1990]
Democracy, The Rule ofLaw & Judicial Review
D'EMOCRACY, THE RULE OF LAW AND JUDICIAL REVIEW
DAVID FElDMAN"
Justifying judicial review of legislatures and executives in western democracies
has become a controversial business. Those aspects of rule of law theory which
appear to justify judicial review are attacked as undemocratic, in that they tend to
replace the will of the people with the will of the judiciary. Where review is
based on a set of constitutionally entrenched rights, those rights themselves are
regarded as undemocratic; even supporters of rights-based judicial review have
tended to concede that the rights, however desirable in some ways, are
restrictions on democratic processes, rather than essential parts of democratic
constitutional institutions. This seems unnecessarily defeatist. This article
seeks to defend judicial review of executive action and of parliamentary
legislation, on the basis of a conception of democracy which embodies certain
rights rather than being in a state of tension with them.
The argument will take the following shape. A sketch of some relevant
democratic considerations in Section 1 will conclude with a description of the
model of democracy which will form the basis for the remainder of the argument
Section 2 will argue that the function of law in providing powers for
governments to use entails legal enforcement of the limits of those powers. The
limits and their enforcement, it will be suggested, are no more undemocratic than
the powers themselves. Section 3 will offer a critique of the claims of
government and Parliament to superior democratic status. While it will be
suggested that judicial review is not intrinsically undemocratic, Section 4 will
briefly consider certain non-inherent defects.
1 MODELS OF DEMOCRACY
Whether the rule of law is undemocratic will depend on one's model of
democracy, as well as one's view of the proper purposes of judicial review. This
Section examines models of democracy in their relationship to public political
institutions; Section 2 elaborates the values and purposes of judicial review.
Two preliminary observations about the concept of democracy will have an
important bearing on the argument of the whole article.
First, although one needs an ideal form model of democracy against which to
evaluate practical institutions, being democratic is a relative rather than an
absolute standard. An institution may derive its objectives and values from a
model of democracy, yet fall short, to a greater or lesser extent, of the ideal in
practice. Such an institution is not ideally democratic (in practice, no institution
Call match the ideal) but it does not follow that it is entirely undemocratic. It
*
BA, BCL (Oxon), Reader in Law, University of Bristol, England. This paper is largely a
product of my stay as a Visiting Fellow in the Faculty of Law, Australian National
University in 1989. I am indebted to Mr Peter Bailey, Mr Peter Bayne, Professor Tony
Bradley, Mr Peter Drahos, Professor Don Greig, Dr Hugh Rawlings, Ms Christine
Willmore and Professor Leslie Zines for their comments on earlier drafts of this article,
and to participants in seminars in the University of Bristol, the Australian National
University, the University of Canterbury, New Zealand and the University of New South
Wales at which I presented some of the ideas developed here.
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may be more or less democratic, depending both on how far the institutions are
structured in accordance with democratic principles and on the extent to which
people in fact intemalise democratic values and succeed in advancing them
through the institution. This has been recognised by the High Court of
Australia in holding that the ideal of representative democracy embodied in the
first paragraph of s 24 of the Commonwealth Constitution does not require
equal numbers of electors in each constituency on the "one person, one vote, one
value" principle.l As Stephen J put ic 2
representative democracy is descriptive of a whole spectrum of political
institutions ... The spectrum has fmite limits and in a particular instance there
may be absent some quality which is regarded as so essential to representative
democracy as to place that instance outside those limits altogether; but at no
one point within the range of the spectrum does there exist any single
requirement so essential as to be determinative of the existence of representative
democracy.... This Court is not concerned to pass upon the relative merits of
any particular democratic electoral system otherwise conforming to
constitutional requirements.
This relativity suggests a distinction between two senses in which an
institution like judicial review might be undemocratic: it might be either
intrinsically or contingently undemocratic. For the purpose of this paper, we
will refer to a system as intrinsically undemocratic if it gives rise to an
allocation of power which is necessarily inconsistent with democratic principles
and so falls outside the spectrum as described by Stephen I. The appropriate
response to this situation is to abolish the institution and replace it with one of
a different type. An institution will be called contingently undemocratic if a
power, allocated in a way which is unobjectionable on democratic principles, is
exercised by the power-holder in ways which produce undemocratic results. This
should stimulate attempts to improve the institution rather than to abolish it.
As a general rule, judicial review will be intrinsically undemocratic only if the
very existence of a review power is repugnant to democracy, although we should
note the possibility that contingent shortcomings might build up to a point
where they can only be relieved if the whole structure is demolished and rebuilt
from scratch. At that point (and not before) the distinction between intrinsically
and contingently undemocratic institutions loses its significance. However, to
avoid a charge of defeatism or worse, the person who suggests that that point has
been reached must show that all practicable attempts at improvement are bound
to fail or have been tried unsuccessfully.
Secondly, the model of democracy which one adopts will depend crucially on
one's view of the relationship between individuals and society, and the resolution
of the tension between the public and private aspects of life. While it would be
outside the scope of this paper to advance arguments for this, mine is a liberal
view of the problem, in which society exists for individuals rather than the other
way round. The reason for desiring public political institutions to be organised
democratically is that democracy allows individuals a say in the terms and
conditions on which social rules which bind them are developed. Intrinsically
undemocratic social organisations may make the trains run on time but are bad
because regardless of the benefits which they produce, they deny the autonomy
of individual citizens by denying them a voice in the determination of policies,
t
1
2
A-G (Cth) Ex rei McKinlay v Commonwealth (1975) 135 CLR 1; Murphy J dissenting.
Ibid 57.
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rules and procedures. It is inherent in this conception of democratic value that
certain individual interests provide the foundation for the legitimacy of
democracy itself. While there may be a tension between the will of a particular
individual and that of the majority, there is equally a tension between
majoritarianism and democracy.
On this view, there can (perhaps must) be two sorts of individual interests,
which can (perhaps should) be protected as legal rights. First, there are (lower
order) rights granted to citizens by way of the democratic political process in the
form of legislation. Some lower order rights, including property and privacy
rights and business freedoms, mark off the socially-approved scope of personal
autonomy, within which one's freedom of choice and action is for the time being
not subject to restraint on public interest grounds. Other lower order rights
improve people's ability to make good use of their autonomy, thus increasing its
value to them. Examples include rights to receive a particular type or level of
benefit from the state. Because all these rights depend on social approval
through democratic processes, they are contingent on the political decisions of
others. They derive their legitimacy from their authorisation through democratic
institutions. Secondly, there are (higher order) democratic rights. These should
be respected and protected by a system which claims to be democratic; failure in
this will represent a lapse from the democratic ideal. These rights are not
legitimated by the democratic process; the process secures its democratic status
in part at least by institutionalising respect for these rights.
These higher order rights secure each citizen's access to the machinery of
political decision-making. Principal among them is a right to equality of
treatment in the process of allocating lower order rights and responsibilities.
This provides a reason for individuals to subject some of their interests and
freedom of choice to the public political process for some purposes. If it is ever
rational for citizens to accept that their rights and obligations will be fixed by
social institutions, it will be so only if the institutions operate under rules
which guarantee to all citizens an equal right to influence decisions about the
form and behaviour of those institutions. Individual autonomy cannot rationally
be subordinated to public political processes unless, in exchange, substantial
indirect protection for autonomy interests is afforded by fundamental political
rights. These place procedural constraints on the freedom of society arbitrarily to
limit individual rights. The constraints are quintessentially democratic; they do
not compromise democratic values to advance rights. Some rights, at least, are
necessary to democratic institutions.
For instance, it would be undemocratic to deny the vote to blacks, Jews or
women, because that would contravene the principle of political equality. On
the other hand, it would not be illegitimate to fix a minimum voting age, so
long as it is reasonably related to the age at which people are regarded as capable
of discharging civic responsibilities and applies to all groups in a nondiscriminatory way.3 These limitations on the majority's power to
disenfranchise a minority are not limitations on democracy. They are an
essential part of democracy. The same applies to a wide range of rights, which
3
Cf US Constitution, 26th Amendment; Canadian Charter of Rights and Freedoms (part I
of the Constitution Act 1982 (Canada), forming Schedule B of the Canada Act 1982
(UK», ss 1 and 3; H F Rawlings, Law and the Electoral Process (1988), Ch 1; D
Feldman, "Rights, Capacity and Social Responsibility" (1987) 16 Anglo-American L
Rev 97, 100-104.
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take up a special status as higher order democratic rights which need special
protection under a democratic constitution. These include freedom of speech and
association, the right to receive information which is relevant to public political
decisions which one is entitled to make or influence, and perhaps the right to be
provided with forums for speech and association.
It follows that many of the individual rights which are guaranteed under
international human rights instruments such as the European Convention on
Human Rights are properly regarded as higher order democratic rights. 4 The
compatibility of these rights and the rule of law with democracy is brought out
by those provisions in the Convention which limit permissible interferences
with guaranteed rights to circumstances where the interference is prescribed by
law and necessary in a democratic society for the purpose of protecting a limited
number of interests. 5 The justiciability of a test of "necessity in a democratic
society" has been amply demonstrated by the jurisprudence developed by the
European Commission on Human Rights and the European Court of Human
Rights, incorporating both a model of democracy which incorporates rights and a
doctrine of proportionality.6
Against this general background, the remainder of this Section considers
various characteristics of democracy and their implications for the legitimacy of
judicial review.
A
Representativeness
Democracy in countries with Westminster-style constitutions is of the
representative type. By and large it accords fairly closely with Schumpeterts
model of democracy,7 according to which important issues are beyond the grasp
of ordinary citizens,8 and the populace is therefore restricted to an electoral choice
between groups of aspiring leaders who will "represent" them in Parliament and
choose a government. This model will be described here as "elitist democracy".
The electorate and the government may influence each other, but no formal
accountability to, or control by, citizens is required apart from regular elections.
As Hutchinson and Monahan write: 9
Democratic politics is seen as the legitimate preserve of specialists, whose only
expertise happens to be that they have made a habit of engaging in political
activity.
Representativeness is a form of democracy rather than a characteristic of all
forms of it. It contrasts with direct democracy, in which the people have a direct
4
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9
However, the right to participate equally in politics is protected under the European
Convention only to the extent of Art 3 of the First Protocol, by which the High
Contracting Parties undertake to hold elections by secret ballot at reasonable intervals;
contrast the fuller protection in the UN Universal Declaration of Human Rights, Art 21.
Eg Art 8(2) (respect for privacy etc), An 9(2) (freedom of thought etc), and Art 10(2)
(freedom of expression). Cf Art 6(1) (power to exclude press and public from trials
where justified by the interests of national security in a democratic society).
See P Sieghart, The International Law of HUINln Rights (1983) 91-94 and the authorities
cited therein; Malone y United Kingdom (1983) 5 EHRR 385.
J Schumpeter, Capitalism, Socialism and Democracy (1943) 268-283.
Some unexpected people have adopted this view, including Lenin (see K Graham, The
Battle of Democracy (1986) Ch 10) and C B Macpherson, The Life altd Times of Liberal
Democracy (1977) 95-96.
A Hutchinson and P Monahan, "Democracy and the rule of law" in Hutchinson and
Monahan (eds), The Rule of Law: Ideal or Ideology (1987) 91, 98.
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say on some or all matters of public policy and rule-making. As a way of
advancing the interests of individuals' political or moral autonomy,
representativeness has limitations. Indeed, when coupled with a doctrine of
parliamentary supremacy as complete as that which is said to apply in the
uncontrolled constitutions of the United Kingdom, New Zealand and (particularly
since the Australia Act 1986) the Australian states, a representative government
and legislature has the potential to override many important democratic values.
What values, then, support the notion that government by an elected elite is a
fonn of democracy?
The seemingly uncontroversial justification for elitist democracy is the idea of
majority rule by which elections bestow a popular mandate on an elected
government However, the representative ideal has been undennined by the facts
of modem political life. The party which forms a government routinely obtains
well under half the votes cast in a general election, and (as in the United
Kingdom or Spain) may face nationalist resistance in large areas of its territory
where it has little support. The United Kingdom's Conservative government
since 1979 has indeed consciously developed an increasingly centralist state,
running counter to an international trend towards decentralisation. 10 This throws
into doubt governments' claims that elections confer a democratic mandate or
show those elected to be representative of the whole community.
Furthermore, Westminster-style constitutions do not customarily guarantee the
principle, necessary to true representativeness, that votes are to have equal
values. To do so would require electoral divisions to contain equal numbers of
voters, and guarantees against allocating unequal numbers of voters to electoral
constituencies. There is no such constitutional guarantee in the United
Kingdom,11 nor in the Australian states, where Queensland and Western
Australia are notorious for their tradition of gerrymandering. In the Australian
Commonwealth Constitution, s 24 requires that members of the House of
Representatives be tt directly chosen by the people of the Commonwealth tt. This
provision was modelled on Article 1, §2 of the United States Constitution: "The
House of Representatives shall be composed of Members chosen every second
year by the People of the several States...". The United States Supreme Court
held in the 196Os, reversing earlier decisions, that the latter provision, coupled
with Amendment 14, §1 (..... No state shall ... deny to any person within its
jurisdiction the equal protection of the laws tt ) , required the Court to strike down
State legislation fixing electoral boundaries which gave votes unequal weight 12
In Australia, there is no constitutional equal protection guarantee like that in the
United States' Fourteenth Amendment or s 15(1) of the Canadian Charter of
Rights and Freedoms. It is therefore unsurprising that, as noted above, a
10 J L Sharpe
11
12
(ed), Decentralist Trends in Western Democracies (1979); D Rowat,
"Bureaucracy and Policy-Making in Developed Democracies: the Decline of Bureaucratic
Influence" (1985) 51 lot Rev Admin Science 189, 190-191. On the micro level, there
may now be signs of a change in the UK. with greater regard for communal participatory
control over local institutions such as schools under the Education Refonn Act 1989 and
housing associations under the Housing Act 1988.
H F Rawlings. supra n 3.
Baur v Carr (1962) 369 US 186; Gray v Sanders (1963) 372 US 368; Wesberry v
Sanders (1964) 376 US 1. These cases reversed the use of the "political question"
doctrine to deny relief: Colegrove v Green (1946) 328 US 549. See L Tribe. American
Constitutional Law (1978) 71-79, 737-761.
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majority of the High Court held in McKinlay's easel 3 (over a vigorous dissent by
Murphy J based on the nature of representative democracy) that there is no
constitutional mandate for equal value for each vote. Nevertheless, some judges
thought that there might be types and levels of inequalities which would lead to
the House of Representatives no longer being directly chosen "by the people".
Such inequalities would make the electoral system unconstitutional. 14
Yet despite the weaknesses of representative democracy, one of the grounds on
which judicial review is often criticised is that judges are unrepresentative. This
raises a number of issues which are canvassed in Section 4 below; for the
moment, we may note that representativeness is always relative, is not strongly
rooted in all systems which we would recognise as democratic, and is at best
only a substitute for direct democracy.
B
Accountability15
Accountability of government is of different kinds. It may be political or
legal; continuous or periodic; accountability to the electorate, to Parliament or
to the party; and it may be based on moral or legal standards or party political
expediency. There is the government's periodic accountability to the electorate.
A powerful reward - high office - is offered by the electorate to the party which
produces the package for the future which most appeals to it. A swinging
sanction - loss of that office - is wielded if it turns out that the policies were
wrong, or were wrongly implemented. But government's direct accountability to
the electorate is only sporadic, and is likely to be an inefficient tool for
structuring decision-making between elections because of the unpredictability of
results. What is more, elections are unsatisfactory ways of securing
accountability on particular issues, because single-issue politics is rarely an
option acceptable to all parties.
Indirect accountability to citizens through their representatives in Parliament is
more continuous, and requires government to take account of a range of
opinions, if only those expressed in the party room. On the other hand, it is
defective, since the government, once chosen by the lower House, usually
controls the Parliament rather than being controlled by it. This is not true in
presidential constitutions where the executive is outside the House and is directly
elected by the people, and is less true in federal parliamentary systems like the
Australian Commonwealth Parliament, where the upper House is often not under
the party control of the government and regularly asserts greater power to thwart
governments than would perhaps be constitutionally acceptable in the United
Kingdom. On the other hand, the position characterised by Lord Hailsham as
"elective dictatorship"16 is even more marked in unicameral Parliaments such as
New Zealand and Queensland than in bicameral Parliaments such as that in the
United Kingdom. So far as the political process fails to secure real
accountability for government action, it is democratically justifiable to
Attorney-General (Cth) Ex Rei McKinlay v Commonwealth (1975) 135 CLR 1.
Ibid 36 per McTiernan and Iacobs 11, 57 per Stephen 1; cf71 per Murphy 1.
15 On fOnDS of accountability, see P Day and R Klein, Accountabilities: Five Public
Services (1987).
16 Viscount Hailsham of St Marylebone, Elective Dictatorship (1976). At the time,
Hailsham, a leading Conservative lawyer-politician, was advocating constitutional
controls over a Labour government; his attitude changed when the Conservatives
returned to power in 1979 and he became Lord Chancellor.
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Democracy, The Rule ofLaw & Judicial Review
supplement it with legal accountability by way of judicial review of executive
action. The more completely a government dominates a legislature, the stronger
are the reasons for regarding legislation as a form of indirect executive action,
and this may justify extending judicial review to legislation. However, any such
development must be conditional on basing the review on appropriate democratic
values. (Some relevant values are outlined in Sections 2 and 4 below).
Consultation
Consultation has traditionally been the main form of citizen input to
government decision-making in Westminster systems. Consultative processes
allow members of the public with specially appropriate experience or training to
express views, but leave the fmal decision to government. Such processes serve
to inform government rather than to influence decisions directly. Indeed, it has
been said that it: 17
C
is not an activity directly linked to the decision-making process, although one
of its objects is to extend and develop the thinking of those who make
decisions. It is not designed to allocate resources, although it may discuss such
issues. It is not designed to be advisory to anyone person or officer, although
it may at times decide to send advice to such a person. Rather, its object is to
bring together, and to illuminate the perceptions of the participants, each of
whom will have his or her own responsibilities for action. It is not designed to
be a pressure group, except insofar as the exchange of information and wellbased views leads to compelling conclusions. It is, in short, a process
facilitating open discussion, careful deliberation and collective conference.
Such deliberation is valuable in democratic governance, but its limitations
must be clearly understood in order to prevent unrealistic (and therefore
disappointed) expectations. To be effective, the process must also avoid
tokenism, and the participants must be able to maintain objectivity and avoid
making the process merely a forum for politicking)8 It is partly because the
consultative procedures built up in the United Kingdom in the era of corporatist
government in the 1960's and 1970's came to be seen by participants as
tokenism, and by government as a forum for politicking by corporate elites, that
they have largely been dismantled in the last ten years, replaced with
management consultants' reports and specialist working parties. 19 Yet the
resulting decrease in the opportunities for citizens to make a contribution to
decision-making processes, and the corresponding reduction in the openness of
those processes, strengthens the case for external scrutiny of their rationality and
fairness through judicial review.
D
Public Participation
Public participation in the sense of procedures allowing the public, by
expressing its will, to influence or even determine the decision directly,20 is
understandably not favoured by most politicians in mainstream parties who have
Task Force on Co-ordination in Welfare and Health, Second (1977) Report, Consultative
Arrangements and the Co-ordination 01 Social Policy Development (1978) 12. I am
grateful to Mr P H Bailey, the Chainnan of the Task Force, for this reference.
18 Ibid 24-28.
19 For a politically partial view of this development, see N Lewis and P Wiles, "The PostCorporatist State?" (1984) 11 J Law &:. Soc 65, 68-70.
20 C Pateman, Participation and Democratic Theory (1970);
J R Pennock and
R W Chapman (eds), NOMOS XVI: Participation in Politics (1975).
17
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made careers out of representative political systems. Participation is, however,
favoured by some members of the New Right, who see it as a brake on the
excesses of socialist governments and legislatures. Professor Geoffrey Walker,
for example, advocates a continuous process of direct voting by the electorate on
all manner of issues, which would substantially restrict the legislative freedom
of Parliament.21 Other political traditions advocate participation as a way of
improving society by encouraging people to shoulder the responsibilities which
are inseparable from citizenship, one of which is to take on a role in the
governance of society rather than abdicating all responsibility to the selfproclaimed "experts". If citizenship entails a process of continuous exchange of
political ideas and arguments which will make the state more responsive to all
shades of opinion, participation will lead citizens to value their capacities to
make worthwhile contributions to political discourse. 22 This will help to
remove a threat to the ties of political obligation which cement democratic
societies.23
The scope for popular democracy is restricted by rigid party systems such as
operate in the United Kingdom and Australia. Professor Anthony Birch and
Dawn Oliver, among others, have pointed to the way in which democracy which
consists of a choice between major parties shifts the focus of these values away
from the general citizenry and its representatives in Parliament towards the
constitutions and members of the parties themselves. 24 This is afortiori true in
single-party states. As a result, few modem political systems institutionally
require government to be continuously responsive to popular opinion.
In order to provide for a participatory style of government, it would be
necessary to restructure the constitutional system. Westminster-style
constitutions are unsuitable vehicles to allow for participation in central state
government. Constructed as they are around such doctrines as parliamentary
legislative supremacy and ministerial accountability to Parliament, they are not
easy to adapt to place the people, rather than the Parliament, at the pinnacle of
the decision-making structure. This is not to say that it could not be done;
indeed, some Westminster-model constitutions do provide for binding referenda,
mainly required to approve measures for changing the constitution2S and, more
unusually, situations where it is used as a technique for resolving an impasse in
a dispute between the Houses of a bicameral Parliament over the passage of
G de Q Walker. Initiative and Referendum: The People's Law (1987).
P Nonet and P Selznick. Law and Society in Transition: Towards Responsive Law
(1978); J Habennas. Communication and the Evolution of Society (1979); J Habennas.
Reason and the Rationalisation of Society (1984); T Prosser. "Towards a Critical Public
Law" (1982) 9 J Law & Soc 1; T Prosser, "Democratisation, Accountability and
Institutional Design:
Reflections on Public Law" in J P W B McAuslan and
J McEldowney (eds), Law, Legitimacy and the Constitution (1985) 170.
23 R Dahrendorf, Law and Order (1985); C Pateman, The Problem of Political Obligation
(1985).
24 A H Birch, "The Theory and Practice of Modem British Democracy" in J Jowell and
D Oliver (eds), The Changing Constitution (1985) 77; D Oliver, "The Parties and
Parliament: Representative or Intra-Party Democracy?" in J Jowell and D Oliver (oos),
The Changing Constitution (1985) 103. It also affects bureacratic influence over
policy-making: V Subramaniam, "The Higher Bureaucracy and Policy Making in the
Anglo-Saxon Commonwealth:
the Psycho-Social Syndrome of Two-Party
Parliamentarianism" (1985) 51 Int Rev Admin Science 199.
2S Eg Australian Commonwealth Constitution, s 128; Constitution Act 1902 (NSW),
ss 7A, 7B.
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controversial legislation. 26 These have needed careful justification, however, in
order to maintain the integrity of the theory that Westminster democracy is
representative rather than direct. In one case, it has been suggested that a
reference to the whole electorate is permissible, where an abdication of authority
in favour of an extra-parliamentary individual, corporation or group would not
be, because "it is confmed to obtaining the direct approval of the people whom
the 'representative legislature' represents. "27 Regular referenda on the Swiss
model, while undoubtedly feasible, do not fit the structure very comfortably.
Nevertheless, the idea that the electorate should be able to participate directly
in the legislative process, and perhaps even to initiate legislation, has powerful
advocates. It has a place in many states of the United States, despite the strict
separation of powers which could frustrate attempts to constitute the people as a
legislature. 28 Although Western Canadian provinces have flirted with' direct
legislation, its lack of fit with the allocation of legislative power to Parliament
in Westminster-model constitutions has led to it being held unconstitutional
where it has the effect of by-passing the legislature. 29 This would make it hard
to assert that the political structures current under Westminster-style
constitutions do embody much in the way of democratic values going beyond the
representativeness of Schumpeter's "elitist democracy". A further constitutional
buttress to participatory democracy is the right to information about the conduct
of government. In Australia and numerous other advanced countries, there is
statutory provision for public access to governmental information; there is also
usually a statutory requirement that public decision-makers give reasons for their
decisions. 3O Such legislation facilitates a full range of democratic processes,
helping to make public consultation and participation and judicial review more
effective. It is noteworthy that the United Kingdom lacks both any
comprehensive requirement for reasons to be given and freedom of information
legislation
Constitution Act 1902 (NSW), s 5B.
West Lahs Ltd v The State of South Australia (1980) 25 SASR 389, 397 per King CJ,
discussing A-G (NSW) v Trethowan (1931) 44 CLR 394, affinned [1932] AC 526 and
Commonwealth Aluminium Corporation Ltd v Attorney-General [1976] Qd R 231.
28 For discussion, see G Walker, supra n 21. For a critical view of the practical operation
of direct legislation systems, see DB Magleby, Direct Legislation: Voting on Ballot
Propositions in the United States (1984).
29 Re Initiative and Referendum Act (1916) 27 Man R 1, upheld on other grounds [1919]
AC 935, with dicta suggesting support for this ground at 945; Reference re Legislative
Authority of ParliatMnt to Alter or Replace the Senate (1980) 102 DLR (3d) 1. The
Privy Council upheld Alberta's Direct Legislation Act 1913, and the Liquor Act 1916
passed under it, in R v Nat Bell Liquors [1922] 2 AC 128, on the ground that the fonnal
act of legislation was left to be perfonned by the legislature, even after the referendum.
For discussion and criticism, see P W Hogg, Constitutional Law of CanadIJ (2nd ed
1985) 290-295.
30 There is freedom of information legislation in the Commonwealth (Freedom of
Infonnation Act 1982), Victoria (Freedom of Infonnation Act 1982), New South Wales
(Freedom of Infonnation Act 1989), and the Australian Capital Territory (Freedom of
Infonnation Act 1989). The government of South Australia is committed to its
introduction, and in all probability it will be recommended by the Electoral and
Administrative Review Commission of Queensland. Obligations to provide reasons
statements are found in various pieces of legislation; for the Commonwealth, see s 13
of the Administrative Decisions (Judicial Review) Act 1977, and s 28 of the
Administrative Appeals Act 1975.
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Democratic Autonomy and Democratic Rights
The techniques discussed so far in this Section aim to achieve one of two
objectives. Each is directed to securing either responsiveness to citizens in
policy-making, law-making and administration, or accountability for action after
the event. However, no purely political arrangement is capable of ensuring
continuous accountability to the citizenry, nor can it guarantee that the values
which, I have argued, underlie and legitimate democratic government will be
respected by governors, legislators and bureaucrats. To achieve such protection
for democratic values within a system of political democracy, at least two other
elements are needed. First, the appropriate norms of executive and legislative
behaviour must be institutionalised within the system. Standards are necessary
to limit governmental arbitrariness, a matter to which we will return in
Section 2 below; it is important that they should be democratic standards.
Secondly, the operation of the system must be open to continuous monitoring
to ensure, so far as possible, that the standards are met and, if breached, can be
enforced. (The question of the appropriate methods of monitoring and
enforcement will be addressed in Section 3 below; at the moment, it is only
necessary to note that one possible method, though neither the only nor
necessarily the best one, is through judicial review).
David Held has advanced a model which he calls democratic autonomy which
has the potential to protect these fundamental democratic standards through a
system of democratic rights in a way which is compatible with the ideas
advanced above. 31 He notes that democrats are generally concerned to create the
best environment for human development, to guard against arbitrary use of
authority, to involve citizens in decisions which concern the polity, and to
maximise availability of economic resources. He argues that these aspirations
demand recognition of personal autonomy, necessitating a theory of individual
freedom, and suggests that in its failure to provide such a theory the Left lacks
"an adequate account of the state and, in particular, of democratic government as
it exists and as it might be. "32 Held sets out his "principle of autonomy":33
E
... individuals should be free and equal in the determination of the conditions of
their own lives; that is, they should enjoy equal rights (and, accordingly, equal
obligations) in the specification of the framework which generates and limits
the opportunities available to them, so long as they do not deploy this
framework to negate the rights of others.
Held thus relies on rights as guarantees of important minimal values which
arise from the benefits and responsibilities of citizenship, and contemplates
securing them through a justiciable constitution and bill of rights, operating
alongside open political processes.34 This scheme avoids giving absolute power
over all aspects of one's life to social decision-making processes, a result which
nobody who values their moral autonomy could countenance. Forms of
democracy which are merely majoritarian, elitist or representative cannot achieve
D Held, Models of Democracy (1981) Ch 9.
Ibid 212.
33 Ibid 211.
34 Ibid 284-286.
31
32
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Democracy, The Rule ofLaw & Judicial Review
11
this. The potential of democratic autonomy to provide a theoretical structure for
the protection of democratic liberties is considerable. 3s
Recognising and protecting democratic standards through rights is likely to
result in two orders of rights. Higher order rights will be those which are
essential to the maintenance of a democracy. These will require special
protection against infringement by governments, legislatures or others. While
the protection will limit the power of a majoritarian government or an electoral
majority, this should not be seen as anti-democratic: as noted above, a majority
which does not respect the fundamental conditions for democracy is not
democratically entitled to impose its will on other citizens. Lower order rights
such as freedom of contract and property and privacy rights delimit the socially
acceptable scope of personal autonomy. They serve to mark off the area of
personal privacy from the scope of public power. Within that protected area,
individuals can make choices without reference to public political processes. Of
course, a willingness to recognise personal rights does not prejudge their nature
or scope, which can as a general rule legitimately be settled by means of
democratic processes. However, there is an irreducible minimum of higher order
democratic rights which in a democracy cannot be subject to political interference
without potentially compromising the democratic status of the whole system.
2 THE RULE OF LAW AND THE LIMITAnON OF GOVERNMENT
This Section concerns the derivation of and justifications for judicial review of
legislative and executive power, which is the practical manifestation of rule of
law principles. Accordingly it will be necessary to look briefly at the nature of
the rule of law and the purposes of judicial review.
One can identify three meanings of the rule of law: a state of order under law;
government under law; and substantive restrictions on legislative power such
that government in its legislative program is under law as well as governing
through law.3 6 For present purposes, the last two meanings, which are interrelated, are particularly relevant, and they comprise a number of elements. Those
which are of most immediate concern are (i) that government should operate
under legal principles, (ii) that the principles should be enforced, (iii) that there
should be an independent judiciary, and (iv) that there should be a legal Geist, an
attitude of legality (a commitment to the values of the rule of law) on the part of
the people generally, not just legal officials.37 The rule of law is, then, as
Professor Jowell has argued,38 an institutional morality affecting all concerned
with public institutions requiring that certain politico-legal values be internalised
by politicians, bureaucrats, judges and others. Some of these values are
intimately connected with democratic theory. They include the prima facie
equality of citizens in politico-legal processes, procedural fairness, the need for
legal authority for government action, and use of power for proper purposeS. 39
3S
36
37
38
39
It has been explored by I Duncanson. "Law. Democracy and the Individual" (1988) 8
Legal Studies 303. However. Duncanson (at 305) suggests that these liberties are a
restraint on democracy. whereas Held. supra n 31. (and I) see them as intrinsic to any
worthwhile theory of democracy.
G de Q Walker. TM Rule 01 Law: Foundation 01 ConstitutioMI Democracy (1988) 3-5.
Ibid 23-41. For an alternative fonnulation of the elements in the rule of law. see J Raz.
"The Rule of Law and its virtue". in Raz. TM Authority 01 Law (1979) 210-229.
J Jowell. "The Rule of Law Today". in Jowell and Oliver supra n 24. 19-20.
Ibid 20-21.
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They produce a regime which advances accountability through law in a way
which is compatible with any system of values, including socialist legality,40
which demands institutional constraints on arbitrary government. (By arbitrary
government I mean government which is not committed to principled action and
decision-making, and does not accept that any norms should operate as prior
constraints on its own action41 ). Whether rule of law standards are expressed in
terms of rules which structure and constrain power, or by reference to rights,42
they can productively complement democratic ideals.
Such standards, whether based on law or convention or a combination of the
two, should be reasonably clear, both to facilitate the exercise of individual
autonomy, which has been the classic liberal justification for the rule of law,43
and to structure government and make it accountable for its behaviour. The role
of law has been criticised on the ground that the form of accountability to which
it gives rise, judicial review, is either actively anti-democratic or is less
democratic than political accountability. For example, Allan Hutchinson and
Patrick Monahan44 have portrayed the rule of law, and judicial review processes
in particular, as necessarily undemocratic, undermining movement towards
participatory democracy by moving political questions into the forum of
specialist legal discourse. Alternatively, they advance the weaker claim that
while current western political structures allow for too little citizen participation,
judicial review of legislative or executive decisions is intrinsically less
democratic than other possible techniques of accountability. Yet legal and
political forms of accountability have different objects and operate according to
different kinds of standards. Political accountability, in the form of
parliamentary censure motions, defeat in elections or loss of Ministerial office,
may be exacted where the act or decision under scrutiny, while legally and
constitutionally correct, was politically unpopular. Conversely, legal
accountability in the form of judicial review or tortious liability may be imposed
in respect of actions which were, in political terms, entirely appropriate.
Another argument, relating specifically to legislation, is that room for judicial
review indicates a failure by Parliament to articulate values, placing an
unjustifiable legislative burden on the courts.45 Yet it is always open to a
democratic legislature to delegate standard-setting powers to a body like the
J Raz, supra n 37; L Lustgarten, "Socialism and the Rule of Law" (1988) 15 J Law and
Soc 25. For consideration of the significance of accountability in relation to the rule of
law, see J Jowell, supra n 38; J Jowell, "Administrative Law", in J L Jowell and
J P W B McAuslan (eds), Lord Denning: The Judge and the Law (1984) 209,
developing in the context of government and bureaucracy the idea of responsiveness
fostered by citizen participation (the "consumer perspective" explained in relation to law
by E Cabn, "Law in the Consumer Perspective" (1963) 112 U Pa L Rev I, 12-17) as a
public law value distinct from accountability.
41 For alternative formulations, see J Waldron, "The Rule of Law in Contemporary Liberal
Theory" (1989) 2 Ratio Juris 79.
42 On the "rule-book" and "rights" conceptions of the rule of law, see R Dworkin,
"Political Judges and the Rule of Law" in R Dworkin, A Matter of Principle (1985) 9,
11-14.
43 F A Hayek, The Road to Serfdom (1944) 54; Waldron, supra n 41.
44 A Hutchinson and P Monahan, supra n 41.
45 J B Thayer, "The Origin and Scope of the American Doctrine of Constitutional Law"
(1893) 7 Harv L Rev 129, especially 155-156. E V Rostow, in "The Democratic
Character of Judicial Review" (1952) 66 Harv L Rev 193, 208 argued that Thayer's view
was unsupported by empirical evidence.
40
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Democracy, The Rule ofLaw & Judicial Review
13
courts, and a democratic constitution such as that of the Australian
Commonwealth can expressly provide for judicial review. 46 A constitution can
place such limitations on the effect of review as may be thought democratically
appropriate. For example, s 24(1) of the Canadian Charter of Rights and
Freedoms, which forms Part I of the Constitution Act 1982, expressly
authorises judicial remedies for infringements of rights or freedoms guaranteed by
the Charter, a provision which has justified courts in striking down legislation,
while s 33 permits the Canadian Parliament or the legislature of a province to
override certain of the guaranteed rights by express declaration in an ACL This
has led Professor Peter Hogg to comment:47
... a judicial decision striking down a law or act for breach of the Charter does
not seriously disturb basic democratic principles, and Canadians need not
agonize over the issue of legitimacy in the way that the Americans have done.
It is, however, important that judicial review should operate in a principled
way in pursuance of proper purposes. These purposes are related to the political
values of the rule of law. Although some of the most distinguished advocates
(and opponents) of judicial review have assumed that its main aim should be to
protect rights, judicial review in practice has the potential to advance two other
objectives which are at least as important as rights in the context of public, as
distinct from private, law. These are structuring governmental action and
decision-making in the hope of improving its quality and rationality and limiting
the scope for arbitrariness, and ensuring that those who exercise public powers
respect the limits of those powers.48 Both these public interest justifications for
judicial review are independent of individual interests, although there may and
probably will be incidental benefits accruing to such interests from judicial
action in helping to structure and confine legislative and administrative power on
rule of law principles.
The means by which these objects are pursued in relation to legislative power
vary according to constitutional structures. Where there is a written
constitution, it normally sets limits on legislative powers. For example, the
Constitution of the Commonwealth of Australia lists (mainly in s 51) the
matters on which the Federal Parliament has legislative competence. This
imposes justiciable limitations on the vires of the Parliament, enabling the
courts to use rule of law reasoning to justify judicial review. Yet there is some
flexibility built into the limits, so that everywhere, and most obviously in
countries like the United Kingdom and New Zealand where the limits on
legislative activity by Parliament are principally non-legal, this aspect of the
rule of law depends on the attitudes of people who participate in politics,
administration and law. By contrast, the exercise of executive and administrative
See s 75(5) of the Constitution. The framers of the Constitution intended the High
Court to have a review role over legislation akin to that of the US Supreme Court:
B Galligan, Politics of the High Court (1987) 48-65.
47 P W Hogg. "The Charter of Rights and American Theories of Interpretation" (1987) 25
Osgoode Hall U 87. 89.
48 The rights-based approach is epitomised by H W R Wade. Administrative Law (6th ed
1988) and criticised by C Harlow and R Rawlings, Law and Administration (1984) Cbs
1 and 10. For the meaning of structuring see K Davis. Discretionary Justice: a
Preliminary Inquiry (1969) 97-99. 142-143 and D I Galligan, Discretionary Powers: A
Legal Study of Official Discretion (1986) Chs 2 and 3; on the courts' role in structuring.
D Feldman. "Iudicial Review: a Way of Controlling Government?" (1988) Public
Administration 21.
46
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power is always subject to some rules which are externally set and are
enforceable through tribunals or courts.
I am not suggesting that legal accountability is a distinctively democratic
ideal: 49 it may be a substitute for, rather than part of, democratic accountability,
as in the Prussian Rechtsstaat after 1848, which Marx criticised as creating an
illusion of democracy, "bourgeois democracy" based on constitutionalism,
instead of the real thing, representative political power (rather than legal remedies
for abuse of power) for the citizens.50 What is more, rules can help to structure
political and bureaucratic procedures without being enforceable through legal
processes. However, legal rules are one of the types of standards which can be
applied to government and administration, and if the rules are formulated with
proper attention to the objectives and difficulties of governors and bureaucrats
they can serve to improve the processes of government, as well as offering,
through judicial review, one forum for accountability. Legal standards cannot
substitute for political standards and accountabilities, because they serve different
ends, but if sensitively constructed and applied they can usefully complement
other means of constraining tendencies towards arbitrary government
In the remainder of this Section, it will be argued that certain legal limits on
government are inherent in the use of law by government, and are no less
democratic (in the sense of enshrining or advancing democratic values) than the
use of law by the executive as a tool to facilitate and advance government policy.
Indeed, excluding judicial review removes one of the few open and rational
processes for securing accountability according to publicly accessible standards.
Judicial review is a corrective factor to certain democratic shortcomings in
Westminster-model constitutions.
Modem governments of all political complexions depend on law in order to
give effect to their policies. Even governments trying to reduce the role of state
agencies need law. For example, since 1979 the Conservative government in the
United Kingdom, trying to 'roll back' the state and 'get government off people's
backs', has had to give a panoply of powers to central government to privatise
industries, reduce the scale of local government, and control local government
spending. Paradoxically, the attempt to produce a minimal stale has directly led
to an increasing concentration of power in central state agencies. In the same
way, earlier Labour governments relied on law to nationalise industries and
extend the powers and responsibilities of state agencies.
Government policies receive legitimacy through approval in democratic
political processes, and mainstream critics of the rule of law do not normally
suggest that the use of legislation and law enforcement agencies by democratic
governments to advance policies is undemocratic.51 Yet democratic use of law
implies certain legal limits on government.
49
50
51
J Razt supra n 37.
K Marx t The Revolutions of 1848 (1973) 200-204; B Fine t Democracy and the Rule of
Law (1984) 122-133.
Disapproval of some or all legislation of this son comes from four sources:
philosophical anarchists t who deprecate all state institutions; adherents to historical
theories of law of the sort advanced by SavignYt positing a volksgeist which must be
respected and is usually infringed by legislative change; economic liberals such as
Hayek t supra n 43 t who deny that the "spontaneous order" of the market can be
improved by legislation except such as is needed to maintain the market; and advocates
of popular democratic legislation such as G Walker, supra n 21. The last three groups
all support the rule of law (in one fonn or another).
1990]
Democracy, The Rule ofLaw & Judicial Review
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Law operates, at one and the same time, in a number of different ways within
western capitalist states.52 It constitutes and gives powers to state agencies, and
in that mode can be used by democratic governments and legislatures as a means
of advancing legitimate policy objectives. (It can equally be used by
undemocratic governments, or by democratically elected governments for
advancing illegitimate objectives.) But by the very process of granting powers
and creating agencies for certain purposes, the law places limits on the powers
which it grants. A governmental or bureaucratic decision to use law imposes its
own limits.
One kind of limit is inherent in law, and arises from the normative and
articulated nature of positive law. The use of law requires that power and
discretion will be formulated in normative terms which automatically set limits
to the powers conferred. These limits will include questions of vires and proper
or improper purposes which will facilitate judicial scrutiny, distinct from the
political scrutiny which is likely to form part of the legislative process. As
Professor Jowell has observed: 53
... the legalization of policy does not simply allow officials to 'congratulate
themselves - and await obedience'. 54 The process of making rules, as well as
the rules themselves, may generate scrutiny and appraisal that makes officials
subject to assessment on the basis of fidelity to whatever purpose is considered
apposite. Once the definition of purpose in the form of rules has been exposed,
they are more likely to be held to account than if they were working under a
cloak of discretion.
Another kind of limit is imposed by the ethos of law. This incorporates
certain procedural standards which are worthwhile values even in bureaucratic
settings, such as the principle of due process, which encompasses the doctrine of
natural justice.55 In an appeal to the Privy Council from Singapore, Lord
Diplock said: 56
In a Constitution founded on the Westminster model and particularly in that part
of it that purports to assure to all individual citizens the continued enjoyment of
fundamental liberties or rights, references to 'law' in such contexts as 'in
accordance with law', 'equality before the law', 'protection of the law' and the
like, in their Lordships' view, refer to a system of law which incorporates those
fundamental rules of natural justice that had formed part and parcel of the
common law of England that was in operation in Singapore at the
commencement of the Constitution.
Indian courts have taken the same line. 57 Thus the use of law by government
may allow judges to attach legal standards and accountability to the activities
which are empowered by the law in question.
52
53
54
55
56
57
The most penetrating analyses of the operation of law in society are generally by
socialist and Weberian theorists. See eg the discussion by S Picciotto, "The Theory of
the State, Cass Struggle and the Rule of Law" in Fine, Kinsey, Picciotto and Young
(eds), Capitalism and the Rule of Law: from Deviancy Theory to Marxism (1979) 164.
J Jowell, su.pra n 38, 9-10.
Quoting from P Selznick (with P Nonet and H M Vollmer), Law, Society and Industrial
Justice (1969) 29.
Ong Ah ChUlJn v Public Proseculor [1981] AC 648; Haw Tua Tau v Public Proseculor
[1982] AC 136.
Ong Ah Chuan y Public Proseculor [1981] AC 648, 670.
State of West Bengal v Anwar Ali Sarlcar AIR 1952 (SC) 75; Rangaswami y The
Industrial Tribu.nal AIR 1953 (Mad) 447; dicta in Maneka Gandhi v Union of India
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This means that the rule of law requirement that government be subject to law
has important implications for political and constitutional theory. It recognises,
but attaches special restrictions (including due observance of proper political
procedures) to, the creation and exercise of the special powers of state agencies.
In short, it requires acceptance of principles of legality, which form one of the
proper constraints on the potential for arbitrary government. Even in a
democracy, constitutionality is subverted if judges allow politicians or
bureaucrats to evade that constraint.
It might be thought to be sufficient if the same rules apply to government as
to citizens. State agencies would then enjoy civil liberties at common law, so
that, as the High Court of Australia held in Clough v Leahy,58 the Governor of
New South Wales would be entitled by letters patent to create a Royal
Commission of Inquiry into someone's guilt or innocence of a crime on the
basis that: 59
... every man is free to do any act that does not unlawfully interfere with the
liberty or reputation of his neighbour or interfere with the course of justice.
That is the general principle. The liberty of another can only be interfered with
according to law, but, subject to that limitation, every person is free to make
any inquiry he chooses; and that which is lawful to an individual can surely not
be denied to the Crown, when the advisers of the Crown think it desirable in the
public interest to get information on any topic.
Similarly, as Sir Robert Megarry held in Malone v Metropolitan Police
Commissioner,60 the police would be entitled to do anything not positively
forbidden by law except to the extent that it interfered with an individual liberty
recognised and protected by law. However, government was not created in the
image of citizens, but as a body which would necessarily tend to interfere with
citizens' individual interests in order to advance general public interests. The
common law traditionally took account of this by developing a presumption in
favour of citizens' freedom from interference by government or other citizens, a
presumption which formed the bedrock of civil liberties at common law. There
is no reason to extend the idea of prima facie freedom to the executive; indeed, it
would be inconsistent with the very object of civil liberties to do so.
In the past this has been recognised by our judges. In Entick v Carrington 61
Lord Camden CJ held that when the executive wanted to assert a power to
interfere with the property rights of a citizen it had to be able to point to some
distinct legal authority for doing so. The statutory authority in that case had
lapsed, and there was no common law authority, so the purported issue of a
warrant had been unlawful. Malone 62 was a more difficult case, in that the
58
59
60
61
62
[1978] 2 SCR 621, applied in Hayawadanrao Hoclcot v State of Maharashla AIR 1978
(65) SC 1548; Hussainara Khatoon v Home Secretary, State of Bihar, Patna [1979] 3
SCR 532. See P Sarojini Reddy. Judicial Review of Fundamental Rights (1976). Ch 6.
The courts in Malaysia have taken a different view: KuJasingam v Commissioner of
Lands, Federal Territory [1982] 1 MU 204; but their position has been convincingly
criticised: A J Harding. "Property rights under the Malaysian Constitution", in
F A Trindade and H P Lee (eds). The Constitution of Malaysia: FurtMr Perspectives
and Developments (1986) 59, 60-63.
(1904) 2 CLR 139.
Ibid 157. per Griffith CJ.
[1979] 1 Ch 344
(1765) 19 St Tr 1030.
[1979] 1 Ch 344.
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Democracy, The Rule ofLaw & Judicial Review
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plaintiff was not asserting well-settled property rights: the claim was either to
privacy, which Megarry V-C held was not recognised in English law, or to
confidentiality, which he decided could not apply to any telephone
communications because of the inherent risk of being overheard.63 But Megarry
V-C's core assertion, that the police were free to intercept people's telephone
communications because tapping was not forbidden,64 subverts civil liberties. In
the same way, the right asserted by the citizen being investigated in Clough v
Leahy6s was a right to be free of inquiries into guilt or innocence except by due
process of law, essentially derived from a statute of Edward III and one of Charles
1.66 Commissions to inquire solely into alleged criminal misconduct have been
held to be invalid on this ground in New Zealand67 and British Columbia. 68 If
they are to be upheld, it would be preferable to ground them in a specific
prerogative power granted to the Crown by common law or statute, as has been
done by some Australian judges since Clough v Leahy,69 rather than to rely on
general freedoms to inquire. State agencies are not ordinary people; they are
special legal constructs, and the rule of law requires that they should have no
liberties or powers except those which are given or recognised by law.
It might seem that this would lead either to an unnecessary proliferation of
highly detailed power-conferring statutes or to a huge number of claims against
well-intentioned public officers. However, the powers of local authorities have
always been held to be strictly limited to those conferred by statute. This does
not cause day-to-day problems because empowering statutes are customarily
drafted with reference to objects or programs, and they are interpreted as
conferring the powers which are reasonably incidental to those objects. Under
written constitutions, the powers of central government are interpreted in the
same way.70
Treating the executive as a citizen negates political, as well as legal,
protections for citizens. In particular, it undermines that aspect of the principle
of responsible government requiring the executive (save in cases of established
necessity) to obtain its powers from Parliament. It may also weaken the
executive's accountability to Parliament for the way in which the powers are
63
64
65
66
67
68
69
70
This is unsatisfactory: it resembles denying a right to exclusive possession of property
on the ground that one could be dispossessed, instead of developing rights to protect
legitimate expectations.
[1979] 1 Ch 344, 357, 366-367.
(1904) 2 CLR 139.
42 Edw ill, c 3; 16 Car I, c 10. See Victoria v Australian Building Construction
Employees' and Builders Labourers' Federation (1982) 152 CLR 25, 47-53 per Gibbs CJ.
Cock. v Attorney General (NZ) (1909) 28 NZLR 405; accepted but distinguished in
Fitzgerald v Commission of Inquiry into Marginal Lands Board [1980] 2 NZLR 368; Re
Royal Commission on Thomas Case [1982] 1 NZLR 252, 263-264; Thompson v
Commission of Inquiry into Administration of District Court at Wellington [1983] NZLR
98, 104 per Barker J. The Privy Council has left it to the New Zealand courts to work
out their own approach: Mahon v Air New Zealand Ltd [1984] AC 808, 839-840,
affirming Re Erebus Royal Commission; Air New Zealand Ltd v Mahon (No 2) [1981] 1
NZLR 618, 625, (majority judgment).
Re Gartshore (1919) 44 DLR 623, 630-631 per Hunter CJ.
(1904) 2 CLR 139; see McG",inMss v Attorney-General (Vic) (1940) 63 CLR 73, 93-94
per Dixon J; Lockwood v Commonwealth (1954) 90 CLR 177, 186 per Fullagar J.
Eg, on the incidental powers under Australia's Commonwealth Constitution, 5S 51(39)
and 61, Barton v Commonwealth (1974) 131 CLR 477; Victoria v Commonwealth and
Hayden (1975) 134 CLR 338; Davis v Commonwealth (1988) 82 ALR 633.
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exercised. If Megarry V-C in Malone?1 had decided that the right to
confidentiality had applied, and that in the absence of positive legal authority the
police had acted unlawfully in interfering with the right (as in Entick v
Carrington72 ), it would have forced the executive to subject itself to the will of
Parliament to regularise (and, incidentally, to regulate) their behaviour. Instead,
the government went to Parliament only reluctantly, years later, when forced to
do so following a defeat in the European Court of Human Rights.
3 DEMOCRATIC VALUES AND GOVERNMENTAL ACCOUNTABIITY
Government is usually less democratic than it likes to make itself appear.
This Section examines the extent to which the actions of governments in
Westrninster systems are structured according to democmtic standards and are held
accountable according to those standards through political and bureaucratic
procedures. Where those procedures fail to provide adequate protection for
democratic values, it will be argued that judicial review and the rule of law can
legitimately operate to restrain government, at any rate as long as the review is
conducted on principles of legality which are consistent with democratic
objectives.
We have already seen in Section 2 some of the ways in which forms of
accountability and democratic political processes could act to restrain elected
governments and make them responsive to democratic values and public opinion.
We noted the shortcomings of some of these constraints as tools to advance the
model of democracy called democratic autonomy, concluding that representative
government, however elected, is only weakly democratic; it is an example of
Schumpeter's "democmtic elitism".
But more surprising than the weakness of the processes for political
accountability of executive government is the relative lack of accountability
imposed on the bureaucratic arm of government. At present, political
accountability to Parliament is enforced through the doctrine - or myth - of
ministerial responsibility, which in reality operates more as a shield for public
servants than as a threat. The Ombudsman is able to pierce the veil which
Ministerial responsibility normally throws round individual public servants, but
Ombudsmen are more concerned with advancing administrative values than
protecting rights or enforcing the rule of law. In the United Kingdom, the entire
jurisdiction of the parliamentary and local government ombudsmen is based on
the idea of "maladministration". Even in Australia, where the Commonwealth
Ombudsman is empowered to examine questions of the legality of administrative
action, he may not take cases where the complainant has a legal remedy unless
satisfied that it is reasonable not to pursue that remedy. 73 Internal departmental
review is mainly designed to maintain bureaucratic standards and advance
departmental goals rather than to give effect to standards of administration which
might enjoy support outside the department.
71
72
73
[1979] 1 Ch 344.
(1965) 19 5t Tr 1030.
For Britain, see the Parliamentary Commissioner Act 1967, ss 5(1), (2) and 12(3);
Local Government Act 1974, ss 26(1), (6);
R" Commissioner for Local
Administration; Ex parte Croydon LBC [1989] 1 All ER 1033. For the Australian
Commonwealth, see Ombudsman Act 1976 (Cth), ss S, 6(3), IS.
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Democracy, The Rule ofLaw & Judicial Review
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Nevertheless, it is sometimes said that bureaucratic procedures may be more
efficient means than judicial review for achieving the professed objectives of the
rule of law.74 On this view, only internal review processes have the capacity to
structure the decision-making procedures in a rational way. Internally-generated
rules are seen as a bureaucratic incarnation of the ideals of the rule of law, and
informal procedures as a more accessible and effective means of controlling
bureaucracies than judicial review. However, the notion that removing external
review processes will make the bureaucracy operate better is counter-intuitive: it
would seem to be at least as likely that public servants will take more care over
decision-making and improve their procedures if they are aware of a need to
justify themselves to outsiders. What is more, as we shall see, the
administrative process is far from encapsulating democratic ideals.75
Most bureaucratic review processes tend to insulate administrators from
outside scrutiny. The standards applied, even in review processes such as
ombudsmen's investigations, are predominantly those which form what may be
called an administrative morality, not a public one. It leaves government open
to domination by a corporate management model of public administration which
uses efficiency as the principal standard rather than democratic values, respect for
law, quality of services, equity or procedural fairness.7 6 Corporate management
as a model for public administration is now pursued by central governments in
Australia, the United States and Britain, as it is well adapted for use in limiting
public expenditure.
Judicial review, by contrast, stands out as the main review process to apply
standards generated by rule of law principles, and has the added advantage of
being administered by independent officials (although the nature and scope of
judicial independence under a democratic constitution is a complex matter which
will be further adverted to in Section 4).
Although judicial review seems to exercise little real control over the
substance of decisions, bureaucrats and governments are very conscious of its
presence and somewhat defensive in the face of it. Its effective influence on
bureaucratic procedures varies according to the bureaucrat's awareness of its scope
and requirements. In Australia, public servants are acutely aware of the
availability of review on procedural grounds under the Administrative Decisions
(Judicial Review) Act 1977 and review of the merits of decisions by the
Administrative Appeals Tribunal. These have therefore had an effect on
bureaucrats' behaviour, at least to the extent of generating additional paperwork.
It has also been argued that it has led to less adventurous decision-making,77
although there is insufficient empirical material by which to evaluate such
claims. The more effective review is, the more likely it is to be seen by
J L Mashaw, BUTeaUL:ratic Justice: Managing Social Security Disability Claims (1983);
P Birkinshaw, Grievances, Remedies and the State (1985) Ch 1.
75 C Pollitt, "Democracy and Bureaucracy" in D Held and C Pollitt (eds), New Forms of
Democracy (1986) 158.
76 A Yeatman. "The Concept of Public Management and the Australian State in the 1980s"
(1987) 46 AJPA 339; P Bayne, "Administrative Law and the New Managerialism in
Public Administration" (1988) 62 AU 1040; P McAuslan, "Public Law and Public
Choice" (1988) 51 MLR 681; M Considine, "The Corporate Management Framework as
Administrative Science: a Critique" (1988) 47 AJPA 4. For a reply to the criticism, see
J Paterson, "A Managerialist Strikes Back" (1988) 47 AJPA 287.
77 R C Davey, "The new administrative law: a commentary on cost" (1983) 42 AJPA 261.
74
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bureaucrats as an interference with managerial values, even when based on
familiar, well-understood principles like ultra vires or natural justice. This is
evident in the United Kingdom,78 and in moves by the Australian federal
government towards restricting the powers of the Administrative Appeal
Tribunal and limiting the availability of material under the Freedom of
Information Act.79 Fortunately for Australia, its judicial review system has both
constitutional entrenchment and a sturdy supporter in the Administrative Review
Counci1. 8o Perhaps it is partly because the substantive grounds of judicial
review are outside the influence or control of administrators, so they can no
longer get away with conduct which would never have been challengeable before,
that government departments are so nervous about review. Other reasons for
preferring internal review processes or independent but non-judicial tribunals to
judicial review include speed and efficiency of disposition (though this advantage
can be equally claimed by judicial review in urgent cases81 ) and the flexibility of
non-adversarial procedures, all important values in administmtive morality.
For whatever reasons (and one cannot entirely acquit departments of wanting to
retain maximum discretion for reasons of bureaucratic imperialism), independent
review by reference to externally set standards is unpopular with the bureaucracy.
Where departments succeed in keeping control and restricting outside scrutiny, as
has been largely the case in the United Kingdom, external accountability of
bureaucrats is accordingly limited. When the bureaucracy comes to put the
policy choices of the government into operation, it is not generally accountable
to anyone other than itself and the government of the day. Although the Public
Accounts Committee and the Commons Select Committees are having some
(limited) success in introducing a degree of accountability, the primary form of
accountability for civil servants is managerial,82 according to criteria which are
laid down in advance by senior members of the administrative hierarchy.
A bureaucracy free from outside scrutiny and direct accountability to citizens
seems to be accepted where a similarly unconstrained Parliament or government
would not be. This may be because people believe that political policies are set
by government and ratified by Parliament, while bureaucrats are thought only to
implement (more or less mechanically) policies adopted by their political
masters. This is a convenient idea: it enables governments and bureaucrats
campaigning for a restriction of judicial review not simply to rely on arguments
of efficiency but to deploy high-sounding arguments about democracy, popular
mandates and so on. The weakness of executive claims to democratic mandates
78 See the Cabinet Office pamphlet The Judge over your Shoulder. noted by A W Bradley,
[1987] PL 485.
See P Bayne. "Administrative Law: the Problem of Policy" in R Wettenhall and
J R Nethercote (eds). Hawke's Second Government:
Australian Commonwealth
Administration 1984-1987 (1988) 143; Bayne. supra n 76.
80 The Administrative Decisions (Judicial Review) Amendment Bill 1987, aiming to limit
the scope of review under the Administrative Decisions (Judicial Review) Act 1977
(Cth). was disallowed in the Senate. The Administrative Review Council has gone onto
the attack. arguing for an extension of the scope of review: Report No 32: Review of
the Administrative Decisions (Judicial Review) Act: The Ambit of the Act (1989).
81 Sir John Donaldson. "The Corralling of the Decision-Makers" (1988) 22 UBC L Rev
107. 121.
82 See the works cited supra n 76. On the work of parliamentary scrutiny committees. see
D Pearce. "Legislative Quality Control by Scrutiny Committees - Does it Make
Administration Better?". in Collected Conference Papers from the Second Conference of
Australian Delegated Legislation Committees (26-28 April 1989) 109. 117.
79
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Democracy, The Rule ofLaw & Judicial Review
21
have been noted in Section 1, but the idea nevertheless lends some colour of
democratic legitimacy to bureaucracy, especially when allied with theories of
administration which suggest that only day-to-day operating rules are set by the
administrators themselves.
But such theories of administration have their limitations. To illustrate them,
take the model advanced by Professor Redford, who distinguished between the
macro political system, which sets objectives and assigns powers to executive
bodies, and micro systems, which are constituted to use those powers and
advance the objectives.83 Powers exercised by the micro systems never confer
unfettered discretion, he argued, because the macro system provides pointers to
the right answer, or the appropriate weighting of interests, in the event of
doubt. 84 This stylised account seems to oversimplify government in five
respects.
First, senior bureaucrats exercise considerable influence over policy formation,
although the more politicised an issue becomes, the less influence civil servants
have. 85
Secondly, policy decisions will sometimes necessarily be taken by
bureaucrats. As Professor Dennis Galligan has observed, "not all conflicts and
choices are settled at the macro level, so that adjustments between competing
interests must be made at the micro level. "86 Decisions made within the
bureaucracy will set values and objectives, some of which may be inconsistent
with those laid down by ministers, relevant legislation or the courts.
Thirdly, communications between government and the bureaucracy may break
down or suffer from the equivalent of radio interference. Generally, bureaucratic
rationality aims to achieve policy objectives as efficiently as possible.
However, the objectives may be ambiguous, or the bureaucracy may be receiving
conflicting signals from its political masters or may itself be generating
irrational policies. Examples are cuts in health spending, or a new streamlined
social security scheme. Is the objective to provide a comprehensive system of
benefits to those in need or to reduce cost? Will an officer who is thought to be
generous in allocating resources meet with approval or disapproval? The
bureaucracy may fail to construct an appropriate picture of its objectives, and
thus take a view of policy inconsistent with that set by the macro system.87
Fourthly, the methods for communicating policies to the junior officers who
actually administer schemes may fail. Senior officials often reduce policies into
rules printed and promulgated to junior officers, which then provide the main
source of directions on the implementation of the system. These rules are often
very detailed, and may have the effect of displacing the relevant legislation by
forestalling reference to it Indeed, junior officers rarely examine the legislation
on which schemes are based and which is intended to structure their activities.
Although the interpretation embodied in the rules will have been checked with
relevant ministers, it means that the departmental line rather than the
83
84
E S Redford, Democracy in the Administrative State (1969), Chs 4 and 5.
On various types of discretion, see D J Galligan, supra n 48, Ch 1.
J D Aberbach, R D Putnam and B A Rockman, Bureaucrats and Politicians in Western
Democracies (1981), especially Ch 1 and 244-250; M Dogan, in M Dogan (ed), The
Mandarins of Wester" Europe (1975) 19-20.
86 D J Galligan, supra n 48, 345-346.
87 For detailed discussion of how this happens, see Mashaw, supra n 74.
85
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parliamentary one will be the standard for criticism and approval in day-to-day
business.
Fifthly, there will be informal norms which arise from the experience and
mores of junior officials and depend on their perceptions of their roles. These
norms are especially likely to be out of tune with democratic values, and if the
two sets of rules conflict, the informal type may influence the behaviour of
subordinate officials more than the formal ones, forming a sort of folk-morality
among junior officials, supported by social pressure to conform.88
It follows that a good deal of bureaucratic activity cannot be justified by
reference to an elitist model of democracy. Nor is there much evidence of
consultative or participatory democracy having much impact on procedures.
Current trends in governmental attitudes, cost-cutting, legislation and public
servants' interests are combining to restrict the procedural rights of people
affected by public programmes. The government's answer to the problem of
representation for those involved in public programmes is to remove them from
the programmes (or to abolish the programmes themselves): there is a move
from giving those affected a 'voice' in the proceedings towards 'exit' from the
entire system of public provision and regulation. 89
The move from away from 'voice' tends to undermine the conditions needed to
make democratic political arrangements respected, as there is no substantial
reason for anyone (and particularly people who are unable to satisfy important
needs) to consent to and co-operate with political arrangements unless others
give them due opportunity to influence decisions affecting themselves.
Although costs attach to allowing claimants a voice in programmes, it is
misleading to assess them in terms of an administrative morality based on the
efficiency audit. Denying people a voice in political-administrative decisions
affecting them has a cost both to the individuals concerned9o and to the rest of
society in the damage which is done to democratic values, and particularly to the
rights which buttress democratic autonomy. Calculations of efficiency are illsuited to measure these social costs. The right to fair procedures, natural justice
or due process ought to be one of the most significant contributions made by
rule of law thinking to administrative theory, and it is as important to the
protection of social welfare rights as it is to individual proprietary rights.
If political-administrative arrangements were restructured to allow a larger
amount of communal participation, it would provide a check on arbitrary
government which would make judicial review less urgently needed. However, it
is unsafe to assume that reconstructing politics on a participatory model will
make bureaucratic secrecy impossible and cause arbitrary executive action to
wither in the new attitudes and the glare of public scrutiny which should be
engendered. Nor would it necessarily produce a system which respects citizens'
See L W Shennan, Scandal and Reform (1978) 3-15 for valuable discussion of deviance
within organisations which is hannful to organisation goals; Mashaw, supra n 74, 68.
For studies of the effect in police forces, see D J Smith and J Gray, Police and People
in London (1983), Vol 4; R Reiner, The Politics of the Police (1985) 87.
89 B B Schaffer and G B Lamb, "Exit, Voice and Access" (1974) 13(6) Social Science
Information 73; P McAuslan, "Administrative Justice: a Necessary Report?" [1988] PL
402.
90 Be Smith, "Access to Administrative Agencies: a Problem of Administrative Law or
Social Structure?" (1986) 52 Int Rev Admin Sciences 17 offers an illuminating analysis
of the administrative morality and its impact on claimants.
88
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Democracy, The Rule ofLaw & Judicial Review
23
democratic autonomy. Proposals that participatory democracy could replace,
rather than complement, the rule of law and judicial review fail to take account
of the commonly-felt need to protect certain individual interests, including
individual freedom of choice and action, concern for one's fellow citizens, and
equality of access to the political decision-making process. I argued in
Section 1 that recognising these interests, and protecting them against
interference even from a legislative process which is fully democratic (in terms
of public participation) is not anti-democratic but is an essential grounding for
the democratic legitimacy of any political system; while in this Section I have
suggested that relying entirely on public political institutions and bureaucratic
processes to protect democratic values ignores the power of bureaucracies to
subvert or re-align policy objectives set for them by legislatures or governments.
4 JUDICIAL REVIEW: ITS VIRTUES AND ITS VICES
To summarise the argument so far, bureaucratic accountability may be rational
but is rarely open, while political accountability is open but too often irrational;
neither takes sufficient account of the need to guarantee the democratic rights of
individuals in political-administrative processes. Judicial review on rule of law
principles offers the potential for an open and rational process for structuring the
power of other public agencies and securing accountability through to publicly
accessible standards and procedures.
On this view, judicial review of government and the public service bureaucracy
is not anti-democratic. It is justified by democratic principles where it serves to
secure respect for rights and structure the exercise of public power on democratic
lines. In the same way, judicial review of legislation may be justifiable if it is
conducted in accordance with principles of democratic autonomy, bolstering
representative structures incorporating and protecting higher order democratic
rights. 91 By using judicial review to develop participation rights in public
processes, through natural justice and the developing doctrine of legitimate
expectation, and insisting that public agencies of all sorts justify their actions,
we may limit the dysfunctional and anti-democratic effects of the combination of
cost-cutting, corporate management strategies and tendencies to arbitrary use of
power in government and public administration.
It follows that judicial review is not intrinsically undemocratic. It is when
inappropriate values are adopted, or principle is eschewed, that review, rights and
the rule of law are all brought into disrepute. However, the failure of the rule of
law in such circumstances is contingent only, and can be rectified if the
judiciary, executive and bureaucracy adjust their attitudes to bring them into line
with the institutional morality represented by the rule of law.
This invites consideration of various criteria of democracy to see how far the
contingent characteristics of judicial review do or might match up with them.
Rather than attempting to provide an exhaustive list of democratic criteria, this
section will address a number of factors in respect of which it has been suggested
that judicial review is (contingently) undemocratic. There are criticisms of the
judges, who are said to be unrepresentative and unaccountable; criticisms of
judicial processes, which are said to be inaccessible to the mass of people and
91
Cf J H Ely, Democracy and Distrust: A Theory of Judicial Review (1980), Ch 4;
D J Galligan, "Judicial Review and Democratic Principles: Two Theories" (1983) 57
AU 69.
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incapable of providing systematic support to democratic values including rights;
and criticisms of the principles of review, which are said to be inherently antidemocratic.
A
Are Grounds ofJudicial Review Undemocratic?
If one looks only at judicial review of administrative action, it would be hard
to argue that the grounds of review are undemocratic. The grounds can be
conveniently divided into illegality, irrationality and procedural impropriety,
although this is not an exhaustive catalogue.92 Review for illegality is easily
justifiable on rule of law principles, which, it has been submitted, are not
undemocratic. Review for irrationality is more troublesome, as it seems to
invite the courts to look at the political merits of decisions rather than the
legality; it is not a sufficient defence of review for unreasonableness to label it
as a form of extended ultra vires and justify it by reference to the implied
intention of Parliament. It is easier to justify it by separating reason-based
unreasonableness (improper considerations and improper purposes, for example)
from the "strong" form of Wednesbury unreasonableness. 93 In reviewing for the
fonner, courts are applying standards of administrative rationality, and there is no
reason for exempting administrators from review on such standards. "Strong"
unreasonableness is, in democratic terms, a more dangerous ground of review,
and courts should resort to it only in the clearest cases of abuse of power. On
the whole, this seems well recognised by the appellate courts of England and
Australia, which are reluctant to review on this ground. 94 Finally, review for
procedural impropriety is amply justified either as the application of standards of
good administration or as offering protection to the participation interests
inherent in the idea of democratic autonomy. The ground for democratic
criticism in relation to review for natural justice, particularly in England, is that
it protects too few interests rather than that it is over-extensive.
What of judicial review of legislation? Where there is a democratically
approved constitutional text which requires review, the justification for that
review should be relatively simple. Even where the constitution does not
expressly authorise review, it may be justifiable if it can be shown to be an
essential to the maintenance of basic constitutional principles such as federalism
or even responsible government, as in the case of the Australia's Commonwealth
Constitution. Some people have suggested that judicial review of legislation
can be democratically justifiable only when it takes the form of interpretation of
an authoritative and democratically accepted constitutional text. 95 Yet
interpretivism on its own is only a weak guarantee of democratic values in
judicial review; there will be cases where interpretation to be democratically
justifIable will require reference to background principles of democracy, including
the idea of higher order rights. The challenge is to construct a mode of judging
which will not be arbitrary when judges depart from strict interpretivism. This
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410411 pe r Lord Diplock, who recognised that there might also be a developing ground of
proportionality (although cf R v Home Secretary; Ex parte Brind [1989] NU Rep 1229
per Watkins U).
93 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
94 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41-42; R v
Secretary of State for Trade and Industry; Ex parte Lonrho pic [1989] 1 WLR 525.
9S P W Hogg, supra n 47, Ch 6.
92
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is particularly important if judicial review is to be justified in systems without
written constitutions.
This is not as absurd as it sounds. Even in the United Kingdom, one should
not exaggerate the extent of Parliament's power or underestimate the judges'
importance. Scottish courts have left open the possibility of treating
parliamentary sovereignty as dependent on and limited by the Treaty of Union
1707 as the constitutive instrument of the British Parliament.96 Northern Ireland
enjoyed a quasi-federal status of Northern Ireland in its relations with the
Westminster Parliament before 1969.97 Sovereignty has been subordinated to the
supra-national legal order of the European community. In any case,
parliamentary legislation is, as Allan has pointed out, always subject to the
interpretative powers of the COUrts. 98 That power is used increasingly robustly
to give effect to European Community obligations regardless of the words used
by the draftsman of secondary legislation or the apparent intention of the relevant
department. Even when approaching primary legislation, literalism in
interpretation is less powerful than it once was, particularly where it would
produce a result out of line with the judges' view of the proper policy direction.99
Judges are also coming to presume that legislation is not intended to derogate
from or conflict with the United Kingdom's obligations under the European
Convention on Human Rights. It also seems to be accepted that the courts can
and should ensure that common law developments are not inconsistent with the
demands of the Convention and the jurisprudence of the European Court of
Human Rights.t oo In the final judgments in Attorney General v Guardian
Newspapers (No 2),101 the courts considered and rejected the government's
assertion that serialisation in England and Wales of Spycatcher (Mr Peter
Wright's memoirs of his life as an MI6 officer) would cause more damage to the
security services than had already been inflicted by the book's publication and
serialisation elsewhere in the world. They also held, adopting the standards of
the European Convention on Human Rights and Australian decisions, that the
government could not use the civil law of confidence on the same terms as a
private individual seeking to protect trade secrets or the confidences of the
96
97
98
99
100
101
MacCormick v Lord Advocate 1953 SC 396; Stewart v Henry 1989 SLT (Sh Ct) 34;
Fraser v McCorquodale 1989 SLT (Sh Ct) 39. Cf Lord Keith in Gibson v Lord Advocate
1975 SLT 134, 137-8, criticised by the late Prof TB Smith in The Stair Memorial
Encyclopaedia, Vol 5, tit Constitutional Law, para 350.
H Calvert, Constitutional Law in Northern Ireland: a Study in Regional Government
(1968), Chs 1, 4, 5, 6; C McCrudden, "Northern Ireland and the British Constitution" in
Jowell and Oliver (eds), The Changing Constitution (2nd ed 1989) 297.
T R S Allan, "Legislative Supremacy and the Rule of Law:
Democracy and
Constitutionalism" [1985] 44 CU 111, 117-125.
On secondary legislation, see Pickstone v Freemans pic [1989] AC 66; Litster v Forth
Dry Dock and Engineering Co Ltd (in receivership) [1989] 2 WLR 634, 640-641 per
Lord Templeman, 657 per Lord Oliver. In both cases there was a European Community
law influence. On primary legislation, see R v Cenlral Criminal Court; Ex parte Francis
&: Francis [1988] 3 WLR 989; Litster, ibid 641 per Lord Oliver. The likelihood of an
English statute being partially invalidated by judicial decision has been increased by
Factortame Ltd v Secretary of State for Transport [1989] 2 WLR 997, where the House of
Lords treated the validity of a statute which potentially conflicted with Community law
as a matter to be decided in accordance with Community rather than English law.
Attorney General v Guardian Newspapers Ltd (No 2) [1988] 3 WLR 776; cfIn re M and
H (Minors) (Local Authority: Parental Rights) [1988] 3 WLR 485.
[1988] 3 WLR 776 per Scott I, CA and HL
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marriage bed. Private citizens need only show that the information was
communicated in circumstances which import an obligation of confidentiality.
Governments have to go further, proving that some public interest was
threatened by disclosure and that it was a weightier interest than that in public
scrutiny of government. 102
At the same time, judges are understandably sensitive to accusations that they
are interfering with the democmtic process, and this has an effect both on judicial
attitudes to questions of constitutionality and on the scope of judicial review of
the executive. Judges tend to defer to what they see as expertise on the part of
government. This deference sometimes makes it hard to maintain judicial
independence of government. For example, at the trial of Clive Ponting, charged
with supplying material to an Opposition MP concerning the sinking of the
General Belgrano during the Falkland Islands campaign, in breach of s 2 of the
Official Secrets Act 1911, McCullough J told the jury that the interests of the
State were identical with the interests of the government for the time being and,
by implication, with the party and people in government for the time being.1 03
Such subservience has led some people to doubt the capacity of the common law
either to uphold individual liberties or to advance democratic principles.1 04
Taken too far, this can undermine the conditions for upholding the rule of law
(including public confidence in the independence of the judiciary and the
executive's respect for the judges) and democratic institutions (including higher
order democratic rights). But this deference is often exaggerated, and can be
limited. The gradual restriction of public interest (or Crown or executive)
privilege from discovery shows this. 10S
However, the potential of the existing arrangements for securing constitutionalism on the model of democratic autonomy is as yet largely untried. The
signs are that judicial commitment to democratic rights, which, it was suggested
above, are inseparable from democracy, is questionable. Judicial review in
Westminster-model constitutions which lack bills of rights does not display a
particularly strong commitment to rights. 106
Sankey v Whitlam (1978) 142 CLR 1; Commonwealth v John Fairfax &: Sons Ltd
(1980) 147 CLR 39; Lord Advocate v The Scotsman Publications Ltd 1988 SLT 490
(Court of Session, Scotland), affinned on appeal [1989] 3 WLR 358, (HL).
103 R v Ponting [1985] Crim LR 318; R Thomas, "The British Official Secrets Acts 19111939 and the Ponting Case" [1986] Crim LR 491; C Ponting, "R v Ponting" (1987) 14
J Law & Soc 366. McCullough r s direction was based on the decision of the House of
Lords in Chandler v DPP [1964] AC 763; but cf the view of Lord Devlin, 810: "the
courts will not review the proper exercise of discretionary power, but they will intervene
to correct excess or abuse."
104 JAG Griffith, The Politics of the Judiciary (3rd ed 1985) 222-235; Attorney-General
v Guardian Newspapers Ltd [1987] 3 All ER 316, 346 per Lord Bridge.
105 Burmah Oil Co v Bank of England [1979] 1 WLR 473 and Air Canada v Secretary of
State for Trade [1983] 2 AC 394; Glasgow Corp v Central Land Board 1956 SC (HL) 1;
Grant v Headland (1977) 17 ACTR 29, Sanuy v Whitlam (1978) 142 CLR I, Alister v
R (1984) 154 CLR 404, A v Hayden (No 2) (1984) 56 ALR 82 and Church of
Scientology v Woodward (1984) 154 CLR 25; Environmental Defence Society Inc v
South Pacific Aluminium Ltd (No 2) [1981] 1 NZLR 153 and Fletcher Timber Ltd v A-G
[1984] 1 NZLR 290; Sparling v Smallwood (1982) 141 DLR (3d) 395 and Carey v The
Queen in Right of Ontario (1986) 3S DLR (4th) 161; United States v Nixon (1974) 418
US 683.
106 I argue this point in relation to the House of Lords in "Public Law Values in the House
of Lords", (1990) 106 LQR 246. See further Attorney General v Times Newspapers Ltd
[1974] AC 273; Sunday Times v United Kingdom (1979) 2 EHRR 245; Moss v
102
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Democracy, The Rule ofLaw & Judicial Review
27
Such doubts argue for better trained judges with wider experience of human
rights law, aided perhaps by the adoption of a written constitution incorporating
a bill of rights in those countries which do not at present have them. A written
constitutional text incorporating a Bill of Rights could be a powerful stimulus
to judicial creativity and also help to ensure that judges develop the law in
democratically justifiable directions. For example, in Canada, the Charter of
Rights and Freedoms has produced a remarkable blossoming of democraticallyinfluenced rights-based jurisprudence, with the direction being set early by a
landmark decision of the Supreme Court of Canada. 10?
Even in countries with Westminster-style constitutions and no bill of rights,
judges can assert a review power which may even have the effect of placing
limits on the doctrine of parliamentary legislative supremacy. For instance, Sir
Robin Cooke of the New Zealand Court of Appeal has suggested that "some
common law rights may go so deep that even Parliament cannot be accepted by
the courts to have destroyed them."108 These might include the right to resort to
the courts to have their rights determined109 (a suggestion in tune with rule of
law principles and the 1960s attitude of the House of Lords to preclusive
clauses 110) and the right to be free of torture) 11 The idea has been seriously
argued, though not yet adopted, in Australia. 112
The difficulty with Sir Robin's approach is that a common law Bill of Rights
(which is what his suggestion amounts to) is capable of degenerating into a
motley collection of whatever rights seem good to particular judges. To justify
this form of review in terms of democratic autonomy, one would need to ensure
that the specially protected supra-constitutional rights were the sorts of rights
necessary for the maintenance of a democratic society; in other words, what we
have called higher order democratic rights. It would be feasible for judges to
articulate a theory which would serve to identify such rights, but it is far more
likely to be successful if done through statutory provisions or by reliance on
international human rights conventions which, once settled, remove the need for
100
1~
1<JJ
110
111
112
McLachlan [1985] IRLR 76; R v Secretary of State for the HOm/! Department; Ex parte
Northumbria Police Authority [1988] 1 All ER 556.
Rlmter v Southam Inc (1984) 11 DLR (4th) 641. See also R v Big M Drug Mart Ltd
(1985) 18 DLR (4th) 321; R v Oaus (1986) 26 DLR (4th) 200; S R Peck. "An
Analytical Framework for the Application of the Canadian Charter of Rights and
Freedoms" (1987) 25 Osgoode Hall U 1.
Fraser v State Services Commission [1984] 1 NZLR 116. 121 per Cooke J. See
J Caldwell, "Judicial Sovereignty - a New View" [1984] NZU 357.
New Zealand Drivers' Association v New Zealand Road Carriers [1982] 1 NZLR 374. 390
per Cooke J.
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.
Taylor v New Zealand Poultry Board [1984] 1 NZLR 394. 398 per Cooke J.
See the discussions in Building Construction Employees and Builders' Labourers
Federation v Minister for Industrial Relations [1986] 7 NSWLR 372. 385-387 per
Street CI, 402-406 per Kirby P, 409 per Mahoney JA. The High Court of Australia
has left the question open for future argument. at least so far as it turns on rights which
are fundamental to democracy rather than merely being a checklist of particular judges'
favoured interests: Union Steamship Co of Australia Ply Ltd v King (1988) 82 ALR 43,
48.
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judges (and others) to achieve consensus on the underlying legitimating
factors__ 113
B
Would one need a special sort ofJudiciary to Conduct Legitimate Review?
The suggestion made above that judges need help to develop a sensitivity to
human rights in order to conduct rights-based is expertise-related. Would judges,
however experienced, be inappropriate if not democratically chosen and
accountable? Is it undemocratic to allow review by an unrepresentative or
unelected judiciary of elected legislatures and executives?
It is too easily assumed that the representativeness of any institution wielding
public power is a litmus test for its democratic status; to assume this is to
misunderstand democratic status. It will be recalled from Section 1 that
representativeness even at its best is a limited form of democracy. It is
legitimate only so far as it is likely that the representatives will tend to advance
democratic values, including, most significantly, citizens' political and moral
autonomy. Representativeness is not, therefore, a democratic value independent
of the values which the representatives are committed to pursuing. It is a
dependent value. Unrepresentative judges are less democratic than representative
politicians only if the politicians do, and the judges do not, pursue democratic
values and objectives. In terms of democracy, the proper question is not "Are
judges representative?" but "Are the standards which they apply democratically
valuable?" (To say this is not to deny that there may be good prudential reasons
for making the judiciary as representative as possible. A judiciary which reflects
the make-up of society as a whole might serve to bolster the regard for law and
the state among some minority groups, even if the principles on which it decides
cases is utterly out of tune with any democratic standards. However, this is not
a democratic argument for a representative judiciary.)
Nevertheless, judges are public officers wielding public power, and there are
good democratic grounds for insisting that they should be accountable to the
public for the way in which that power is exercised. This is not the place to go
into the mechanics of accountability, but it should be remembered that it is
neither unheard of nor absurd to require judges to submit themselves to periodic
election or to set up judicial conduct reviews. Any country with a career
judiciary must have such system, and states which treat the job of judging as
seriously as it deserves will develop modes of accountability which leave intact
the important element of judicial independence of control by executive
government
Are the Practical Realities ofReview Undemocratic?
The article up to this point has argued that judicial review has democratic
value because of its capacity to advance democratic principles. This claim raises
three further issues. First, are review processes fair? Secondly, are they effective
to structure the actions of public agencies? Thirdly, does review actually
enhance democracy?
C
113 On the possibilities of using international law to fashion rights as a basis for judicial
review, see P Bayne, "Administrative Law, Human Rights and International
Humanitarian Law" (1990) 64 AU 203.
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Democracy. The Rule ofLaw & Judicial Review
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(1) Accessibility
How accessible is judicial review? One needs a lot of money or legal aid in
order to bring judicial review proceedings. Even if proceedings get off the
ground, the odds seem stacked in favour of the department, particularly where
there is no freedom of information legislation to help the applicant to prepare his
case. The department is a repeat player, with all the advantages which that
entails. Standing and justiciability tests put extra hurdles in the applicant's path.
All these tend to tilt the balance against applicants, and give the process an
appearance of unfairness and exclusiveness. It is strange to think of such a
process advancing the ideals of citizen participation in decision-making.
Nevertheless, the criticism can have either of two implications. One is that
review should be made more widely available. More decisions should be
reviewable; more legal aid should be available; fewer procedural difficulties
should be put in the way of applicants, enabling the court more easily to reach
the merits. This is, on the whole, the approach adopted by the Administrative
Review Council in Australia and a recent review of administrative law in the
United Kingdom 114. It would lead to more judicial review, not less. The other
implication which could be drawn is that in judicial review procedures the odds
are stacked too heavily in favour of the executive, and we should concentrate on
purely administrative or political forms of review. Some of my reservations
about this will have become clear in Section 3; I would only add this contingent
weakness of judicial review could be alleviated by procedural changes. In
particular, if legal aid is made more generally available to allow representation
by a specialist professional many of the repeat player advantages for the
department in any fonn of review can be reduced significant!y.
(2) Effectiveness
Does judicial review structure decision-making? Many people argue that case
by case review is too haphazard, and the principles of review too uncertain, to
give much guidance to legislators, governors and bureaucrats. us This, however,
depends on the degree to which those groups are prepared to take judicial review
seriously, intemalising its values to the extent to which they are compatible
with democratic government and developing institutional methods of turning
judicial decisions into administrative or legislative rules. Judges are constantly
striving to develop principles of general application or to explain the limits of
the applicability of the principles which they use: that is part of the essence of
the judicial role. They are also concerned (more so in the United Kingdom and
Canada, perhaps, than in Australia) to use remedies flexibly so as to give
guidance without bringing public administration to a grinding halt. This is an
114 Administrative Review Council, Report No 30: Access to Administrative Review:
Provision of Legal and Financial Assistance in Administrative Law Matters (1989) and
Report No 32: Review of the Administrative Decisions (Judicial Review) Act: The
Ambit of the Act (1989); Committee of the Justice-All Souls Review of Administrative
Law in the United Kingdom, Administrative Justice: Some Necessary Reforms (1988).
lIS P Weiler, In the Last Resort: A Critical Study of the SuprefM Court of Canada (1974);
Sir M Kerry, "Administrative Law and Judicial Review - the Practical Effects of
Developments Over the Last 25 Years on Administration in Central Government" (1986)
64 Public Administration 163; H F Rawlings, "Judicial Review and the 'Control of
Government'" (1986) 64 Public Administration 135.
Federal Law Review
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[VOLUME 19
eminently reasonable approach, and deserves more credit than is customarily
given to it by the other arms of government. 116
(3) Is judicial review aforcefor democracy?
Relatively few cases are litigated; most litigants are either big businesses
seeking to advance their own interests rather than the public interest or people in
receipt of publicly funded legal aid. This distorts the kinds of issues which get
litigated, so that review only ever affects relatively few areas of government 117
Is the actual (though not inevitably necessary) effect of this to give special
protection to the interests of capital in ways which discriminate against the poor
and weak, and to militate against remedial governmental action?118 While there
is something in this, it can be exaggerated. Both in Australia and England,
immigration and housing matters form a major part of the workload in judicial
review. 119 Even where applications for review do not succeed, it need not mean
that they do not fulfil a function: Tony Prosser has shown how judicial review
can be used as part of a wider political strategy to achieve ends through a mixture
of publicity, political and legal action. 120 What is more, propertied and business
interests do not get it all their own way on judicial review applications,
particularly in England, as those challenging regulatory agencies are finding to
their cost121
5 CONCLUSION
The conclusions to be drawn from all this are modest. Judicial review has a
place in democratic constitutions, alongside political and bureaucratic processes,
in advancing the values on which democratic society is based. So long as it
pursues those values, judicial review is not undemocratic. Some important
aspects of its job could probably not be done as well by any other means. What
we need is to make sure that its practitioners stay within their brief, and
understand what their role is. One way of securing that is to have a written
constitution, preferably incorporating a justiciable bill of rights giving special
protection to the higher order democratic rights discussed in Section 1. If that
cannot be arranged, the judges must make the best of it, seeking the rationale for
their position in their own democratic theory. In so doing, they are not acting
undemocratically, but are seeking to develop democracy without a lot of help
from the democrats.
R v Secretary of State for Social Services; Ex parte Association of
Metropolitan Authorities [1986] 1 WLR 1; R v Panel on Tauovers and Mergers; Ex
parte Datafin pic [1987] QB 815; R v Panel on Tauovers and Mergers; Ex parte
Guinness pic [1989] 2 WLR 863; D Feldman, supra n 48. For Canada: Reference re
lAnguage Rights UNUr the Manitoba Act, 1870 (1985) 19 DLR (4th) 1, further order
(1985) 26 DLR (4th) 767; P W Hogg, "Necessity in Manitoba: the Role of Courts in
Fonnative or Crisis Periods" in S Shetreet (ed), The Role of Courts in Society (1988) 7.
C Harlow and R Rawlings, supra n 48, Ch 9; M Sunkin, "What is Happening to
Applications for Judicial Review?" (1987) 50 MLR 432.
E Z Friedenberg, "The Side Effects of the Legal Process" in R Paul Wolff (ed), The Rule
of Law (1971) 37.
M Sunkin, supra n 117.
T Prosser, "Politics and Judicial Review: the Atkinson Case and its Aftennath" [1979]
PL 59-83; T Prosser, Test Cases for the Poor (1983).
Eg R v Panel on Tauovers and Mergers; Ex parte Guinness pic [1989] 2 WLR 863; R
v Secretary of State for Tratk and Industry; Ex parte Lonrho pic [1989] 1 WLR 525.
116 For England:
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118
119
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121