The Law Commission on Judicial Review
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb01915.x |
| Author | Peter Cane |
| Date | 01 November 1993 |
| Published date | 01 November 1993 |
REPORTS
The Law Commission
on
Judicial Review
Peter
Cane
*
A Law Commission Consultation Paper is an ephemeral document, a step along a
road to something more permanent
-
a Report which, with a fair wind, may
generate Rules of Court, perhaps, or statutory provisions. Even if the
Commission’s efforts are not crowned with a legislative accolade, a Law
Commission Report may influence the thinking of judges, practitioners and
academics for many years, and may guide developments in the common law. A
Consultation Paper is primarily designed to elicit views through what might be
called a two-way monologue. The Consultation Paper on judicial review and
statutory appeals’ has also generated a great deal of discussion and dialogue in
numerous meetings and seminars attended by judges, practitioners, academics,
civil servants and ‘consumers’ of judicial review and statutory appeals, as well as
the Law Commissioner responsible for the project, Mr Jack Beatson. Since this
note is being published months after the consultation period ended on
30
June
1993,
there seems little point in adding to the welter of advice by commenting in
detail on the various options for reform outlined in the Paper. It would seem more
sensible to attempt an assessment of the reform agenda embodied in the Paper
because, no matter what comes out of the consultation exercise, the parameters of
the Commission’s ensuing Report are likely to be essentially the same as those of
the Paper.
In academic book reviews, it is not uncommon for reviewers to bemoan the fact
that the author has not written the book which the reviewer would have (wanted)
written. In that context, such a complaint is often neither fair nor useful. To point
out issues of policy or principle not touched upon by the Commission in its
Consultation Paper might be thought similarly churlish. But the work of the Law
Commission can, potentially at least, have effects in the world of action which
authors of academic treatises, as such, rarely achieve; and it is as important to
understand the limits of the agenda which the Commission’s work addresses (and
hence the nature of its potential effects) as to examine the minutiae of that agenda.
There is little point in
criticising
the Commission for the limited scope of its work
because it operates in a restricting institutional and political framework. But there
is good reason to identify what its work leaves undone for others to do
if
they can.
The Law Commission is, of course, neither popularly elected nor politically
responsible. For this reason, its province is technical ‘lawyers’ law.’ This, no
doubt, partly explains why both of the Commission’s forays into administrative
law have been concerned with procedures and remedies. Administrative law is, by
common agreement, at the interface between law and politics. Judicial control of
governmental action in general, and judicial review applications in particular,
often raise fundamental issues about the distribution of decision-making power
between the courts and the executive, between central and local government,
between the
UK
and the EC, and so on. They also confront us with important
*Corpus Christi College, Oxford.
1
Law
Commission Consultation Paper
No
126,
Administrative Law: Judicial Review and Sraruroty
Appeals
(London:
HMSO,
1993).
887
0
The Modern Law Review Limited
1993
(MLR
56:6,
November). Published by Blackwell Publishers,
108
Cowley Road, Oxford
OX4
1JF
and
238
Main Street, Cambridge, MA
02142,
USA.
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