 218, para. 40.
6 For a similar formulation of the problem, see Some Problems of the Constitution (Marshall, G. and Moodie, G. C.), p. 139Google Scholaret seq.
7 Published by Stevens and Sons Ltd., 1961, at 10s. 6d.
8 H.C. Debates, Vol. 612, col. 68 (written answers).
9 Whyatt Report, p. xiii.
10 Ibid. p. xii.
11 Mr. Norman S. Marsh (chairman), Sir Sydney Caine, and Professor H. W. R. Wade.
12 In its first formulation of this category, the Report states ambiguously (para. 10), “where the citizen disagrees with the way in which the official has exercised his discretion,” but it is clear from what follows that what is meant is the decision itself.
13 Para. 10.
14 Para. 17.
15 Para. 20.
16 Para. 20. This metaphor is a companion to the common lawyer's missionary spirit, suggested elsewhere by Professor Wade, H. W. R. (Administrative Law, p. 6 and also p. 128).Google Scholar
17 Agriculture, Education, Home Office, Health, War Office, Board of Trade, Post Office.
18 Para. 33.
19 Para. 56.
20 Para. 72.
21 For the report of the Tribunal see Cmnd. 718 (1959). A verbatim record of the proceedings was published in March 1959 by H.M.S.O.
22 Para. 90.
23 See Cmd. 9176 and Cmd. 9220 (1954).
24 Para. 144.
24a On December 7, 1961, during a short debate on administrative inquiries and citizens’ complaints, Lord Silkin asked the Government to give early consideration to the Whyatt proposals. In reply, the Lord Chancellor asked for more time for the Government to define its attitude. (H.L. Debates, Vol. 236, cols. 180–222). During this debate the wheel of history turned a full circle: Lord Silkin, once the victorious Minister at Stevenage, is reported to have said, “it is curious that all discretionary decisions are not subject to appeal.” It was left to one of the Law Lords, Lord Denning, to suggest that the “cardinal doctrine” of ministerial responsibility was a relevant factor.
25 See [1962] Public Law 43–51 (Professor Northey, J. F.).Google Scholar
26 See, e.g., para. 4.
27 p. 35, Rule of Law (Inns of Court Conservative and Unionist Society, 1955).Google Scholar For a well-known judicial expression of this point, see A. P. Picture Houses, Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223.Google Scholar See also H.L. Debates, Vol. 236, col. 218 (per Lord Chancellor).
28 Cf. Professor Wade, H. W. R., Administrative Law, p. 128.Google Scholar The courts have frequently recognised that judicial methods are not necessarily fitted for administration even though these are the ones that may find special favour from lawyers. The critical decision of the House of Lords in Local Government Board v. Arlidge [1915]Google Scholar A.C. 120 was a clear assertion of this principle (especially the speech of Lord Shaw of Dunfermline). Although the decision itself concerned the extent to which a department was bound to observe judicial procedures when considering after a local inquiry whether to confirm a local authority's closing order, the principle behind the decision should apply even more strongly where a department makes the original decision and is not subject to any procedural requirement.
29 Cmd. 4060, pp. 73–74.
30 Minutes of Evidence, pp. 449–464. See also his article, “Judicial Review of Legislative Policy” (1955) 18 M.L.R. 572.Google Scholar
31 Para. 26 (italics supplied).
32 Para. 69.
33 What still needs to be improved is the ability of the “little man” to find his way to the administrative agencies which can help him. Greater official support for the Citizens’ Advice Bureaux would be a move in the right direction.
34 Para. 74.
35 Para. 75.
36 Para. 56.
37 See note 27 above.
38 Some Problems of the Constitution (Marshall, G. and Moodie, G. C.), p. 126.Google Scholar
39 Para. 68.
40 See, e.g., Buxton v. Minister of Housing and Local Government [1960] 3 All E.R. 408Google Scholar and the authorities there cited.
41 Rule of Law, pp. 54–57.
42 Franks Committee, Minutes of Evidence, p. 494.
43 Ibid. p. 347.
44 Professor Hamson, C. J., Executive Discretion and Judicial Control, p. 161.Google Scholar
45 Ibid. p. 184. See also Keir, D. L. and Lawson, F. H., Cases in Constitutional Law, 4th ed., p. 355.Google Scholar
46 Whyatt Report, para. 103. See, for Denmark and Norway respectively, paras. 115 and 132.
47 See, e.g., Report of Royal Commission on Local Government in Greater London (Cmnd. 1164, 1960), paras. 592–593, 686.Google Scholar
48 Appendix A, para. 2.
49 Another detailed criticism of Appendix A is that the list of the more important local authority functions (showing which are subject to some appeal and which are not) omits the particularly important power of a local planning authority to grant unconditional planning permission, which is not subject to any appeal. Except in a very limited number of cases, and this only since 1959, there is not even provision for prior publicity. Major Buxton's chance at a local inquiry to voice objection to the Saffron Walden chalk-pit application arose only because the local planning authority had in the first instance refused permission.
50 It is suggested in the Report, although no evidence is given, that it is in this field that occasional cases of corruption have occurred.
51 Appendix A, para. 6.
52 See Municipal Review, January 1962Google Scholar, where other relevant criticism of Appendix A is made.
53 The word “external” in this sentence should be emphasised. The internal discipline of the civil service is of course a major factor in the maintenance of reasonable standards of administration.
54 See the statement made by the then Home Secretary during the Crichel Down debate, H.C. Debates, Vol. 530, cols. 1284 et seq.
55 Appendix B, clause 11.
56 Appendix B, clause 18.
57 A recent example from local government is Southend Corporation v. Hodgson (Wickford), Ltd. [1961] 2 W.L.R. 806Google Scholar, but a similar situation could arise in dealings with the central government.
58 The foregoing was in print before Public Law for Spring 1962 appeared, containing four articles on the subject of the Citizen and the Administration. Penetrating criticism of the Whyatt Report is there made by Miss I. M. Pedersen of Copenhagen, by Professor J. D. B. Mitchell and in editorial comment.