TOWARDS A BETTER PUBLIC LAW?
| Published date | 01 June 1996 |
| DOI | http://doi.org/10.1111/j.1467-9299.1996.tb00868.x |
| Date | 01 June 1996 |
| Author | IAN CRAM,JOHN BELL |
TOWARDS A BETTER PUBLIC LAW?
IAN CRAM AND
JOHN
BELL
In the
UK
Constitution, the major weapon of judicial control over the exercise of
governmental power is provided by the action for judicial review.
This
action serves to
keep public bodies within the scope
of
the powers conferred on them
by
law. Prior to
the present Law Commission inquiry into procedural aspects of judicial review, the
matter was last examined in
1977
since when there have been sigrdicant changes in the
ways
in
which governmental power is exercised and controlled.
This
article takes as its
focus
the Law Commission’s Report
No.226
Judicial
Review
and Statutory Appeals
and
examines specific proposals contained therein arguing that, underlying the reforms,
there exists no coherent vision of the
future
role
of
public law. Instead, what
is
revealed
is
a confused cocktail
of
measures in which the tension between the legitimate needs of
public administration and the opposing requirement that govemment act according to
law remains unacknowledged and thereby unresolved. There
is,
moreover, a
disappointing failure to evaluate the experience of public law procedures found in
other jurisdictions. In response to these perceived deficiencies, the authors set out an
alternative and principled account of judicial review, the central feature
of
which
is
to
ensure that public power
is
subjected to an appropriate degree of judicial
scrutiny.
This
alternative account is later used to
inform
arguments about specific reforms. In this
regard, the valuable experience of other jurisdictions’ public law procedures
is
also
drawn upon.
INTRODUCTION
Alongside mechanisms of oversight and control operating mainly
in
the
political sphere
of
the constitution, judicial review ensures a degree
of
legal
accountability
in
respect of public bodies
by
reviewing the legality of such
bodies’ actions. However, it can only give
rise
to effective accountability
if
it
is
open
to
a broad range of parties, easy to
use,
speedy
and cheap, and has
remedies which are complied with. The price
of
such accountability
will
be some
potential impairment of the speed and cheapness
of
implementing lawful
decisions, but this
is
counterbalanced by the ability to identdy unlawful actions
and to
instil
a general respect for the principles of administrative legality within
the culture
of
the administration.
Ian Cram is a Lecturer in the Faculty
of
Law and
John
Bell
is
Professor
of
Public and Comparative Law
at the University
of
Leeds.
Public
Administration
Vol.
74
Summer
1996
(239-253)
0
Blackwell Publishers Ltd.
1996,
108
Cowley Road,
Oxford
0x4
IF,
UK
and
238
Main Street,
Cambridge,
MA 02142,
USA.
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