He  has  undoubtedly  helped  to  fortify  its  already  substantial  
reputation  for  fairness  and  efficiency .sx   
The  position  can  , however  , best  be  assessed  by  my  readers  for  
themselves  through  my  giving  them  some  instances  of  the  Danish  
Ombudsman's  activities  in  the  sphere  of  his  individual  grievance  work .sx   
In  its  summer  issue  of  1959  the  journal  " Public  Law  " published  
an  article  by  Miss  I.  M.  Pedersen  , a  Danish  civil  servant  , in  
which  a  detailed  analysis  of  this  aspect  of  the  Ombudsman's  work  is  
attempted .sx   The  picture  which  this  article  gives  is  so  clear  and  
convincing  that  I  am  inserting  it  as  an  Appendix .sx   I  shall  confine  
myself  here  to  describing  one  or  two  outstanding  cases .sx   
One  of  these  was  a  complaint  addressed  to  the  Ombudsman  by  a  
bookseller  , who  held  that  he  had  been  penalized  by  publicity  given  by  
the  police  to  a  charge  brought  against  him  for  defrauding  his  
creditors .sx   On  investigation  , it  proved  that  his  wife  from  whom  he  was  
separated  had  been  summoned  to  give  evidence  against  him  and  that  she  
had  been  sent  copies  of  the  summons  , which  revealed  the  nature  of  the  
alleged  offence  , to  relations  who  thereupon  stopped  giving  him  
financial  assistance .sx   [SIC]  The  Ombudsman  recommended  that  in  
future  summonses  to  witnesses  should  not  show  the  nature  of  the  
offence  about  to  be  tried  and  this  recommendation  has  been  embodied  in  
law .sx   [SIC]  
In  the  course  of  another  inquiry  the  Ombudsman  revealed  that  the  
Danish  Ministry  of  Agriculture  had  been  acting  6ultra  vires  in  
a  certain  matter  for  some  twenty  years .sx   His  activities  have  likewise  
embraced  such  varying  subjects  as  the  right  of  certified  mental  
patients  to  have  their  consent  asked  before  a  leucotomy  [SIC]  is  
performed  on  them  and  a  complaint  against  the  Copenhagen  police  for  
alleged  aggressive  action  over  a  car  licensing  offence .sx   Equally  , 
various  other  matters  , such  as  the  calculation  of  damages  in  cases  of  
disablement  , have  been  found  to  be  beyond  his  practical  competence .sx   
There  is  no  doubt  that  much  of  the  success  of  the  institution  of  
Ombudsman  has  derived  from  the  skill  and  high  reputation  of  Professor  
Hurwitz  , Denmark's  first  Ombudsman .sx   In  a  country  where  academic  
qualifications  are  highly  valued  , his  distinction  as  a  professor  of  
criminal  science  has  stood  him  in  good  stead .sx   In  Britain  , where  high  
academic  appointments  are  not  normally  regarded  as  proof  of  
administrative  or  judicial  wisdom  , and  where  even  the  existence  of  
criminal  science  is  a  matter  of  dispute  , Professor  Hurwitz'  success  
might  have  been  less  outstanding .sx   Here  we  should  look  to  a  judge  or  a  
retired  and  senior  Treasury  official  , or  to  Parliament  , to  provide  
such  services  if  they  are  required .sx   What  matters  is  that  Denmark  
appears  to  have  found  a  way  of  satisfying  what  is  6prima  facie  
a  legitimate  public  demand  for  protection  against  administrative  
abuse  without  either  paralysing  administration  or  diminishing  the  
dignity  and  independence  of  the  judicature .sx   This  , to  say  the  least  , 
is  a  constitutional  example  worthy  of  scrutiny  in  the  context  of  other  
political  and  social  circumstances  which  , however  , include  the  
tendency  towards  ever-increasing  administration  noted  by  the  advocates  
of  the  Ombudsman  in  post-war  Denmark .sx   
Already  , however  , words  have  been  used  in  this  exposition  which  
demand  much  closer  analysis .sx   The  respective  spheres  of  justice  and  
administration  , the  precise  difference  between  judicial  and  executive  
acts  , the  relationship  of  the  legislature  to  these  other  two  branches  
of  government  , and  in  particular  the  implications  of  the  doctrine  of  
Parliamentary  sovereignty  cherished  in  Britain  , are  all  matters  which  
must  be  examined  more  thoroughly  before  the  relevance  of  the  Danish  
institution  of  the  Ombudsman  for  this  country's  affairs  can  begin  to  
be  judged .sx   
CHAPTER  TWO   .sx   
LEGALITY  OR  JUSTICE   .sx   
IT  IS  OFTEN  said  that  in  England  at  the  beginning  of  the  
seventeenth  century  there  were  three  competitors  to  sovereignty  , King  , 
Parliament  and  the  judges .sx   After  a  while  , the  judges  withdrew  from  
the  contest  and  King  and  Parliament  were  left  to  fight  it  out  between  
themselves .sx   The  withdrawal  of  the  judges  was  a  crucial  event  , for  it  
imparted  to  the  British  system  of  government  what  has  ever  since  
remained  , at  any  rate  in  form  , its  dominant  characteristic  , the  
institution  of  Parliamentary  sovereignty .sx   The  doctrine  that  
Parliament  is  legally  entitled  to  do  whatever  it  chooses  , that  it  is  
the  final  authority  before  which  all  others  must  bow  , now  has  general  
acceptance  here .sx   It  is  not  so  elsewhere .sx   Other  countries  , in  
particular  the  United  States  of  America  , have  sought  to  guarantee  
liberty  by  laying  down  a  fundamental  law  and  entrusting  its  
guardianship  to  a  Supreme  Court .sx   They  have  sought  still  further  to  
guarantee  this  system  of  law  by  a  strict  separation  and  balance  of  
powers  between  the  executive  and  the  legislature .sx   In  Britain  , on  the  
other  hand  , it  has  been  assumed  that  the  welfare  of  society  demands  
the  unquestioning  and  habitual  acceptance  of  the  supremacy  of  
Parliament  , a  Parliament  which  cannot  limit  its  own  competence  and  
cannot  bind  its  successors .sx   
No  doubt  it  was  in  the  seventeenth  century  that  the  decisive  
steps  in  this  direction  were  taken  , but  it  would  be  a  mistake  to  read  
into  the  constitutional  debates  of  those  days  the  modern  conception  of  
Parliamentary  sovereignty  which  grew  out  of  them .sx   The  truth  is  that  
all  three  participants  in  the  constitutional  conflicts  of  Stuart  times  
in  some  degree  accepted  the  notion  of  fundamental  law  and  were  largely  
ignorant  of  the  notion  of  sovereignty  as  it  was  later  formulated .sx   
King  , judges  and  Parliament  , in  debating  such  matters  as  who  had  the  
right  to  impose  taxes  , all  appealed  to  an  ill-defined  system  of  
customs  and  principles  which  they  assumed  to  constitute  the  immemorial  
law  of  the  land .sx   The  notion  that  Government  existed  to  safeguard  and  
interpret  this  law  was  common  to  all  of  them .sx   
There  was  indeed  no  clear  distinction  between  legislation  and  
adjudication .sx   Officially  , Parliament  , though  it  is  normally  regarded  
as  the  legislator  today  , is  still  designated  as  a  " High  "  .sx   
Its  procedure  still  bears  many  of  the  marks  of  its  origin  as  a  place  
where  private  grievances  are  aired  and  remedied .sx   The  very  word  
" enact  " strictly  means  " interpret"  , and  the  notion  of  law  making  
as  a  creative  process  is  something  very  novel  indeed .sx   
Down  to  the  nineteenth  century  , the  idea  of  the  House  of  Commons  
as  an  institution  existing  mainly  for  the  defence  and  adjustment  of  
private  rights  was  dominant .sx   The  great  part  of  the  business  of  the  
eighteenth-century  House  of  Commons  concerned  private  and  indeed  
intimate  affairs .sx   If  a  man  wanted  to  enclose  a  piece  of  common  land  
he  could  do  so  only  by  virtue  of  a  private  Act  of  Parliament  ; if  a  man  
wanted  a  divorce  he  could  get  it  only  by  means  of  such  an  Act .sx   
The  procedure  for  Private  Bills  still  had  an  important  place  in  
the  business  of  Parliament  down  to  the  beginning  of  this  century .sx   
Much  of  what  is  now  done  by  administrative  act  used  to  be  
accomplished  in  this  way .sx   For  instance  , compulsory  acquisition  of  
land  for  such  purposes  as  the  building  of  railways  in  the  last  century  
was  brought  about  by  private  Acts  of  Parliament .sx   A  Bill  would  be  
prepared  by  a  Member  and  , when  it  came  up  for  Parliamentary  
consideration  , interested  parties  would  send  their  lawyers  to  the  Bar  
of  the  House  to  plead  their  cause .sx   No  branch  of  the  Bar  was  more  
profitable  or  a  quicker  highroad  to  success  until  quite  recent  times  
than  this  Parliamentary  work .sx   The  most  characteristic  defence  of  the  
complicated  and  irrational  franchise  on  which  the  Commons  was  elected  
before  1832  was  that  , for  all  its  irregularities  , it  produced  an  
assembly  well  fitted  to  discharge  the  essential  business  of  Parliament  
as  it  was  then  conceived  , the  guaranteeing  of  private  rights .sx   It  was  
an  assembly  , the  argument  ran  , where  a  man  might  plead  his  grievance  
in  the  knowledge  that  it  would  be  listened  to  by  representatives  of  
every  considerable  interest  in  the  land  , and  in  the  hope  that  the  
conclusion  which  would  emerge  would  represent  something  like  the  
national  view  of  commonsense  in  the  matter .sx   
From  1832  onwards  , however  , this  character  has  been  radically  
changed .sx   The  procedure  for  Private  Bills  is  virtually  extinct  , though  
there  are  some  instances  of  its  use  , as  in  the  recent  case  of  the  Esso  
Petroleum  Bill  , when  a  private  company  sought  powers  of  compulsory  
purchase .sx   It  may  now  be  safely  said  , with  certain  qualifications  
regarding  Question  Time  and  Adjournment  Debates  , that  the  primary  
business  of  the  Commons  has  ceased  to  be  the  rectification  of  private  
grievances  and  has  become  the  enactment  of  public  legislation .sx   Large  
and  highly  disciplined  Parties  emerged  with  organised  followings  in  
the  country  , so  that  it  is  only  on  a  minority  of  issues  that  the  House  
of  Commons  can  formulate  an  independent  view .sx   Indeed  , the  best  
contemporary  exponents  of  the  constitution  , like  Sir  Ivor  Jennings  , 
have  no  hesitation  in  holding  that  the  real  business  of  Parliament  is  
to  sustain  government  in  office .sx   Public  interest  has  largely  shifted  
away  from  Westminster  to  the  Party  conferences  and  the  private  
conclaves  of  Parliamentary  Parties  , each  of  which  is  supported  by  a  
highly  developed  bureaucracy .sx   It  is  at  these  places  , after  all  , that  
things  really  happen  , that  general  plans  of  future  legislation  are  
formulated  , subsequently  to  be  embodied  in  election  programmes .sx   A  
victorious  Party  at  an  election  tends  to  assume  , often  with  little  
justification  , that  it  has  been  authorised  to  carry  out  in  detail  the  
measures  listed  in  its  programme  , measures  conceived  by  Party  
bureaucrats  , born  at  Party  conferences  and  designed  less  to  reflect  
the  will  of  Members  of  Parliament  or  even  that  of  the  country  at  large  
than  to  appease  the  Party  zealots .sx   
These  changes  in  the  functioning  of  Parliament  have  of  course  
been  accompanied  by  similar  changes  in  constitutional  theory .sx   The  
constitution  is  no  longer  conceived  as  a  system  of  private  rights  and  
legislation  is  now  regarded  as  a  dynamic  , not  an  interpretative  , 
process .sx   The  legislator's  task  is  conceived  as  being  that  of  
formulating  general  laws  for  the  good  of  society  rather  than  that  of  
adjusting  private  interests .sx   Inevitably  , of  course  , highly  organised  
interests  within  society  have  a  great  and  , some  would  say  , a  growing  
influence  on  law  , but  , even  in  the  case  of  the  trade  unions  with  their  
substantial  representation  in  the  Commons  , it  is  an  influence  which  is  
commonly  exercised  outside  Parliament .sx   The  delicate  balances  between  
different  religious  denominations  embodied  in  the  Butler  Education  
Act  , for  instance  , were  the  result  of  prolonged  diplomacy  exercised  by  
the  Minister  before  the  Bill  was  prepared .sx   Almost  all  Acts  of  
Parliament  today  are  preceded  by  negotiations  of  this  kind  , but  the  
theory  of  the  legislative  process  takes  no  account  of  these  pressures .sx   
The  doctrine  is  that  a  Parliament  representing  the  general  will  
formulates  general  rules  for  society  at  large .sx   The  generality  of  the  
rules  is  indeed  inevitable  as  a  result  of  the  complexity  of  the  
matters  with  which  contemporary  legislation  deals  and  the  numbers  of  
those  affected  by  it  , but  it  is  also  increasingly  assumed  to  be  a  
necessary  consequence  of  the  rule  of  law .sx   If  the  legislator  addresses  
himself  with  particularity  to  the  interests  of  this  or  that  man  or  
group  his  perception  of  the  social  good  , it  is  believed  , will  perforce  
be  corrupted .sx   Obviously  , however  , nothing  could  be  further  removed  
from  the  tradition  of  Parliamentary  government  which  had  been  handed  
down  to  our  early  Victorian  ancestors  than  the  principle  of  the  
necessary  generality  of  the  process  of  lawmaking .sx   
Now  , in  whatever  way  government  may  be  theoretically  conceived  , 
it  is  in  practice  a  matter  of  the  adjustment  of  a  multiplicity  of  
private  interests .sx   If  the  function  of  an  Act  of  Parliament  is  to  
establish  general  principles  and  rules  , the  details  must  be  filled  in  
by  someone  , and  it  is  to  the  civil  service  that  the  task  of  filling  in  
these  gaps  has  fallen  in  modern  times .sx   Over  the  last  half-century  
Parliament  has  perforce  delegated  to  Ministers  and  to  subordinate  
organs  of  the  executive  the  task  of  devising  the  measures  needed  to  
achieve  the  objects  of  its  legislation  , and  the  measures  thus  devised  , 
although  they  have  lacked  the  direct  consent  of  Parliament  , have  been  
endowed  with  all  the  force  of  statutes .sx   Some  of  these  decrees  have  
themselves  been  very  general  in  character  , and  the  machinery  for  
reviewing  them  in  Parliament  has  often  been  highly  inadequate .sx