Despotism, Revisited

Thoughts upon belatedly reading an (anti-)administrative law classic

I have, rather belatedly, read an (anti-)administrative law classic, The New Despotism by Lord Hewart’s  ― an attack on the power of what would come to be called the administrative state published in 1929 by the then-Lord Chief Justice of England. The book made quite an impression when it was published, prompting the government to set up an inquiry, and even has its own Wikipedia page. However, I don’t think The New Despotism is often discussed in Canada these days. (A quick HeinOnline search shows no more than occasional citations in the past decade; and, what little that’s worth, I hadn’t heard about it until I sat in on my colleague Vernon Rive’s administrative law lectures.) So perhaps some comments here may be of interest, if only to my fellow dabblers, despite the book’s antiquity.

In a nutshell, Lord Hewart was alarmed by the expansion of unreviewable legislative and adjudicative powers delegated by Parliament to officials within the executive branch. While he is almost certainly skeptical of the administrative state generally, Lord Hewart mostly suspends this skepticism and focuses his attacks not on the exercise of power by administrative decision-makers as such, but on the fact that, all too often, administrative power is exercised more or less secretly, without the persons affected by it being able to make submissions to decision-makers, or without decision-makers having to take these submissions into account, or to explain how they reached the conclusions they did. He criticizes legislation empowering administrators to override statutes, or to interpret and apply them without any judicial oversight. Such legislation, he insists, creates a system that is not, properly speaking, one of “administrative law”, such as it exists in Europe (Lord Hewart doesn’t share A.V. Dicey’s notorious disdain for continental administrative law), but one of “administrative lawlessness”.

The remarkable thing is that, while it is fashionable to describe The New Despotism (insofar as it is referred to at all) as a “tirade” delivered by an apologist for the nightwatchman-state dark ages, his critique has been largely accepted ― including by the latter-day defenders of the administrative state ― and incorporated into modern administrative law. Whatever our views on the Canadian (and American) practice of deference to administrative interpretations of statutes, even those who defend this practice accept that some judicial oversight over administrative decision-makers is constitutionally essential. And they, like their critics, would share Lord Hewart’s indignation at decision-making processes in which anonymous officials may act without receiving evidence or submissions from affected parties, whom they need not appraise of their concerns, and are not required to give reasons. He might not be kindly remembered, but in a very real sense, Lord Hewart won the battle of ideas. Pro- or anti-administrativists, we largely agree with him, and indeed among ourselves. The outstanding disagreements are of course significant, but not nearly as significant as the general assent to the subjection of administrative decision-making to judicial review in matters both procedural and substantive.

Interestingly, however, this consensus was not implemented in the manner Lord Hewart envisioned. It is largely reflected in the development of the common law, and not so much in changes to legislative practice which he urged. Some legislative changes have occurred. In particular, there are better, though I suspect still deficient, mechanisms for Parliamentary review of regulations, which Lord Hewart called for. But legislatures have not ceased purporting to delegate vast and unreviewable powers to the executive. What has changed is that the courts came to take a much more skeptical approach to such legislation, and seldom give it its full effect. This, I think, is not surprising. Lord Hewart thought that, to eradicate administrative lawlessness, “what is necessary is simply
a particular state of public opinion”, for which to “be brought into existence what is necessary is simply a knowledge of the facts”. (148) This seems almost touchingly naïve ― almost, because, as a former politician himself, Lord Hewart ought to have known better. It is implausible that public opinion can be drawn to, let alone firmly focused on, issues that are bound to strike non-lawyers as purely technical matters. This is something worth pondering as we reflect on the relative legitimacy of judicially-articulated and legislated rules, whether generally or specifically in the context of administrative law.

Let me now go back to the disagreement between those who favour judicial deference to administrative decision-makers and those who resist it. That Lord Hewart would surely have been in the latter camp will not persuade anyone who is not, given his reputation as an arch-anti-administrativist. But there is another jurist, whose name carries more authority in Canada than Lord Hewart’s, whom I am happy to claim for non-deferential camp (to which I belong): none other than Lord Sankey, of the “living tree” fame. In an extra-judicial speech, delivered just months before the opinion in Edwards v Canada (Attorney General), [1930] AC 124, a.k.a. the Persons Case, and quoted by Lord Hewart, Lord Sankey emphasized the importance of the Rule of Law, and of the courts as its enforcers:

Amid the cross-currents and shifting sands of public life the Law is like a great rock upon which a man may set his feet and be safe, while the inevitable inequalities of private life are not so dangerous in a country where every citizen knows that in the Law Courts, at any rate, he can get justice. (151)

And then, describing the threats to the courts’ role in upholding the Rule of Law, Lord Sankey pointed to

what has been described as a growing tendency to transfer decisions on points of law or fact from the Law Courts to the Minister of some Government department. (151)

And as for Lord Hewart himself, he did have an answer to at least one objection to judicial oversight of the administrative state that the defenders of deference still trot out from time to time: that allowing unobstructed judicial review of administrative decisions will lead to too much costly litigation. (For instance, in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47, [2016] 2 SCR 293, Justice Karakatsanis’ majority opinion claimed that “[a] presumption of deference on judicial review … provides parties with a speedier and less expensive form of decision making”. [22]) Lord Hewart responded to this concern by pointing out that

what is desired is not that there should be endless litigation but rather that litigation should be rendered as a rule unnecessary by the diffused and conscious knowledge that, in case of need, recourse might be had to an impartial public tribunal, governed by precedent, and itself liable to review. (155)

The point is one that goes to the very nature of the Rule of Law:

Nobody outside Bedlam supposes that the reason why Courts of law exist in a civilized community is that the founders of the State have believed happiness to consist in the greatest possible amount of litigation among the greatest possible number of citizens. The real triumph of Courts of law is when the universal knowledge of their existence, and universal faith in their justice, reduce to a minimum the number of those who are willing so to behave as to expose themselves to their jurisdiction. (155)

Just last year, the UK Supreme Court adopted essentially this reasoning in R (Unison) v Lord Chancellor [2017] UKSC 51, in the course of explaining the importance of access to adjudication ― perhaps ironically, in that case, adjudication in administrative tribunals, albeit ones functioning quite differently from those decried by Lord Hewart. Arch-anti-administrativist he may have been, but Lord Hewart was a more intelligent, and is a more relevant, jurist than those who dismiss him might realize. If you are interested in administrative law and haven’t read The New Despotism, you probably should read it.