22 49 lqr lqr 112 cf however mpr 19 it is indeed

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22 49 L.Q.R. 106.23 49 L.Q.R. 112. Cf., however, M.P.R. 19. 'It is indeed difficult in theoryand impossible in practice to draw a precise dividing line between the legis-lative on the one hand and the purely administrative on the other; adminis-trative action so often partakes of both legislative and executive characteristics 'Cf. also M.P.B. 28. But a working distinction can be made between theC.L.J. 15
The Cambridge Law Journalmay differ from Parliament in nine out of ten characteristics; yetit will still be a legislative body if it possesses the one essentialpower, the power to make law, that is, to create new rights andliabilities by its own acts and according to its own will ,.21This proposes a basis for classifying powers rather than tribunals.Many bodies of the 'judicial ' type are commonly called ' adminis-trative tribunals' merely because they are outside the ordinarysystem of law courts. But we have to classify them according tothe nature of their functions. A single tribunal may, of course,wield more than one type of power.25 In this analysis judicial andadministrative functions are to be distinguished, not because ajudge does not administer, but rather because he administers 'law 'while the official administers 'policy'; and because 'law' and' policy' are radically different in their respectively objective andsubjective standards. Then we find that the subjective standard isthe hall-mark of legislative (in its widest aspect, sovereign) power.The position amounts to this, that there is no inherent individualityin the administrator's powers : they must be borrowed either fromthe Legislature or from the courts. The whole realm of executivepower, therefore, was covered by the terms of reference of theCommittee on Ministers' Powers: (a) delegated legislation, and(b) judicial or quasi-judicial decision. (' Quasi-judicial ', as weshall find, is not really a separate category.) The Committee'sanalysis was based on exactly the same distinction as Mr. Gordon's.They regard a typical case of a ministerial power of decision as'not judicial, because it is governed, not by a statutory directionto him to apply the law oj the land to the facts and act accordingly,but by a statutory permission to use his discretion after he hasascertained the facts and to be guided by considerations of publicpolicy. This option would not be open to him if he were exercisinga purely judicial function ,.21 I have italicised the words whichbring out Mr. Gordon's points.This distinction between law and policy is really the issuebetween the two parties of critics. It was brought to a head inprecise terms in Professor Robson's evidence before the committee.'It was on this distinction, utterly false to my mind, between lawmaking of general rules and special rules-see Jennings 274. The StatutoryInstruments Act, 1946, makes no attempt to define legislative instruments as such.

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