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THE STRUCTURE AND WORKING OF THE CENTRAL AUTHORITY IN LOCAL GOVERNMENT
THE DEVELOPMENT OF CENTRAL CONTROL 1
A CENTRAL authority presiding over internal administration, either of the kind now established in England, or that which has existed for a much longer period in continental countries, was utterly unknown and undreamed of in the "classical" age of English constitutional history—that is to say, in the reigns of the four Georges. In those days, indeed, the executive
1 Besides the legal commentaries on local government previously referred to, special reference may here be made to the following authorities:-Maltbie, English Local Government of To-Day: A Study of the Relations of Central and Local Government, New York, 1897; Gneist, Englisches Verwaltungsrecht, vol. ii. pp. 1151-1190 (1867); Dicey's Law of the Constitution, chap. xii.; Goodnow's Comparative Administrative Law, London and New York, 1897; Vauthier's Le Gouvernment locale en Angleterre, p. 349 sqq.; Arminjon, L'Administration locale en Angleterre, chap. xiii.; Sir J. Simon, English Sanitary Institutions, 1897, chap. xv.
Among parliamentary and departmental papers the Second Report of the Royal Sanitary Commission (c. 281: London, 1871) is of particular value. The Annual Reports of the Local Government Board abound in illustrative material. The statutory foundation of the central authority for local government is laid mainly by the Poor Law Amendment Act of 1834, the Local Government Board Act of 1871 (34 and 35 Vict. c. 70), the Act of 1872 (35 and 36 Vict. c. 79), and the Public Health Act of 1875 (38 and 39 Vict. c. 55), Part IX. On the congestion of the business of the Board and proposals for relieving it, see First and Second Reports of the (Departmental) Inquiry Committee, 1898 (c. 8731 and 8999).
powers of the State had already been concentrated in a Committee of the Privy Council-the Cabinet. But it was an authority limited and bounded by the impregnable frontiers of the law as interpreted by an independent judicature. An Act of Parliament must be obeyed until it is amended or repealed by another Act of Parliament. A ministry had not, nor has it now, any co-ordinate power of legislation by ordinance. It could not even supplement Acts of Parliament by issuing of its own motion orders and regulations.
The internal administration of the country was not subordinated to the Cabinet; it was regulated solely by the rules of the common law and innumerable Acts of Parliament, public and private. Subject only to the remote possibility of interference from the High Courts of Justice, that which we call, for want of a better term, internal administration, was carried on by Justices of the Peace in counties and boroughs, the Crown and its advisers having no legal power to influence their action. In other words, after the close of the seventeenth century neither King nor Cabinet could exercise any regular and direct control over local government; for local government was completely localised and decentralised. The management of the poor, of public health, roads, and police was entirely controlled, and, for the most part, directly carried out, by the local magistracy under the legal supervision of the ordinary Courts.1 That certain branches of the executive were directly controlled by the central authority of Great Britain in the eighteenth century is of course true.
1 Cf. von Vincke's Darstellung der inneren Verwaltung Grossbritanniens (1815), p. 5. This sharp-eyed friend and pupil of Freiherr von Stein hits off "British government of local affairs' as follows:-"It has this peculiarity. It is not carried on by paid officials arranged in various degrees of subordination and authority; it is not controlled by the incessant activity of departmental clerks, who know everything and want to direct everything, and would like to prescribe beforehand every movement of an intermediate authority. On the contrary, it relegates a great mass of business to the inhabitants, and leaves them to the exercise of their own judgment and energy." And again (pp. 9394): "The Home Secretary only corresponds with the (local) authorities in extraordinary emergencies, such as rioting. His department consists of but two under secretaries and eighteen clerks. This alone, coupled with the personal weight and authority of so many detached authorities and officers, makes it impracticable to keep up regular official communications, to distribute directions, and to receive reports. Consequently the Home Secretary exercises absolutely no regular control over the Justices of the Peace."
The whole province of foreign policy, the government of colonies and plantations, the control of the East India Company, the management of customs and excise, and of the army and navy, all pertained to the Ministry and its departments. But with regard to home affairs, or what we have called internal administration, the Government had no inherent power of issuing ordinances and regulations except in so far as it retained and possessed the old prerogatives of the Crown. Of these prerogatives far the most important was patronage. The appointment of Judges and Justices, the distribution of Crown livings and other preferments, the gift or sale of military and naval patronage, and, in short, almost the whole personal influence of the Crown upon administration, passed in the course of the eighteenth century, despite George III.'s determined and repeated efforts, into the hands of a small group of statesmen, representing the parliamentary majority in the House of Commons, responsible to Parliament, and called the Cabinet. The legislative and administrative powers concentrated in an English ministry at the close of the eighteenth century were therefore enormous; for even the sphere of local government, in one sense wholly detached and independent, was under the control and supervision of Justices appointed by the Ministry from members of their own class, and generally of their own party. But if we except patronage, this power was usually exercised under Parliamentary forms and always under Parliamentary control. To an English government of that time the very conception of administrative ordinances, the regular weapons of a continental government, was utterly unknown.1 After long centuries of development, the absolute rule of the Norman kings had been replaced at the beginning of the nineteenth century by the omnipotence or omni-competence of Parliament. But the rule of Parliament is accompanied by the rule of law; and the English system of government cannot be understood, nor its stability estimated, unless the position and function of the Courts are at the same time envisaged. We have already
1 "Verordnungen, welche die allgemeine Notdurft erheischen möchte werden von ihnen vorbereitet und dem Parlamente in Antrag gebracht" (Vincke, op. cit. p. 92). A Royal Order in Council was an apparent rather than a real exception; for, as an active body, the Privy Council was simply the Cabinet, and as such responsible to Parliament.
shown that every new rule of law, either general or local, must be enacted by Parliament; that all regulations affecting the legal rights of a citizen required legislative sanction; and that the carrying out of all laws-in other words, administration was entrusted finally and in the last resort to Justices and Judges. And from this it is apparent why in the eighteenth century, when the decentralisation of the executive had been carried to its extreme point, there was scarcely any central administrative control over internal administration. In 1815 there was no Local Government Board, and the Home Office, as we have seen, only required eighteen clerks. Nor was such control politically needful, seeing that the class which sat in Parliament was identical with the class which ruled the counties and controlled municipal government. At the same time, another kind of uniformity was assured; for the legality of every act of government, whether done by a minister, a corporate body, or a Justice of the Peace, might be questioned and tested in courts of law presided over by an independent judicature. It is worthy of remark that the British governments of the eighteenth century, which devoted so much energy and strength to foreign and colonial affairs, and waged ceaseless wars for empire, never thought of trying to increase their direct sphere of influence at home by the establishment of a central control over local government. Thus the revolutionary movements of 1795 and of 18151820 were combated not by departmental action, but by Parliamentary legislation. The suspension of the Habeas Corpus Act, the passing of the Libel Act, and of the "Six Acts" of 1819, were severely coercive measures; but they contain no evidence of any attempt to give a continental character to administration. In so far as individual liberty was destroyed, it was destroyed by, and in pursuance of, Acts of Parliament.
But the old system of English administration collapsed before the unavoidable demands of an industrial development; and it was this collapse which, in the early decades of the nineteenth century, made it necessary to establish central departments with administrative control over local authorities. The connection of this new departure with the reform movement has already been set forth, as well as the stages by
which the administration of the Poor Law and of public health was placed under the control of two Central Boards, eventually amalgamated in 1871 into one, with the title of the Local Government Board.' The sphere of this great department has been enlarged and diversified by successive Acts of Parliament, and now includes most of the field usually assigned to a continental ministry of the interior. At first other departments, and especially the Home Office, played a considerable part; but now the Local Government Board has almost the whole apparatus of control over local authorities in its own charge. Its work may still be classified in two divisions, representing two stages in the growth of administrative control-Poor Law and public health. The control of poor relief and the supervision of sanitary administration are functions similar, yet parallel and distinct; but there is a third financial department, the control of local loans and the revision by audit of local accounts, which extends the operations of the Board over the whole of local administration.2 It will be necessary in describing the work of the Board to repeat much that has been stated in previous chapters; but it is important that so many scattered threads should be drawn together in order that this great central department may be surveyed as a whole. A separate chapter will be reserved for the work of another department-that of the Home Secretary-in so far as it is concerned (mainly through its police functions) with local government; and our survey of central administration will conclude with short chapters on the Board of Education, the Board of Trade, the Board of Agriculture, and those other temporary organs of the central government which are known as royal commissions of inquiry.
1 Vol. i. Part II. chaps. ii.-iv.
2 Municipal Corporations and Joint Boards upon which they are represented are the only local authorities whose accounts are exempted from the audit of the Local Government Board.