the underside of the law: judicial review and the prison disciplinary system

THE UNDERSIDE OF THELAW: JUDICIAL REVIEW

AND THE PRISONDISCIPLINARY SYSTEM

Martin Loughlin"

Regular and institutional as it may be, the discipline, in itsmechanism, is a 'counter-law'. And, although the universal

juridicism of modern society seems to fix limits on the exerciseof power, its universally widespread panopticism enables it tooperate, on the underside of the law, a machinery that is both

immense and minute, which supports, reinforces, multipliesthe asymmetry of power and undermines the limits that are

traced around the law. (Foucault 1979 p.223)

This paper examines the recent developments concerning judicialreview of disciplinary awards against prisoners. The subject will be

of particular interest both to those interested in penology and alsoto students of judicial review of administrative action. For thesegroups, the subject may be viewed not only as an issue of interestbut also one of considerable importance. During the last 15 yearsthere has occurred a remarkable transformation in the status accordedprisoners by the judiciary, and this apparent revolution in judicialconsciousness has been manifested particularly in relation to theattitude which the courts have taken to the exercise of their supervisory jurisdiction over the disciplinary system operating within

prisons. It has resulted in some basic changes to the structure of theprison disciplinary system and, since many of these changes havebeen instigated as a result of edicts of the judiciary, the episodefurnishes a singular example of the power of courts through judicialreview to reshape administrative processes.

* Professor of Law, University of Manchester. This is the revised text of a lecturegiven on 12 November 1992. The author is grateful to Neil Duxbury, Michael Loughlinand Peter Quinn for their advice on an earlier draft.

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24 Martin Loughlin

However, it is often the case that important developments inrelatively precise fields can cast light on aspects of our generalsituation. Through this study we might, for example, come to abetter understanding of the function of the prison within the criminaljustice system or a deeper appreciation of the character of law inmodern society. I therefore wish to use the occasion of examiningdevelopments in judicial review of the prison disciplinary system asan opportunity to address certain issues of a more general nature. Ido not propose directly to focus on the role of prisons. They seemboth to be very expensive and rather dreadful responses to a fairlyintractable set of social problems. Prisons unremittingly fail to achievetheir ostensible objectives: despite their existence the crime ratecontinues to increase; nor, it seems, do they deter those who havebeen subjected to its privations since those who have been sentencedto prison simply seem more likely to be returned to prison. Despitethe long-standing recognition of these failures, prisons neverthelessseem likely to remain as a central fixture of penal policy. I do,however, propose to use the opportunity of examining this episodein order to reflect on our understanding of law, and especially on theways in which we tend to conceptualise administrative law.

These more general reflections are provoked by the rather disconcerting views expressed by Michel Foucault in the epigraph tothis paper. Foucault here seems to be suggesting that, despite thewidespread view that law controls and places limits on the exerciseof power, when properly viewed-when, in particular, disciplinarypower is recognised as a force which operates on 'the underside ofthe law'-law should be seen as a phenomenon which serves not tocontain but rather to bolster the dominant power relations in society.Within this study I shall consider whether Foucault's perspectivehelps us to understand the relationship between courts and theexercise of disciplinary power within prisons and, in turn, willconsider whether recent developments cause us to question Foucault'sviews on law.

Perspectives on Administrative Law

From the administrative law standpoint, the prison is an interestinginstitution to investigate precisely because, being a 'total institution'which regulates all significant aspects of the inmate's life (Coffman1961, chap.1), it can be seen as the ultimate symbol of administrative

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The Underside of the Law 25

power. The relationship between prisons and courts may thus beviewed as one in which, in a particularly acute manner, the ideas ofpower and justice potentially collide. It is precisely because of thepossibility of collision that the relationship between courts andprisons provides a useful vehicle for seeking to expose the variousways in which, within administrative law, the tension between theidea of administration and the idea of law can be addressed. It isthus with the main positions in respect of that tension that I begin.

The traditional-and predominant-view of administrative lawwhich has emerged in this country might be labelled the Whig view(see, eg, Dicey 1885, Hewart 1929, Allen 1931, Keeton 1952, Wade1988). It is a view which not only focuses on the centrality of courtsin administrative law but which also views courts as the guardiansof liberty. This Whig view is rooted in a profound distrust of allexecutive power and it tends to equate progress-the onward marchof liberty-with the growth in the number of administrative decisionswhich are subjected to review by the courts. Courts are specialprimarily because they are the repositories of certain customaryvalues. What underpins this Whig view, then, is the belief in thecommon law as 'the golden metwand' which maintains a balancebetween the individual and the state. Within this image, law is notto be seen as a theoretical science founded on reason but is based on'artificial reason' which is rooted in experience. The common lawour customary inheritance--embodies immutable ideas of right andjustice which the judiciary, in oracular fashion, are called upon toproclaim.

Throughout this century, this traditional view has been subjectedto challenge. The pace of social change, the great extension of thesphere of influence of the executive, and the changing character oflaw all serve to undermine the view that the judiciary, through theiraccess to the accumulated wisdom of the common law, possess aunique appreciation of how the business of government ought to beconducted. The challengers to the Whig view may, rather crudely,be placed into two broad camps; the de-myrhologizers and themodernisers-the radicals and the reformers. The radical challengeseeks to undermine the Whig view largely by exposing the sham andhypocrisy of legal rhetoric; in effect, they seek to strip the mask ofjustice from the face of power. Law, in this radical view, is essentiallyan expression of power relations in society: 'laws are merely statements of a power relationship and nothing more' (Griffith 1979,

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p.18). In a reversal of the Whig view, the de-mythologisers see thecourts, not as the guardians of liberty, but as the bastions of privilege.The values of the common law are the values of an old order which,with the emergence of democracy, must change. Our courts, beingabsorbed in the culture of the common law, do not provide a solutionto the quest for administrative justice but, far from it, must be viewedas part of the problem (see, eg, Laski 1926, Robson 1928, McAuslan1983, Hutchinson 1985, Griffith 1991).

Aspects of the radical critique can also be identified in the analysisof the reformers. The reformers recognise that the foundations of amodern legal order can not be rooted simply in the acceptance of theauthority of the judiciary as carriers of traditional wisdom. The paceof social, economic and technological change has been such as todevalue much of that customary wisdom. The reformist solution,however, is to seek to modernise the common law tradition; toreinterpret that tradition in the language of rights. Rights ratherthan remedies, principles not precedents are what is required. Themodernisers reject the radical claim; they believe that reason-notpower-lies at the heart of law. Law is based on principle not policy.Above all, the reform or modernising movement is a rational isingmovement; it seeks to expose the skeleton of rights enmeshed withinthe corpus of the common law (see, eg, Dworkin 1986, Jowell 1988,Allan 1988a, 1988b).

Recent developments in judicial review of the prison disciplinarysystem may provide an interesting study through which to evaluatethe potency of these various understandings of administrative law.Through an examination of the evolving case-law, we may evaluatethe competing claims of the traditionalist and modernist views ofjudicial reasoning. Furthermore, in assessing the relationships betweencourts and prisons-between law and administrative power-wemight also be in a position to assess the force of the traditional andradical claims on the relationship between justice and power. Wemight note that, in so doing, we are seeking to evaluate the radicalclaim on rather unfavourable terrain. It is, for example, one matterto castigate the judiciary for utilising anachronistic common lawtechniques to frustrate the implementation of progressive sociallegislation. It is quite another when the courts may be viewed asimposing strict procedural requirements on disciplinary agencies andprotecting prisoners from the harsh impact of executive action. It ishere, perhaps, that Foucault enters the debate, since many who

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espouse a radical critique and equate law with power do not generallyexplain what they mean by power. If we are to treat seriously theissue of the relationship between law and power we must be attendantto power's various manifestations.

Prisons and the Changing Technology of Power

In Re Rioters [1774] Lofft 436 Lord Mansfield commented that he'had no doubt of the power of the court over all the prisons in thekingdom.' Nevertheless, during the following 200 years the courtsdeclined to exercise their inherent power in the context of any aspectof the management of prisons (see Marin 1983, pp.251-69). In theintervening period, both the character of the prison and its functionwithin a social system of punishment came to be fundamentallytransformed. During the eighteenth century, prison confinement wasused mainly for summary offences and the terms of imprisonmentwere generally quite short; usually a year or less. By the twentiethcentury, however, prisons had become the basic instrument of punishment for all serious offences and the prison system had emergedas one of the major forms of bureaucratic organisation known toBritish government. Today, the Home Secretary, through the HomeOffice Prison Service, employs 23,000 prison officers in a hierarchicalorganisation which controls the lives of 45,000 prisoners allocated to120 prisons throughout England and Wales.

This transformation in the character and function of the prisontook place between the late eighteenth and the mid nineteenth century.It reflected the emergence of a new philosophy of punishment; onewhich saw the replacement of a variety of punishments 'directed atthe body' such as hanging, whipping, branding and the use of stocksand pillories with a new form of punishment by way of incarcerationwhich was 'directed at the mind' (Ignatieff 1978). In symbolic terms,the 'spectacle of the scaffold' came to be replaced by the disciplinaryarchitecture of the Victorian prison. In Disciplineand PunishFoucaultargues that this transformation in the techniques of punishmentthe replacement of Tyburn with Pentonville-was the manifestationof a change in what he calls the technology of power.

The eighteenth century techniques-the ceremonial infliction ofpain through torture and public execution-constituted a representation of the relationship of sovereign and subject; punishmenthere required the mark of vengeance to be applied to the body of the

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condemned man. It was a symbol of the majesty of the sovereignagainst whom the criminal's acts had offended and the public ritualserved both to expiate the atrocity through torture and also to striketerror in the hearts of subjects. The glowering presence of theVictorian prison, by contrast, epitomised the emergence of a newtechnology of power, which Foucault calls disciplinary power. Herethe objective was not so much to strike fear but to instil obedience.It aimed to render the body docile by subjecting the offender to therules and orders of a strict administrative regime. Its techniques ofhierarchical surveillance and correctional principles were refined andpopularised by Bentham in Panopticon, his architectural schemewhich was designed to place both prisoner and guard under constantsurveillance (Bentham 1843; Foucault 1979, Pt.III chap.3).

With the emergence of the modern prison as a total institutioncame fundamental changes in the function of imprisonment withinthe penal system. By mid-century, sentences of ten years or morewere becoming common. This was partly the result of externalpressures; transportation, which had been a common penalty formajor crimes, had been abandoned by the 1850s, largely as a resultof resistance within what had by then become a stable and prosperouscolony. But the emergence of the modern prison system also reflectedmajor changes which led to a fundamental shift in the basis of socialorder. The traditional, paternalistic order which was reinforced byperiodic, ritualised displays of terror was not sufficiently robust towithstand the basic restructuring which was taking place: 'Socialstability had to be founded on popular consent, maintained byguilt at the thought of wrongdoing, rather than by deference andfear.'(Ignatieff 1978, p.211) Underlying both the shifts in the philosophy of punishment and the broader social changes which weretaking place lay a general process of rationalisation; the establishmentof an impersonal order that operates according to general rules.

This change was, above all, a product of rationalisation. And,since the reforms may be taken to function both as a form ofprogressive change and also as a change which intensifies and objectifies a system of domination, it is the ambivalence of this processwhich Foucault exploits. He recognises that there is a third modalityaccording to which the power to punish may be exercised. This isthe juridical mode founded on the idea of the juridical subjectidentified as part of a social compact. Within this mode, since theobjective is to redress the wrong to society caused by the offence and

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to restore the offender to society by a process of requalification, boththe target and the limit of punishment is the humanity of the subject.But Foucault argues that this mode of punishment did not underpinthe birth of the prison. The modern prison was founded on penitentiary techniques and, with the disappearance of the torturedsubject, there arose not simply the offender but rather the delinquentto whom the mechanisms of a disciplinary power came to be applied.

Foucault (1979 p.255) further argues that 'it is this delinquency ...from which justice averts its gaze, out of the shame it feels inpunishing those it condemns ... Delinquency is the vengeance of theprison on justice.' Or, to translate, we might say that the courts haveaccommodated the techniques of disciplinary power within the lawand that one of the consequences of doing so is that they have beenrequired to withdraw from any active supervision of the exercise ofdisciplinary power within the prison system. If this is correct,however, it does raise the question of how we might characterise thecontemporary period in which the courts have actively asserted theirsupervisory jurisdiction. Should this extension of supervision be takenas a sign which indicates that a new philosophy of punishmentconstructed on the foundation of the juridical subject is emerging?Does it suggest that the modernisers' view of administrative lawlaw as a juridical structure of rights-has triumphed? These are thesorts of more general questions that are raised by recent developments.But before we address these questions we should examine the natureof the prison disciplinary system and the stance which the courtshave adopted in respect of it.

The Prison Disciplinary System

Our starting point must be the disciplinary mode of governance as ithas evolved within the prison system this century. In examiningdisciplinary order we should, at the outset, recognise the fact that,contrary to the perception of those who are able to view the worldonly through juridical spectacles, it is not some arbitrary mode ofconduct. Disciplinary order is a distinctive ordering which is fashionedto serve a specific social function. Through this order particularinstitutions, operations and practices evolve. The techniques of discipline, which are based on precise and calculated training, aim to

forge a body which may be 'subjected, used, transformed andimproved' (Foucault 1979, p.136). A disciplinary order is established

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when these techniques are shaped in accordance with the principlesof hierarchy, surveillance and normalizing judgment. The idea of'normalization' here suggests that individuals are viewed as membersof a homogenous social body but, by the play of opposition betweenthe normal and abnormal or pathological, are systematically classifiedand ranked (Ewald 1991). A disciplinary order, then, takes aninstitutional (hierarchical) form and adopts as its standard practicesthe methods of inspection (surveillance) and examination(normalization).

This idea of a disciplinary order lies at the heart of the prisondisciplinary system. It should be seen as a distinctive form of orderand should be distinguished from what might be termed a juridicalorder. In jurisprudence, a 'case' is a set of events. These events posea number of issues which are then resolved by the application ormodification of rules. Within disciplinary order, by contrast, the'case' is not a set of events but an individual. A case is 'the individualas he may be described, judged, measured, compared with others, inhis very individuality; and it is the individual who has to be trainedor corrected, classified, normalized, excluded... ' (Foucault 1979,p.191) Adjudication is the key technique in the juridical order;examination is the key technique in the disciplinary order.

It is only through the acknowledgment of this distinction betweenthe characteristics of a juridical order and a disciplinary order thatwe are able to grasp the issues that arise in the context of judicialreview of the prison disciplinary system. What is particularly significant is that, although both orders may be rule-structured, becausethe orders serve different purposes, the rules perform different functions. That is, our understanding of the character of the rules-interms of such factors as status, formulation, accessibility, mode ofinterpretation and enforcement-is dependent on our appreciation ofwhether the rules operate within a disciplinary order founded oncommand and obedience or a juridical order seeking to establishimpersonal rules of conduct. In order to illuminate this point, wemight reflect on the character of the rules which order the prisonsystem.

Consider first the juridical status of these rules. The basic rulesare contained in a statutory instrument-the Prison Rules 1964--andthus they have legislative force. These rules have also been recognisedofficially as serving 'to ensure that authority is exercised legimatelyand fairly'(HM Prison Service, p.I). Nevertheless, they have con-

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sistently been held by the courts to be regulatory rather than mandatory in nature. While imposing duties on the prison authorities, theydo not confer enforceable rights on prisoners. As Goddard L.J.recognised in Arbon v Anderson [1943] KB 252, 254: 'It would befatal to all discipline in prisons if governors and warders had toperform their duty always with the fear of an action before their eyesif they in any way deviated from the rules.' But this approach, whichhas been consistently adhered to by the courts, 1 confounds themodernisers. How do we make sense of a set of statutory rules whichimpose duties but do not confer judicially-enforceable rights? Howcan we understand rules which impose statutory duties but do notpermit those who are supposed to be protected by the rules to foundan action for breach of statutory duty? While an answer might besought in the distinction between public law and private law thatwill not assist the modernisers, since this serves only to transformthe inquiry into one concerning the character of public law. Anadequate answer, it would seem, requires us to acknowledge disciplinary order as a distinctive mode of governance; and one which isrecognised by, and accommodated within, our law.

In addition to status, we must also have regard to the form ofthese rules. The basic disciplinary offences are defined in Rule 47 ofthe Prison Rules and range from essentially domestic matters (suchas being late for work) to quite serious charges of a criminal character.In juridical terms we expect rules to orientate and guide behaviour.While the Prison Rules can be interpreted in that light, aspects ofthem suggest that they should be interpreted differently. Rule 47(21),for example, states that: 'A prisoner shall be guilty of an offenceagainst discipline if he ... in any way offends against good order anddiscipline ... '. The kindest thing that can be said about this provisionis that it is reflexivity run riot. It has a long lineage. During the 1920sHobhouse and Brockway (1922, p.392) discovered that a variety ofapparently anti-social practices, such as 'pricking holes in toilet paper'or 'singing carols on Christmas day', had been held to constituteoffences which fell within its rubric. More recent infractions whichhave been reported include: 'throwing up'; 'picking blackberries and

1 See Silverman v Prison Commissioners [1955] Crim.L.R. 116; Hancock v PrisonCommission [1960] 1 Q.B. 117; Hinds v Home Office [1962] The Times, 17 January;Becker v Home Office [1972] 2 All E.R.676; Williams v Home Office (No.2) [1981] 1All ER 1211; R v Deputy Governor of Parkhurst Prison, ex parte Hague [1991] 3 WLR340.

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having bread in her room'; and 'making cat-like noises in the presenceof a prison dog' (Quinn 1989, p.28).

Although Rule 47(21) has been regularly criticised it is worthy ofnote that it survived the most recent review of the disciplinaryoffences in 1989. This requires explanation; and again perhaps theonly adequate explanation is one which seeks to understand disciplineas a distinctive mode of governance. From a juridical perspective someof the disciplinary rules, particularly as they have been elaborated bylocal custom, may seem petty, illogical and even pointless. What, forexample, are we to make of the rule, which operated in DartmoorPrison during the 1980s (Quinn 1989, vol.2, p.9) that prisoners withinthe punishment block were not allowed to walk on the black squaresof the chequered floor tiles of the wing? To understand such ruleswe must recognise them as providing classic examples of 'micropenality' which Foucault (1979, p.178) views as characteristic ofnormalizing judgment:

The workshop, the school, the army were subject to a whole micro-penalityof time (lateness, absences, interruptions of tasks), of activity (inattention,negligence, lack of zeal), of behaviour (impoliteness, disobedience), of speech(idle chatter, insolence), of the body ('incorrect' attitudes, irregular gestures,lack of cleanliness), of sexuality (impurity, indecency) .... It was a questionboth of making the slightest departures from correct behaviour subject topunishment, and of giving a punitive function to the apparently indifferentelements of the disciplinary apparatus: so that, if necessary, everything mightserve to punish the slightest thing; each subject find [sic] himself caught in apunishable, punishing universality.

Alongside the issue of the status and form of these rules, we shouldalso consider the question of accessibility. Again, from the juridicalstandpoint, knowledge of the rules is a pre-condition to their effectiveoperation and the Prison Rule 7(1) does in fact require prisoners tobe informed of the basic nature of these rules. In practice, however,this rarely happens. One researcher found compliance with this rulein none of the six prisons she visited (Mandaraka-Sheppard 1986,p.79). Other research confirmed this view that prisoners were unableto obtain access to the basic rules (Plotnikoff 1987; Ditchfield &Duncan 1987). Within the prison regime, prisoners seeking knowledgeof the rules-and certainly seeking to use the rules to their possibleadvantage-tend to be classified as subversives. This seems nonsensical when viewed juridically; but it is understandable when viewedthrough a disciplinary lens. Furthermore, it is important to recognise

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that it has survived with implicit judicial support. In Home Office vHarman [1981] 2 All ER 349, 364 Lord Denning MR summed up thejudicial mood when stating, in relation to documents concerning theestablishment of Wakefield Prison's control unit, that they 'shouldbe kept confidential' and should not be 'exposed to the ravages ofoutsiders' since knowledge of their contents could be 'highly detrimental to the good ordering of society'.

Finally, we should consider disciplinary procedures. Until April1992, 95 per cent of offences were heard by the prison governor,whose powers include cellular confinement not exceeding three daysand forfeiture of remission of up to 28 days. More serious offenceswere dealt with by Boards of Visitors which, until 1989, possessed(in certain circumstances) unlimited powers to award forfeiture ofremission and from then till 1992, when their jurisdiction wasremoved, had power to impose a maximum penalty of 120 daysforfeiture of remission. Notwithstanding the potential severity ofthese disciplinary powers, the courts were unprepared to require theirexercise to be read subject to the common law rules of natural justice.This stance was justified mainly by invoking the right/privilegedistinction. Since the prisoner has no right to be released until thefull term of his or her sentence had been served, forfeiture of remissionmust be viewed as the withdrawal of a privilege and traditionally thecourts concluded that the denial of a privilege did not import a dutyto act judicially.i But could not the duty to act judicially be inferredfrom the effects of the power exercised? In respect of governors theanswer was clearly in the negative, the courts holding that: 'Wherea person ... is exercising disciplinary powers, it is most undesirable... that he should be fettered by threats of orders of certiorari andso forth, because that would interfere with the free and properdisciplinary exercise of the powers that it may be expected he wouldotherwise use.') Could a special case be made for applying the rulesof natural justice to the functions of the Board of Visitors on theground that here, at least, there is a lis inter partes? Not so apparently,because that general principle was interpreted by the courts as beingsubject to an exception where 'the order under challenge is an ordermade in private, disciplinary hearings." Consequently, the traditional

2 Nakkuda Ali v [ayaratne [1951(AC 66; R. v. Metropolitan Police Commissioner,ex p. Parker [1953J 1 WLR 1150.

3 Ex parte Parker ibid. See also Ex parte Fry [1954J 1 WLR 730.4 R v Board of Visitors ofHull Prison, ex parte St. Germain [1978J QB 678 (Div.Ct),

at 690 (per Lord Widgery C].)

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stance has been that the entire prison disciplinary system was not tobe subject to judicial supervision, a situation which persisted long afterthe landmark case of Ridgev Baldwin in 1964.5 Notwithstanding thisaccommodation of disciplinary order within the legal order, thosewho have investigated the conduct of hearings before governors andBoards have generally held up the standards of judicial procedure asthe model against which to evaluate them. Are procedures fair inan adjudicative sense? Are prisoners able adequately to representthemselves? Against such benchmarks, the answers seem to have beenconsistently in the negative. Hobhouse and Brockway (1922, p.392)recorded the 'strong conviction' of some visiting magistrates (theprecursors of the Boards) 'that it is the exception for a prisoner toget a really fair trial' and Liverman (1938, p.97) commented that hehad 'rarely heard a prisoner put his case adequately or ask questionseffectively as we understand it in any other court.' Similar concernshave been voiced more recently (Ditchfield & Duncan 1987). Therehas been particular concern expressed that few prisoners seem capableof representing themselves effectively: some do not even understandthe nature of the proceedings, and most feel that the environment ishostile (Merrow-Smith 1962, p.152; Quinn 1983). Even if the prisoneris competent and confident, he or she may have difficulty, particularlyif segregated, of obtaining access to witnesses, and then of convincingthe adjudicator that the witnesses are credible (Martin 1974).6 Andthe practice adopted in some prisons of 'eyeballing'-of requiring theprisoner to stand throughout the adjudication with an officer on eachside facing him-seemed likely to daunt the most competent andconfident of prisoners.

The most graphic accounts of the procedure, however, are to befound in those situations where the system was under stress, asseemed often to be the case where disciplinary procedures wereinvoked in the aftermath of prison riots. Laurie Taylor (1980), ina review of one prisoner's experience of the system before theHull Board of Visitors after the prison riots in 1976, raised somebasic concerns about justice in the context of a summary discipli-

5 Note that Ridge cast doubt on the authority of ex p. Parker and subsequent casesrecognised that, in certain circumstances, the exercise of disciplinary functions couldimport a duty to observe the rules of natural justice: see, eg, Ridge v Baldwin [1964]AC 40 (police); Taylor v National Union ofSeamen [1967] 1 WLR 532 (trade unions);Glynn v Keele University [1971] 1 WLR 487 (students).

6 On witness credibility see: R v Board of Visitors of Gartree Prison, ex parte Bradyand Mealy [1981] The Times, 14 November.

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nary hearing. In his discussion of Rajah's case, he recorded that(p.30):

Altogether Rajah faced four charges. The entire hearing of these lasted 15minutes and the deliberation of findings (as timed by Rajah) took one minute,40 seconds. He was 'awarded' 390 days loss of remission, 154 days loss ofprivileges, 154 days loss of earnings and 154 days exclusion from associatedlabour.

Consider also the case of Saxton, a prisoner who, arising out of thesame incidents, had forfeited 720 days remission. The transcript ofhis case ([1979] 3 All ER 545, 554) reads as follows:

The governor said ... 'six out of 14 sightings say he was the first man ontothe roof-others suggest it was Saxton who carried the bed to smash thewindows to get on the roof.' Then the chairman said: 'Case proven'.

That was it. Saxton had not been provided an opportunity to presenthis case; none of these witnesses had been identified; Saxton obviouslyhad not been permitted to cross-examine those witnesses; he had notbeen able to probe the evidence on which the governor had relied;and, of course, though effectively given a three year prison sentenceby the Board, he had not been legally represented.

Such reports have been a major source of concern about theconduct of disciplinary hearings in prisons. But my question is this:How can we begin to understand the persistence of this disciplinarysystem if we continue to interpret it by reference to juridical values?If we really seek to understand what is going on we must first try to

understand these events as practices within a disciplinary order. Onceit is recognised that, within the disciplinary mode, the case is theprisoner and not the events, the idea that the prisoner's record(whether formally or otherwise) will form part of a disciplinaryhearing becomes understandable. If within the disciplinary order thefunction of the Board is viewed as being investigatory-an examination rather than an adjudication-we should not be surprised tofind that these procedures do not conform to the model of adjudication. Once disciplinary order is seen to be rooted in hierarchy, wecan begin to explain the existence of ceremonies such as 'eyeballing'which serve to subordinate the prisoner. Only when we view disciplinary proceedings within their context can we appreciate whygovernors or Boards regularly cast doubt on the credibility of prisoners as witnesses to events.

Finally, we must also appreciate that this form of disciplinary

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order has been accommodated within the legal order. The traditionalview has, for example, recently been succinctly stated by Lawton L.].in words which convey the gist of Foucault's claim:

[A] prison governor is nothing more than a manager appointed by andanswerable to the Secretary of State. Those whom he is managing have tobehave properly towards those with whom they come into contact, to do asthey are told and when they are told and to conform to the standing ordersin the prison. This is an essential aspect of all managements, whether it bemanagement of a factory, an office or a school. Management withoutdiscipline is a recipe for chaos."

Thus, if we seek to understand the idea of law in society it is clearthat we must be attentive to the limits of what might be called theempire of the juridical. Only when this is recognised will we beplaced in an adequate position to begin to reflect on the competingtechnologies of power bound up in the law.

The Assertion of a Supervisory Jurisdiction

Once disciplinary order is recognised as a distinctive mode of governance and is identified as one which operates within the prison system,the critical issue to address is not so much why the courts havemaintained a 'hands off' approach but rather why, since the late1970s, they have asserted their supervisory jurisdiction in the contextof the prison disciplinary system. This is a complex question. Andbefore seeking to address the general issues raised by that question,we should briefly examine these recent developments in judicial review.

The recent wave of judicial interventionism stemmed from thedisciplinary awards handed down by the Hull Board of Visitors inhearings arising from the Hull Prison Riots of 1976. These riots tookplace on a large scale. Disciplinary charges were brought against 185of the 310 prisoners held in the jail; since an entire wing had refusedto participate, this represents a very high proportion of the remainder.In all, around 500 disciplinary charges were brought in difficultlogistical circumstances. Since the restoration of order was the firstpriority, 235 prisoners had been transferred to 13 prisons around thecountry to await adjudications which were to be held by itinerantpanels of the Board of Visitors (Fowler 1977; Thomas & Pooley1980). We have already referred to the circumstances of these adjudi-

7 R v Deputy Governor of Camphill Prison, ex parte King [1985] QB 735, 749.

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cations in considering Rajah and Saxton's hearings. Arising from

these sets of hearings, seven prisoners sought leave to move ordersof certiorari to quash the awards. Their allegations referred generally

to a denial of natural justice, including the refusal to allow cross

examination of witnesses or to call witnesses to support their case.

In R. v Hull Prison Board of Visitors, ex parte St.Germain [1979]QB 425 the Divisional Court granted leave but, following the traditional line of refusing certiorari in respect of disciplinary awards,

refused the applications. On appeal the issue for the Court of Appealwas simply whether the courts had jurisdiction to review the awards.The court held that, since its adjudicative duties can be viewed as adistinct and independent function, certiorari would lie against theBoard of Visitors, but would not lie against the governor since thelatter's decisions were an intimate part of the disciplinary order of

the prison. The case was remitted to the Divisional Court to determinewhether the applicants had received a fair hearing, and in St.Germain(No.2) [1979] 3 All ER 545 all 16 findings of guilt were quashed. The

court recognised that the circumstances in which the hearings hadbeen conducted had made it difficult to achieve fairness but felt,nevertheless, that there had been serious shortcomings of a basicnature. In Lane L.].'s words (p.555): 'These men were prisoners.Some of them were dangerous. Most of them were difficult. All ofthem were, no doubt to some extent, untrustworthy. But they faced(and received) severe punishment and they were entitled to a fullerhearing than that which they in fact received.'

Since St. Germain, there have been numerous applications forjudicial review of prison disciplinary awards. It is not part of myobjective here to examine in detail this experience of subjecting adisciplinary order to review through the prism of juridical thought(see Loughlin & Quinn 1993). There have certainly been many casesin which the courts, through the imposition of minimum standardsof judicial procedure on Board of Visitor adjudications, have quashedawards on grounds of procedural fairness." Nevertheless, emphasisingthat their role is only to correct 'substantial ... injustice'," the courts

8 See, eg, R v Board of Visitors of Gartree Prison, ex parte Brady & Mealy TheTimes, 14 Nov 1981; R v Board of Visitors of Highpoint Prison, ex parte McConkeyThe Times, 23 Sept 1982; R v Board of Visitors of HMP Walton, ex parte Weldon TheTimes, 6 April 1985; R v Board of Visitors of Dartmoor Prison, ex parte Smith [1986]3 WLR 61.

9 R v Hull Prison Board of Visitors, ex parte St.Germain [1979] QB 425, 451 (perMegaw L.].).

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have also rejected many applications in which the standards have notcomplied with that which we would expect of judicial procedure.Thus the courts have refused applications: where the prisoner wasrequired to stand to present his case and had been denied writingmaterials;10 where the pre-hearing papers had omitted brief particularsof the offence;" where the prisoner had not had sight of a welfarereport prepared on him for presentation at the adjudication;12 wherethe Board had refused permission to call a witness;" where theprisoner's allegations about the conduct of the adjudication had beencountered by affidavits from participants;14 where the prisoner claimedthat he should not have been referred to the Board as a repeatoffender since, although he had previously committed offences, hehad not previously committed the offence with which he wascharged;" where the prisoner claimed that imposition of cellularconfinement by the Board constituted the tort of false imprisonment;"and where the prisoner claimed there was a risk of bias since thechairman of the Board had, three weeks earlier, considered hisapplication for release on licence under the parole system. I?

The issue of legal representation, which was addressed by theDivisional Court in R. v Secretary ofState for the Home Department,ex parte Tarrant [1985] 1 QB 251, is probably the single mostimportant issue to have been considered by the courts since St.Germain. Tarrant also provides a further example a case emerging froma situation of crisis; this time the Albany prison riots in 1983. Thefive applicants in this case had been charged with serious offencesagainst prison discipline, including two with mutiny offences which,

10 R v Board of Visitors of Pentonuille Prison, ex parte Rutherford The Times, 21February 1985.

11 R v Board of Visitors ofSwansea Prison, ex parte Scales The Times, 21 February1985.

12 R v Board of Visitors of Wandsworth Prison, ex parte Raymond The Times, 17June 1985.

13 Rye v Home Office QBD 26 February 1981 (unreported); cf. R v Board of Visitorsof Nottingham Prison, ex parte Moseley The Times, 23 January 1981. Note that Ryearose before the prison's responsibility to identify witnesses was clarified R v Blunsdeston Board of Visitors, ex parte Fox Taylor [1982] 1 All ER 646.

14 R v Board ofVisitors ofWinchester Prison, ex parte Cartwright QBD, 9 June 1981(unreported) .

15 R v Board of Visitors of Dartmoor Prison, ex parte Seray Wurie The Times, 5February 1982.

16 R v Board ofVisitors ofGartree Prison, ex parte Sears The Times, 21 March 1985;following Williams v Home Office (No.2) [1981] 1 All ER 1211.

17 R u Board ofVisitors of Frankland Prison, ex parte Lewis [1986] 1 WLR 130.

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under rule 52, enabled the Board to award forfeiture of remissionfor an unlimited period. At the hearings they all applied for, andwere denied, legal representation. The Board here was following theCourt of Appeal's decision in Fraser v Mudge [1975] 1 WLR 1132, inwhich Roskill LJ had said (at p.1134) that 'the requirements ofnatural justice do not make it necessary that a person against whomdisciplinary proceedings are pending should as of right be entitled tobe represented by solicitors or counsel or both.' The Divisional Courtwas, of course, bound by that decision. But even though there existsno right to representation, the question arose as to whether the Boardhad a discretion to permit it. And if a discretion exists, has it beenproperly and fairly exercised? In Tarrant it was held that the Boardpossessed an inherent power to permit legal representation and thatit had not been taken away expressly or by necessary implication.Further, after laying down general guidelines which the Board shouldtake into account when exercising that discretion, the court concludedthat the complexities of a mutiny action were such that no Boardproperly directing itself could reasonably decide not to allow theprisoner legal representation. The awards in respect of each of theapplicants' cases were therefore quashed.

This case is of general importance because, once lawyers areadmitted into the disciplinary hearings, the procedures themselveswill, almost inevitably, become juridified. Our lawyers are culturallypre-disposed towards-and are technically equipped for-adversarialproceedings. How can they effectively function in a hearing thatofficially is considered to be inquisitorial? The short answer is thatin those hearings in which representation was permitted-the lawyersseem to have succeeded in transforming them into an adversarialformat. In this situation the examination within a disciplinary orderwas being converted into an adjudication within a juridical order.This practice thus provided a major impetus for a fundamental reexamination of the nature of the prison disciplinary system whichoccurred during the late 1980s.

After Tarrant the key issue in judicial review concerned review ofgovernors' awards. St.Germain had drawn a distinction between theBoard and the governor on the ground that while the latter's functionwas clearly managerial the Board's roles could analytically be separated. Could this be sustained? The power of governors to makedisciplinary awards was, as we have seen, more limited than thoseof Boards but, since they determined 95 per cent. of disciplinary

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cases, the exercise of this power was still very important. When theissue was first considered, in R. v Deputy Governor of CamphillPrison, ex parte King [1985] QB 735, the Court of Appeal held that,although the governor had misconstrued the relevant rule underwhich the prisoner had been charged, the court had no jurisdictionto correct the error. The prisoner's only remedy was by way ofpetition to the Secretary of State, whose decision alone would besubject to judicial review. Later in the same year, however, in R vGovernor of the Maze Prison, ex parte McKiernan [1985] 6 N.Ll.B.6, the Court of Appeal of Northern Ireland held that the governor'sdisciplinary function was subject to judicial review. The issue wasclearly one which required a ruling from the Lords. After variousattempts by the Home Office to prevent the issue being authoritativelyresolved, the issue eventually came to the Lords in 1988. In Leech vDeputy Governor ofParkhurst Prison [1988] 1 AC 533 the House ofLords held that the courts had jurisdiction to entertain an applicationfor judicial review of a governor's disciplinary award.

Cumulatively, these cases have had a profound impact on theprison disciplinary system. Many, even those which ultimately wereunsuccessful, have resulted in significant amendments being made tothe administrative guidance issued by the Home Office on the conductof disciplinary hearings. It is largely because of judicial interventionthat the Home Secretary established a departmental committee toexamine the operation of the prison disciplinary system (Prior 1985),that the extraordinary powers of the Boards of Visitors were abolishedin 1989 and then, in 1992, their entire disciplinary jurisdiction wasremoved (see Loughlin & Quinn, 1993). This episode provides animportant study of the power of the courts to shape and influencethe administrative process. In effect, through the workings of thecourts the prison disciplinary system has been wrested from thedisciplinary mode of governance and transformed into a system thatmust operate within a framework of juridical values.

The Triumph of Principle?

Does this transformation mark the triumph of principle? What isevident, even from the most cursory examination of the cases reviewing the exercise of disciplinary powers in prisons, is the tensionwithin the law between the perspectives of the traditionalists and themodernisers; between an idea of law rooted in the frame of sovereignty

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and a conception of law as rights.In refraining from asserting their supervisory jurisdiction over the

prison disciplinary system, the courts forged their views within theframework of the traditional approach to administrative law. Theirapproach was based on the idea that, as the control of prisons hasbeen vested in the Secretary of State, the courts should not interfereunless there has been some departure from law. By 'law', it must beemphasised, the judiciary meant the accumulated wisdom of precedentand, as we have seen, the precedents expressed great reluctance tointervene. In this respect the court's approach was to bolster theauthority of the state. Thus, we find the judiciary dealing withprisoners' claims in a fairly dismissive manner: 'If the courts were to

entertain actions by disgruntled prisoners, the governor's life wouldbe made intolerable. The discipline of the prison would be undermined.:" And when complaints were made that the prisoner's treatment was contrary to natural justice we find the courts stating that:'Those complaints did not come well from his mouth, seeing that hehad been such an enemy of society himself.'!"

With the extension of judicial oversight, however, we see notsimply an extension of jurisdiction but also the emergence of adifferent form of legal discourse. Further, the courts not only embracea more rationalistic language but, in the process, apply it from adifferent premiss; that is, the judges start, not from the sovereignpower of the state, but from the individual as a bearer of rights.Adopting the modernist view, the courts recognise that they are 'theultimate custodians of the liberties of the subject, whatever hisstatus'" and commence from the premiss that 'a convicted prisoner... retains all those civil rights which are not taken away expressly,or by necessary implication.l" Both aspects are equally important.Starting from rights rather than authority tends to shift the presumption. Formulating the prisoner's status in terms of a generalprinciple, facilitates its utilization-in a manner not available withthe traditional approach which relies on precedents-as a foundationfor fashioning new arguments.

During the 1980s the main point of tension between these competingapproaches was drawn around the attempt to distinguish between

18 Becker v Home Office [1972] 2 All ER 676, 682 (per Lord Denning M.R.)19 Home Office v Harman [1981] 2 All ER 349, 359 (per Lord Denning MR).20 R. v Board of Visitors of Hull Prison, ex parte St.Germain [1979] 1 All ER 701,

716 (per Shaw LJ)21 Raymond v Honey [1983] AC 1, 10 (per Lord Wilberforce)

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the roles of the governor and the Board of Visitors in the prisondisciplinary system. In St Germain, although we find Megaw L.].commenting that 'both good sense and the practical requirements ofpublic policy make it undesirable that his [the governor's] exerciseof that part of his duties should be made subject to certiorari', itmust also be noted that Shaw L.]. expressed doubt as to whether aclear [sc. logical] distinction between Boards and governors could bedrawn." In King the line of expediency prevailed, with BrowneWilkinson L.]. stating that, although he could see no logical distinction, 'the practical repercussions of holding that the disciplinarydecisions of prison governors are subject to review by the courts arefrightening', that it 'would be to shut one's eyes to reality' to ignorethe managerial consequences and that, if prisoners were able tochallenge the governor's awards, 'the maintenance of order anddiscipline in prisons is likely to be seriously undermined. ,23 GriffithsL.]., in that case, articulated the traditional approach in even moreexpansive terms when he expressed the view that: 'the common lawof England has not always developed upon strictly logical lines, andwhere logic leads down a path that is beset with practical difficultiesthe courts have not been frightened to turn aside and seek thepragmatic solution that will best serve the needs of sociery.Y'

It should be noted, however, that in King the Court of Appealadopted precisely the type of public policy argument which hadearlier been dismissed by the Divisional Court in the Tarrant case.In Tarrant the Home Secretary had argued that if legal representationwere permitted then this would lead to innumerable logistical difficulties, would cause unfairness between prisoners and would constitute a major source of delay. In rejecting these arguments, thecourt invoked Lord Atkin's famous dictum: 'But mere administrativedifficulties, simpliciter, are not in our view enough. Convenience andjustice are often not on speaking terms.?" In Tarrant the DivisionalCourt rejected the ingredients which had had such an importantinfluence on the Court of Appeal in King precisely because suchfactors were irrelevant to the exercise of reaching a principled legaljudgment. Further support for the principled approach can be seenin McKiernan where Lord Lowry C.]. took the view that the

11 [1979] 1 Q.B. 425, 448 (Megaw L.J.), 456 (Shaw L.J.)23 R v Deputy Governor of CamphiLLPrison, ex parte King [1985] QB 735, 753.24 [1985] QB 735, 751.15 General Medical Council v Spackman [1943] AC 627, 638.

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'floodgates argument ... is a last resort which is not in high judicialfavour and which certainly does not impress me in this kind ofcase.:" Also significant was Lord Lowry's rejection of the analogywhich had traditionally been invoked between prisoners and militarysubordinates: 'If there is an analogy with a commanding officer thetrue parallel is in relation to prison staff, and not to inmates.t" Whatis implicit in the renunciation of this analogy is the rejection of thecommand-obedience model at the root of the sovereignty perspective;prisoners are not merely objects within a hierarchical organisationbut must be viewed as rights-bearing subjects.

This struggle between the competing legal discourses of experienceand principle as applied to the governor's role was ultimately resolvedby the House of Lords in Leech. In his leading speech, Lord Bridgeclearly comes down on the side of principle. The critical issue waswhether the governor's functions are indivisibile, such that review ofdisciplinary hearings will inevitably bring the courts directly into theday-to-day management of the prison. Here it was noted that:

Every submission recorded in the report of counsel's arguments which soughtto sustain Lord Widgery C.].'s view [in St.Germain] ... that the last defensiblebastion to prevent a disastrous intrusion by the courts into the managementof prisons could only be held by refusing jurisdiction to review boards ofvisitors' decisions has, in the arguments of the present appeals, been not somuch abandoned as transposed and adapted to sustain the alternative positionthat the system of prison discipline, having survived and even benefited fromjudicial review of decisions by boards of visitors, would nevertheless betotally undermined if the court once crossed the threshold of the governor'sprovince beyond which it could not stop short of accepting responsibility forevery facet of prison management. ,28

Lord Bridge, however, held that the distinction made between theBoard and the governor's disciplinary jurisdiction was untenable andfound no great difficulty in drawing a distinction between thedisciplinary and managerial functions of the governor. His Lordshipacknowledged that these views were 'no less speculative than thoseexpressed in King's case. Time alone will show which is right.:" Thecrux of the triumph of principle in Leech, however, is to be foundin Lord Bridge's argument that, if the social consequences of judicial

26 [1985] 6 N.I.J.B. 6, 27.27 Ibid, p.25.28 [1988] 1 AC 533, 565.29 Ibid, p.658.

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intervention turn out to be disastrous for the proper functioning ofthe prison system, it is for the legislature and not the judiciary toexclude the court's jurisdiction. It cannot be right, he continued, 'todraw lines on a purely defensive basis ... Historically the developmentof the law in accordance with coherent and consistent principles hasall too often been impeded ... by the court's fear that unless anarbitrary boundary is drawn it will be inundated by a flood ofunmeritorious claims. ,30

During this recent period of judicial interventionism, then, we seethat the courts have tended to replace the traditional language oforder, public policy and floodgates with a form of judicial discourserooted in rights, principle and logic. Principled argumentation seemslargely to have succeeded in replacing customary wisdom in this field.But can this illustration be taken as an indication that reason lies atthe heart of law?

Custom, Reason and Power

Before we can extrapolate from these recent developments in judicialreview of the prison disciplinary system to reach any general conclusions that the views of the modernisers on the nature of administrative law are sound, we must first consider the issues from abroader perspective. Our starting point must be the explicit recognition that, not only does there exist competing discourses withinadministrative law, but that these discourses are fundamentally antithetical. That is, the traditional discourse rooted in the idea ofsovereignty runs directly counter to that which is founded in the ideaof rights. If the modernisers' claims were vindicated by this episodewe would expect to see the rights-based approach being systematicallyadopted by the courts in administrative law. This, however, is farfrom being the case.

In fact, even within the field of prison discipline it is difficult tosustain the claim. In this study we actually find that these competingdiscourses have been adopted by different judges in the same case(d. Megaw L.J. and Shaw L.J. in St.Germain) and by different courtsat the same time (d. Tarrant and King). Furthermore, although LordBridge's speech in Leech may be viewed as the marking the triumphof the principled approach in the review of prison discipline, when,a couple of years later, the House of Lords came to consider thequestion of whether the Prison Rules could confer enforceable rights

30 Ibid, p.566.

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on prisoners Lord Bridge, once again giving the leading speech,rejected the rights approach and rooted his argument in the discourseof sovereignty." When we turn to administrative law more generally,we find that these same tensions run through the entire field ofjudicial review. To provide but one illustration, it is interesting tonote that, although Browne-Wilkinson L.J.'s judgment in King is aclassic expression of traditional discourse, within a year of thatjudgment he is to be found delivering a rights-based dissentingjudgment in Wheeler v Leicester City Council [1985] AC 1054 (a caseinvolving a dispute between a local authority and a rugby club)which has become a classic statement of the modernisers' claims (seeAllan, 1988b, p.437; Jowell 1988, p.421).

When these tensions are brought into focus it seems clear thatrecent developments in judicial review of the prison disciplinarysystem cannot adequately be explained in terms of some generalevolutionary rights movement in administrative law. We need to lookbeyond narrowly legal considerations in order to understand whycourts adopt a particular form of discourse in respect of particularissues at particular moments in time. That is, we must examine theinterplay of social forces. And here we come to the nub of theradicals' claim on law and power. What in essence the radicals arearguing is that, whatever the logic of justification invoked by thecourts, that mode of discourse serves to disguise the fact thatsomething else-the judiciary's sense of law's social function-is inplay.

In seeking to understand these recent developments in judicialreview of the prison disciplinary system we must therefore alsoconsider the social forces shaping these events. Here matters becomeextremely complex; not only because potentially there are so manyvariables at play, but also because we have yet to develop a socialtheory that is able adequately to characterise the dynamic betweenideas and practices in seeking to explain social change. This problem,however, does not afford a reason for failing even to address someof the major influences which have a bearing on the issue. Here Ishall refer only to three: developments in European jurisprudence,

31 R v Deputy Governor ofParkhurst Prison, ex parte Hague [1991] 3 WLR 340. Fora further illustration of this point see also R v Board of Visitors of HM Prison, TheMaze, ex parte Hone and McCartan [1988] 2 WLR 177 in which Lord Goff, giving theleading speech in the House of Lords sought to argue (unconvincingly) that althoughthe techniques of English law and European Convention jurisprudences are differentthe objectives which they achieved were harmonious.

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the phenomenon of prisoner protests, and the crisis in prison policies.There seems little doubt that litigation under the European Con

vention on Human Rights has been a powerful influence on theemergence in domestic law of a rights-based judicial review in thisfield. The early European Convention cases of Golder v U.K. [1975]1 EHRR 524 and Silverv U.K. [1983] 5 EHRR 347, concerning accessto legal advice and access to the official rules relating to prisonmanagement, were important not just for the entitlements which theyconferred on prisoners and the reforms they instigated (see Loughlin & Quinn 1993, pp.502-506). These cases certainly laid the platformof rights which provided the pre-conditions for the subsequent useof domestic procedures of judicial review. But, perhaps even moreimportantly for our inquiry, the cases also highlighted the existenceof a potent mechanism of judicial review-and one which was rootedin rights discourse--at a time when our domestic courts, utilisingtraditional arguments, were declining to exert their supervisory jurisdiction in relation to disciplinary orders.

The case of Campbell and Fell v U.K. [1984] 7 EHRR 165 was ofeven greater significance since the European Commission's ruling thatthe 'especially grave' offences faced by the prisoners amounted to thedetermination of a criminal charge and that, contrary to Article 6,the Board of Visitors did not constitute an 'independent and impartialtribunal'. Although the Court did not fully uphold the Commission'sruling, that ruling nevertheless placed the entire structure of theprison disciplinary system in question, caused the Government toestablished the Prior Committee (1985), and thus provided a significant impetus behind the eventual removal of the Board of Visitors'jurisdiction. The jurisprudence of the European Convention thusseems to have exerted an influence on both domestic judicial reviewand the structure of the administrative system. The episode providesa good illustration of the impact which, short of incorporation, theEuropean Convention has exerted on the culture of our judiciary (seeBrowne-Wilkinson 1992).

The second influence to consider is that of prisoner protests. Whileriots were not without precedent in the prison system (see Thomas1972, pp.157-62), their incidence, the scale of prisoner involvementand their impact on public attention since the 1970s have been suchas to raise the issue of whether 'their [the prisoners'] actions were aresponse to the manner in which they were treated by the prisonsystem' (Woolf 1991, para.9.24). If rioting by prisoners has been

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fuelled by a demand that they be treated with common standards ofdecency and fairness, the disciplinary proceedings they were subjectedto arising from such rioting has served only to fan the flames of thecause. The subject of this paper is one in which riot and protest hasshaped the key events: the Hull Prison riots of 1976 led to St.Germain;rioting in Albany Prison in the same year resulted in Campbell &Fell; further rioting in that prison in 1983 was followed by theTarrant litigation; and the Leech case was the product of challengeby a notoriously litigious prisoner (Leech 1992). The courts' functionwithin this episode might thus appropriately be seen as one of crisisdefusion. As Lord Bridge remarked: 'Nothing ... is so likely togenerate unrest amongst ordinary prisoners as a sense that they havebeen treated unfairly and have no effective means of redress'; andtheir right to petition 'a faceless authority in Whitehall' will not beof much comfort."

The final point to note on prisoner protests is that if, as seemslikely, the heyday of judicial review of prison disciplinary proceedingsis over, it will be the Strangeways riots of 1990 which marks its endpoint. The Woolf Report arising from those events resurrected theearlier proposals of the Prior Report which had seemed in danger ofbeing lost within the governmental machine. The removal of theBoard of Visitors' disciplinary jurisdiction in April 1992 directlyfollowed from Woolf's recommendations. Furthermore, and also inreponse to Woolf, during 1993 the Home Secretary is to appoint aPrisons Ombudsman who will act as an independent tier of appealwithin the disciplinary system (HM Prison Service 1993). Since thecourts will be unlikely to grant leave to prisoners to seek judicialreview unless they have exhausted their appellate remedies, thismechanism is likely to have the effect of marginalising the role ofthe courts in the system. Judicial review will in all probability beseen to have addressed a catalogue of problems in a transitionalperiod in which the prison disciplinary system was in the process ofbeing transformed from one rooted in disciplinary order to onebased on a juridical ordering. Without seeking to underestimate theimportance of the court's role, it is important also to recognise thatprotest from within the system, as well as pressure, concern andEuropean rulings from without, has served to force the court's hand.

The third and final factor to consider is that in recent times there

32 Leech v Deputy Governor ofParkhurst Prison [1988]1 AC 533, 568.

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has been a sense of crisis in governmental policy on prisons. In partthe crisis has its source in general problems arising from publicexpenditure constraints and thus is manifested in problems concerningovercrowding and the physical conditions in prisons. But it also hasroots in the idea that institutionalisation may not be the appropriatestandard response to criminal misconduct. In recent years alternatives,such as probation, early parole, and the expansion of communitytreatment options, have been developed. What is particularly noteworthy is that both aspects of this problem-expenditure constraintsand the penal philosophy of decarceration-seem to be pointingpolicy in a different direction to that being applied in the prisondisciplinary system, where forfeiture of remission has been the mostcommon penalty. It has been estimated that in 1988 the impact ofthe use of this penalty was to add the equivalent of another 600-700prisoners to the annual average prison population (Woolf 1991,para.14.400). Woolf (1991, para.14.401) considered this to be 'anastonishing extra burden' which 'needs to be controlled and relieved'.The court's challenge to the procedures through which prisonerswere being required to spend additional time in prisons thus seemsin its overall impact-to have been broadly tune with the generaldirections in prison policy.

These factors have been introduced mainly to bring a moreadequate sense of perspective into our appreciation of the role of thecourts in asserting their supervisory jurisdiction over the prisondisciplinary system. Within this frame, rather than view these eventsas a study of the common law working itself pure, the developmentsshould essentially be understood by reference to more localisedstrategies. The basic theme I have been seeking to promote is thatthe adoption of a principled approach in this field is closely boundup with the judiciary's sense of the law's social function. If I amcorrect then this means that the processes of law and power inextricably connected. That said, it also seems inadequate simply tosuggest that the judiciary exist to bolster the dominant power relationsin society. Since all change can effortlessly be accommodated in sucha general, reductive formulation, statements of this character explainlittle about the relationship. Furthermore, it is not clear that thecausal arrows all flow in one direction. In addressing the themes ofEurope, prisoner protest, and uncertainties in prison policies, I amconscious of not having stitched together an account which can serveto explain these judicial developments; this requires more work and

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insight than I have been able to provide. My main objective has beensimply to try to provide pointers on where we might look for anexplanation.

Conclusions

We arrive then at rather general, and perhaps not entirely satisfactory,conclusions. Both the traditionalists who seek to seek to explain lawthrough the prism of the customary values of the common law andthe modernisers who promote the view that reason lies at the heartof our law must be seen essentially as ideologists. The traditionalistsgo wrong in peddling the myth that within the accumulated wisdomof the common law answers can be found to the issue of how thebusiness of modern government can fairly and effectively be conducted. The modernisers err in confusing ideal and actuality in theiraccount of law. Both exaggerate the importance of law as anautonomous force in modern life and both, in promoting theirideologies, suppress many of the strains and conflicts which arebound up within the law. If we are to understand law as a dynamicforce in society we must view it, like power, as a site of struggle.Law is a cultural artefact which expressses aspects of our customaryinheritance, our rationalising aspirations and prevailing powerrelations. Law is bound up both with existing power relations andwith an attempt to develop a sense of collective self-identity and anyexplanation which eliminates either aspect from the account will leadto distortion.

In this study we have examined how the courts have played animportant role in transforming the prison disciplinary system fromone rooted in a disciplinary order to one that must now operate withinthe framework of juridical values. It is a significant achievement whichhas been accomplished as a result of a struggle between competingdiscourses within law and pressures and challenges from without.Given this achievement, we might then ask whether disciplinarypower has been overcome as a force operating on 'the underside ofthe law'. That question must obviously be answered in the negative.

Disciplinary power is not essentially located in the formal disciplinary system but within the institutions of which that system is butone aspect. Although recent developments have shifted the boundarybetween law and 'counter-law', the fact of disciplinary power remains.Since disciplinary order is not some arbitrary mode of governance

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but should be viewed as performing a role within a social system ofpunishment, then unless there is an accompanying alteration in thecharacter of that regime, the juridification of the formal disciplinarysystem may create new problems. The most obvious one is the dangerthat, if prison staff feel that this new legalism undermines disciplinaryorder, covert systems of discipline will emerge. I do not here refer tothe fact that officers may act in a blatantly illegal manner, thoughthat possibility cannot be ruled out. Rather, I mean that othermethods of taking disciplinary action exist-such as the refusal ofcertain privileges not regulated by the Prison Rules, the use ofadministrative segregation under rule 43, and the periodic transfer ofdisruptive prisoners to different establishments-and these cannot soreadily be supervised by the courts (see Loughlin & Quinn 1993,pp.521-525). For this reason, we should not assume that a greaterdegree of legalism automatically leads to a better or more enlightenedsystem. The struggle of law continues.

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