The simplest answer to, ‘Is socialism consistent with judicial review?’ might be ‘Yes absolutely – it’s a very useful way to hold authorities to account’.
To my knowledge, “central retinal vein occlusion” is still a popular ‘spot diagnosis’ in the clinical examination for the Royal Colleges of Physicians of the UK.
The National Institute for Clinical Excellence (“NICE”), as a public body with statutory powers from law, makes decisions about treatments in the NHS, and a number of its decisions have been subject to ‘judicial review’ in the past. Judicial review is a procedure in English law by which the courts in England and Wales can supervise the exercise of public power on the application of an individual. A person who feels that an exercise of such power by a government authority, such as a minister, the local council or a statutory tribunal, is unlawful, perhaps because it has violated his or her rights, may apply to the Administrative Court (a division of the High Court) for judicial review of the decision and have it set aside (quashed) and possibly obtain damages.
NICE concluded in July 2011 that dextramethasone-intravitreal implants implants, that are installed every six months and help prevent sight deterioration, and represented a cost-effective use of NHS resources. The macular is the central part of the retina responsible for colour vision and perception of fine detail. Macular oedema is where fluid collects in the retina at the macular area, which can lead to severe visual impairment. Straight lines may appear wavy, and one may have blurred central vision or sensitivity to light. However, according to a recent article in the Guardian newspaper, a survey of 125 hospital trusts in England with eye health services conducted by the Royal National Institute of Blind People in February found that of the trusts that responded, 45 were providing a full service and 37 were providing either a restricted service or no service. In his article, Sir Michael Rawlins in the Health Services Journal said he had advised the RNIB to make an application to the high court and seek a judicial review.
Socialism and judicial review, however, have not historically been natural ‘soulmates’. In EP Thompson’s “Whigs and Hunters” (1975), it is argued that judicial review (and ‘rule of law’) has been an useful way of exerting influence in capitalist ideologies, particular in the context of ‘abuse of power’. It can be argued that judicial review and ‘the rule of law’ go hand-in-hand in that the ‘rule of law’ fundamentally provides that nobody is above the law, and that the law is supreme. To that extent, everyone has an equal say, and judicial review can therefore represent the needs of underprivileged members of society. To that extent, it might be very reconcilable with socialism; sufferers of dementia might be considered some of the more disadvantaged members of society, and a decision to make cholinesterase inhibitors available for amelioration of cognitive symptoms might be a meritorious one in terms of fairness.
Many criticisms of judicial review have, interestingly, centred around the validity of the process. For example, it can be argued, reasonably effectively, that judges currently in England are not a representative stratum of the population. This is a general issue with the senior members of the legal profession, generally, and is essentially one to do with the politics of the judiciary, as discussed by JAG Griffith (1991). Judges in the High Court are not politically elected, and therefore there are qualms about them entering into questions of public policy; the counter-argument to that is that they are simply examining issues of procedural irregularity, fairness or legitimate expectation, amongst other grounds, of the wishes of parliament, defined originally by parliament. This contention has been most forceful when the politics have been seen as ideologically ‘strong’, such as under Margaret Thatcher. Judges have had a tendency to ignore the social values of society, and indeed many senior judges currently at the Bar in England and Wales emphasise that a robust advantage is conferred by judges not passing moralistic or other judgements based on social mores.
Perhaps the most compelling reason to reject judicial review, for socialists, is if judicial review is seen as a mechanism by capitalist societies to reject socialist values. In theory, any legal mechanism can only be interpreted by the political ideology which underlines it, at one end, but the judiciary and the legislature and executive are entirely separate in structure and function (it is argued, at the other end). However, a way to temper such criticism might be to argue that, even if socialism were not the prevailing ideology, socialism can exert a useful moralistic influence on decision-making which can make a real difference for a minority of patients in the NHS. Anyway, the validity of judicial review is a genuine problem legally, and, while I think instinctively it offers benefits to patients in a socialist NHS, its methodology should not escape from scrutiny altogether. As Prof Mauro Cappelletti indeed says, one page of practical tips is worth many books of abstract theory (or something like that!)
