The Retreat from Gillick
| Author | Gillian Douglas |
| Date | 01 July 1992 |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb00934.x |
| Published date | 01 July 1992 |
July
19921
7hhr
Rerrcwr
from
Gillick
given the atmosphere of judicial restraint prevailing
in
such leading cases as
Tui
Hing
and also, as Stuart-Smith
LJ
expressly recognised, given the particular
controversy and complexity of the issues of NHS capacity and funding. However,
in
response to the insistence that the policy issue is not justiciable, one might be
permitted the remark that a judicial decision that junior doctors cannot be required
to work ‘unreasonable’ hours is likely to have the same disruptive effect on the
NHS, whether
it
is reached on the basis of ‘public policy’
or
an imaginative use
of implied terms.
Conclusion
The decision
in
Johnstone
adds to the general confusion surrounding the question
of the proper roles of the law of tort and contract. In the specific context
of
employ-
ment relationships, the conflicting judgments of the Court
of
Appeal also leave
unresolved several issues of contractual authority of particular significance for
employees
in
a working environment marked by high unemployment and weakened
trade unionism. There is evidence, however, at least in the judgments of Stuart-
Smith
W
and Browne-Wilkinson VC, of a more positive approach towards the
problem of managerial prerogative and employee protection, which
it
is hoped
will
be taken up in future cases. In
1981,
when discussing the relationship between express
and implied contractual terms, Professor Bob Hepple was able to state ‘individual
bargaining may oust the results of collective bargaining.
In
practice, however,
workers’ organisations do not allow this to happen.
’43
In
the changed circumstances
of
today, it may be that the unruly horse of public policy, whether
it
is articulated
as such, or whether
it
takes the form of the Vice-Chancellor’s liberal construction
or the more radical approach favoured by Stuart-Smith
LJ,
is an acceptable price
to pay for some limited control of the more unreasonable exercises of managerial
prerogative.
The Retreat from
Gillick
Gillian Douglas
*
The questions of whether children can be said to have any rights and,
if
so,
how
to classify them, are far from straightforward, and have been the subject of much
academic debate. They also continue to cause difficulties for the legislature and
the courts. The recent Court of Appeal decision
in
Re
R
(A
Minor) (Wardship:
Consenr
to
Treatment)
I
is a disturbing example of a case where a court has arguably failed
to hold the balance between the interests of the child, the parents, and/or society
at large.
One basic problem is that we cannot talk straightforwardly about children’s rights
and assume that we mean the same thing. For example, Freeman has suggested
13
*Cardiff Law
School.
B.A.
Hepple
and
P.
O’Higgins,
Employment
Law
(London:
Sweet
&
Maxwcll. 4th
cd.
1981)
by
B.A.
Hepple.
at
p
117.
I
[I9911
3
WLR
592.
569
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