IN THE JUNGLE
| DOI | http://doi.org/10.1111/j.1468-2230.1987.tb02566.x |
| Published date | 01 January 1987 |
| Date | 01 January 1987 |
REVIEW
ARTICLE
IN THE JUNGLE
GRIEVANCES, REMEDIES
AND
THE
STATE.
By
Patrick Birkinshaw
[Sweet
&
Maxwell,
1985, 192
pp.
28-95,
soft covers.]
I
THE
topic
of
redress
of
grievance against governmental institutions is often
treated narrowly. It is not merely that the courts are the centre of
analysis; the analysis
of
other grievance mechanisms is court centred.
Authors commonly “descend” as far as tribunals, inquiries and ombudsmen
(expensive, often time-consuming machinery which is then christened
“informal”) without ever arriving at the really unstructured, fluid and
poorly publicised internal procedures which handle the great bulk of
grievances ventilated by citizens against public bodies.’
This, in case
I
am misunderstood, is not to say we know too much
about judicial review. It is a depressing feature of English administrative
law that only recently has the incidence, subject-matter and impact
of
court applications attracted socio-legal study. Rooted
to
the library floor,
so
many scholars have laboured on the judicial function of settling
uncertain law,
or
perhaps these days unsettling certain law, substituting for
a close inspection of a complex interface comfortable labels such as
“judicial control
of
administrative action” and “vertical allocation of
power” (wherein the administrators grovel underneath)
or
else a quick
citation
of
Stanley de Smith’s comment that judicial review “is inevitably
sporadic and peripheral.”*
We should beware easy generalisations about the pattern
of
research on
non-judicial procedures. It is hardly surprising to find that the picture is
confused. The subject-matter is less a “system” of redress
of
grievance,
more a jungle
of
intersecting agencies and jurisdictional divisions.
Constraints on access and lack of imagination have led to notable gaps and
concentrations
of
research; to take some examples, the Parliamentary
Commissioner for Administration and the social security tribunals and
planning inquiry respectively. The Franks Report not only tilted English
administrative law towards redress
of
individual grievance, the Report’s
criteria
of
openness, fairness and impartiality influenced deeply the
evaluation
of
the machinery. Instead of trying to evaluate
or
to estimate,
for example, efficiency and the knock-on effects within the administration
of
grievance machinery, there has been great stress on formalism and
judicial values.
By 1985 the overviews
of
the topic were virtual museum pieces. Bunched
together in the mid-l970s, Wheare’s
Maladministration and its Remedies
(1973), Ganz’s
Administrafve Procedures
(1974), Street’s
Justice in
the
Welfare State
(1975) and Williams’
Maladministration. Remedies
for
Injustice
(1976) could not anticipate the breakdown
of
broad political consensus
over the aims of the welfare state following the 1979 General Election
Examples are
H.
Wade,
Adminislralive
Law
(5th ed., 1982);
J.
Beatson and
M.
Matthews,
Adminblralive Law: Cases and Materials
(1983);
P.
Craig,
Adminislralive
Law
(1983);
P.
Cane,
An Btlroduaion
lo
Adminiwalive
Law
(19861.
S.
de Smith,
Judicial Review
of
Adminislrative Action
(3rd
ed., 1973), p.3.
110
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