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Here then, set out with great clarity, is the English mid-eighteenth-century amalgam of mixed government, legislative supremacy, and the separation of powers. Although playing a subordinate role in this theory, the ideas of the separation of powers doctrine are essential to it. The division of the functions of government among distinct agencies is there, but neither the functions nor the agencies follow the categories of the pure doctrine of the separation of powers, and in one vital function the authority is shared, not divided. The idea of the separation of persons is also very important, demanding at least a partial separation among the agencies of government. There were recurrent attempts to rid the Commons of office-holders and pensioners. In the Act of Settlement provision was made for the exclusion from the House of Commons of all office-holders, which, if it had not been repealed before coming into effect, would have made a very considerable difference to the British system of government. The idea of checks to the exercise of power, through the opposition of functionally divided agencies of government in distinct hands, is there, but it is a much more positive view of the necessary checks to the exercise of power than the pure doctrine envisaged.
There were, therefore, in the period before the First World War, two major objectives in the Progressive attack upon the Constitution. The main effort was directed at an attempt to ensure the responsibility of the parts of government to the people through the mechanisms of direct control; in addition an intellectual assault on the Constitution by Wilson and others stressed the need to achieve an effective, harmonious relationship between the branches of government. These two aims of democracy and harmony were by no means mutually exclusive; they were shared in varying degrees by all the reformist elements, but they embodied different approaches to institutional solutions which were to a large degree incompatible. The harmony of purpose in a system of parliamentary government resulted from the direct responsibility of the government to the elected legislature, whereas the use of the initiative, referendum, and recall, and the direct election of executive and judicial officials as well as members of the legislature, did not combine easily with the principles of the parliamentary system. The most impressive attempt to draw together and integrate these various strands of Progressive constitutional doctrine was made by Herbert Croly, journalist and, for a time, confidant of Theodore Roosevelt. Croly’s concern for popular control and effective, co-ordinated government, resulted in a subtle and sensitive approach to the problems of constitutionalism. The role of the separation of powers in a modern constitutional State was one of his major concerns in his of 1915. In this work he was at pains to refute the charges that Progressivism was an extremist attack upon constitutionalism itself, and this led him to attempt a conscious reformulation of the doctrine of the separation of powers in the American context.
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The second problem lies in the apparent assumption that the administrative machine does not have policy aims of its own and will faithfully implement the policies laid down by the legislature. Thus although the checks to the abuse of power by the administration set out above are important at a general level, if individual rights are to be safeguarded there must be a much more detailed case-by-case control. One solution to the problem would be to follow the continental system of administrative courts, the model of the French which is quite separate from the general courts. The danger, however, would be that such a court would seem totally alien to the Common Law tradition. Another solution is possible. Both the British and American courts have shown a readiness to develop the kind of public law which could fill the gap left in our system of jurisprudence. At present administrative cases come piecemeal to the United States Federal District Court, or to the English High Court, are subject to all the corresponding problems of delay and expense and are dealt with by judges who are not specialists in administrative law. Yet our systems of courts already include specialist divisions, which because of their differing subject material have differing procedures. It would be perfectly possible to set up an Administrative Division with the tasks of overseeing the administration’s activities, hearing complaints from the public, and providing remedies. It ought not to operate through the adversary system, which characterizes our current judicial system, and it could have very different methods of gathering evidence, accepting documents and written submissions where possible. The Division could in fact learn a great deal from the procedures of the but still be integrated into the body of the judicial system. Appeals could lie to the Common Law courts, but the grounds of appeal, particularly by the administration, could be severely limited to important questions of law.
The traditional theory of the separation of powers sought to divide the functions of government between three branches of government and to keep the personnel of the three branches separate. The evident inability of this arrangement to control abuses by government led to the modification of the theory by grafting on to it checks and balances derived from the mixed constitution of eighteenth-century Britain. Although this institutional structure was explicitly embodied in the Constitution of the United States, the values it was intended to safeguard, democracy, efficiency, and justice, were just as important in nineteenth- and twentieth-century Britain, and the institutional structure of British government showed, and still shows, the influence of these values, particularly in the way in which particular processes characterize the operations of the differing branches of government. Although many commentators have rejected the idea that British government embodies a separation of powers, none would argue that laws should be made by civil servants, that members of the government should have the power to commit people to prison at will, or that the House of Commons or its committees should run the Health Service on a day-to-day basis. The development during the twentieth century of political parties that threatened the degree to which in reality the functions and branches of government were separated was not an overt attack upon the historic values they embodied, except by a small group of now discredited ideologues who rejected the whole basis of the system, but rather was a response to the introduction of a fourth value, social justice, which seemed to demand new structures and a new emphasis upon the co-ordination of the machinery of government, instead of the earlier emphasis on control. The consequence was the rise of the administrative state and the attack by its champions upon the separation of powers, an attack which as we have seen still characterizes those who yearn after an integrated, cohesive theory of administration.
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It is doubtful, however, if these attempts could be said to be successful. The dissatisfaction with the way in which the control function is being performed has produced the Council on Tribunals to attempt to give some independent supervision of administrative justice, has led to demands for the reform of Parliament to make control of the administration more effective, and to the proposals for a Parliamentary Commissioner to investigate grievances. There has thus been a resurgence of demands for more effective external checks to be applied to the hierarchy of ministers and civil servants, and a suspicion that bodies, which are representative of outside interests, but which work for long periods with the hierarchy, become identified with it in the minds of the ordinary people, and perhaps in their own minds as well. There is the awful fact that a decision which you have helped to make must in part at least be defended by you, and it becomes, in the eyes of other people, your responsibility. This fact has always been recognized by parliamentary oppositions, who have consistently refused to accept any responsibility for, or even to enter into private discussions on, government policy. The need for an external check of some description seems continually to emerge from these situations. It is this fact which, above all else, suggests the need for a Parliament with effective control functions. Parliament has given up any attempt to initiate or even amend rules which are to be made. It must, therefore, control the means by which government is carried on. Only in this way can an external check be applied. We should not allow one-sided appeals to the out-dated vocabulary of the separation of powers to prevent this; to talk of interference in executive functions by Parliament is today the most cynical use of terms that no longer have any real meaning.
But have we really described how rules are in Britain? What does rule- mean? Are rules made by the person who drafts them, by the body which formally approves them, or by the leaders who instruct the draftsmen and who organize the approving body? The answer in Britain today is, surely, that the rules are made by all three elements in the process. We should not forget that ministers and civil servants are different bodies of men, differently composed, differently recruited, with a different tenure, with different skills, and with different interests. The number of important decisions taken by government is so great that ministers cannot possibly hope to give their attention to, or even to understand, all of them. There is also a division of power and of interest between ministers and the members of Parliament who compose the legislature. If the functions of the House of Commons were truly formal, if it were a rubber-stamp, then it could hardly be said to share in rule-making. But this is surely not yet the case. The existence of an opposition party in the House of Commons, and its role of making a constant appeal, with the next election in mind, to the public, imposes upon the government the necessity of defending its measures in Parliament not as a mere formality but as a genuine attempt to convince; not to convince the Opposition—that could hardly be hoped for—but to convince interested groups, the more perceptive elements in the electorate, and, most important of all, its own supporters in the House. Thus, although governments do not expect, and very rarely meet, defeat in the legislature, they do not do so largely because the political problems have been ironed out as far as is possible in the consultations, before the introduction of legislation, in the party, with interested groups, in the departments, in the government itself, and in a few cases in the cabinet, or between the Prime Minister and a few close colleagues. Yet this whole complex process of consultation is dependent upon the structure and constitutional powers of the House of Commons. It is the ultimate reality of that body which imposes this whole process upon the government. Let us not decry that institution because it no longer laws, for it imposes great restraints upon the way in which they are drafted. Not the least important part of its structure is the rule which excludes holders of offices-of-profit (principally civil servants) from membership of the House. To take this point to extremes, it would be a very different system of government if members of the House were ministers or civil servants; then truly the function of the House in regard to rule-making would be purely formal. It is this consideration that makes the further increase in the number of ministers in the House of Commons inimical to our constitutional traditions and interests. There is thus a real sense in which the ministers, the civil servants, and the House of Commons the rule-making power; furthermore, this is a body of men which is, by law, differentiated into three distinct but overlapping groups, and it is legal rules which, by helping to minimize the importance of party among the civil servants, and by helping to ensure a two-party system in the Commons, place limits upon the ultimate power of a single political party or its leaders in the exercise of the rule-making function. It is in this sense that a “partial separation of powers” is still the central principle of the British system of government today. This should not lead to complacency, for, as will be argued later, it is the balance between these elements which should concern us.
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Submitted Master Theses – University of Copenhagen
The half-century between the Civil War and the First World War witnessed an extensive and elevated discussion of constitutional theory in the United States, of a quality and an intensity which bears comparison with the period of the great debate between Federalists and Jeffersonians. Emphasis upon reformist thought should not lead us to forget the numerous defenders of the of whom Lowell, Snow, and President Nicholas Murray Butler should be mentioned. The various criticisms that inspired the attack upon the Constitution were given coherence by their association with an active political movement which deeply influenced American life; but when, at the end of the War, Progressivism ceased to play this important role, the coherence of the ideological attack upon accepted constitutional theory vanished with it. Criticism of the separation of powers continued unabated, of course, and the various strands of earlier reformist thought continued to exert considerable influence. But there was a disintegration in the coherence of these attacks which was comparable to the fragmenting of constitutional thought following 1825.
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