JUDICIAL REVIEW AND THE ‘CONTROL OF GOVERNMENT’
| DOI | http://doi.org/10.1111/j.1467-9299.1986.tb00611.x |
| Author | H. F. RAWLINGS |
| Published date | 01 June 1986 |
| Date | 01 June 1986 |
JUQICIAL REVIEW
AND
THE
'CONTROL
OF
GOVERNMENT'
H.
F.
RAWLINGS
Administrative law is traditionally said to be concerned with the 'control of government',
and judicial review of administrative action is said
to
be the primary mechanism
of
'control'.
It
is argued that judicial review fails in any significant sense to control central govern-
ment. Explanations for this include the ability of the executive, acting through the legislature
it controls, to reverse or nullify judicial decisions: the characteristics of the civil service
which, in the absence of any significant legal training as a condition of employment, tend
not
to
be aware of the significance of administrative law principles; and the imprecision
of those principles, which make them inadequate as a guide to determine administrative
processes.
If
administrative lawyers do in fact seek
to
establish control over central
government, some at least
of
those problems must be faced, perhaps by the creation
of
a
body of principles of administration.
INTRODUCTION
The traditional concern of the administrative lawyer has been with the 'control
of government'. Wade tells
us
that 'a first approximation to a definition of adminis-
trative law is
to
say that it
is
the law relating to the control of governmental power'
and that 'the powerful engines of authority must be prevented from
running
amok
(Wade, 1982, 4-5). This approach to administrative law has recently been
characterized (dare one say illuminatingly?) by Harlow and Rawlings as 'red-light
theory'. Proponents of this approach believe that 'administrative law should aim
at
curbing
or
controlling
the state' (Harlow and Rawlings, 1984, 12, emphasis in
original), behind which belief stands a certain hostility, as a matter
of
political
ideology, to big government' and the interventionist state. Dicey provides an
obvious example of this
(ibid.
p. 18, citing Jennings, 1935, 132), as do Lord Chief
Justice Hewart's fulminations against 'the new despotism' (1932) and 'bureaucracy
triumphant' (1935).
Within this 'red-light' perspective, the courts, by way
of
judicial review of
administrative action, have a privileged position as the primary mechanism of
control, as Professor Wade's text indicates
-
the Parliamentary Commissioner for
Administration, for example, is reduced to the status of a 'valuable adjunct'
to
our system of administrative law (Wade, 1982, 85). Ridley's recent observation,
H.
F.
Rawlings
is
Lecturer in
Law
at
the
University
of
Bristol.
Public Administration Vol.
64
Summer 1986 (135-145)
0
1986 Royal Institute
of
Public Administration
ISSN
0033-3298
$3.00
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