between the legislature and the permanent executive. That these are undergoing a rapid yet almost unnoticed modification can be questioned only by those who are not accustomed to look below the surface of current events. As things now are the relations between Parliament and the bureaucracy are of even greater and more immediate significance than the relations of Parliament and the Cabinet. It is the merest commonplace that Parliament has, of late years, manifested a growing tendency to remit to the departments larger and larger latitude, both legislative and judicial. The form of English Statutes was, in old days, distinguished from the form preferred by our continental neighbours by an exceptional degree of elaboration and detail. An attempt was made by precise statutory enactment to anticipate every contingency which might reasonably be expected to arise. The United States of America, more tenaciously adherent even than England to Montesquieu's doctrine of the Separation of Powers," has manifested still greater scepticism of bureaucratic wisdom. Of late years, indeed, England has shown herself increasingly neglectful of the Anglo-Saxon tradition and more disposed to the adoption of continental models.

In the earlier editions of his classical work on the "Law of the Constitution," Mr. Dicey claimed, as a characteristic feature of the English constitution, the absence of any legislative authority which could compete with that of Parliament. The contest of the seventeenth century between Parliament and those lawyers who, like Bacon, favoured the Royal Prerogative, turned largely on the question of "Proclamations." This old issue has now been revived, though under altered conditions and in a slightly different form. The administrative departments and the Privy Council have virtually been erected, though admittedly by the action of the Supreme Legislature, into subsidiary legislative bodies, thus gravely endangering the liberties of the subject. In a single year (1919), as a recent writer has pointed out, no fewer than 60 out of 102 Public Acts delegated legislative power to some subordinate authority. The method is undeniably convenient-especially for the departments; but it may be doubted whether the average member of Parliament has any conception of the length to which a device, within limits commendable, has surreptitiously been carried. Scientific jurists are awakening to its significance, and

lawyers called upon to advise individual suitors are discovering it to the cost of their clients.

To a limited extent the remedy lies in the hands of the Judiciary. The danger to the rights of private citizens would be indefinitely increased were the Courts to manifest any disposition towards subservience to the wishes of the executive. Of this, happily, there is comparatively little danger. Recent decisions, and the obiter dicta of distinguished judges, have made it clear that the judges are alive to the danger, and most anxious to avert it. But since the function of the judiciary in England is strictly interpretative their power is circumscribed. If the legislature is careless or complaisant to the wishes of the executive, the Courts have no option but to give effect to legislation, whether it proceed from the sovereign law-making body at Westminster or from the subordinate law-making bodies in Whitehall. The executive cannot, of course, override by "Orders" the will of the Legislature. As Lord Sumner observed in the case of the "Attorney-General v. De Keyser's Hotel," "there is no prerogative to make regulations." The danger is infinitely more subtle it is the increasing tendency to slip into a Bill a surreptitious and frequently unnoticed clause conferring upon the King in Council or upon an Administrative Department the power to make rules having the force of Statute. It is perfectly true, as Lord Parker pointed out in " The Zamora Case " (1916) that "all such rules derive their validity from the Statute which creates the power and not from the executive body by which they are made." But the frequent recourse to a device, inevitable in some cases, and convenient in many, does constitute in the aggregate an abdication on the part of the supreme Legislature.

Such an abdication, whether deliberate or unconscious, is the real danger against which it seems necessary to guard. There are those who discern an unholy alliance between the political executive and the permanent executive to impinge on the functions, both of the Legislature and the Judicature. Were there any ground for that suspicion the alliance or conspiracy would undoubtedly constitute a serious menace to the liberties of the individual citizen. Mr. Dicey in the latest edition of his classical work on the constitution did, in guarded terms, call attention to the tendency to confuse the functions of the Executive and the

Judiciary. "Recent Acts," he wrote in 1914, have given

1

judicial or quasi-judicial authority to officials who stand more or less in connection with, and therefore may be influenced by, the Government of the day, and hence have in some cases excluded and in others diminished the authority of the Law Courts." This tendency he illustrated by reference to the judicial powers conferred upon the Education Commissioners by the Education Act of 1902, on various officials by the National Insurance Acts, 1911 and 1913, and on the Commissioners of Inland Revenue and other officials by the Finance Act, 1910. But such powers can be conferred only with the concurrence or acquiescence of the Legislature, and this raises a problem distinct from, though cognate to, the problem with which this paper is primarily concerned.

That problem turns upon the relation between Westminster and Whitehall, between the Sovereign Legislature and an Executive which is conventionally subordinate thereto. Is Whitehall, owing to the carelessness or by the connivance of Parliament, encroaching upon Westminster? Is the Cabinet engaged in a more or less unconscious conspiracy with the permanent Executive for the purpose of shelving or enslaving the Legislature? A recent critic answers the question from a somewhat different angle :

Few persons, (he writes), not in some way associated with the central or local administration of Government in this country, realise to what an extent of quite recent years the poison of the Prussian system had permeated Whitehall before the war, and how surely the franchises of local government, one of the bulwarks of English liberty, were being sacrificed to aggrandise a bureaucracy of the very sort denounced by Stein a hundred years ago.*

No impartial analyst of contemporary tendencies can confidently deny the accuracy of Mr. Legge's diagnosis. This is no question of party politics. The danger is more subtle and much deeper. Parties come and parties go; ministry gives place to ministry; the tenure of the political heads of departments is insecure and at the best brief. The tradition is created and the atmosphere diffused by the leading permanent officials. Theirs is the knowledge and theirs consequently the power. Within the appropriate limits set by a vigilant Legislature and an independent Judicature that power is mainly beneficent. But it behoves Westminster to be eternally vigilant, and the Courts to be

*J. G. Legge," Rhyme and Revolution in Germany," p. 9.

(as they are) exceedingly jealous of any encroachment upon their proper functions. The judges must be lions, but not, as Bacon would have had them, lions under the throne. On the contrary, their duty, increasingly imperative amid the complexities of the modern administrative system, is, in the interests of the individual, to keep the Executive in its proper place, and in particular to check any tendency on the part of the Executive to encroach upon the sphere of the Judiciary. But the judges are powerless if the Legislature betrays the pass. It is, then, to Westminster that we must primarily look to arrest the encroachments and to restrain the ambitions of Whitehall.

J. A. R. MARRIOTT

FRANCE IN NORTH AFRICA

1. Les Civilisations de l'Afrique du Nord. By VICTOR PIQUET. Armand Colin.

Paris :

2. Le rôle social de la France dans l'Afrique du Nord. By Dr. J. GASSER. Paris: Crès.

3. L'Algérie et la Métropole. By E. F. GAUTIER. Paris: Payot,

4. La conquête du Sahara. By E. F. GAUTIER. Paris: Armand-Colin.

5. La Tunisie. By J. L. DE LANESSAN. Paris: Alcan.

6. Le Maroc, Géographie, Histoire, Mise en valeur. Paris: Armand-Colin.

7. La France au Maroc. By BERTHE Georges-Gaulis.

Colin.

By VICTOR PIQUET.

Paris: Armand

8. L'Algérie dans la Littérature Française, Essai de Bibliographie methodique et raisonnée. By CHARLES TAILLIART. Paris: Edouard Champion.

1930,

France will observe the hundredth anniversary of the taking of Algiers. It will soon, indeed, be a century since she set foot on African soil. What is most astonishing is that she has stayed there. When the expedition to chastise the Dey of Algiers was decided on, there was no question of a conquest. The rapid fall of the town took everyone by surprise; nobody was prepared for it. Meanwhile the July Revolution broke out in Paris. Charles X was forced to fly and was succeeded by Louis Philippe, a constitutional monarch. The new government was considerably exercised by having an overseas expedition on its hands when domestic worries gave it quite sufficient trouble. Besides, after the first rapid success of the French troops, numerous difficulties arose. The mistake had been committed of shipping the Dey off to the East and allowing the established Turkish administration to fall to pieces. However defective and corrupt that administration was, it preserved some semblance of order and might have served as the basis of a new organization. Deprived of this basis, the military authorities had themselves to administer affairs. They had established no contact with the Turkish officials after having deprived the State of its chief, and they took no steps to assure the co-ordination and co-operation of the public services. Quartered in the Kasbah and the Government offices, the French troops closed the doors on the native

VOL. 243. NO. 495.

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