Central Executive: The Legal Structure of State Institutions

1. Introduction

An account of how the central executive was structured in law, and how and why that changed, needs to begin by confronting a contradiction. On the one hand Paul Finn’s perceptive account of nineteenth-century law and government deals dismissively with the eighteenth-century inheritance by saying that ‘Customs, Excise and the Post Office apart, the central civil administration was a small affair indeed, bearing little on the everyday life of ordinary citizens’, and then that ‘not even the great officers of state—the Principal Secretaries of State, the Lord Treasurer and the like—were possessed of significant common law or statutory functions’.1 By contrast John Brewer has shown that far from being complacent and ineffective, England’s central administration created a fiscal-military state at least as powerful and efficient as any in Europe at what it chose to do.2 While Finn has nothing more to say about customs, excise, and the post office, Brewer makes the excise commissioners central to his analysis. How can these descriptions be reconciled?

As for the army, it was of immense constitutional importance, and of prac-tical significance too, that within England it was controlled neither by the king nor a general but by civilians responsible in some sense or other to Parliament.3 Some small part of their powers would be statutory, under provisions in the Mutiny Acts, and after 1783 the Secretary-at-War’s financial control was statutory too, but the broad issues of troop movements and disposition are best seen as involving civilian exercise of prerogative powers that had devolved to them (p.343) consequent upon the practice of permitting the king an army for but one year at a time.4 Some of the more important functions were performed by the Secretaries of State, but their offices left a notoriously light footprint on the law. They were offices created by the sovereign of his own power, not statutory creations. By the end of the eighteenth century their duties (though capable of statutory addition) were largely a matter of convention, agreement, and the discretion of the Prime Minister.5 Thus the big questions of control of the army at home, vital though they were to the character of the eighteenth-century polity, were a prerogative matter that had fallen into the hands of political officers whose existence and demarcation were also matters of prerogative or of politics. Legally, they had low visibility.

The same was sometimes true of the civil establishment. The government’s ability to group and direct Crown servants allowed it to create central institutions that had considerable political significance while lacking independent legal personality. The Board of Trade was established by order in council in 1786, the Committee of the Privy Council on Education likewise in 1839. But the latter, though not unique in our period, was exceptional—an expedient for a government with support for its proposal in the Commons but without the votes to pass a bill through the Lords.6

By contrast the Commissioners of Excise controlled a large modern statutory agency, efficient and effective, which precociously satisfied all Max Weber’s criteria for bureaucratic rationality.7 In the writings of Sir Norman Chester and Paul Finn much is made of a transition undergone between the late eighteenth and mid-nineteenth centuries by public functionaries below the top rank, whose status changed from one of office holder to one of employee.8 There was, they argue, a concomitant loss of autonomy and, importantly, a loss of public accountability through legal process, as private discipline through demotion and dismissal replaced older sanctions of fines and indictments. The excise Acts contained that transition within themselves from the beginning. The excisemen were treated as officers in relation to the public, and a range of statutory offences was created (p.344) applicable to the entire excise hierarchy from commissioners to doorkeepers, to keep them in line. Functionally, however, the relationship between commissioners and excisemen was one of employment, with all the subjection to discipline and direction that that entailed, and that relationship was acknowledged in the statutes.9Brewers, distillers, and manufacturers of the myriad commodities bearing excise duty would be in no doubt exactly how their processes were to be conducted, policed, measured, and taxed, or which official would be responsible for which aspect of tax-gathering. But nor would they doubt that every aspect of the system operated under the direction of the commissioners through the printed regulations they distributed to officers and through the systematic superintendence they exercised via supervisors and collectors.10

The minute particularity of these statutes leads, paradoxically, to much the same result as the invisibility of the prerogative. Statute was tailor-made. The excise management legislation was not like the customs legislation, and the post office was different again.11 These agencies had high legal visibility—copious statutes, case law on many aspects of it—but their particularity discourages generalization, and to writers in the common law tradition generalization is especially valued.

G. E. Aylmer famously remarked that late eighteenth-century administration remained ‘an extraordinary patchwork—of old and new, useless and efficient, corrupt and honest—mixed in together’, and it follows from what has been written above that its legal form was equally fragmented.12The general tension, though, is reasonably clear. It was between an organization based upon prerogative (or fact, or politics) and an organization based upon statute. The former stressed (p.345)the uniqueness and the exclusiveness of the Crown, the latter, when it could be generalized, invited comparison with the statutory agencies that exercised public functions in the localities. But differences of legal form did not necessarily connote differences of political substance. The excise commissioners surely resembled statutory local commissioners in their legal form, but they were Crown servants who quite early in the eighteenth century became subjected to a de facto Treasury superintendence that in due course was written into the law. Because statute was tailor-made the constitutional relations of a statutory agency could not be generalized; instead each was created anew and differently.

The sovereign’s powers, the Crown’s powers, were, of course, exercised by the government in the sovereign’s name. How much say the sovereign had in that, if any, depended on the sovereign, the sovereign’s consort, the ministers concerned, the subject-matter, the circumstances, and the time—but the law was blind to the question, just as it was blind to the question of which ministers the Prime Minister chose to involve in any particular exercise of a prerogative. But there was never any question of framing statutes so that they vested their new powers in the sovereign. That would have been undignified, or stretching the fiction too far, or, depending on the subject-matter, at risk of being taken seriously.13

Nor, to the regret of late twentieth-century theorists, was the ‘state’ given legal personality and made the repository of statutory power. Such an idea contradicted early and mid-nineteenth-century notions of responsibility and status. These cut two ways. On the one hand, through into the 1840s and, with some of them even into the early 1850s, ministers expected to attend to administrative detail. Powers were vested in them personally because they expected to exercise them personally. As late as 1865 the future Lord Salisbury was still expressing incredulity and hostility to the notion that a civil servant might in fact be exercising in his master’s name the power that the law vested in a minister or a board, even though that had become conventional by at least a decade earlier.14 Secondly, there was a mid-century reaction against the Whiggish notion that executive power was best vested in multi-member boards, the ‘balanced constitution’ in miniature, to favour instead a ‘single seatedness’ that would bring greater efficiency and accountability through individual responsibility.15 Both currents(p.346) of thought militated against vesting power in an abstraction such as the Crown or the state.

The nearest that common legal form came to vesting powers impersonally was when statute conferred them on ‘one of Her Majesty’s principal Secretaries of State’, leaving it to orders in council or patents of appointment to identify which Secretary of State would usually exercise them. In law it did not matter, for in law the principal Secretaries of State were interchangeable (save, as always has to be said, that a statute might stipulate just one of them). There was potential here for creation of a unified and abstract substitute for the monarch, but the intermediate stage would have seen an unpalatable concentration of statutory power—a prospect which lost Sir James Graham, Home Secretary from 1841 to 1846, many of his legislative proposals.16

For many reasons the usual nineteenth-century way was to create individual agencies by statute. Occasionally the initiative came from outside government, often new powers were needed too—it had long been settled that new coercive powers could not be created by prerogative—existing offices of a proprietary nature could not be abolished by prerogative.17 Similarly it was common form for statute to authorize Secretaries of State and other ministers to appoint staff even though common law or prerogative powers should have been quite adequate.18 For all this statutory activity, however, the offices at the peak of the political pyramid retained their legal character as creations of the prerogative (for lack of a better word), though some presided over departments that had been reorganized by statute. Just three of the 16 members of Palmerston’s cabinet, 1855–8, held statutory posts, and only five of the 21 offices represented in the Conservative cabinets 1895–1905 were statutory.19

Through into the 1850s there was no consensus about the relation between this political elite and the holders of new statutory powers. When new powers were mooted or old ones consolidated the question of who was to wield them was approached along three lines. The first and most important was political. Should the powers vest in an existing power holder or in someone new? Then, to what extent and in what ways should that person be subject to, or free from, (p.347) control by another, or have to account to another in some way? When should that other be Parliament (and in particular, the House of Commons), and when should it be a minister of the Crown? These were the most important issues through into the 1850s and 1860s, resulting in something of an orthodoxy that privileged ultimate control by a minister responsible to Parliament, and hence to the electorate.

The second line, closely related to the first, was the administrative. There was a pervasive and contestable concern for efficiency and economy. What was the ideal executive agency in the circumstances? Should it be a commission of several members or should all agencies be hierarchies with a single head able to command subordinates? Should the agency itself control the recruitment, payment, and pensioning of its staff, the provision of premises, the purchase of consumables, or should those functions be centralized (and hence controlled)? This is the history of the growth of the central civil service and the rise of the Treasury as its administrative controller.

The third line was legal: what legal characteristics should the power holder have? Statute could vest legal powers in any natural or artificial legal person, or in any group of persons. No particular designation was needed, no particular legal form.

2. Statutory Agencies: Autonomy and Integration

Through into the 1840s, tailing off by the mid-1850s, the equation of ‘the execu-tive’ with ‘ministers of the Crown’ was neither fully established nor fully accepted. Rather, the critical question for the reform Parliament of the 1830s was the degree of ministerial control there should be over the exercise of the new powers it was creating. The three new agencies, the factory inspectors, the Poor Law Commissioners, and the Tithe Commissioners were designed to no consistent pattern save that they received statutory powers in their own right, not by delegation from a Secretary of State. All began well distanced from ministers and day-to-day political control.

That did not necessarily leave them unaccountable to Parliament, since accountability of a sort could be achieved by other means. An agency might be kept on a short rein by having its powers granted for only a fixed, and short, duration, hence needing periodic renewal. Its funding might be annual, through the Appropriation Act. A more favoured agency might instead be given pow- ers of indefinite duration and its funding charged on the consolidated fund. In addition, agencies might have a reporting obligation, which might occasion questions and debate in Parliament. The distinction was between, on the one hand, (p.348) control by, and accountability through, a minister of the Crown, and, on the other, independence of government but some form of accountability to Parlia-ment. Ministers could be just one sort of agency in a variably accountable set.

According to their constitutive Act in 1833, the factory inspectors were free to promulgate legally binding rules, either individually or collectively, to act as itinerant magistrates adjudicating upon the statute, and to control their subordinate staff, all of this without a suggestion that they were subject to anyone’s direction. Indeed the only provision the Act made to encourage uniformity was to require the inspectors to meet together periodically for the purpose.20 It is unsurprising that the Home Secretary should at first have refused the inspect-ors’ request for supplies from H.M. Stationery Office on the ground that they were not part of the central administration.21 Even so, they were not entirely independent. The initial appointment of their subordinate staff rested with the Secretary of State, and the inspectors’ reporting obligations, collective and individual, were likewise to the Secretary of State—the Act said nothing about reporting to Parliament.

As for the Poor Law Commissioners, it is well known that its architect, Edwin Chadwick, sought an executive board of maximum independence insulated as far as possible from political influence. It was not to be under ministerial direction, nor could a minister (or indeed any Member of Parliament) serve concurrently as a commissioner, contrary to the initial preference of Lord Althorp, who as Chancellor of the Exchequer introduced the bill creating it.22 Further, the commissioners could appoint their own staff, subject only to statutory maxima and Treasury control of salaries. Their accountability was to Parliament through annual reporting (directly, not through a minister), dependence on an annual vote of supply, and a five-year limitation of their powers.23 But they too were not, quite, an independent statutory agency, since their General Orders needed submission to a Secretary of State and could be disallowed by His Majesty in Council, and they had an additional reporting obligation to the Secretary of State, including on each occasion that they failed to reach agreement.

The third of these pioneer agencies, the Tithe Commissioners, were modelled on the Poor Law Commission save that they were yet a degree more autonomous (p.349) through having their funding charged directly upon the consolidated fund.24 They originally perhaps owed their greater independence to their character as a joint creation of church and state, the Archbishop of Canterbury having the appointment of one of the three commissioners, but they kept it when they were given the additional and wholly secular function of implementing copyhold commutation in 1841.25

Just as these three pioneer statutory agencies varied in their initial relations with Parliament and government so their susceptibility to review or reversal by the courts differed. The Factories Act 1833 was brief but definite: conviction whether by magistrates or inspectors were not to be appealed or removed by certiorari save in forgery cases.26 As further judge-proofing, a short form for recording convictions was stipulated.27 No means were provided for challenging the validity of orders and regulations the inspectors might make, though, exceptionally, their refusal to countersign an age certificate could be appealed to a magistrate.28

This favoured position was not copied for the Poor Law Commissioners. Their situation was different of course, in that their decisions affected individuals at one remove through their orders to local boards of guardians. Disputes were in a sense inter-governmental, local against central. The commissioners’ statute provided that their rules, orders, and regulations could be challenged on certiorari, while adding, importantly, that until set aside instruments were valid and to be obeyed.29 That had a useful side effect. The cabinet had denied Chadwick’s request that the commissioners have their own direct powers of enforcement, so instead they had to proceed through courts by mandamus.30 The Queen’s Bench obligingly ruled, however, that the way the certiorari section was worded precluded (p.350)challenge to the validity of their orders at enforcement stage.31 The commissioners did not win all their jurisdictional disputes, especially with unions already incorporated under Gilbert’s Act or local statute, though they did preserve their discretion intact from judicial scrutiny.32 But, whatever the results, the framework was significant. Guardians were not subordinates to be commanded, as Chadwick had wished, but legal entities subjected to a superior jurisdiction only to the extent that the statute provided, that question to be decided by a court.

The Tithe Commissioners were the most judicial of these three agencies, their aim clearly adjudicatory, their method inquisitorial.33 Their Act provided that after a process of inquiry and adjudication, usually conducted by an assistant commissioner, the commissioners must consider whether to confirm the resulting draft order. Confirmed orders would be final and conclusive, their validity unaffected by errors of form.34 Certiorari was barred, but appeals lay by streamlined process on factual issues or on points of law.35 The commissioners were thus explicitly integrated into the legal system. That did not preclude further judicial supervision through writs of prohibition or mandamus, indeed the commissioners themselves seem to have encouraged the former at least, as the appropriate way to settle the limits of their statutory jurisdiction.36 They argued nevertheless that courts should take a narrow view of what should count as jurisdictional error, and the courts duly obliged.37 Other decisions respected the commissioners’ discretion and accepted the finality of their orders.38 The(p.351) one restriction on which the courts insisted was that the commissioners’ jurisdiction concerned disputes between tithe-payers and tithe-owners, not disputes between rival claimants to the ownership of tithes.39 Only in the context of such matters of title can one find dicta casting doubt on the commissioners’ competence and suitability, thence a reading down of what was to count as a ‘difference’, the key term on which the commissioners’ ability to begin an inquiry turned.40 Still, the use the courts made of their statutory and common law jurisdictions in relation to the commissioners matters less than the fact that they were given the one and took the other.

Of the three agencies only the Tithe Commissioners retained their initial independence from government. The factory inspectors soon found that the difficulty of performing their many roles and the opposition they met drew them closer to the Home Secretary, and drew him into assuming an authority the Act did not give. He ordered the abandonment of a practice he thought beyond the inspectors’ powers, he required them to obtain the law officers’ opinion before issuing instructions under the Act, he directed them no longer to exercise their powers as magistrates, and in the interests of uniformity the government instructed that the inspectors agree on a single set of regulations.41 Thus a different relationship evolved, confirmed when the 1844 Factories Act empowered the Secretary of State to regulate the inspectors’ duties, which were no longer to include acting as magistrates or issuing regulations.42 That explicit subordination reflected not just the opposition of factory owners to the new regimen, but also a noticeable preference of Peel’s administration for having matters under ministerial control.

How the new relationship worked out was not a matter of law, but of the attitudes and aptitudes of successive Home Secretaries.43 Similarly the related question of how autonomous the inspectors should remain within the Home Office, and how (p.352) far become an integrated sub-department answerable to what level of permanent civil servant, would be answered by the dynamics of central government growth, Treasury control, and the attitudes of the inspectors themselves.44 They resisted until 1878 suggestions that a chief inspector be appointed to rule on policy when consensus could not be achieved, but even before then statute was vesting powers of exemption and variation in the Secretary of State rather than in the inspectors directly, casting them as delegates and implying at least that someone in the department was acting as co-ordinator.45 With their new role in 1844 came a realignment with the legal system. It alluded to possible liability in tort by extending the procedural protections of the Constables Protection Acts to them, but, more particularly, their exercise of their new power to classify machinery as dangerous could be contested through arbitration.46 They thus lost autonomy on both fronts.

This new model of political and legal responsibility was copied for the later statutory inspectorates. On the one hand, inspectors could not impose penalties themselves, only through prosecution in the courts, and their administrative orders that might indirectly make factory operators liable could be contested through arbitration.47 On the other, they were explicitly subordinated to a minister, even though it was often many years before administrative practice caught up with constitutional theory. Railway inspectors were responsible from the start to the Board of Trade, save for a brief interlude when they answered instead to railways commissioners.48 As for inspectors of mines, the appointee under Ashley’s Act of 1842 can be passed by lightly. More a standing commission of inquiry than an inspector, he received only the most general initial instructions from the Secretary of State and thereafter created his own role as social commentator and lobbyist.49 In their second incarnation from 1850 the mines inspectors (p.353) were always explicitly subordinated to the Secretary of State.50 From the 1855 Act onwards powers that would in fact be exercised by the inspectors were vested in law in the Secretary of State, again implying delegation and control, even though at that time and for many years to come the inspectors in fact acted independently of him and of each other.51 The powers of the Alkali Act inspectors were their own, though in matters of appointment, salary, and report they were subordinate to a ministry—first the Board of Trade, later the Local Government Board.52 There was never a possibility of their having a legally autonomous status, however. As a royal commission considered it in 1878, the issue was only whether they should continue within a central department or be dispersed among local authorities.53 The factory inspectors’ early shift from putative autonomy to branch of a ministry thus set an important precedent.54

At first the second of the hallmark agencies of the reform Parliament, the Poor Law Commissioners, shrugged off the formal constraints on their autonomy. They found special or particular orders to be more practicable than general orders and just as lawful, while not needing political approval.55 Lord John Russell, Home Secretary when the Act took effect and the man responsible for changing Althorp’s mind, rapidly disavowed the implied power the reporting obligation gave him, saying its use would be an affront to the commissioners.56 Then, in 1847, came its implosion and replacement, nominally by a Board but in fact by its President who, equipped also with a salaried parliamentary secretary, ran it(p.354) as though it were a ministry for which he alone was accountable to Parliament. The usual explanation, beginning with the memoirs of one of the commissioners, then on through the writing of Earl Grey and Bagehot into modern texts, is that without a minister to answer for them in the Commons the commissioners were fatally vulnerable to ill-informed and malevolent attack inspired by opposition to their policies.57 Hence their demise has been treated as part of, and justification for, the concentration of executive power within ministries.

The same push came from within the Commission. Chadwick himself, the very engineer of the commission’s independence, was quick to plead in aid the Secretary of State when he did not get his way with the commissioners, and as hostilities became intractable Lord John Russell and his Conservative successor in the 1840s, Sir James Graham, did have to use their control over the rule-making power to adjudicate on policy differences and to impose their own views.58 The result was that though formally independent, under Peel’s Conservative administration it came to function as though it were led by the Home Secretary.59

It might perhaps have evolved into a mixed board with a minister as a member, the form originally sought by Althorp and which became fashionable in the mid-1840s, were it not that a parliamentary inquiry into cruelty at the Andover workhouse turned into such a desperate contest for political survival between Chadwick and his major antagonist that the exasperated government determined to replace the entire commission with a different sort of board.60 Even then the exact form of the new Poor Law Board was not concluded by its constitutive Act.61 Usually such boards with a President andex officio membership of senior politicians were a form of fiction, but the Act very carefully provided that this one might actually meet, and that for some of its activities the signatures of two were required.

The experience of the factory inspectors and the Poor Law Commissioners did not cause a wholesale shift to ministerial control. Rather the typical agency of the 1840s, if there was such a thing, was a mixed board that included a politician. He might inform parliamentary debate, but, not having legal control, he could not be held accountable for the board’s decisions. As always there were variations(p.355) within the type. Most independent were the Railway Commissioners established by the Whigs in 1846. Their precursor had been a board constituted within the Board of Trade in 1844 to report on railway bills coming before Parliament, after Peel had rejected a Commons resolution that a wholly new department for railways was desirable.62 That had been an uncomfortable compromise because formally all members of the board had an equal voice, though its president was Lord Dalhousie, the Vice-President of the Board of Trade, and the other members were his officials. One element in its quick collapse was that such a composition blurred responsibility in what was a most contentious area.

Yet the Whigs’ solution was not an accountable minister but a ‘mixed board, made up of people in high authority, or of high rank, with others to aid them’, and they offered its presidency to Dalhousie, now in Opposition.63 When he declined, a Member of Parliament became its president, and a member of the Lords joined the commission too, but it is clear that they were seen as spokesmen rather than as ministers or minister-substitutes who might be held accountable. As the commission was to take over the Board of Trade’s regulatory and inspection powers this was a subtraction from political responsibility.

Similar to the railway commissioners were the Church Estates Commissioners, born out of the Ecclesiastical Commissioners in 1850.64 Kitson Clark saw their creation as ‘reducing to ministerial discipline…that part of the Ecclesiastical Commissioners whose work really interested Parliament, that part which dealt with the holding of land’.65 On the face of the statute that might be true, since the Crown-appointed First Commissioner was to be salaried and to be capable of sitting in the Commons, which makes him look just like a minister. But the Earl of Chichester occupied the post through until 1878 irrespective of government changes, and though he might speak for the Commissioners in the Lords, so too in the Commons did successive (and salaried) Third Commissioners, nominees of the Archbishop of Canterbury. Only by accident did the Second Commissioner become the political post, and then only from 1859.66 But though the work of the parent Ecclesiastical Commissioners, which was in part driven by the Church Estates Commissioners as a form of inner cabinet, often came under critical scrutiny in and out of Parliament, the Second Commissioner was never held accountable as a minister might be.67

(p.356) The Tories were less keen to disperse power than the Whigs were. In 1844 they rejected as lacking proper political accountability Lord Worsley’s original proposal for speeding enclosure of the remaining common land by giving a further jurisdiction to the autonomous Copyhold and Tithe Commissioners.68 Instead the Tories’ Inclosure Commissioners were to be a new board comprising the First Commissioner of Woods and Forests as its political head plus two other members appointed by the Home Secretary, the board as a whole reporting to him. Though their funding was charged on the consolidated fund their powers were of limited duration, hence needing periodic parliamentary renewal.69 Further, the more sensitive of their schemes would need parliamentary confirmation through a provisional order system before being implemented. So too with the pressing question of the health of towns, the Tories’ preference was for a new sanatory Act to be enforced by an inspectorate under the Home Secretary, while the Whigs wanted a board and Chadwick wanted either an independent commission or a single administrative post answerable to a committee of the Privy Council.70 After considerable parliamentary haggling the Whigs got their board, to consist of a minister plus two members to be appointed by Her Majesty—hence not dependent on a single minister—one of whom could be salaried.71 Accountability was thus seen as important, but in the 1840s it was contested and did not lead to a single template for executive agencies.

There was also one creation that was the purest example of independent statutory commissioners of them all, Lord Ashley’s custom designed Commissioners in Lunacy. The Lunacy Act 1845 actually named the 11 men to be the first commissioners—five men of rank or authority, including Ashley himself, and six professionals, three each of physicians and lawyers.72 The professionals were to be salaried and full time, intended to perform the commissioners’ duties of inspection; all were to hold their office during good behaviour. Ashley served as their duly elected president right through until 1885. The commissioners did not have strong legal powers, and according to one commentator their role was principally as advisor and stimulator, co-ordinator and information bureau, though he records also that their inspection duties snowballed.73 They issued general (p.357) regulations for the management of asylums, subject to the Home Secretary’s approval (and initially at his insistence) and they made recommendations to the Home Secretary on local authority proposals to construct or expand asylums, often influentially.74 They were, however, otherwise independent of the Home Secretary, who might choose to defend them if he wished but who was not responsible for them. Ashley might speak for them in Parliament, as might any other of the unpaid commissioners with a seat there, but on a strictly voluntary basis, again without responsibility; any commissioner might be detailed to lobby and cajole.75 Yet this strange semi-executive, semi-advisory body survived until 1913, when it was transmuted into a stronger version of the same thing over the protests of those who thought an unelected and irresponsible body inappropriate.76

Of the mixed boards only the Church Estates Commissioners survived. The Board of Trade regained de facto regulatory authority over railways when its President and Vice-President came to occupy the two equivalent positions on the railways commission in 1848.77 Principles of economy then led to the abolition of the commissioners and the retransfer of their powers to the Board of Trade in 1851.78Whatever the motivation, the result was a restoration of ministerial responsibility. The General Board of Health met similar political hostility to the Poor Law Commissioners and shared their fate. Rather than defending the board from sustained parliamentary attack in 1854, its ministerial member sided with its critics against his fellow members; he was a spokesman and informant, after all, not a controlling hand to be held responsible.79 The board collapsed when the Commons withdrew its funding, to be replaced by what had become the legal model for a single-seated ministry, that is a board of political office holders, not intended to meet, headed by a salaried president with a seat in the Commons.80

By contrast the Inclosure Commissioners flourished. Their jurisdiction was soon significantly extended when they were given the administration of the (p.358) Public Money Drainage Act, and it might have been expected that this, the closest of all the mixed boards to ministerial control, would in due course supplant the autonomous Copyhold and Tithe Commission, since their functions were similar.81 In fact the reverse happened. When its ministerial head was restructured out of existence in 1851, rather than getting a new one the commission had its functions transferred to the Copyhold and Tithe Commissioners (whose name was then even further extended) much as Worsley had originally wanted.82 The Home Secretary duly declined to take political responsibility for their actions, though it was through him that they reported to Parliament.83 On the other hand their accountability to Parliament was shortly afterwards increased by a requirement that all their inclosure awards should use the provisional order procedure, and theirs was one of the many agencies whose funding was shifted off the consolidated fund and on to the annual vote of supply in 1854 as the Commons tightened its grip on public expenditure.84 They were operating more as a department of Parliament than as part of the Executive.

Perhaps in consequence—there was no talk of it—the courts subjected the Inclosure Commissioners to unusual scrutiny. As with the tithe legislation, appeals were possible at various stages of the inclosure process, but the courts exercised their review function as well. The commissioners did once argue that statutory confirmation of provisional orders brought statutory finality, but the court turned a deaf ear.85 It could instead have taken a narrow view of its role, (p.359) as it did when refusing to intervene on any other provisional orders.86 But in the inclosure context the judges instead entertained claims that the commis-sioners had lacked jurisdiction to include particular land in their order just as if there had been no statutory confirmation at all.87 They once even went as far as prohibiting the commissioners from submitting a provisional order to Parliament, on the ground that the commissioners had mistaken what consents were required for their proposal to go ahead.88 This was intrusive scrutiny, though it was on jurisdictional grounds only; the judges would not intervene on matters they characterized as fact or discretion.89 The commissioners thus continued as a statutory agency free from ministerial control, but subject to close jurisdictional control by the courts, and subject also to close parliamentary scrutiny of some of their outputs, depending on whether it was inclosure, or commutation of tithes, or copyhold enfranchisement that was in issue.

In the 1950s B. B. Schaffer noted that autonomous statutory commissions had become invisible to the constitutional writers of the 1880s.90 As Schaffer emphasized, that is probably explained by the impact of Bagehot’s analysis of cabinet government and parliamentary accountability. The most flamboyant of the statutory agencies, the Poor Law Commission and the General Board of Health, had long since collapsed into ministries, the inspectorates had likewise become arms of ministerial departments, and all but one of the mixed boards had vanished. The surviving statutory agencies were a politically uninteresting miscellany, their number reducing as ministries expanded to take them over. The Patent Commissioners, established in 1851 to substitute bureaucratic process for prerogative grants, were abolished in 1883 and the Patent Office transferred to the Board of Trade.91The Land Commissioners, the renamed Copyhold, Inclosure and Tithe Commissioners, were folded into the new (p.360) Board of Agriculture in 1889.92 Even the Charity Commissioners lost some of their functions to the newly established Board of Education.93 It was possible, as Schaffer notes, to believe with Bagehot that ministers were answerable to the Commons in a real sense. High-Victorian orthodoxy required administrative agencies to answer to a minister of the Crown accountable in Parliament.

Only at the very end of our period were new statutory agencies created, as part of the new Liberal expansion of the state.94 Insurance Commissioners, the Road Board, and the Development Commission represented an increasing tendency which needed careful scrutiny, reported the Machinery of Government Committee to the Ministry of Reconstruction in 1918, endorsing the pre-war Royal Commission on the Civil Service.95 These inquiries were not dogmatic; as in the 1830s, there could be shades of accountability. The Development Commission might be acceptable because the grants it recommended the Treasury to make would be processed through departmental estimates that were subject to Commons’ scrutiny, whereas the Road Board was suspect because its funding through grants-in-aid received only cursory parliamentary attention.96 The Machinery of Government Committee thought the Medical Research Committee passed muster because it reported annually to Parliament and because the minister responsible for health insurance would answer for it, though it worried whether a generalist minister could speak usefully for such an expert and specialist body.97

These issues, so strikingly reminiscent of the late 1830s and 1840s, were thus played out again a century after they had first arisen, as boards proliferated, but this time against a background of party discipline that had deprived the Commons of its ability to act independently of government.98 By then it was difficult to conceive of statutory agencies independent of government, or under loose supervision only, being responsible in meaningful ways to Parliament. That had been possible from the 1830s until about the early 1860s, but it had been overtaken then by centralization of powers into ministries and the growth of party government.99

(p.361) 3. Ministries and Other Crown Agencies

In principle the government did not need statutory authority to create new agencies. It could instead further divide the Secretaryship of State. Her Majesty had power to decide between how many office holders it should be split and what their responsibilities should be, and it was established law that one Secretary of State could stand in for any other. That was why the Place Acts had been passed, excluding Crown office-holders from the Commons, hence any new office intended to be political did need an enabling Act. So statutes were passed in 1855 when the Secretaryship of State for War and Colonies was divided into two, and in 1858 when a new post was created for India.100 Nonetheless these Acts followed constitutional nicety meticulously. They did not create the new posts, or even authorize Her Majesty to create them—she needed no such authority. Instead they merely laid out the consequences if Her Majesty should graciously signify her pleasure. Such concern not to trespass upon the sovereign’s prerogative survived even to the end of our period, when provision for the governance of the newly created air force followed the same form.101

Further, government could create a new agency not needing coercive powers just by redeploying Crown servants. On the small scale the Privy Council could be used as an institutionalized Crown either directly or through committees, the ultimate Ministry of Miscellaneous Affairs. It became the repository for homeless powers, though in those cases, of course, statute was needed to create and vest the powers.102 That was not necessary for the Committee of the Privy Council on Education, which was founded upon the inherent power of the Crown to spend money voted by the Commons. In such a situation Commons control over finance substituted for control through law. From 1839 an appropriation Act would authorize the issue of a sum ‘for public education’, which would pass to a committee of privy councillors created by an order in council to superintend its application.103 No more legal structure was needed than that.

The Education Committee remained in that state for 60 years, save for a laconic single-section statute in 1856 which authorized appointment of a salaried Vice-President of the committee who might sit in the Commons, the better, it was said, (p.362) to secure accountability.104 The committee immediately advised Her Majesty to appoint it a secretary, and shortly afterwards inspectors.105 Thus a department was created, which grew in the ordinary way. There was of course a political storm, when those opposed to state encroachment on the Church’s educational sphere objected also that the Whigs’ chosen method unconstitutionally by-passed one legislative House.106 From the political stand-off that followed between the government and the Church there emerged a concordat that cemented in place a system of denominational education subsidized by state grants, watched over by inspectors over whose appointment first the Church (in respect of Church schools), and later Dissent (in respect of Nonconformist schools), had an initial veto and a de facto power of removal.107 The grants’ purposes, the all-important conditions attached to them, and the functions of the inspectors were settled from time to time by Minutes of the Committee of Council, which were reported to Parliament together with a mass of circulars and letters from the secretary elaborating them, and also the inspectors’ reports. So the legal structure might be exiguous, but political accountability certainly was not.

The Education Committee managed without statutory powers until 1870. It was politics, not law, that determined that the committee itself should become very largely ornamental and the real authority (and accountability) lie with the Lord President of Council, just as, later, it was politics that determined how far the Vice-President should wrest it away.108 Similarly with the inspectors; they had power long before 1870—school managers and teachers never doubted that—and, (p.363) as the Minutes became an increasingly prescriptive Code, the power the inspectors and the secretary shared could properly be seen as regulatory. But it was not a legal power.

Nor did the inspectors have a statutory status that might have clarified their relation with the department. They did have social status—they were ‘most emphatically gentlemen’, as one historian puts it.109 That and the dual allegiance most of them owed to Church and state brought a degree of autonomy that secured them for a while a right to have their reports presented to Parliament free from departmental censorship. But that was contested by the secretary and Vice-President and, being necessarily a matter beyond legal control, varied with the climate within the department.110 Similarly, the extent to which inspectors were consulted on policy or even on technical revisions of the Code was a matter for Vice-President and secretary to determine; the only law that applied was that these senior Crown servants might direct their subordinates.111 Unsurprisingly, that was not changed when the 1870 Education Act began the secularization of elementary education. The committee was given a statutory name and a folio of powers, its Minutes gained indirect statutory status and were subjected to a formal requirement of being laid before Parliament, but its legal structure and personality remained untouched.112

There had always been those who thought its constitutional position at best quaint and at worst mystifying and inappropriate. Their concern for constitutional and administrative propriety led usually to the proposition that education should have a stand-alone ministry, which was justifiably seen as being apiece with their wish to aggrandize state education and, until 1870, fell with it.113 After 1870 the issues were political of a different kind: whether education was important enough to warrant its own cabinet minister, what was the optimal size of cabinet, whether it was worth upsetting the Lord President of Council by reducing his (p.364) portfolio.114 Only in 1899, when the Conservatives finally decided that elementary education, secondary education, and the Charity Commissioners’ jurisdiction over endowed schools needed unified control, was the committee converted into a statutory ministry.115

Much less controversial, but showing that the education committee did not stand alone, were the emigration commissioners, created in 1843 as successors to the Agent-General for Emigration.116They may have looked like an autonomous agency, but as originally created they were in law simply a cluster of Crown servants lacking independent legal status and subject to control by the Secretary of State for War and Colonies. At first their functions combined the supervision of other Crown servants—the emigration officers who were charged with bringing prosecutions under the Passenger Acts—with selection and processing of emigrants to the Australasian colonies, and making the concomitant payments to the shippers. They thus had a de facto regulatory power over the conditions on emigrant ships to Australasia, but neither a statutory existence nor statutory powers.117 For the Passenger Acts to work, however, coercive powers turned out to be needed, which had to be vested in someone, hence the empowering of emigration officers and commissioners.118 That need not have changed the commissioners’ legal status, and indeed in one sense it did not, for when eventually their role became obsolete and their statutory powers were transferred to the Board of Trade, the commissioners themselves still continued in office, falling back to being a branch of the Colonial Office until in 1878 their commission was revoked by simple executive decision.119

Were it not for one curious twist they could be seen simply as a convenient administrative device for the Colonial Office, which never lost political responsibility for them or power of command.120 This twist was that the commissioners (p.365) were given a quasi-corporate status enabling them to sue and be sued in their own right, free from personal liability.121 Had this provision been litigated it would have raised questions about how far the commissioners had become a legally independent agency and whether they continued to enjoy various Crown immunities. More will be said about this below.122

The committee on education was an exceptional political expedient and the emigration commissioners a curiosity. A legal form was needed for activities that justified separate ministerial supervision but were too mundane to warrant the highest rank. The Secretaries of State retained a cachet that came from the breadth of the responsibilities still attaching to each of the subdivisions, and a substantially higher salary than accorded to other senior political posts. They were too grand for the everyday governmental purposes that slowly developed from the mid-century, from the crisis-ridden poor law in 1847 to the worthy but undoubtedly prosaic public works, reorganized along with woods and forests in 1851.123

The form chosen was a statutory board of high political office holders with a president who was to be the minister and to bear responsibility for the department—the form into which the Poor Law Board had fallen from the options left open by its constitutive statute. In its improved format from 1851 such a board was not expected to meet, and the statute was drafted so that the president could exercise its powers. However, a full board was needed, so the Chancellor of the Exchequer explained, so that someone could exercise its powers in lieu of the president, should he be absent or indisposed.124 That became the conventional form, being used from 1854 for the last few years of the General Board of Health’s existence, for the Local Government Board in 1871 and for the Board of Agriculture in 1889.125

In 1851 the fiction looked reasonably plausible. Secretaries of State, interchangeable in law, did occasionally stand in for each other in fact.126 Ministers might still do some of a department’s work themselves.127 They did not generally (p.366) have a deputy; the post of parliamentary secretary could have evolved that way but did not.128 The anomalous office of the Vice-President of the Board of Trade, whose patent stated that he was the President when the President was absent, was converted into an orthodox parliamentary secretaryship in 1867.129 The relationship between the Lord President of the Council and the Vice-President of the Committee of Council on Education might have been conceived as one of principal and deputy, but it did not function like that.130 A department’s permanent secretary could not formally have been his minister’s deputy, at first because he was too lowly, later because that would have blurred the line between the political direction of a department and its neutral administration.

Nonetheless, by 1899 nearly all a department’s work was done by the permanent civil servants in the minister’s name, so it could not have seemed revolutionary to the draftsman of the bill needed to convert the Board of Education from being a committee of the Privy Council into its own statutory ministry when he proposed it be led by a single-seated minister rather than the president of an ornamental board. Within a week he had been corrected by the senior parliamentary counsel, Sir Courtney Ilbert, who saw no reason to change from the principles of 1851.131 It took the wartime creation of new ministries on an unprecedented scale to bring legal form into line with function.132

4. The Courts and the Crown; the Still-birth of Public Law in England

Until the 1850s or early 1860s it was unclear how uniform the constitution of the central executive would be, what parts of it would be subject to political control through ministers and what parts would consist of autonomous or (p.367) semi-autonomous statutory agencies whose responsibilities lay to Parliament rather than to government. The more prominent the role of statutory agencies, the more plausible would be a perception of a continuum of public executive entities without sharp demarcation between the local and the central, their statutory style and structure being similar. Something like that perception can be distilled without difficulty from themes in judicial reasoning vigorous in the 1820s, extant through into the late 1830s, but thereafter becoming less coherent until, in the mid-1860s, it was abandoned in favour of a sharp distinction between the Crown and the rest. Until that happened it would not have been fanciful to have claimed that England had a nascent public law, if conceptualization of that sort had been how mid-nineteenth century lawyers thought.

It had four linked elements. The first, relatively weak and general, was a conception of a public trust as a means of marking where private interest ended and public duty began. The second was that occupiers of property for public purposes were exempt from the liability to pay rates that attached to private occupiers. The third was that public servants were not vicariously liable for the torts of their subordinates or contractors as private employers would or might have been. The fourth strand was that office holders entering into contracts on behalf of the public did not attract personal liability as principals nor could they be sued as agents might be in private law. The reasoning used by judges when justifying and applying these rules generally treated central and local office holders alike.

The first strand, the notion of a public trust, was as much political or legislative as judicial. From the 1780s it underlay the administrative reforms that slowly abolished sinecure offices, fee taking, and irregular emoluments and pensions, and in their place substituted salaries, statutory pensions, accountability and, in due course, bureaucracy.133 The principle articulated a difference between public service and private interest that could be carried over into judicial proceedings. In 1783 it was the essential foundation for the conviction of Charles Bembridge for corrupt accounting in the office of the receiver and paymaster-general of the forces, as it was for the failed prosecution of Sir Thomas Rumbold for the sale of offices in India.134 Then, in the 1830s, the notion crossed over into local affairs when it was wielded rhetorically to justify reconceptualizing municipal corpor-ations as public institutions rather than private persons.135 Thence it was used as a legal tool to subject municipal corporations’ spending decisions to Chancery (p.368) scrutiny.136 That placed municipal corporations on a continuum with statutory improvement commissioners, charitable trustees, and those statutory local utility commissioners whose empowering statutes did not permit a distribution of profits into private hands. In all these cases the notion of a public trust gave complainants the procedural advantages of suing through the Attorney-General in relator actions. At first there had been doubt whether this boon should be available only against commissioners whose statutory purposes were charitable, or whether perhaps all statutory public purposes were ipso facto charitable. Then in 1827 Lords Eldon and Redesdale ruled that it should be generally available against statutory commissioners, for the reason simply that the control was needed.137

This broad concept of a public trust was linked to the second relevant legal principle, that occupiers of premises for public purposes were not liable to pay poor rates. That immunity was made possible by the long-standing judicial reading that the Elizabethan Poor Law rated only ‘beneficial’ occupiers, a much-litigated gloss on the act. By the early nineteenth century, judges had constructed a general ‘public purpose’ category of non-beneficial occupation embracing occupation for Crown purposes and by ‘public trustees’. By that they meant charitable trustees and their close cousins, those statutory commissioners who were bound to use their funds only for stipulated statutory purposes even though they charged tolls or fees for use of their facilities.138 These were wide exemptions, defended by the judges against policy objections from at least as early as the 1750s.139 As local not-for-profit enterprise expanded, so too did the immunity. It culminated in a decision in 1839 that brought municipal corporations within the exemption, the logical consequence of the public trust imposed upon their property and revenues by the 1835 reforms.140 That particular decision was more than Parliament could (p.369) stand, but as was usual with legislation stipulating exactly how public property should be rated, its reversal left the general principle intact.141

The third element in this conception of the ‘public’ was public officials’ immunity from vicarious liability for the torts of their subordinates. This was the counterpart of the liability that both they and their subordinates had to accept for their own personal wrongdoing. Lord Mansfield’s great decisions inMoney v. Leach and Mostyn v. Fabrigas showed that Crown orders or Crown service afforded no defence.142 Justices who without jurisdiction imprisoned someone or ordered the seizure of goods were routinely sued for trespassory torts. Commissioners who authorized street works beyond their statutory powers were liable for nuisance.143 It was generally agreed that commissioners who went so far as directing their employees and contractors how to undertake a task could in suitable circumstances be treated as personally negligent.144 These liabilities underlined a conception of power as personal, for which responsibility was to be met from the wrongdoer’s own pocket. But where the wrongdoer was a subordinate to an official whose powers and duties existed for the public service, and not for his benefit, it would be an affront for the superior to have to pay for an act he neither directed nor profited from. In the late eighteenth and early nineteenth centuries the common theme of what later came to be seen more narrowly as ‘Crown servant’ cases was not a simple dogma about the nature of Crown service, but a generalized concern that men would be deterred from public service if made liable vicariously, and that the public service would suffer as a result.145 Thus the reasoning used in Whitfield v. Lord Despencer to (p.370) hold the Postmaster General immune from vicarious liability for his subordinates was in no way specific to Crown servants.146 It was used in Harris v.Baker in 1815, a case about the liability of commissioners for nuisance, extended to turnpike trustees by Gibbs CJCP in 1815, and then to street improvement commissioners by Best CJCP in 1824.147 He reiterated the need not to deter public service and noted that of all public officers only sheriffs were liable for the negligence of a subordinate.

Would it be possible to reconceptualize the situation by shifting liability on to some abstraction such as the state or the public purse? The approach was tried in Attorney General v. Viscount Canterbury in 1843, a critically important case against the Crown in which Lord Chancellor Lyndhurst refused to extend the process of petition of right to redress for tort.148 Had he allowed it, litigants would then have side-stepped one of the obstacles to redress from the Crown, that the sovereign could not be sued in her own courts. But Lord Lyndhurst could not see an abstraction, only the very personal Victoria R. He raised two objections (among others) that went to the heart of her immunity. First, the sovereign had given up most of her personal income to the state in exchange for a civil list voted by Parliament, and hence, by implication, no more had personal funds to make good the defaults of her subordinates than public servants did. Secondly, in no real sense were the men whose negligence had caused the damage her servants. Rather they were employed by the Commissioners of Woods and Forests and hence, by implication, it was the commissioners’ liability that needed attention. There was no statute in that case that could have been read as shifting liability on to the commissioners’ public funds, but even if there had been judges at the beginning of our period were resistant to the idea. Best CJ rejected it inHall v. Smith in 1824, for reasons that were generalized by Lord Cottenham in Duncan v. Findlater in 1839: if the action which harmed the plaintiff was authorized by the statute, then the remedy was through whatever compensation provisions the statute contained, but if the action was unauthorized, Parliament could not have meant the public fund to make good what was a ‘private error or misconduct’.149 If the rule were otherwise, Lord Campbell said when applying it to a claim against(p.371) funds held by charitable trustees, ‘the trustees would be indemnified against the consequences of their own misconduct and the real object of the charity would be defeated’.150

Thus through into the 1840s there was a general principle that individual responsibility required charitable trustees, voluntary commissioners, and Crown servants to compensate those whom their own negligence or misconduct harmed, but, since they acted either gratuitously or for reward that merely compensated for time and trouble, they were not to be vicariously liable lest good men be deterred from accepting office.151 Nor would liability be thrown on to their funds. This was much the same range of persons who were immune from payment of the poor rate because their occupation of land was for public purposes.

The final legal principle, that office holders entering into contracts on behalf of the public did not attract the personal liability, is conventionally traced to Macbeath v. Haldimand in 1786.152 As that case concerned a Crown servant, the rule itself was later attributed to the peculiarities of the Crown. It was generalized by Dallas CJCP in 1822 into a principle that in the absence of a personal tort, Crown officers could not be personally liable for anything done in their official capacity, this in the important case of Gidley v. Lord Palmerston, denying an assumpsit against the Secretary-at-War for payment of a pension.153 But at the same time Macbeath v. Haldimand

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