Reform of Public Law: Pragmatism or Principle?
| Author | Nicholas Bamforth |
| Published date | 01 September 1995 |
| DOI | http://doi.org/10.1111/j.1468-2230.1995.tb02046.x |
| Date | 01 September 1995 |
The
Modem
Law
Review
[Vol.
58
Throughout the White Paper, mediation is presented as different from legal
advice, assistance and representation, and its beauties extolled in terms of that
contrast. Mediation helps to identify opportunities for reconciliation, while the
‘legal process’ does not (para
5.4);
mediation works with the parties’ meanings
and understandings, whereas the processes of translation involved in working
through lawyers lead to misunderstanding and reduced communication between
spouses (para
5.18);
bilateral, party negotiations are likely to be less conflictual
than arms-length interaction between lawyers, and
so
on.
Some, not least family lawyers, will contest the fairness of these contrasts and
perhaps feel uncomfortable about the conviction with which mediation is promoted
in the White Paper. Negotiation is in its nature a process in which imbalances of
power
are
reflected
in
the outcome; and mediation is a private intervention away
from the formal procedural safeguards attending litigation. But it is important to
keep in mind that the real shift here is from lawyer negotiation to party negotiation;
not from adjudication to negotiation. Provision for legal advice is proposed
unequivocally, even generously, in the White Paper, which also comes down
firmly against mediation being compulsory; the door is not shut on parties going to
see a judge where they really want to. Appropriate emphasis is also placed upon
the arrangements for quality assurance surrounding the provision of mediation;
and full implementation is to be preceded by a pilot.
Overall, this is a brave and considered initiative, which should go well, provided
Government is prepared to spend money on making sure that an adequate national
network of mediation services is put in place, that both those preparing for life
apart and the professionals intervening between them are absolutely clear about the
nature and boundaries of the intervention involved; and that where ‘settlement’
fails there is a direct route through to adjudication.
Reform of Public
Law:
Pragmatism or Principle?
Nicholas
Barnforth
*
As Lord Diplock observed
in
CCSU
v
Minister
for
the Civil Service,
‘English law
relating to judicial control of administrative action has been developed upon a case-
to-case basis which has virtually transformed it over the last three decades.
Recent examples of the judiciary’s leading role in effecting this transformation
include the creation and eventual dilution of the exclusivity rule, in the line of
cases stretching from
O’Reilly
v
Mackman2
to
Roy
v
Kensington and Chelsea
FPC3;
the apparent extension, in the
DataJin
case, of the range of bodies which
may be the subject of judicial review4; the
CCSU
case itself, in which the House
*Lecturer in Law, University College London.
1
2
[1985]
1
AC 374, at 407.
[1983] 2 AC 237;
see
also
Cocks
v
%net DC
[1983]
2
AC 286;
Davey
v
Spelthorne BC
[1984] AC
262;
Wandsworth
LBCv
Winder
[1985] AC 461;
R
v
East Berkshire AHA, ex p Walsh
[
19851 QB 152;
DPP
v
Hutchinson
[1990]
2 AC 783;
McClaren
v
Home mce
[1990] ICR 824.
3 “921
1
AC 624;
see
also
Lord
Lowry’s
comments in
R
v
Secretary of State for Employment, ex p
Equal
Opportunities Commission
[1994]
2
WLR
409,
at 425.
4
R
v
Panel on Takeovers
and
Mergers, ex p Datajln
[1987] QB 815. See, however,
R
v
Disciplinary
Committee of the Jockey Club,
ex
p His Highness the Aga Khan
[
19931
1
WLR 909;
R
v
Insurance
Ombudsman,
ex p Aegor
[1994] COD 426. Analysis: Barnforth, ‘The Scope of Judicial Review: Still
Uncertain’ [1993]
PL
239; Beloff, ‘Judicial Review
-
2001: A Prophetic Odyssey’ (1995)
58
MLR
143, at 146-148.
722
0
The
Modem
Law
Review
Limited
1995
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