Liberty in the modern stateLaski, Harold J. (Harold Joseph)
Science
Liberty in the modern state
Laski, Harold J. (Harold Joseph)
Liberty; Political science
But, still in the context of administration, the needs of liberty
go yet further. There has accreted today about the departments of
state a type of discretionary power which seems to me full of danger
unless it is exercised under proper safeguards. Examples of it
are the power of the Postmaster-General in the United States over
the mails and of the Home Secretary in England over requests from
aliens for naturalization. An alien applies to the Home Secretary
for naturalization. He answers innumerable questions, and presents
certificates of good character from citizens who testify on oath to his
standing. He has resided in the country for at least five years and he
will not, of course, normally venture to apply unless his record is
adequate. A request is published in the press for any information about
him and, after a due interval, the Home Secretary makes a decision
about his case. He has, of course, pursued his own inquiries, and he
has, presumably, received information about the applicant upon which
his action is based. Now the point that disturbs me is the fact that
where a certificate of naturalization is refused, the grounds for
rejection are never, even privately to the applicant, made known. He
is refused privileges which may be vital to him and his family in
the background of accusations which may, doubtless, be true, but may
also be completely without foundation and capable, were opportunity
afforded, of being immediately and decisively refuted. And so great is
the discretionary power of the Minister that he may even substitute his
own will for that of the legislature: the Act, for instance, demands a
five-year period of residence. The late Home Secretary, Lord Brentford,
announced that while he was in office he would grant no certificate
unless the applicant had resided in England continuously for a period
of thirteen years. It seems to me that this power to deny admission
to citizenship, as it is exercised, is a complete denial of natural
justice. No person ought to be condemned by accusations he is not given
the opportunity to refute. Anyone who wishes to give testimony in a
case of this kind ought surely to prove his _bona fides_ by submitting
to cross-examination by the applicant or his representative. I should
like, therefore, to see the possibility of an appeal from the decision
of the Home Secretary to a judge in chambers where the latter would, on
a case stated by the Department, hear such evidence as the applicant
chose to bring for its refutation and then only make a final decision.
Anything less than this seems to me a wanton abuse of freedom; and,
_mutatis mutandis_, this type of safeguard seems to me urgent wherever
a Minister is given a discretionary power which affects the liberty of
the subject.
Public-domain text, read in full here on John Shaqi.
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