REVIEWS

Publication Date01 Jan 1981
DOIhttp://doi.org/10.1111/j.1468-2230.1981.tb01627.x
REVIEWS
POLITICS AND PRINCIPLES
:
SOME RIVAL THEORIES
OF
ADMINISTRATIVE LAW
CONSTITUTIONAL
FUNDAMENTALS, THE HAMLYN LECTURES.
By
H.
W.
R.
WADE.
[Stevens and Sons. 1980.
80
pp. price E3.35.1
DE SMITH’S
JUDICIAL
REVIEW
OF
ADMINISTRATIVE ACTION.
4th ed.
by
J.
M. EVANS.
[Stevens and Sons. 1980.
626
pp.
price
E2400.1
DEMOCRACY
AND
DISTRUST,
A
THEORY
OF
JUDICIAL
REVIEW.
By
JOHN
HART ELY
[Harvard
University Press. 1980.
268
pp. price
not stated.]
AT the earncst Victorian school which
I
attended,
an
annual endurance test
was imposed. Each Founder’s Day
I
had to sit,
a
sweet pea improbably pinned
to
the front of my bcst dress, while
a
Distinguished Guest Spcaker charted
the Progrcss
of
the World through the shoals and narrows of the last
12
months. Sleeping or daydreaming was my normal refuge, but one occasion
I
was roused from contemplation of
a
fine pair of episcopal gaiters by their
owner, who was at that moment insisting with clarity and firmness that
consistent progress
was
an
impossibility. Any small
gains
had
to
be fought
for and having been won, must be fought for again and again if thcy were
not to fadc into the perennial darkness which surrounds us. It was made
clear that cach one of us ought to be engaged in this fight.
This occasion came to mind during another annual endurance test, the
Chorley lecture. The speaker was Professor Griffith. Sweet peas were out of
season and gaiters not mandatory for the Chorley lecturer, but the mcssage
seemed familiar. There
is
nothing either inevitable
or
fundamental about human
rights, Professor Griffith warned us. From time to time they need to be
reassessed, and by attempting to entrench them, we may impede this natural
process. Moreover, we must not think that we can protect liberties from
invasion merely by using the terminology of rights. All liberties are really
political in character and must be clamorously and continually claimed from
the powers that be. This is
a
fight in which the whole political community
should be involved and if we allow the responsibility
for
the protection of
liberty to be transferred to the judiciary, we shall only succeed in enslaving
ourselves.1
This robust line is light years away from the approach
of
Professor
H.
W.
R.
Wade, the Hamlyn lecturer for
1980.
Presented by the Founder, Miss Hamlyn,
with
a
truly Diceyan opportunity to impress upon the Common Pcople of the
United Kingdom-represented, it is true, by
a
handful of lawyers and academics
-of the
privileges which in law and custom they enjoy in comparison with
other European peoples,” Professor Wade let the occasion
slip
away in Whiggish
querulousness.
Oh what
a
fall
is
here, my countrymen
!
he cried, and more
biblically, “Put not thy trust in princes
nor
yet in Parliaments
!
Although he entitles his lectures
Constitutional Fundamentals,” 2 Professor
Wade explains in
an
epilogue that his aim has been merely to invite considera-
tion
of
some
‘‘
diverse and miscellaneous
aspects of the modern Constitution
which give cause for concern. His choice has fallen upon
the crude and injurious
electoral system; the defective mechanism of legislation, and
in
particular the
supposed impossibility
of
entrenching fundamental rights; the problems of
1
‘I
The Political Constitution
(1979)
42
M.L.R.
1.
Constitutional Fundamentals, the Hamlyn lectures,
32nd
series.
113
114
THE
MODERN
LAW
REVIEW
[Vol.
44
abuse of power, legislative
as
well
as
administrative; and the position of the
judiciary under the pressures which the political and administrative system
now puts upon them.”
Now Dicey has often been castigated for concealing behind
a
seemingly
objective theory of the Rule of Law
a
political argument for
rule
by the law
courts. He has been trounced, too, for foisting
off
on
us
a
simplistic and
idiosyncratic theory of parliamentary sovereignty. Yet Dicey did at least
recognise a constitutional fundamental when he saw one. The major concern
of his magnum opus is the preservation of certain political freedoms in which
he Whiggishly believed and, although he was
a
protagonist of the law courts
and the common law, the natural consequence of his positivist interpretation
of parliamentary sovereignty was to place ultimate political responsibility with
the political representatives of the Common People of England and not with
a
handful of lawyers.
So
Professor Wade is scarcely
a
neo-Diceyan when his miscellaneous diversity
includes
an
argument for fettering the legislature with
a
Bill of Rights
or
Constitution-precisely the continental model to which Dicey objected. More-
over, he casts doubt on the institution of Parliament itself, on the grounds
that it is not truly representative, and that the legislative process is in this
country inefficient. It seems that he discounts other forms of control. He
dislikes the idea of
a
Conseil d’Etat and in his larger work on administrative
law
4
he dismisses the Parliamentary Commissioner merely
as
a
useful adjunct
to
a
coherent system of administrative law. What Professor Wade is really
prescribing then,
is
more and more judicial review,
a
universal panacea which
he advertises
as
being, like thalidomide, innocuous and entirely without side-
effects.
Professor Wade calls the
1950s
a
period of judicial backsliding and rejoices
that, in the
1960s,
“the judges executed
a
series of U-turns which put the law
back on course and responded to the public mood.” He ignores potential
political motives
(I
do not assert that there were any) because, for Professor
Wade, to transfer
a
given question from
a
political to
a
judicial forum is
automatically to sanitise it. In his own writing this transubstantiation is achieved
by substitution of the neutral word
policy
for
politics
and
political.”
The sort of confusion induced by this substitution can be illustrated by
considering
a
passage from
Administrative
Law
in which Professor Wade
discusses the failure of the common law to provide compensation for intangible
losses such
as
amenity
or
decline in the value of property attributable to the
construction
of
public works like motorways or railways under statutory powers.
Professor Wade believes the leading nineteenth century case to have been
wrongly decided by the House of Lords, which failed adequately to weigh
the issue of “personal sacrifice versus public benefit.”
He
argues that the
House of Lords
paved the way for technological progress at the expense of
individual rights” and
so
offered “an inducement to many people to resist
projects for roads, airports and other public works by every possible means,
thus causing many lengthy public inquiries into objections.”
Whether
a
contrary ruling would have lessened resistance to such projects is
more than
I
can say, though it is my impression that today’s objectors are
more often concerned with planning and environmental issues than with com-
pensation.
A
contrary ruling would, however, greatly have extended the class
of persons whose legal rights to compensation would have to be taken into
consideration by planners. Doubtless this is
a
policy
decision but then it
is
also
a
political
decision, since
‘‘
politics
are really dictated by
policies
in much the same way
as
policies
are often dictated by
politics
”-as
those
who work in comprehensive schools know to their cost.
To
pretend otherwise is
3
Introduction
to
the Study
of
the
Law
of
the Constitution
(1st ed.,
1885).
4
Administrative
Law
(4th ed., Clarendon
Press
1977),
pp.
75-94.
5
At
p.
657.
The decision was
Hammersmith
Rly.
Co.
v.
Brand
(1869)
L.R.
4
H.L.
171.

To continue reading

Request your trial