TOWARDS A BETTER PUBLIC LAW?

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 significant 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 government 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.     

Judicial Disagreement need not be Political: Dissent on the Estonian Supreme Court

I investigate the non-unanimous decisions of judges on the Estonian Supreme Court. I argue that since judges on the court enjoy high de jure independence, dissent frequently, and are integrated in the normal judicial hierarchy, the Estonian Supreme Court is a crucial case for the presumption that judicial disagreement reveals policy preferences. I analyse dissenting opinions using an ideal point response model. Examining the characteristics of cases which discriminated with respect to the recovered dimension, I show that this dimension cannot be interpreted as a meaningful policy dimension, but instead reflects disagreement about the proper scope of constitutional redress.     

THE POLITICAL AND ADMINISTRATIVE CONSEQUENCES OF JUDICIAL REVIEW

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.     

JUDICIAL REVIEW: A WAY OF CONTROLLING GOVERNMENT?

Recent concern among administrators about the effect of judicial review on their work is exaggerated. The cases show that judges are aware of the pitfalls of too much judicial intervention. Judges do not control government. To understand their role, we must distinguish three different judicial techniques (here called directing, limiting and structuring) which are usually conflated under the title of 'control'. In doing their jobs, judges generate principles to guide administrative procedures and judge their legality. That can make a useful contribution to structuring administrative decision-making, but only if the civil service is as sensitive to the potential value of judicial review as judges are to its possible dangers.     

JUDICIAL REVIEW AND THE 'CONTROL OF GOVERNMENT'

Administrative law is traditionally said to be concerned with the 'control of government', and judicial review of administrative action is said to be the primary mechanism of 'control'. It is argued that judicial review fails in any significant sense to control central government. Explanations for this include the ability of the executive, acting through the legislature it controls, to reverse or nullify judicial decisions: the characteristics of the civil service which, in the absence of any significant legal training as a condition of employment, tend not to be aware of the significance of administrative law principles; and the imprecision of those principles, which make them inadequate as a guide to determine administrative processes. If administrative lawyers do in fact seek to establish control over central government, some at least of those problems must be faced, perhaps by the creation of a body of principles of administration.     

JUDICIAL REVIEW OF ADMINISTRIATIVE DECISIONS – A BACKGROUND PAPER

Judicial review is now the normal route for anyone seeking to challenge an administrative decision, unless there is a separate statutory right of appeal as for example in town planning matters. Grounds for challenge have been variously described by the courts but include (a) that the decision was wrong in law, (b) that it was unreasonable or irrational and (c) that there was procedural unfairness. Those who seek review must understand that the court will not substitute its own view for that of the decision taker. The adequacy of the remedy of judicial review has been challenged by some on the grounds that leave to proceed has to be sought from the court within three months. There is too the difficulty in some cases of establishing that the plaintiff has a sufficient interest to sue. Whilst it is too early to talk of a distinct body of public as opposed to private law, recent decisions have widened the concept of public law and have interpreted the circumstances in which a private right may be pursued against a public authority.     

Judicious choices: designing courts in post-communist politics

One area which has been generally overlooked in the literature on institutional choice in post communist politics has been the design of judicial institutions. This paper seeks to evaluate a number of different explanations for judicial systems choice in post communist politics, especially those which emphasize the influence of socio-cultural factors, economic factors, the judicial legacies of the past, and political bargaining. As an empirical test of these explanations, we examine variations in the amount of judicial power that constitution makers granted to the constitutional courts in the countries of the former Soviet Union, Mongolia, and Eastern Europe.     

PUBLIC LAW

Traditionally, both the academic study and the practice of UK public administration have drawn very little inspiration from the discipline of public law. In contrast to most other European countries, in which public services are subject to extensive administrative-legal codes, and in which administrative disputes fall under the jurisdiction of separate and specialized administrative courts, UK administrative law remains – recent reforms notwithstanding – significantly undeveloped. There is a marked contrast also with the United States, where the founding scholars of the discipline of public administration saw it as being firmly rooted in public law. There is no codified British constitution and no counterpart of the US Supreme Court; and there is no British counterpart of the US Administrative Procedure Act 1946. However, there are three factors which underline the urgent need in the UK for greater collaboration and convergence between the disciplines of public law and public administration: first, the accumulation in recent years of a substantial body of research-based, academic literature on public law, which provides important insights into the changing landscape of UK public administration; secondly, the continuing development of machinery for the redress of citizens’grievances against the state – in particular, the substantial growth of judicial review proceedings and the development of ombudsman systems; thirdly, the continuing transformation of the agenda of UK law and politics by developments in the European Union.     

Public needs vs. private loss: land use regulation and property rights

Property rights and government regulation have been the subject of considerable discussion and controversy in recent years. The issue of “takings” has been raised in most of the state legislatures in the 1990s. Congress has considered legislation as well. Supreme Court decisions, in particular the Lucas and the Dolan cases, have focused judicial attention on the issue in recent years. Local elected officials, planners and local government administrators confront the issue increasingly as they attempt to respond to growth pressures and regulate land use. Unfortunately, a great deal the public's perception of property rights is myth or fable. This article addresses the issue of takings by putting it first into historical perspective. Thus, we see that regulation of private property by government is not new. The concern over “regulatory takings” is explored and traced briefly noting the entry of the federal government into the arena of land use regulation. Legislative responses are reviewed and finally the status of judicial consideration of the issue is brought up to date. The article closes with recommendations for those who confront the takings issue. While caution is indeed called for, regulation of private property is still a fact of life in American public administration and will be for some time to come.     

Problem-Solving Courts in China: Background,Development, and Current Status

ABSTRACT

As a judicial system, the Chinese problem-solving courts are more deeply rooted in traditional judicial approaches than in therapeutic jurisprudence that fueled the movement in the West. Nevertheless, they share many similarities with problem-solving courts developed elsewhere in the world. To provide a better understanding of the courts, the authors first introduce the cultural and legal tradition that served as background for the judicial innovations. They then review the social and economic conditions that provided the impetus for the judicial reform. Next, they examine the two most common forms of the problem-solving court—the juvenile court and the family court—and identify their key functions and procedures. Last, the authors discuss the significance of the legal reform, the challenges it confronts, and improvement it can achieve.     

Implementing European case law at the bureaucratic frontline: How domestic signalling influences the outcomes of EU law

This article analyses the implementation of European case law at the bureaucratic frontline of European member states. Theoretically, insights from street‐level implementation studies are combined with judicial impact research. Empirically, we compare how EU rules on free movement and cross‐border welfare are applied in practice in Denmark, Austria and France. We find that when applying EU rules in practice, street‐level bureaucrats are confronted with a world of legal complexity, consisting of ambiguous rules, underspecified concepts and a recent judicial turn by the Court of Justice of the European Union. In order to manage complexity, street‐level bureaucrats turn to their more immediate superiors for guidance. As a consequence, domestic signals shape the practical application of EU law. Despite bureaucratic discretion and many country differences, domestic signals create uniform, restrictive outcomes of EU law in all three cases. Thus we show that there is considerable room for politics in EU implementation processes.     

AUSTRALIAN ADMINISTRATIVE LAW: INSTITUTIONS, REFORMS AND IMPACT

Over the last decade the Australian Government has enacted a package of legislative reforms dealing with administrative law, some aspects of which are radical and innovative. The reforms comprise the establishment of a general appeals tribunal to review certain administrative decisions on their merits, the appointment of a Commonwealth ombudsman, changes to the procedures and principles concerning judicial review of administrative action, the enactment of freedom of information legislation and the creation of an advisory body to monitor the new system of administrative law. The key features of these reforms are described in this article and some general observations are also made on the impact that the reforms have had on federal public administration.     

Underdevelopment,Urban Squatting,and The State Bureaucracy: A Case Study of Tanzania

This article investigates a part of the “story of the story” of the 1924 revolution, the first popular anticolonial uprising in Sudan to be framed by a nationalist ideology. Considering that the process that turns a past event into history is neither linear nor predictable, I draw on Trouillot's “catalogue of silences” to compare two sets of sources that correspond to two moments in the making of 1924 as history: first, the judicial records produced by the Sudan government during 1924, and second the Ewart Report, written in 1925, to “seal” the revolution. A comparison of these two sources reveals radical discrepancies in the narrative, as well as the silences imposed on and well-concealed fine-tunings of the various voices of the revolution. Of these two sets of sources, it is the Ewart Report that provides the most influential interpretation of the 1924 revolution.     

Constrained, pragmatic pro-democratic appraising constitutional review courts in post-Soviet politics

This paper conceptualizes the behavior of higher courts in the politics of former Soviet republics and attempts to set up a framework for the study of democratic contributions by post-Soviet constitutional courts. Although political expediency is noted to be the central driving force behind the judges’ decisions in politically sensitive cases, as courts are subject to different constraints from quasi-autocratic executives, it is argued that constitutional review tribunals are generally pro-democratic in their political orientation and that they can become the allies of pro-democratic parties in transitional periods of elite change. To support this proposition, this paper proceeds from a series of theoretical arguments to empirical observation of judicial behavior in times of political uncertainty, the latter being a perfect test for probing the political orientation of the courts.     

Nolan,councillors and planning

This article focuses on the role of councillors in planning. The views of the Nolan Committee, which were expressed in their third report, are set into the context of other reports, published during the 1990s, about the way councillors exercised their planning responsibilities. Two contrasting views of the planning system as a quasi‐judicial process and as an administrative/representative process are highlighted. The article concludes that the Nolan report is significant because it reasserts the representative role of councillors in contrast to the professional planning view that councillors should perform a quasi‐judicial role.     

Articulating the Nexus of Politics and Law: War in Iraq and the Practice within Two Legal Systems

Does law rule foreign affairs in the democratic state? Basically, one might expect that democratic executives operate on the ground of what is called the Rechtsstaat, and that in a political system with checks and balances operations—especially those eventually dropping out of that ground—are subject to judicial review. However, legal systems are more often than not willing to abstain from a legal governance of its countries' foreign policy—because of "political reasons." Moreover, democracies obviously vary according to their legal operations. At least in the area of foreign affairs, the relationship of democracy and law does not take up a necessary character. Facing this contingency, the article engages in the discursive construction of a politics and law nexus in the course of the operations of two legal systems, in the United States and Germany. For that reason, it will proceed by deconstructing two legal decisions related to the war in Iraq. Building upon the premise that legal practices are intertwined into a larger web of (legal) text, the article argues that the possibility of a judicial abstention in cases bearing reference to foreign policy issues depends on meaning produced in the course of the signification and positioning of discursive elements like "politics" and "law." Thus, speaking law is a politico-legal practice.     

POLICY AS NARRATIVE: NEW LABOUR’S REFORM OF THE NATIONAL HEALTH SERVICE

Beginning with a brief review of the governance literature, a definition of governance in the National Health Service of England and Wales (NHS) is offered. This introduces an analysis of NHS reform, as presented in the recent policy literature. Using narrative theory, I critique this literature with reference to three key actors: the new organizational form of the ‘Foundation Trust’, NHS staff, and NHS patients. For each actor, a motif is identified and examined: ‘freedom’ for Foundation Trusts, ‘clinical governance’ for staff, and ‘choice’ for patients. Each of these motifs is instrumental in the narrative on NHS reform, whose main themes are emancipation, progress and duty. These are common to other political projects. This critique makes the rhetoric underpinning the recent policy literature more explicit, and underlines the created, contingent nature of New Labour’s account of NHS reform.     

Race and a decolonial turn in development studies

Abstract

This paper reviews and revives a longstanding conversation about race and development studies, which was prominently explored in a collection of papers on race and racism in the journal Progress in Development Studies back in 2006. This revival is timely in the context of a global call to decolonise higher education. Given the central logic of race and racism in European colonialism, and the decolonial argument that colonialism continues in the production and value of knowledge, I examine the presence and absence of race and racism in discussions of decolonising higher education and in development studies. Through a systematic review and content analysis of papers published in six major development studies journals over the past 13?years, I identify where and how race is present in current development scholarship and explore the implications of this for a decolonial turn in development studies.     

The New Mode of Public Governance and Public Accountability in Developing Countries: An Analysis with Particular Reference to Bangladesh

Public accountability is a fundamental element of good governance. All countries all over the world strive to ensure the accountability of public officials by adopting different kinds of mechanisms. Following the liberal democratic tradition, most countries in the world have relied on the legislative instruments, executive means, judicial and quasi-judicial processes, official rules, codes of conducts, official hierarchies, public hearings, interest groups, media scrutiny and so forth for ensuring public accountability. However, in recent years, the new mode of public governance has brought new dimensions to the discourse on public accountability. This new mode focuses largely on the market- and society-centered mechanisms. This article is an attempt to assess the effectiveness of these market- and society-centered mechanisms in ensuring public accountability in Bangladesh. The article has the following objectives:

(a) to explore contemporary debates on the market- and society-centered mechanisms of public accountability;

(b) to sketch the state of public accountability in Bangladesh; and

(c) to analyze the effectiveness of the market- and society-centered mechanisms in view of the contemporary socio-economic and political dynamics of Bangladesh.