THE POLITICAL AND ADMINISTRATIVE CONSEQUENCES OF JUDICIAL REVIEW
| Published date | 01 December 1996 |
| Date | 01 December 1996 |
| DOI | http://doi.org/10.1111/j.1467-9299.1996.tb00887.x |
THE POLITICAL AND ADMINISTRATIVE
CONSEQUENCES
OF
JUDICIAL REVIEW
SIMON
JAMES
Academic analysis
of
judicial review
is
confined largely to juridical commentaries
in legal journals. This article, written from an administrator’s viewpoint, examines
its consequences for the power of government, for administrative behaviour, for
constitutional dynamics, and for the scientific study of policy-making. It distingu-
ishes a four-fold effect on administrators, including a substantial element of inhi-
bition, and highlights the uncertainty created by the incremental and inconsistent
development of the principles of judicial review. In constitutional terms, while the
courts eschew national security and economic policy, they have in other fields
explicitly created a process
of
accountability parallel to that
of
Parliament, and have
resisted statutory attempts to limit their jurisdiction. Analysed in terms of political
science, judicial review imposes unrealistic standards
of
administrative conduct,
entrenches the role of pressure groups, and places on public bodies legalistic
requirements that they may not be equipped to fulfil. The combination of these
pressures, exacerbated by further expansion of the scope of the judicial review, are
likely to increase friction between judiciary and government, possibly precipitating
a crisis.
INTRODUCTION
The impact of judicial review on politics and administration has attracted
much public comment but relatively little analysis. In part this is because
the cases that catch the headlines
-
GCHQ,
the Pergau Dam affair, the
Criminal Injuries Compensation case
-
attract sensationalist coverage that
squeezes out deeper analysis. But also most
of
the commentary has
appeared in legal journals, rather than in those devoted to public adminis-
tration, and the apparent unwillingness of public lawyers and public
administrators to reach each others’ scholarship has hampered debate.
This article
is
quite deliberately not an examination of the phenomenon
from the juridical point of view. Instead it examines judicial review from
the standpoint
of
an administrator concerned to tease out its consequences
for the power
of
government, for administrative behaviour, for consti-
tutional dynamics, and for the scientific study of policy-making.
It
is
open,
no doubt, to criticism
for
lack of technical expertise; but that is the risk you
Simon James
is
a Visiting Fellow
in
Politics at the University
of
Newcastle-upon-Tyne.
Public Administration
Vol.
74
Winter 1996 (613-637)
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Cowley Road, Oxford
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and
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Main Street,
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02142,
USA.
614
SIMON
JAMES
run when attempting to bridge the gaps that separate lawyer from political
scientist, and academic from practitioner.
WHAT HAS CHANGED, AND WHY
Judicial review is a legal mechanism by which the decision of a public
authority may be challenged in the courts on the grounds that it
is
illegal,
unreasonable or unfair. In the 1940s and 1950s such challenges were
infrequent and rarely succeeded. But in the past twenty-five years the pos-
ition has changed dramatically. The number of judicial review cases in
England and Wales rose from 160 in 1974 to over 1,230 in 1985, and to
some 3,200 in 1994. (A similar development has been apparent in Scotland,
although this article confines itself to England and Wales.)
Recent research by the Public Law Project (Sunkin
et
al.
1993a) has pro-
vided a revealing breakdown of these figures. Roughly half of all challenges
concern homelessness or immigration. These fall to judicial review more or
less by default, for want of any other channel of appeal. Indeed, the Law
Commission (1994) has suggested creating a separate procedure for home-
lessness appeals. Nor is it correct to think of judicial review as biting mainly
on central government, although defeats inflicted on ministers will catch
the largest headlines. An equal or larger number of cases are brought
against local authorities or tribunals (Sunkin
et
al.
1993b), and there is also
a sizeable trade in public authorities taking each other to court.
This article concentrates on the consequences of this expansion of judicial
review, rather than on the reasons (for the latter, see Griffith 1991 and James
1996). Here
I
will do no more than summarize the causes:
(1)
Social attitude: a decline in public deference towards authority and
a greater willingness to argue the toss with the powers that be. In
recent decades this has been reinforced by the growth of con-
sumerism and the move from consensual to contractual approaches
in the delivery of public services.
(2)
The growth of government activity and legislation, and particularly
the proliferation of secondary legislation bestowing on ministers
power to govern by regulation.
(3)
The limitations of Parliament as a means of controlling government.
In institutional terms this has been recognized by, amongst other
developments, the creation of ombudsmen. In political terms it was
dramatized by the Crichel Down case in which the Home Secretary,
Maxwell-Fyfe, actually promulgated a restricted formulation of the
circumstances in which a minister should be held responsible for the
conduct of his officials.
(4)
Technical simplification of judicial review when, in 1977, the complex
and arcane rules for seeking review were greatly simplified. And once
a few well-publicized cases had made headlines, the legal profession
woke up to its potential as a weapon: nothing succeeds like success.
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