The Gazette 1973

EDITORIAL

Administrative Justice

Professor Carleton Allen, in his famous work,

Law

and

Orders,

has written a celebrated chapter on "The Public

and the Executive" in which the role of the civil servant

is examined. It is therein asserted that bureaucracy

means government by highly-established administrators.

The danger of bureaucrats exceeding their powers has

since 1854 when the system was established, always

existed in Britain. There have been about twelve Royal

Commissions to examine the British Civil Service which

we inherited. In theory the administrators consist of an

elite who advise Ministers and are deemed to be the

rigorous guardians of tradition and precedent. Appoint-

ments to this grade in theory are made in Ireland by an

Interview Board on the recommendations of the Civil

Service Commission, but the fact that many members

of Interview Boards have resigned on the ground that

their recommendations have not been adhered to, would

appear to suggest that the alleged knowledge of Irish

can be juggled to suit requirements. The decision of

the Commissioners cannot be challenged, as they shelter

behind privilege : in France, candidates who fail to

obtain a government or university post, or those dis-

satisfied with planning appeals, can dispute the deci-

sion before the Conseil d'Etat. When appointed, the

administrator is expected to give loyalty and discretion

to the State. Cynics consider that the alleged benefits

of the non-professional civil servant only exist inas-

much as defects are easy to hide; the main defects are

over-devotion to precedent, anonymity, inaccessibility,

lack of initiative and unwillingness to take responsi-

bil ity. Red tape requires that everything must be

reduced to rule and uniformity, whereas experience

shows no two cases are exactly alike. There is also a

tendency to swell bureaucracy which is wasteful, and

then one may wait months for important decisions. But

perhaps the greatest criticism is the striving for direct,

though largely anonymous, personal power.

As Lord Hewitt has said : There is in existence a

persistent and well-contrived system intended to pro-

duce, and in practice producing, a despotic power which

at one and the same time places government depart-

ments above the sovereignty of the Constitution and of

Parliament, and beyond the jurisdiction of the Courts.

But it is here that where the professional civil servants

—lawyers, doctors, engineers and architects—unlike

their lay colleagues can express more freely their

opinions in rendering a genuine professional service to

the public. Much has been written about possible im-

provements in the system, but there is little doubt that

if any progress is to be made, it will be necessary to

establish an administrative tribunal consisting of law-

yers and legally trained administrators who would be

in a position to review and consider seriously the objec-

tions of the humble citizen without recourse to involved

and expensive legal procedure; the fame of the French

Conseil d'Etat in the impartial determination of admin-

istrative problems, should ensure the future success of

such a tribunal in Ireland, if a similar simplified proce-

dure were adopted here. The difficulty is that, it would

seem to be necessary for such a permanent Court to be

deemed to be a division of the High Court in order to

conform with the Constitution.

THE SOCIETY

Proceedings of the Council

January 11th, 1973.

The President in the chair,

also present Messrs W. B. Allen, Bruce St. J. Blake, John

F. Buckley, Anthony E. Collins, Laurence Cullen,

Gerard M. Doyle, James R. C. Green, Christopher

Hogan, Michael P. Houlihan, Thomas Jackson, John

B. jermyn, Francis J .Lanigan, Patrick C. Moore, Patrick

McEntee, Brendan A. McGrath, Senator J. J. Nash,

John C. O'Carroll, Peter E. O'Connell, Rory O'Connor,

Thomas V. O'Connor, James W. O'Donovan, William

A. Osborne, Peter D. M. Prentice, Mrs. Moya Quinlan,

Robert McD. Taylor and Ralph J. Walker.

The following was among the business transacted.

FLAC

It was decided to refund to the Dublin Solicitors Bar

Association the sum of £100 donated to FLAC.

Hotel licences and bar licences

Representations have been made by the Council to

the Revenue Commissioners about the form of hotel

licences which are identical in appearance with the

ordinary public house seven-day licence. In a letter

dated 16th August 1972 the Revenue Commissioners

stated that it is proposed to include in the next reprint

of the licence form a statement to the effect that the