No one can deny the utility of the advisory bodies. “We think,” reported Lord Haldane’s Committee on the Machinery of Government in Britain, “that the more they are regarded as an integral part of the normal organisation of a department.
The more will ministers be enabled to command the confidence of Parliament and the public in their administration of the services which seem likely in an increasing degree to affect the lives of large sections of the community.”
A government which summons Advisory Committees, places before them the policy which it intends to pursue, and listens to the criticism of the interests concerned, is, undoubtedly, very different from a government which secures the support of its policy as a result of party allegiance.
But what should be the functions of such committees? It must be emphasised, again, that Advisory Committees have no executive function. They are extra-constitutional institutions and the ultimate decision is that of the government.
Even if they have a statutory existence, they are to advice, as their name suggests, about administration; they are neither to direct nor to control it. Nor are they to prepare any policy. It is the sole concern of the Minister concerned or the Cabinet. Generally, the functions of the Advisory Committees may be reduced to four.
First, the committee has the right to be consulted on all proposed bills before they are initiated in the legislature. The department should submit all proposed bills to the committee for criticism.
A free and frank discussion should be organised at a conference between the Minister and his permanent officials on the one side, and the departmental Advisory Committee on the other. The bills should be explained and examined threadbare. The committee might offer its suggestions, leaving the Minister free to reject or accept them.
Secondly, the committees should be consulted upon general administrative policy. It would, of course, depend upon the discretion and choice of the Minister to decide about the matters that he should refer to the committee of consultation.
The Minister may not refer any matter at all to the committee and act without consultation. It would, however, be advisable if it is made possible for each member to suggest matters for discussion and entitling him, “in the event of ministerial objection, to an explanation of the hostile attitude.”
The committees, in the third place, should be given the widest scope to make suggestions. Here, indeed, the Advisory Committees can make useful contribution and prove their real utility.
The members chosen on the committees for their expert knowledge and representing special interests are in the best position to suggest ideas and it is highly beneficial for a government to explore them. In the opinion of Laski, “It is one of the few ways open to us to correct the dangers of professional conservatism.
A Committee of Ministry of Justice, for example, upon which the lay mind as well as the legal mind found place, could indicate a score of places in the law where the need for revision and experiment is essential.”
We have already discussed how the legislatures of today are flooded with work, and with the increase in the area of State activity the major portion of detailed and exhaustive statutes has been replaced by skeleton acts the details of which are, in various ways, filled in by the departments concerned.
This growth in the power and discretion of the departments, which also amounts to increase in the powers of the permanent Civil Servants, needs to be checked and the advisory committees are the best instruments to serve this purpose.
Laski makes a very concrete proposal in this connection. He says, “No department shall issue orders under its delegated powers without having first consulted the appropriate consultative committee; and that in the event of objection from the latter the order shall not be issued without the specific approval of the Legislative Assembly.” This is a negative function and the fourth in enumeration.
Committees to advise may, thus, be consulted at any stage in the process of administration—in the formulation of policy, in its application or administration or in the review of policy and its application, and finally, on orders, rules and regulations which the department will issue under its delegated powers.
In practice, as Professor Wheare says, “it is at the stage of application or administration that committees to advise are most widely used, while the committee to inquire is more usually found either at the stage of formulation or at the stage of the review of policy.”
Professor Wheare has arranged committees into six types: (1) committees to advise; (2) committees to inquire; (3) committees to negotiate; (4) committees to legislate; (5) committees to administer; and (6) committees to scrutinize and control. And “the principle upon which arrangement has been made is that of the function of process,” he says, “which the committee carries out rather than of the institution of which it forms a part or with which it is connected.”
All these functions are merely consultative and advisory. Consultation does not imply shifting of responsibility to the consultative bodies. The responsibility of the Ministers, to repeat, must remain unimpaired.
Laski says that the method of seeking consultation is not intended “to divide power in order to make it responsible; what is essential is to make coherent the organs of reference to which the power must defer.” There is inherent in the notion of committee an idea of a derived status; it lacks original jurisdiction.