Sir: Polly Toynbee ("Judicial review is a mere Elastoplast", 2 August), is intrigued when judges strike down the decisions of Government ministers or other public authorities for being unlawful, and it is not hard to see why. When doing so, the courts operate a system of law and redress infused with the notion of "public interest". Their role reaches further than merely judging some private dispute and they apply a vague concept with many political overtones. When judges clearly develop or adapt principles of public law or redress - which they have been doing for 20 years - it is easy for them to appear like a referee changing the rules of the game after it has started.
Ms Toynbee rightly calls for a written constitution to define the duties of public authorities and the powers of judges to enforce them. It is possible to formulate general principles of fairness in public administration, extending, if necessary, beyond the limits which judges have imposed on the law's growth. The Constitution, not the judges, will then decide who owes such obligations to citizens.
But this process only sets the rules, it does not apply them. For this, government politicians and officials must in future formulate policy with these rules explicitly in mind and Parliament must reject draft legislation where they have not done so.
There may be a new and increased role for the judges - perhaps in a special Administrative Court - but changes should aim to limit the abuse of power and to encourage fair and just treatment. A constitutional politics should trouble the judges as little as possible - and for all the right reasons.
Institute for Public Policy
2 AugustReuse content