THE POLITICAL AND ADMINISTRATIVE CONSEQUENCES OF JUDICIAL REVIEW

Abstract

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 distinguishes a four‐fold effect on administrators, including a substantial element of inhibition, 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.

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