LECTURES - College of Social Sciences and International Studies ...

Public Power and Private Power
there is an apparent symmetry in the transfer from private to
public corporations of doctrines of limited power during the
years of the nineteenth century in which the corporate state
began to take shape. Some of the leading decisions of the Victorian
judiciary make it pretty plain that they were consciously
setting about controlling the power of a state which was interfereing
on a growing scale with an entrepreneurial society of
such vigour that it was jeopardising the conditions of its own
existence. But the truth is that judicial supervision of public
authorities antedated by centuries this conflict-ridden growth
in the machinery of state. 34 Equally, it is surviving, with if
anything greater vigour, the disestablishment of much of the
corporate state in almost all the world's developed societies.
The reason is that at one level or another and by one means or
another, by direct intervention or by devolution or by licence,
states have to make a certain measure of provision for the
orderly meeting of social needs. Whatever its current governing
ideology, the state has no other raison d'etre. And whatever
rhetoric of liberty is used, all but the smallest and simplest forms
of human society need an ordered distribution of power if they
are to function at all. While this is not a sufficient condition of the
rule of law (it would, for example, include a dictatorship) it is a
necessary one. The role of public law in this elementary scheme is
not well or adequately described as keeping the state within the
limits of its lawful powers: the metaphor of the state as a limited
company breaks down when its powers and their limits have
sometimes to be invented in order to be defined. What public law
is about, at heart, is the restraint of abuses of power. It has been so
since the earliest recorded cases, and it continues to be so. 35 There
is in my view no other theory capable of explaining how, for
example, the courts today have a supervisory jurisdiction over
the exercise both of the Royal Prerogative 36 and of powers exercised
by bodies with no legal underpinning at all. 37
If this is right, one can come back to non-state repositories of
democratic basis of judicial review" [1998] P.L.R. 98. Reference might also be
made to the officious backbencher as a parodic explanation of the doctrine of
presumed parliamentary intent: see M. Nolan and S. Sedley, The Making and
Remaking of the British Constitution (1997), p. 16.
34 The Commissioners of Sewers, instituted in the early 15th century, had by the
end of the 16th century faced judicial review for acting ultra vires: Rooke's Case
(1598) Co. Rep. 99b.
35 Nottinghamshire County Council [1986] A.C. 240, per Lord Scarman at 249.
36 R. v. Criminal Injuries Compensation Board, ex p. Lain [1967] 2 Q.B. 864. See n. 24
to the first lecture.
37 R. v. Panel on Takeovers and Mergers, ex p. Datafin [1987] Q.B. 815. In New
Zealand see Electoral Commission v. Cameron [1997] 2 N.Z.L.R. 421 concerning
a voluntary body with powers of censorship.
33