JUDICIAL REVIEW: A WAY OF CONTROLLING GOVERNMENT?
| Published date | 01 March 1988 |
| Author | DAVID FELDMAN |
| Date | 01 March 1988 |
| DOI | http://doi.org/10.1111/j.1467-9299.1988.tb00679.x |
JUDICIAL REVIEW: A WAY
OF
CONTROLLING
GOVERNMENT?
DAVID FELDMAN
Recent concern among administrators about the effect of judicial review on their work
is exaggerated. The cases show that judges are aware
of
the pitfalls
of
too much judicial
intervention. Judges do not control government.
To
understand their role, we must
distinguish three different judicial techniques (here
called
directing, limiting and structuring)
which are usually conflated under the title
of
'control'.
In
doing
their jobs, judges generate
principles to guide administrative procedures
and
judge their legality. That can make a
useful
contribution to
structuring
administrative decision-making, but only
if
the
civil
seMm
is as sensitive
to
the potential value of judicial review as judges are to its possible dangers.
Judicial review
is
a growth area. Ratepayers, people aggrieved by housing decisions,
immigrants, environmental groups and others
are
using it increasmgly
often
against
government agencies, and it
is
also
regularly
employed
in
the battle
between
central
and local government over rates and spending (Sunkin
1987).
This
has heightened sensitivity both in town halls
and
Whitehall
to
judicial
review
principles. The battle over London Transport's fare structure and the proper extent
of subsidy for local transport was fought largely
in
the courts. Judges have been
asked to rule on the legality of restrictions to housing benefits, Department
of
the
Environment intervention
in
the selling of council houses and the level of tolls on
the Sevem Bridge, all matters
of
dispute between central and
local
government.
During the unsuccessful fight to save the
GLC,
its leader Ken Livingstone said on
television that one even consulted one's lawyer before going
to
the toilet.
As
more decisions are challenged, civil servants have become defensive about
judicial review.
This
is shown by the very title of a recent Cabinet Office pamphlet,
The Judge Over Your Shoulder'. Newspapers regularly cany stones about the
fears
in
Whitehall about judicial activisim when reviewing governmental decisions.
There seems to
be
a
belief that in judicial review proceedings judges are coming
to control government, talung over its functions from the administrators and
policy-
makers instead of sticking to legal adjudication.
David Feldman
is
Leaurrr
in
Law
at the University of Bristol. The author
is
grata to
Dr.
H.
F.
Rawlings
and
Professor
J.
M.
Lee
for very helpful comments on earlier drafts of this article.
Public Administration Vol.
66
Spring 1988
(21-34)
0
1988
Royal Institute of Public Administration
ISSN
0033-3298 $3.00
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