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A. V. Dicey, "Development of Administrative Law in England," Law Quarterly Review 31,
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 THE DEVELOPMENT OF ADMINISTRATIVE LAW IN
ENGLAND.

T HE Board of Education v. Rice [1gii] A. C. i79, 8o L. J. K. B.

796, and local Government Board v. Arlidge [1915] A. C. i!o,
84 L. J. K. B. 7!, ought to be read together. They each deserve
the most careful attention of all students interested in the develop-
ment of the English system of government or in the growth of the
legislative opinion which in effect governs parliamentary legislation.
Each case finally lays down, as far as the courts of England are
concerned, a clear and distinct principle by which any department
of the Government, such for example as the Board- of Education,
must be guarded in the exercise of powers conferred upon it by
statute. The Board of Education v. Bice establishes, or rather illus-
trates in its application to particular circumstances, the principle
that any power conferred upon a Government department by
statute must be exercised in strict conformity with the terms of
the statute, and that any action by such department which is not
so exercised should be treated by a court of law as invalid. This
is all that the judgment of the House of Lords in reality decides.
This should be noted, for Board of Education v. Rice suggests,
and in a sense raises, a question of more popular interest, namely,
whether under the Education Act, 1902, s. 7, a local education
authority is bound to treat every elementary school subject to
its control with strict equality, or whether it may lawfully, whilst
duly and efficiently maintaining each school under its control, give
advantages to one class of school not bestowed upon another class.
To this inquiry the judgment of the House of Lords gives no answer.
The Local Government Board v. Arlidge in strictness estalblishes the
principle, which was open to considerable doubt (as appears from
the reversal by the House of Lords of the judgment delivered in
this case by the Court of Appeal 1) that when a statute confers upon
a Government department judicial or quasi-judicial jurisdiction
(in the matters with which the department is concerned), and does
not lay down any rule how this jurisdiction is to be exercised, the
department is not bound to adopt the rules of procedure followed
I See [1914] 1 K. B. i6o, 83 L. J. K. B. 86.
 Development of Administrative Law in England. 149

by English courts, but, is certainly at liberty, and probably is

intended by Parliament, to exercise this jurisdiction in accordance
-with the rules adhered to by the department in the conduct of its
usual business. This principle may be stated in a slightly different
form: a Government department when it exercises judicial or
quasi-judicial jurisdiction under a statute is bound to act with
judicial fairness and equity, but is not in any way bound to follow
the rules of procedure which prevail in English courts. 1
The principles enunciated in these two judgments of the House
-of Lords are in themselves of high importance; they undoubtedly
are now part of the law of the land which can be modified only by
Act of Parliament. They also raise the following general question:
Has recent legislation, as now interpreted by English courts, intro-
4duced or tended to introduce into the law of England a body of
administrative law resembling in spirit, though certainly by no
means identical with the administrative law (droit adninist atlif)
which has for centuries been known to, and during the last hundred
years been carefully developed by, the jurists and legislators of
France? This is an inquiry which does not admit of an off-hand
answer. The right reply is not directly given, but yet is suggested
by the following considerations:
First. During the last fifty years, and notably since the begin-
ning of the twentieth century, the nation as represented in Parlia-
ment has undertaken to perform a large number of duties with
which before the Reform Act of 1832 no English Government had
any concern whatever. This assertion is so obviously and admittedly
true that it is hardly necessary to produce evidence in its support.
If any critic doubts its substantial accuracy he should study the
long line of Elementary Education Acts dating from 1870, the Old
Age Pensions Acts, 19o8 and 1911, and the National Insurance
Acts, 1911 and 1913. Even the cursory examination of these three
statutes alone will certainly remove his scepticism.
Secondly. The imposition upon the Government of new duties
inevitably necessitates the acquisition by the Government of
extended authority. But this extension of authority almost implies,
and Qertainly has in fact promoted, the transference to departments
of the central government (e.g. to the Board of Education or the
Local Government Board) of judicial or quasi-judicial functions.
Of course, it is conceivable that in a country such as England,
where the strict rule of law 2 had been for generations accepted by
the people, a great number of administrative questions might, in the

I See judgment of Lord Haldane, &c. [19x5] A. C., pp. 132, 13.
2 See Dicey, Law of Constitution, Pt. II, ch. iv.
 The Law Quarterly Review. [No. OXXII.

nineteenth or even in the twentieth century, have been wholly left

for their determination to the law courts. Something of this kind
is in reality the method pursued by the Workmen's Compensation
Act, 19o6, which in effect enacts that claims for compensation under
the Act shall be settled by arbitration as therein provided, or if
-either party objects, by a county court judge. But it is obvious
enough that there is great convenience in leaving to a Government
department, which deals with any business in which large numbers
of persons are interested (such, for example, as the payment of old-
age pensions, national health insurance or unemployment insurance),
the power to decide questions which are more or less of a judicial
character. In other words, it becomes almost inevitable that juris-
diction should be given to a department of the Government, or to
officials very closely connected with such department. The objec-
tion to bestowing upon the Government of the day, or upon
servants of the Crown who come within the control or the influence
of the Cabinet, functions which in their nature belong to the law
courts, is obvious. Such transference of authority saps the founda-
tion of that rule of law which has been for generations a leading
feature of the English Constitution. But we must remember that
when the State undertakes the management of business properly
so called, and business which hitherto has been carried on by each
individual citizen simply with a view to his own interest, the
Government, or, in the language of English law, the servants of the
Crown, will be found to need that freedom of action necessarily
possessed by every private person in the management of his own
personal concerns. If a man of business were to try to conduct
his own affairs in accordance with the rules which, quite properly,
guide our judges in the administration of justice, he would discover
that at the end of the year he had realized no profits and had come
near to bankruptcy. How could any trade prosper if it were in
the hands of a man who could not dismiss a clerk until the employer-
had obtained conclusive proof of fraud or misconduct by the servant,
or if no evidence were allowed to tell against the alleged delinquent
unless it were what lawyers consider the very ' best evidence'?
The management of business, in short, is not the same thing as the
conduct of a trial. The two things must in many respects be
governed by totally different rules.
Thirdly. When judicial functions, which involve jurisdiction, are
transferred by statute from a law court to a Government depart-
ment (e.g. to the Local Government Board) it is possible to enter-
tain one of two different and opposed views as to the effect of this
transfer. The Local Government Board, it may be said on the one
hand, is called upon to exercise judicial functions, or in other words
April, 1915.] Development of Administrative Law in England. 151

jurisdiction; and hence it follows that the Local Government

Board must, when acting as a judge, comply with the rules of
judicial procedure. This in the case of Local Government Board v.
Arlidge was the conclusion arrived at by the Court of Appeal. On
the other hand, it may be said that the transference of jurisdiction
from a court to the Local Government Board is in itself prima facie
evidence that Parliament intended that such jurisdiction should be
exercised in accordance, not with the rules which govern judicial
procedure, but with the rules which govern the fair transaction of
business by the Local Government Board. This is the conclusion
arrived at by the King's Bench Division and by the House of Lords.
There is a great deal to be said in favour of each view. The con-
jecture may be hazarded that if under any Act of Parliament the
question decided by Local Government Board v. Arlidge could in i86o
have been brought before the House of Lords, their lordships would
probably have adopted the same view as has been maintained by
the Court of Appeal. It may also, however, be suggested that the
conclusion arrived at by the House of Lords is in harmony with
the legislative opinion dominant in 1915. A cautious observer can,
however, not shut his eyes to the fact that the decision of the
House of Lords in Local Government Board v. Arlidge may have far-
reaching consequences. It may lead to the result that any Govern-
ment department which is authorized by statute to exercise judicial
or quasi-judicial authority may, or rather must, exercise it in
accordance, not with the procedure of the law courts, but with the
rules which are found to be fair and convenient in the transaction
of the business with which the department is officially concerned.
Fourthly. There remain two checks upon the abuse of judicial
or quasi-judicial powers by a Government department. In the first
place, every department in the exercise of any power possessed by
it must conform precisely to the language of any statute by which
the power is given to the department, and if any department fails
to observe this rule the courts of justice may treat its action as
a nullity. This is the effect of Board of Education v. Rice. In
the second-.place, a Government department must exercise any
power which it possesses, and above all any judicial power, in the
spirit of judicial fairness and equity, though it is not bound to
adopt the rules appropriate to the procedure of the law courts.
This duty of compliance with the rules of fair dealing is insisted
upon by the House of Lords in Local Government Board v. Arlidge,
and it is probable that in some form or other the English courts will
always find the means for correcting the injustice, if demonstrated,
of any exercise by a Government department of judicial or quasi-
judicial authority.
 Die Law Quarterly Review. [No. OXXII.

The Lord Chancellor, be it observed, when delivering judgment

in Local Governmene Board v. Arlidge, refers to the fact that the
'Minister at the head of the Board is directly responsible to Parlia-
ment like other Ministers', and lays down that 'provided the work
is done judicially and fairly,... the only authority that can review
what has been done is the Parliament to which the Minister in
charge is responsible'. This reference to so-called ministerial
responsibility is somewhat unfortunate. It is calculated to promote
the belief that such ministerial responsibility is a real check upon
the action of a Minister or a Cabinet when tempted to evade or
override the law of the land. But any man who will look plain
facts in the face will see in a moment that ministerial liability to
the censure not in fact by Parliament, nor even by the House of
Commons, but by the party majority who keep the Government in
office, is a very feeble guarantee indeed against action which evades
the authority of the law courts. A Cabinet is rarely indeed tempted
to defy the wishes of the majority of the House of Commons, since
it is the support of that majority which keeps the Cabinet in office.
If a Minister or the Government is tempted to evade in some
form or other the authority of the law, the temptation must arise
from the fact that his action is desired, or at lowest will not be
censured, by the majority of the House of Commons. It were an
exaggeration to say that ministerial responsibility is an unmeaning
term. It does mean the necessity of conforming to the wishes of
the party which forms a majority of the House of Commons and
keeps a ministry in power, but it is no security whatever that
a Cabinet will scrupulously obey that rule of law which has been
created, and must be enforced, if at all, by the power of the law
courts.
If any one will weigh th& above considerations he will, it is
submitted, be able to answer, though still with some little hesitation,
the inquiry raised in this article. Modem legislation and that
dominant legislative opinion which in reality controls the action of
Parliament has undoubtedly conferred upon the Cabinet, or upon
servants of the Crown who may be influenced or guided by the
Cabinet, a considerable amount ofjudicial or quasi-judicial authority.
This is a considerable step towards the introduction among us of
something like the droit admi?isdratifof France, but the fact that
the ordinary law courts can deal with any actual and provable
breach of the law committed by any servant of the Crown still
preserves that rule of law which is fatal to the existence of true
droil admihzidratif Nor, in a period of rapid and revolutionary
change, though generally unaccompanied by violence, is it useless
to bear in mind that impeachment is still part of the law of England,
April, z915.] Develoinment of Administrative Law in England. 153

and that impeachment is the legal action of the High Court of

Parliament.
A. V. DICEY.

[The distinction between judicial, quasi-judicial, and arbitrary

-power is familiar in our books, and there should be no difficulty in
finding apt words to make it clear which kind is intended. Arbi-
trary power has been deliberately conferred by Parliament in some
-cases-for example, on the protector of a settlement under the Fines
and Recoveries Act. Unfortunately contentious Bills dealing with
administrative government often emerge from Committee disfigured
by obscure and ill-drawn compromises between the vieWs of opposed
parties. As to the Cabinet being secured by the support of a party
majority, it has to be remembered that all party majorities become
minorities sooner or later, and that one of the surest ways in which
any Government can hasten that process is to acquire a reputation
for arbitrary interference with ordinary rights.-F. P.]