Evolving Judicial Attitudes towards
Executive Power: The United Kingdom,
Singapore and Australia
An address to the Singapore Academy of Law
Justin Gleeson SC, 28 February 2017
Tan Seet Eng v Attorney-General (2015)
• "The rule of law is the bedrock on which our society
was founded and on which it has thrived. The term, the
rule of law, is not one that admits of a fixed or precise
definition. However, one of its core ideas is the notion
that the power of the State is vested in the various
arms of government and that such power is subject to
legal limits. But it would be meaningless to speak of
power being limited were there no recourse to
determine whether, how, and in what circumstances
those limits have been exceeded. Under our system of
government, which is based on Westminster model,
that task falls upon the Judiciary. Judges are entrusted
with the task of ensuring that any exercise of state
power is done within legal limits."
Evolving trends
• Judicial review as a constitutional exercise:
o Does the Executive need an Act of Parliament to acquire
power?
o Is the power one the Executive cannot exercise, even with Act
of Parliament?
 Does the power infringe a protected right?
 Does the power infringe a structural guarantee, such as the exclusivity
of judicial power?
• Judicial review as an administrative law exercise
o Courts seeking to expand review
o Parliaments seeking to restrict review
o Potential constitutional questions
Does the Executive need an Act of
Parliament before it acquires power?
• United Kingdom: Brexit Litigation 2017
• Australia: Williams litigation 2012, 2014
• Implications for Singapore?
The question in the Brexit case
• Could the Executive issue an article 50 notice to
trigger an exit from the EU to respect the
referendum “yes” result?
• Entry and exit of treaties is a traditional prerogative
power exercised without need for an Act of
Parliament.
• But the 1972 Act created rights and obligations in
domestic UK law consequent on the UK
membership of EU.
• Could the Executive exercise the prerogative power
without reference to Parliament with the necessary
consequence of altering domestic law?
The Bill of Rights: 1 Will & Mary 2, cap 2 (1689)
• Article 2: “That the pretended power of dispensing with laws or
the execution of laws by regall authoritie as it hath been
assumed and exercised of late is illegall”.
• Article 12: no executive “dispensation by non obstante of or to
any statute or any part thereof shall be allowed but that the
same shall be held void and of no effect except a dispensation be
allowed” of by statute.
The Brexit majority
• The Bill of Rights principle would be offended if the
Executive issued an article 50 notice without prior
Parliamentary approval.
• The 1972 Act constituted EU law as a source of English
law. That tap could not be turned off except by
Parliament.
• Result consistent with the ”dualist” theory of national and
international law. The Executive can continue to enter and
exit treaties, but only if, and because, they create
obligations solely on the international plane.
The Brexit dissent: Lord Reed’s
argument from syntax
• The 1972 Statute left the decision with the Executive whether
to enter, exit or modify any EU treaties.
• The 1972 Statute was no different to an hypothetical statute
saying “all incoming passengers displaying symptoms of ebola
shall be placed in quarantine”.
• The 1972 Act meant: all rights and remedies under EU treaties
which satisfy a particular condition, namely that under EU
Treaties they are without further enactment to be given effect
in UK law, shall be recognised and enforced accordingly in UK
law.
• The 1972 Statute did not require that the condition be
satisfied.
Lord Reed's dissenting
constitutional arguments
• The Bill of Rights principle does not require a distinction between
the Executive modifying the content of EU treaties and the
Executive withdrawing from treaties.
• The 1972 Act did not constitute EU law as a “source” of UK law.
• “… controls over the exercise of ministerial powers under the
British constitution are not solely, or even primarily, of a legal
character… Courts should not overlook the constitutional
importance of ministerial accountability to Parliament.. For a
court to proceed on the basis that if a prerogative power is
capable of being exercised arbitrarily or perversely, it must
necessarily be subject to judicial control, is to base legal doctrine
on an assumption which is foreign to our constitutional
traditions….”
Australia: the Williams cases
• Background: the Bill of Rights principle is firmly grounded in
Australia.
• Port of Portland v Victoria (2010): “From the grundnorm
represented by the constitutional settlement by the
Convention Parliament there was to be no turning back in
England, or thereafter in the United Kingdom. In Australia the
absence of a power of executive dispensation of statute law,
what Dixon CJ called a ‘general constitutional principle’,
became an aspect of the rule of law and, as Wild CJ put it with
respect to New Zealand, is ‘a graphic illustration of the depth
of our legal heritage’”.
The Constitutional status of the Executive
in Australia
• Constitution s 61: “The executive power of the
Commonwealth is vested in the Queen and is
exercisable by the Governor-General as the Queen’s
representative, and extends to the execution and
maintenance of this Constitution, and of the laws of
the Commonwealth.”
• Constitution s 81: "All revenues or monies raised or
received by the Executive Government of the
Commonwealth shall form one Consolidated Revenue
Fund, to be appropriated for the purposes of the
Commonwealth in the manner and subject to the
charges and liabilities imposed by this Constitution."
Williams: the Commonwealth’s prior
assumptions
• That section 61 of the Constitution directly gives the
Executive a broad power to design various public policy
programs involving spending and contracting across
Australia and overseas.
• That the only requirement is that the Executive needs an
appropriation from the Parliament before the actual
drawing of the money from Consolidated Revenue under
s 81 of the Constitution and appropriations can be very
general.
• That Parliament can pass laws restricting or regulating
the exercise of power if it wishes, but the Executive does
not need to go to Parliament first.
Williams: the result
• Generally: that the Executive will ordinarily need
specific legislative authority from Parliament before
engaging in programs of spending and contracting, over
and above getting an appropriation from the Parliament
to withdraw the money from the Treasury.
• Specifically: that a Commonwealth program to fund and
regulate chaplains in schools cannot be done by the
Executive without prior Act of Parliament.
Williams: what underpins it?
• Some strands are peculiar to the Australian federal
framework and the role of our Senate as an Upper House
elected, as in the United States, on a State-by-State basis.
• A more general strand: the Executive should be limited
primarily to the administrative tasks of the
implementation of laws made by the Parliament and the
running of the ordinary business of government.
• Conversely, if the Executive chooses to engage in the
design and implementation of substantial new public
policy programs, involving contracting and spending, it
must obtain an Act of Parliament.
Williams: arguments rejected
• That s 61 of the Constitution, embodying the Royal
Prerogative, gives the Executive authority to act without
an Act of Parliament.
• That Responsible Government and the ability of
Parliament to pass laws restricting or regulating the
Executive’s activities are sufficient controls (cf the Brexit
minority).
• Conclusion in Australia: Responsible and Representative
government are positively enhanced if the Executive is
required to present its plans for new public policy
programs to the Parliament in advance and obtain
statutory approval for them.
Post Williams: widespread
ramifications in Australia
• Many Executive programs revisited to seek Parliamentary
authority for them, or to restructure them so they are
conducted with and through the States and Territories.
• Australia’s offshore processing arrangements in the Republic
of Nauru and Papua New Guinea challenged in Plaintiff M68
on the ground that the Executive exceeded its constitutional
power by entering contracts with commercial service
providers and funding the offshore centres without going to
Parliament in advance.
• In mid 2015, while the case was pending in High Court, the
Executive went to Parliament and obtained urgent,
retrospective legislation to authorise its actions to remove
that issue from the case.
Brexit and Williams: possible
implications for Singapore?
• Singapore Constitution Article 23: “The executive
authority of Singapore is vested in the President and
exercisable subject to the provisions of the Constitution
by him or the Cabinet or any Minister authorised by
Cabinet”.
• Singapore Constitution Article 24: “Subject to the
provisions of this Constitution, the Cabinet shall have the
general direction and control of the Government and
shall be collectively responsible to Parliament”.
Ultimate source of judicial review?
• Section 93 of the Constitution of Singapore: "The judicial
power of Singapore shall be vested in a Supreme Court and
in such subordinate courts as may be provided by any
written law for the time being in force.”
• Article III s 1 of the Constitution of the United States: “The
judicial power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the Congress
may from time to time ordain and establish…”
• Section 71 of the Constitution of Australia:“The judicial
power of the Commonwealth shall be vested in a Federal
Supreme Court, to be called the High Court of Australia, and
in such other federal Courts as the Parliament creates, and in
such other courts as it invests with federal jurisdiction.”
Possible outcomes in Singapore?
• Entry and exit of treaties can ordinarily be done by the
Executive, unless the Parliament passes laws restricting
or controlling such actions.
• Once treaties are brought into domestic law, Brexit type
considerations prevent the Executive from amending or
withdrawing from those treaties in a way which affects
domestic rights and obligations.
• Williams may be distinguishable as sufficiently explained
by additional considerations of a federal system and a bicameral Parliament in Australia? Articles 23 and 24 may
have a broader scope than s 61 in Australia?
Possible outcomes in Singapore
(cont)
• Part V Chapter 2 unlikely to authorise Executive to restrict
basic, long established common law rights such as liberty
of the subject without prior Parliamentary approval.
• That is the position in Australia: the Executive has no
power to extradite a person (Re Bolton 1987) or to arrest
or detain a person (Chu Kheng Lim 1992).
• Reason: the common law of England never recognised the
legality of any such executive warrants. This common law
principle or immunity has flowed through to s 61 of the
Australian Constitution.
Powers which the Constitution prevents
the Executive from exercising – rights
based cases
• Dicey on the UK: Parliament has “the right to make or
unmake any law whatsoever; and further, no person or
body is recognised by the law as having a right to override
or set aside the legislation of Parliament”. (UK entry of
EU and 1998 Human Rights Act consistent with Dicey.)
• Singapore has moved beyond Dicey. The Court under s 93
can hear and determine any challenges to the validity of
legislation which purports to empower the Executive to
act in a way which infringes liberties guaranteed under
Part IV.
• Australia: principle of legality/common law bill of rights.
Examples of rights based judicial
review in Singapore
• 2016 Prabargaran – a person cannot be deprived of life
or liberty under article 9 save in accordance with "law",
meaning that such a law must not offend fundamental
principles of natural justice.
• 2015 Vong Vui Kong - article 9 protects against not just
arbitrary execution or incarceration, but also against
any unlawful use of force against a person. A sentence
of caning attracts Article 9 and must be “in accordance
with law".
Judicial review to protect structural
guarantees
• Implication from Singapore s 93 and Australia s 71 that
the Parliament cannot confer on the Executive any
power that is exclusively judicial.
• Prabagaran (2016): the Parliament must not transfer
from the Judiciary to the Executive a central part of the
sentencing process, such as the discretion to determine
the appropriate punishment for a particular offender or
the making of administrative decisions that impacted on
the actual sentence for an offender.
• Principle not offended if Parliament merely authorises
Prosecutor to determines a mere pre-condition to the
sentencing discretion.
Australia: the Executive intruding
on the exclusive judicial power
• Lim (1992) - as a general rule, the power to order a citizen be
held in custody is exclusively judicial, as an incident of the
criminal function to adjudicate and punish guilt.
• Magaming (2013) - prosecutorial role in choosing between
charges with different penalties survives challenge (by
majority).
• Plaintiff M68 (2016) - holding of persons in detention in
offshore processing centres survives challenge only because
detention is strictly limited in time and purpose.
• NAAJA (2013) - detention of persons absent charge in
Australia survives challenge only because period is strictly
limited and subject to Court review.
Judicial review to control exercise of
Executive Power
• Trend: An ever expansion in the grounds on which a
Court can intervene and in the willingness of the Courts
to intervene.
• Growth of modern administrative law in UK now sees
review for illegality, irrationality and procedural
impropriety.
• Vast number of cases, grant of remedies in UK.
• Singapore adopts UK schema, cases only starting to
emerge.
Modern Australia administrative law
• Review limited to "jurisdictional error" for Constitutional
reasons.
• Question is whether the decision-maker exceeded the
limits attached to the power by the statute.
• May seem narrow, but very broad in application,
particularly in migration cases.
• Relevant and irrelevant considerations broadly defined.
• Duty to put adverse information with specificity to person
affected.
• Minister v Li (2013): Wednesbury unreasonableness
expanded to "review for legal reasonableness" which
encompasses other grounds.
Outer bounds of grounds of review?
• Should review be permitted on ground that decision did
not comply with legitimate expectations of a person
affected?
• Australia: no, unless the statute properly construed
attaches a condition to the power to this effect.
• Singapore: SGB Starkstrom Pte Ltd (2016): left open by
Court of Appeal.
• Sliding scale of intensity of review?
• Is there a unifying fiduciary theme?
Parliamentary Responses –
particularly in Australia
• Early generation response: the privative clause.
• Current generation responses - one or more of:
o Denial of any obligation to observe rules of natural justice
o Denial of obligation to give reasons.
o Use of very broad national or public interest test as the only
matter for the decision-maker to consider
o Vesting the discretion personally in the Minister responsible
to Parliament
• The problem of secret evidence.
Possible constitutional questions?
• A complete privative clause cannot sit with the judicial
function.
• May also be difficulties if Parliament so restricts the
grounds of review, or the practicality of review, that
Court cannot fairly perform its basic function of holding
all arms of government to law.
Some conclusions
• Modern judicial review involves an inextricable mix of
constitutional law, administrative law and statutory
interpretation.
• UK history remains relevant even while carried over to
written Constitutions in Singapore and Australia which
invite Marbury v Madison review.
• Interpretation of a Constitution must be more than
construction of a statute.
• Courts are attentive to separation of powers, broad
principled constructions of protected rights and
identification of structural implications which protect the
courts themselves.
• More work to be done!