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Administrative Decision and the Law: The Views of an Administrator*
Published online by Cambridge University Press: 07 November 2014
Abstract
Modern legislation, in Canada as elsewhere, has entrusted important functions to boards or commissions and has conferred very wide powers upon them. The basic purpose of such legislation is to supplement legislatures, courts of law, and ministers of the Crown by providing these venerable institutions with subordinate agencies which, within a strictly limited sphere, can act more effectively.
The legislative functions of a board consist in making regulations with the force of law. These regulations often require the approval of the supreme executive authority. They provide a necessary type of legislation which our legislatures, let us say it quite brutally, are not competent to consider in detail.
A second function of boards is to decide disputes. Not only do they supplement the action of the legislatures in cases in which it is likely to be cumbersome or ineffective, but they also replace judicial action in cases in which it is disliked or distrusted. Although control by courts of law may remain formally unimpaired, boards acting within the scope of the law which creates them are able to interfere, ostensibly in the public interest as they themselves define it, with many established or traditional rights.
A third function of boards is administrative. They are in principle able to act with complete immunity from the political pressures to which a minister of the Crown may quite properly be exposed. Their administrative work is facilitated by their legislative and judicial powers and part of their usefulness derives from their ability to combine three functions which cannot be conveniently—and perhaps cannot be safely—combined at higher levels.
- Type
- Research Article
- Information
- Canadian Journal of Economics and Political Science/Revue canadienne de economiques et science politique , Volume 24 , Issue 4 , November 1958 , pp. 512 - 518
- Copyright
- Copyright © Canadian Political Science Association 1958
Footnotes
*
This paper was presented at the annual meeting of the Canadian Political Science Association in Edmonton, June 6, 1958, at a joint session with the Canadian Law Teachers' Association.
References
1 See Cmd. 218, Report of the Committee on Administrative Tribunals and Enquiries (July, 1957).
2 The Franks Committee was restricted to considering tribunals which were both (i) statutory and (ii) either appointed by a minister of the Crown or appointed for the purpose of exercising a minister's functions. It itself decided to exclude (i) tribunals which do not make decisions and (ii) tribunals in the industrial field. The Committee was particularly concerned with procedure for the compulsory acquisition of land (but not the basis on which compensation is assessed). It deliberately extended its inquiries to an examination of the procedures by which the service departments acquire land, although in this case no inquiry or hearing may be required.
3 Cmd. 218, chap. ii, par. 5.
4 Ibid., par. 7.
5 Ibid., par. 8. Alternatively, the citizen may be claiming benefits which the legislation was (in his view) intended to confer.
6 Ibid., chap. III, par. 21.
7 Ibid., par. 22.
8 Ibid., par. 23.
9 Ibid., par. 34.
10 It was brought out in discussion that tribunals are often concerned with cases in which the citizen is claiming a right which he believes that legislation has conferred on him, for example, to unemployment assistance.
11 Cecil, Lord Hugh, Conservatism (London, 1912), 151.Google Scholar
12 See B.N.A. Act and the Statute of Westminster, 1931.
13 Cmd. 218, chap, iii, par. 34. See n. 9 above.
14 Ibid., chap. x, par. 105. Contrast par. 107: “We are firmly of the opinion that all decisions of tribunals should be subject to review by the courts on points of law.”
15 This idea is still possible, although the courts themselves now disclaim any competence in matters of “opinion” as distinct from matters of law and matters of fact. Presumably “opinion” includes what this paper has called “policy.”
16 Cmd. 218, chap, v, par. 55.