Creating Constitutionalism? FROM THE PUBLISHER
This book reconsiders the relationship between the British legal system and British politics. Creating Constitutionalism? integrates political debates about legal accountability in the administrative state into analyses of British politics in the twentieth century. After addressing arguments about the role legal accountability should play, this book revisits the patterns of decisions the courts have made, arguing that they have not uniformly deferred to administrative decisions as many have argued. The growing support among elites for a written constitution is traced back to World War II. And questions such as how Britain has chosen to govern administrative procedures and how immigrants use law to make claims against administrators are explored. Political scientists interested in comparative politics, law, and the politics of rights will find their concerns addressed in this work. This book will appeal to legal scholars interested in administrative law and those interested in comparative regulatory issues.
FROM THE CRITICS
Herbert M. Kritzer
Susan Sterett�s extensive consideration of the developing administrative law role of courts in England is a significant addition to
a growing literature that challenges the long held belief that courts are relatively unimportant players in the British political
system. In CREATING CONSTITUTIONALISM? Sterett traces the history and development of administrative law through
the court decisions and the events of the 20th century. She describes her goal as that of using the role of legal expertise and the
idea of legality ("the gradual reduction of arbitrariness", p. 4, quoting Philip Selznick) to frame and inform her discussion.
However, while both of these themes recur throughout her analysis, in the end the reader is not left with a clear sense of what
the core theoretical argument is. Despite this weakness, the analysis Sterett presents, which is also structured around the
realities of the political and governmental structure of Britain (i.e., strong party cleavages in a parliamentary system), is both
extremely interesting and important for understanding the likely trajectory of developments over the next quarter century in
Britain.
(A note on country names: the analysis of courts and law in Britain poses problems because there are two distinct legal systems
in Britain, the one serving England and Wales, and the one serving Scotland. If one considers the United Kingdom, there are
also the legal systems of Northern Ireland and of some of the Channel Islands. Sterett�s consideration of the courts is limited to
England and Wales, which for convenience I will refer to as England; however it is virtually impossible to limit the discussion of
politics to just England and Wales, and hence in connection with politics more broadly, I will refer to Britain.)
Chapter 1 examines the structures of British politics, how they formally relate to the courts (and the courts to them), and the
interaction of courts and government over administrative issues from the late 19th century through World War II. Sterett makes
many important observations in this chapter that later inform her discussion of more recent developments: the image that English
judges are aloof from politics is a 20th century invention, that the strict adherence to precedent is likewise a 20th century
phenomenon (actually, 1898)--one that the House of Lords (the highest court in England) abandoned in the 1960s, and that the
legal academy has played a very limited role generally in England with that particularly apparent in the absence of a significant
legal realist movement. One key element identified by Sterett is the relatively narrow role that the legal profession saw for itself
and for the courts. On the civil side, the strongest emphasis was on property rights and ownership issues, and both the courts
and lawyers had difficulty seeing their roles in the kind of broad terms long associated with American lawyers.
Chapter 2 examines the post-War period, and the implications of the rapid build-up of the welfare state for the role of courts in
overseeing administration of those expanding programs. Much of this chapter lays out the mechanics and bases of judicial
review of administrative action in the 1940s and 50s. Perhaps of most importance, however, is that Sterett points out that the
most important cases of this period came not as a result of unsatisfied claims by those the welfare state was meant to assist but
from those threatened by the growing state apparatus. Interestingly, these cases could be seen as much as traditional cases
dealing with property rights and ownership as cases dealing with new issues raised by expanding administrative functions (p.
50-3). During this period, the role of "tribunals" increased to provide some measure of review of administrative decisions
vis-a-vis individual cases; however, there was nothing akin to the Administrative Procedures Act in the U.S., and the result was
that there was not a ready path to appeal cases from tribunals to the courts. This did not mean that there were no ways of
getting courts to look at administrative decisions, but only that such review was extremely limited. In practice, the result was
that there was some review of the actions of local administrators (particularly on cases involving forced sale of property to the
government and local taxes) but very little with regard to the central government (p. 65).
Chapter 3 discusses the developments of the mid to late 1950s which marked the beginning of some important changes. While
she doesn�t frame it this way, it might be simplest to describe the question discussed by Sterett as, how could "legality" be
imposed on the administrative structure in the absence of a specific act of Parliament equivalent to the Administrative
Procedures Act? Neither political party had any interest in creating a vehicle for reviewing the actions of the subordinates of
cabinet ministers. Unlike the U.S., where there could be electoral advantage for legislators to impose controls on the executive
branch by subjecting actions of that branch to review by the courts, under the unified legislative/executive branch parliamentary
system, those in political control have no reason to make their own lives harder. The result was that advocacy of change had to
come from outside the government, and Sterett argues that this advocacy became the province of members of the legal elite
(i.e., the legal profession). What is not at all clear from Sterett�s discussion is how widespread within the legal profession was
there a desire to impose a greater legality on government administration. Particularly during the period in question, there was a
shortage of solicitors in England, and the conveyancing monopoly provided a very easy, comfortable living to the profession;
there was little economic incentive for the organized legal profession to seek to expand the areas of legal practice (this was in
sharp contrast to the more entrepreneurial legal profession in the U.S.). In fact, Sterett points out that much of the writing about
legality in administration came not from practitioners hungry for work but from legal academics (who have tended to be largely
ignored, particularly in the 1950s when a minority of lawyers were even university-trained). A major review of administrative
justice during this period made a variety of proposals but only limited parts of its recommendations were adopted; most
important among these was a provision for appeals to courts from tribunals over points of law and modifying the membership of
tribunals so that lawyers increasingly served as members of tribunals.
Chapter 4 traces developments from the 1960s through the 1970s. These developments were comprised primarily of a couple
of procedural changes recommended by the Law Commission. (The Commission was created in the mid-1960s to provide a
systematic way for the government to consider updating and modernizing various aspects of law.) Not surprisingly, neither
officials from the elected government nor senior civil servants were enthusiastic about the Law Commission delving into the
subject of administrative law or procedures for redress of claims arising from administrative action. The result was a limited
consideration of reform in the administrative law arena, focusing on procedural details rather than on substantive rights of
review. Interestingly, the proposed changes were implemented not by parliamentary action but by administrative orders issued
by the Lord Chancellor�s Department. The key changes were to simplify the procedures involved in obtaining "judicial review"
of administrative action (through a procedure of application for judicial review), to rationalize the remedies the courts could
grant, to designate a list of judges to hear such cases, and to allow cases to be heard by a single judge rather than by a panel
judges. Sterett points out (p. 106-7) that these changes should probably be viewed not as ways of improving administrative
oversight but as a "reaction to a concrete problem in the administration of courts."
Chapter 5 turns to what has happened generally with regard to judicial review of administrative action over the last 15-20
years. Sterett develops her discussion with careful attention to the growing role of European law in England, and the dilemmas
created by the absence of a written constitution. Here we clearly come to the central question raised by her title: are the courts,
by combining judicial review of administration with obligations created by involvement in the European Union effectively
creating a more formal constitutional structure? Through this chapter, Sterett describes the courts� increased willingness to
decide cases that challenge the actions of the government in power and raise questions about the presumed supremacy of
Parliament. The thrust of her analysis is neatly summed by her observation that "[i]n the courts, rules began to matter more as a
justification for action while elections began to matter less (p. 116)." Yet, these developments were also marked by a great deal
of caution in the courts, with the focus more on requiring the government to obey its own law than in asserting higher level
"constitutional" principles. The courts became a vehicle for increasing the visibility of issues in the public debate, and for forcing
action by the government. Often the courts in fact held for the central government, but often expressed reluctance as they did
so. One of the ironies of this pattern, which surprisingly Sterett does not seem to develop, is that the judges making most of the
decisions challenging or embarrassing the Tory government which held sway in Parliament from 1979 through 1997 were in fact
selected by Conservative Lord Chancellors. While there is a strong norm of choosing judges based on professional credentials,
it would nonetheless have been interesting to see some consideration of the political backgrounds of the judges making the
decisions.
Despite the caution of the courts, this period was marked by increased attention generally to administrative law. The number of
"applications for judicial review" rose sharply, although a large proportion of applications were concentrated in two specific
areas (immigration and housing). While few lawyers could make a full practice of administrative law cases, the Administrative
Law Bar Association was formed in 1986. At about the same time the Treasury Solicitor�s Office (which has responsibility for
most government litigation) wrote and circulated a pamphlet entitled "The Judge on Your Shoulder," which advised non-law
trained administrative officials on basic administrative law. Sterett concludes that, taken together, all of these developments
significantly increased the role of administrative law: "The courts, despite their unwillingness to rule against the central
administration very often at all, provided a place for critique that the government could not abolish without seriously
encroaching on its own rule of law ideology" (p. 149).
Chapter 6 describes how this operated in some detail by presenting a case study of judicial review in immigration cases.
Immigration has been an important issue in England for the last 30 years as persons from the Commonwealth have sought to
relocate to Britain. The thrust of the chapter is that through judicial review proceedings, lawyers representing immigrants have
pushed the government into important refinements and clarifications of both criteria and procedures for handling claims of
persons seeking to remain in Britain. Most of the change has been accomplished through the problems (i.e., costs, financial and
otherwise) raised by dealing repeatedly on a case by case basis. Occasionally cases have led to dramatic, and embarrassing for
the government, court decisions. Most prominent in this regard was a case in which the House of Lords ruled that the Home
Secretary was subject to contempt of court proceedings after a immigrant was deported while a court injunction prohibiting that
deportation was in effect. More generally, Sterett argues that her close analysis of immigration cases reinforces her argument
that court proceedings are important as a means of getting issues onto the parliamentary agenda that would otherwise be
delayed or avoided altogether (p. 178).
In the concluding chapter, Sterett seeks to sum up the thrust of her analysis and to relate it to some larger theoretical themes. I
was somewhat disappointed by this chapter because I found it difficult to get a handle on what was the bottom-line of her
analysis. The problem here is that she touches on a number of different theoretical threads, but does not succeed in producing a
strong integration of the issues.
The strength of this book is that it looks at recent developments in the broader context of 20th century British politics. While the
substantive conclusions are clear, the link to broad theoretical concerns is not. She touches on some many different theoretical
strains that it was difficult to grasp what was central and what was peripheral among them. Nonetheless, Sterett does show
both the potentials and the limits of courts as actors in the British political system, although those may well change markedly if
and when Britain "incorporates" into its own law the European Convention on Human Rights (which the new Labour
government has stated that it intends to do). This is an important book for all of those interested in the linkage between courts
and their larger political environments. It is a welcome contribution on the growing literature that seeks to look beyond the
traditional image of courts in England being outside the larger political sweep.
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