The following discussion will explore the theory behind the rights assertion of citizens in reaction to unfair laws and policy reforms of the government, which is becoming very important to the validation of public policy. It is then going to consider the problems that the Conservative Government experienced with the Poll Tax in the 1990s and the French Government in respect to the First Employment Contract 2006. In this section it will illustrate how public opinion doomed these policies to the scrapheap.
Carney has proposed that pressure groups have embarked on using the legal system for alternative methods than just setting precedent or using judicial review for ulterior motives than questioning the rule of law. This has occurred because the present legal system does not provide sufficient protection for the environment and he considers three theories of how pressure groups use the legal system which are; as a surrogate political process (Sax); adjunct to the political process; and rights assertion (Dworkin and Rawls). The following section will consider; each of these theories; the application that Carney proposes; and whether the theories of empowerment and grassroots movements provides any insight into providing environmental rights as sufficient access to justice against unfair public policy.
The Surrogate Political Process theory argues that courts are completely independent from the political and as Sax argues that it is the only method of social reform that is not possible in the political arena of lobbying and the competing of interests.1 This is the radical form of the argument; however there is a more traditional line of argument as illustrated by Carney:
The ability to operate as a surrogate political process the courts must have values which promote a different agenda to that which is being promoted by the traditional political process, and have the ability to ensure that these values are ultimately accepted in the traditional political process.2
The problem with this argument for the political/legal process is that it is not viable in the English Legal System, because of parliamentary sovereignty and the unwritten constitution because the English courts do not have the power to quash laws that are inconsistent with the constitution. In France, however, this is a possibility therefore extreme public reaction as to the First Employment Contract 2006 can result in the laws being quashed by the Courts. Therefore the government before losing in the courts in jurisdictions, such as France, will retract their public policy because of the ultimate failure of the policy due to the unfairness to the public.
Adjunct to Political Process:
This thesis recognizes the limitations of the court's ability to effect significant social change by itself - rather litigation is seen as another campaign tool - or in the words of David Robinson3 an arrow in the quiver. As a campaign tool litigation can serve a number of purposes. It may if successful legitimize the goal [of the Pressure Group] It may