糖心Vlog

Wade's vanishing world

The Golden Metwand and the Crooked Cord

April 2, 1999

There can be no denying the considerable influence of Sir William Wade in the field of public law in general and administrative law in particular. He is the pre-eminent contemporary disciple of Dicey, for whom he yields "to no one in admiration". In Martin Loughlin's words, he has championed a creed of conservative normativism, prioritising, after the Great Victorian, the historic tradition of the potential of the common law as repository of, and essential means of protection for, individualist values. Many highlights illuminate a long and distinguished career divided between Oxford and Cambridge. They include successful advocacy before the Franks committee of a court-oriented paradigm for tribunals and inquiries, vigorous defence of the judges in trampling the intention of Parliament to oust their jurisdiction, and exposure of the cardinal error of Lord Diplock in seeking to impose a rigid distinction between "public" and "private" law and procedure. There have from 1961 been no fewer than seven editions of Wade's Administrative Law . A major source of his appeal, shared with Dicey, is a lucid, expository and authoritative style that engages both novice and expert.

Wade's oeuvre exemplifies what Peter Birks has called "the rise of juristic literature to a law-making partnership with the judgements of the courts". In practice this typically means judicial engagement with a few privileged legal academics and commentators. Precisely because an Oxbridge education continues to unite our senior judiciary, Wade has been wonderfully well placed to inculcate his view of the discipline. His work has in fact been chief prompt and guide to the courts in the reinvigoration of judicial review since the early 1960s. Wade has occupied the space vacated by the consummate synthesiser of judicial review principle and remedy, Stanley de Smith. So it is that editors Christopher Forsyth and Ivan Hare feel able to invoke Sir Edward Coke's famous metaphor: Wade's achievement is said to have been "to bring the Golden Metwand of the common law to bear on the Crooked Cord of unlawful discretion". Per contra , the huge emphasis by Wade on the control by courts of the administration has encouraged a narrow or pathological view of the discipline, an aspect that finds powerful expression in the contemporary judicial conceit that judicial review is administrative law.

This festschrift accurately reflects both the strengths and weaknesses of this brand of public law scholarship. Light is shed, sometimes brilliantly, on difficult and controversial issues in judicial review litigation. Special mention may be made of four contributions. Paul Craig defends the proposition that in drawing the boundaries of constitutional competence the courts have consistently backed Parliament at the expense of the executive. Sir Patrick Neill, impressed by the recent actions of the courts, argues that there is no longer a need for legislative intervention in the guise of a general duty to give reasons for administrative decisions. Peter Cane makes a powerful case for a principled legal regulation of policy-making in the pre-legislative process. Sir Anthony Mason, former chief justice of Australia, contributes an essay on judicial policing of electoral arrangements that in intellectual vigour and comparative understanding few among the senior judiciary in England could hope to match. In contrast, there is surprisingly little discussion of the public/private law controversy that has not only preoccupied Wade but has also served to keep the courts busy in recent years. One or two of the essays can only be described as antiquarian in flavour.

According to the jacket, the essays deal with topics that "cover most of administrative law". Nothing could be further from the truth, unless one excludes from the subject such trifling matters as the variety of non-judicial machinery for redress of grievance, the increasingly diverse forms of "government by contract", and the whole spectrum of executive, agency and bureaucratic regulation. Nor indeed is the volume the kind of robust exercise in law and opinion associated with Dicey. Presumably it is intended to appeal to the very judges and practitioners with whose work it is loaded. The list of contributors notably excludes not only Wade's severest critics but also anyone with a background in either politics or administration.

糖心Vlog

ADVERTISEMENT

The book fails in turn to do more than scratch the surface of administrative discretion. It does not deal with the distinctive ideology of New Public Management, whose emphasis on economy, efficiency and effectiveness incidentally provides many competing forms of control. So much so, in fact, that "juridification" through a myriad of complex rules and procedures is today a pressing problem in public administration. Judicial review does not deal with this kind of difficulty; nor could it. Different but related, the legislative and regulatory capacity of the European Union increasingly presents major challenges to the distinctiveness of national legal and administrative culture. There is no good chapter dealing with this.

There is also, to use Wade's own terminology, the small matter of "constitutional fundamentals", more particularly the so-called modernising project clearly signalled by new Labour's election manifesto. Take devolution and what should now be regarded as the Celtic revival in law. Reference need only be made to the Claim of Right, the reassertion of the historic Scottish constitutional tradition that power must be limited, dispersed, and derives from the people, and to the Belfast Agreement, notable here for imaginative elements of co-sovereignty and the acceptance in international law that the UK's relationship to Northern Ireland is federal in character. The Diceyan concept of the sovereignty of the crown in Parliament infuses Wade's work, but this essentially Anglocentric conception of the state is in the process of being outflanked. This is nowhere reflected in the festschrift.

糖心Vlog

ADVERTISEMENT

Ending his conspectus of Wade's career, David Williams observes that "a constitutional revolution is under way, and he will yet be needed". In fact this serves to point up the editors' failure to address the great issue of Wade's enduring influence. Whisper it gently in Cambridge but his is a vanishing world. There is, mercifully, life after Dicey.

Richard Rawlings is reader in law, London School of Economics.

The Golden Metwand and the Crooked Cord

Editor - Christopher Forsyth and Ivan Hare
ISBN - 0 19 826469 0
Publisher - Oxford University Press
Price - ?45.00
Pages - 355

Register to continue

Why register?

  • Registration is free and only takes a moment
  • Once registered, you can read 3 articles a month
  • Sign up for our newsletter
Please
or
to read this article.

Sponsored

Featured jobs

See all jobs
ADVERTISEMENT