1990] Democracy, The Rule ofLaw Judicial Review 1 D

1990] Democracy, The Rule ofLaw & Judicial Review 1

D'EMOCRACY, THE RULE OF LAW AND JUDICIAL REVIEW

DAVID FElDMAN"

Justifying judicial review of legislatures and executives in western democracieshas become a controversial business. Those aspects of rule of law theory whichappear to justify judicial review are attacked as undemocratic, in that they tend toreplace the will of the people with the will of the judiciary. Where review isbased on a set of constitutionally entrenched rights, those rights themselves areregarded as undemocratic; even supporters of rights-based judicial review havetended to concede that the rights, however desirable in some ways, arerestrictions on democratic processes, rather than essential parts of democraticconstitutional institutions. This seems unnecessarily defeatist. This articleseeks to defend judicial review of executive action and of parliamentarylegislation, on the basis of a conception of democracy which embodies certainrights rather than being in a state of tension with them.

The argument will take the following shape. A sketch of some relevantdemocratic considerations in Section 1 will conclude with a description of themodel of democracy which will form the basis for the remainder of the argumentSection 2 will argue that the function of law in providing powers forgovernments to use entails legal enforcement of the limits of those powers. Thelimits and their enforcement, it will be suggested, are no more undemocratic thanthe powers themselves. Section 3 will offer a critique of the claims ofgovernment and Parliament to superior democratic status. While it will besuggested that judicial review is not intrinsically undemocratic, Section 4 willbriefly consider certain non-inherent defects.

1 MODELS OF DEMOCRACY

Whether the rule of law is undemocratic will depend on one's model ofdemocracy, as well as one's view of the proper purposes of judicial review. ThisSection examines models of democracy in their relationship to public politicalinstitutions; Section 2 elaborates the values and purposes of judicial review.Two preliminary observations about the concept of democracy will have animportant bearing on the argument of the whole article.

First, although one needs an ideal form model of democracy against which toevaluate practical institutions, being democratic is a relative rather than anabsolute standard. An institution may derive its objectives and values from amodel of democracy, yet fall short, to a greater or lesser extent, of the ideal inpractice. Such an institution is not ideally democratic (in practice, no institutionCall 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 aproduct of my stay as a Visiting Fellow in the Faculty of Law, Australian NationalUniversity in 1989. I am indebted to Mr Peter Bailey, Mr Peter Bayne, Professor TonyBradley, Mr Peter Drahos, Professor Don Greig, Dr Hugh Rawlings, Ms ChristineWillmore 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 NationalUniversity, the University of Canterbury, New Zealand and the University of New SouthWales at which I presented some of the ideas developed here.

2 Federal Law Review [VOLUME 19

may be more or less democratic, depending both on how far the institutions arestructured in accordance with democratic principles and on the extent to whichpeople in fact intemalise democratic values and succeed in advancing themthrough the institution. This has been recognised by the High Court ofAustralia in holding that the ideal of representative democracy embodied in thefirst paragraph of s 24 of the Commonwealth Constitution does not requireequal numbers of electors in each constituency on the "one person, one vote, onevalue" principle.l As Stephen J put ic2

representative democracy is descriptive of a whole spectrum of politicalinstitutions ... The spectrum has fmite limits and in a particular instance theremay be absent some quality which is regarded as so essential to representativedemocracy as to place that instance outside those limits altogether; but at noone point within the range of the spectrum does there exist any singlerequirement so essential as to be determinative of the existence of representativedemocracy.... This Court is not concerned to pass upon the relative merits ofany particular democratic electoral system otherwise conforming toconstitutional requirements.

This relativity suggests a distinction between two senses in which aninstitution like judicial review might be undemocratic: it might be eitherintrinsically or contingently undemocratic. For the purpose of this paper, wewill refer to a system as intrinsically undemocratic if it gives rise to anallocation of power which is necessarily inconsistent with democratic principlesand so falls outside the spectrum as described by Stephen I. The appropriateresponse to this situation is to abolish the institution and replace it with one ofa different type. An institution will be called contingently undemocratic if apower, allocated in a way which is unobjectionable on democratic principles, isexercised by the power-holder in ways which produce undemocratic results. Thisshould stimulate attempts to improve the institution rather than to abolish it.As a general rule, judicial review will be intrinsically undemocratic only if thevery existence of a review power is repugnant to democracy, although we shouldnote the possibility that contingent shortcomings might build up to a pointwhere they can only be relieved if the whole structure is demolished and rebuiltfrom scratch. At that point (and not before) the distinction between intrinsicallyand contingently undemocratic institutions loses its significance. However, toavoid a charge of defeatism or worse, the person who suggests that that point hasbeen reached must show that all practicable attempts at improvement are boundto fail or have been tried unsuccessfully.

Secondly, the model of democracy which one adopts will depend crucially onone's view of the relationship between individuals and society, and the resolutionof the tension between the public and private aspects of life. While it would beoutside the scope of this paper to advance arguments for this, mine is a liberalview of the problem, in which society exists for individuals rather than the otherway round. The reason for desiring public political institutions to be organiseddemocratically is that democracy allows individuals a say in the terms andconditions on which social rules which bind them are developed. Intrinsicallyundemocratic social organisations may make the trains run on time but are badbecause t regardless of the benefits which they produce, they deny the autonomyof individual citizens by denying them a voice in the determination of policies,

1 A-G (Cth) Ex rei McKinlay v Commonwealth (1975) 135 CLR 1; Murphy J dissenting.2 Ibid 57.


rules and procedures. It is inherent in this conception of democratic value thatcertain individual interests provide the foundation for the legitimacy ofdemocracy itself. While there may be a tension between the will of a particularindividual and that of the majority, there is equally a tension betweenmajoritarianism 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 (lowerorder) rights granted to citizens by way of the democratic political process in theform of legislation. Some lower order rights, including property and privacyrights and business freedoms, mark off the socially-approved scope of personalautonomy, within which one's freedom of choice and action is for the time beingnot subject to restraint on public interest grounds. Other lower order rightsimprove people's ability to make good use of their autonomy, thus increasing itsvalue to them. Examples include rights to receive a particular type or level ofbenefit from the state. Because all these rights depend on social approvalthrough democratic processes, they are contingent on the political decisions ofothers. They derive their legitimacy from their authorisation through democraticinstitutions. Secondly, there are (higher order) democratic rights. These shouldbe respected and protected by a system which claims to be democratic; failure inthis will represent a lapse from the democratic ideal. These rights are notlegitimated by the democratic process; the process secures its democratic statusin part at least by institutionalising respect for these rights.

These higher order rights secure each citizen's access to the machinery ofpolitical decision-making. Principal among them is a right to equality oftreatment in the process of allocating lower order rights and responsibilities.This provides a reason for individuals to subject some of their interests andfreedom of choice to the public political process for some purposes. If it is everrational for citizens to accept that their rights and obligations will be fixed bysocial institutions, it will be so only if the institutions operate under ruleswhich guarantee to all citizens an equal right to influence decisions about theform and behaviour of those institutions. Individual autonomy cannot rationallybe subordinated to public political processes unless, in exchange, substantialindirect protection for autonomy interests is afforded by fundamental politicalrights. These place procedural constraints on the freedom of society arbitrarily tolimit individual rights. The constraints are quintessentially democratic; they donot compromise democratic values to advance rights. Some rights, at least, arenecessary to democratic institutions.

For instance, it would be undemocratic to deny the vote to blacks, Jews orwomen, because that would contravene the principle of political equality. Onthe other hand, it would not be illegitimate to fix a minimum voting age, solong as it is reasonably related to the age at which people are regarded as capableof discharging civic responsibilities and applies to all groups in a nondiscriminatory way.3 These limitations on the majority's power todisenfranchise a minority are not limitations on democracy. They are anessential 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 Iof 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; DFeldman, "Rights, Capacity and Social Responsibility" (1987) 16 Anglo-American LRev 97, 100-104.


take up a special status as higher order democratic rights which need specialprotection under a democratic constitution. These include freedom of speech andassociation, the right to receive information which is relevant to public politicaldecisions which one is entitled to make or influence, and perhaps the right to beprovided with forums for speech and association.

It follows that many of the individual rights which are guaranteed underinternational human rights instruments such as the European Convention onHuman Rights are properly regarded as higher order democratic rights.4 Thecompatibility of these rights and the rule of law with democracy is brought outby those provisions in the Convention which limit permissible interferenceswith guaranteed rights to circumstances where the interference is prescribed by I

law and necessary in a democratic society for the purpose of protecting a limitednumber of interests.5 The justiciability of a test of "necessity in a democraticsociety" has been amply demonstrated by the jurisprudence developed by theEuropean Commission on Human Rights and the European Court of HumanRights, incorporating both a model of democracy which incorporates rights and adoctrine of proportionality.6

Against this general background, the remainder of this Section considersvarious characteristics of democracy and their implications for the legitimacy ofjudicial review.

A RepresentativenessDemocracy in countries with Westminster-style constitutions is of the

representative type. By and large it accords fairly closely with Schumpetertsmodel of democracy,7 according to which important issues are beyond the graspof ordinary citizens,8 and the populace is therefore restricted to an electoral choicebetween groups of aspiring leaders who will "represent" them in Parliament andchoose a government. This model will be described here as "elitist democracy".The electorate and the government may influence each other, but no formalaccountability 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 onlyexpertise happens to be that they have made a habit of engaging in politicalactivity.

Representativeness is a form of democracy rather than a characteristic of allforms of it. It contrasts with direct democracy, in which the people have a direct

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However, the right to participate equally in politics is protected under the EuropeanConvention only to the extent of Art 3 of the First Protocol, by which the HighContracting 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 trialswhere 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 authoritiescited 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, TheBattle of Democracy (1986) Ch 10) and C B Macpherson, The Life altd Times of LiberalDemocracy (1977) 95-96.A Hutchinson and P Monahan, "Democracy and the rule of law" in Hutchinson andMonahan (eds), The Rule of Law: Ideal or Ideology (1987) 91, 98.


say on some or all matters of public policy and rule-making. As a way ofadvancing the interests of individuals' political or moral autonomy,representativeness has limitations. Indeed, when coupled with a doctrine ofparliamentary supremacy as complete as that which is said to apply in theuncontrolled constitutions of the United Kingdom, New Zealand and (particularlysince the Australia Act 1986) the Australian states, a representative governmentand legislature has the potential to override many important democratic values.What values, then, support the notion that government by an elected elite is afonn of democracy?

The seemingly uncontroversial justification for elitist democracy is the idea ofmajority rule by which elections bestow a popular mandate on an electedgovernment However, the representative ideal has been undennined by the factsof modem political life. The party which forms a government routinely obtainswell under half the votes cast in a general election, and (as in the UnitedKingdom or Spain) may face nationalist resistance in large areas of its territorywhere it has little support. The United Kingdom's Conservative governmentsince 1979 has indeed consciously developed an increasingly centralist state,running counter to an international trend towards decentralisation.10 This throwsinto doubt governments' claims that elections confer a democratic mandate orshow those elected to be representative of the whole community.

Furthermore, Westminster-style constitutions do not customarily guarantee theprinciple, necessary to true representativeness, that votes are to have equalvalues. To do so would require electoral divisions to contain equal numbers ofvoters, and guarantees against allocating unequal numbers of voters to electoralconstituencies. There is no such constitutional guarantee in the UnitedKingdom,11 nor in the Australian states, where Queensland and WesternAustralia are notorious for their tradition of gerrymandering. In the AustralianCommonwealth Constitution, s 24 requires that members of the House ofRepresentatives be ttdirectly chosen by the people of the Commonwealthtt. Thisprovision was modelled on Article 1, §2 of the United States Constitution: "TheHouse of Representatives shall be composed of Members chosen every secondyear by the People of the several States...". The United States Supreme Courtheld in the 196Os, reversing earlier decisions, that the latter provision, coupledwith Amendment 14, §1 (..... No state shall ... deny to any person within itsjurisdiction the equal protection of the lawstt

), required the Court to strike downState legislation fixing electoral boundaries which gave votes unequal weight12In Australia, there is no constitutional equal protection guarantee like that in theUnited States' Fourteenth Amendment or s 15(1) of the Canadian Charter ofRights and Freedoms. It is therefore unsurprising that, as noted above, a

10 J L Sharpe (ed), Decentralist Trends in Western Democracies (1979); D Rowat,"Bureaucracy and Policy-Making in Developed Democracies: the Decline of BureaucraticInfluence" (1985) 51 lot Rev Admin Science 189, 190-191. On the micro level, theremay now be signs of a change in the UK. with greater regard for communal participatorycontrol over local institutions such as schools under the Education Refonn Act 1989 andhousing associations under the Housing Act 1988.

11 H F Rawlings. supra n 3.12 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. AmericanConstitutional Law (1978) 71-79, 737-761.


majority of the High Court held in McKinlay's easel 3 (over a vigorous dissent byMurphy J based on the nature of representative democracy) that there is noconstitutional mandate for equal value for each vote. Nevertheless, some judgesthought that there might be types and levels of inequalities which would lead tothe 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 onwhich judicial review is often criticised is that judges are unrepresentative. Thisraises a number of issues which are canvassed in Section 4 below; for themoment, we may note that representativeness is always relative, is not stronglyrooted in all systems which we would recognise as democratic, and is at bestonly a substitute for direct democracy.

B Accountability15Accountability of government is of different kinds. It may be political or

legal; continuous or periodic; accountability to the electorate, to Parliament orto the party; and it may be based on moral or legal standards or party politicalexpediency. There is the government's periodic accountability to the electorate.A powerful reward - high office - is offered by the electorate to the party whichproduces the package for the future which most appeals to it. A swingingsanction - loss of that office - is wielded if it turns out that the policies werewrong, or were wrongly implemented. But government's direct accountability tothe electorate is only sporadic, and is likely to be an inefficient tool forstructuring decision-making between elections because of the unpredictability ofresults. What is more, elections are unsatisfactory ways of securingaccountability on particular issues, because single-issue politics is rarely anoption acceptable to all parties.

Indirect accountability to citizens through their representatives in Parliament ismore continuous, and requires government to take account of a range ofopinions, if only those expressed in the party room. On the other hand, it isdefective, since the government, once chosen by the lower House, usuallycontrols the Parliament rather than being controlled by it. This is not true inpresidential constitutions where the executive is outside the House and is directlyelected by the people, and is less true in federal parliamentary systems like theAustralian Commonwealth Parliament, where the upper House is often not underthe party control of the government and regularly asserts greater power to thwartgovernments than would perhaps be constitutionally acceptable in the UnitedKingdom. On the other hand, the position characterised by Lord Hailsham as"elective dictatorship"16 is even more marked in unicameral Parliaments such asNew Zealand and Queensland than in bicameral Parliaments such as that in theUnited Kingdom. So far as the political process fails to secure realaccountability for government action, it is democratically justifiable to

13 Attorney-General (Cth) Ex Rei McKinlay v Commonwealth (1975) 135 CLR 1.14 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 constitutionalcontrols over a Labour government; his attitude changed when the Conservativesreturned to power in 1979 and he became Lord Chancellor.


supplement it with legal accountability by way of judicial review of executiveaction. The more completely a government dominates a legislature, the strongerare the reasons for regarding legislation as a form of indirect executive action,and this may justify extending judicial review to legislation. However, any suchdevelopment must be conditional on basing the review on appropriate democraticvalues. (Some relevant values are outlined in Sections 2 and 4 below).

C ConsultationConsultation has traditionally been the main form of citizen input to

government decision-making in Westminster systems. Consultative processesallow members of the public with specially appropriate experience or training toexpress views, but leave the fmal decision to government. Such processes serveto inform government rather than to influence decisions directly. Indeed, it hasbeen said that it:17

is not an activity directly linked to the decision-making process, although oneof its objects is to extend and develop the thinking of those who makedecisions. It is not designed to allocate resources, although it may discuss suchissues. It is not designed to be advisory to anyone person or officer, althoughit may at times decide to send advice to such a person. Rather, its object is tobring together, and to illuminate the perceptions of the participants, each ofwhom will have his or her own responsibilities for action. It is not designed tobe a pressure group, except insofar as the exchange of information and wellbased views leads to compelling conclusions. It is, in short, a processfacilitating open discussion, careful deliberation and collective conference.

Such deliberation is valuable in democratic governance, but its limitationsmust be clearly understood in order to prevent unrealistic (and thereforedisappointed) expectations. To be effective, the process must also avoidtokenism, and the participants must be able to maintain objectivity and avoidmaking the process merely a forum for politicking)8 It is partly because theconsultative procedures built up in the United Kingdom in the era of corporatistgovernment in the 1960's and 1970's came to be seen by participants astokenism, and by government as a forum for politicking by corporate elites, thatthey have largely been dismantled in the last ten years, replaced withmanagement consultants' reports and specialist working parties. 19 Yet theresulting decrease in the opportunities for citizens to make a contribution todecision-making processes, and the corresponding reduction in the openness ofthose processes, strengthens the case for external scrutiny of their rationality andfairness through judicial review.

D Public ParticipationPublic participation in the sense of procedures allowing the public, by

expressing its will, to influence or even determine the decision directly,20 isunderstandably not favoured by most politicians in mainstream parties who have

17 Task Force on Co-ordination in Welfare and Health, Second (1977) Report, ConsultativeArrangements and the Co-ordination 01 Social Policy Development (1978) 12. I amgrateful 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 Post

Corporatist 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).


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 theexcesses of socialist governments and legislatures. Professor Geoffrey Walker,for example, advocates a continuous process of direct voting by the electorate onall manner of issues, which would substantially restrict the legislative freedomof Parliament.21 Other political traditions advocate participation as a way ofimproving society by encouraging people to shoulder the responsibilities whichare inseparable from citizenship, one of which is to take on a role in thegovernance of society rather than abdicating all responsibility to the selfproclaimed "experts". If citizenship entails a process of continuous exchange ofpolitical ideas and arguments which will make the state more responsive to allshades of opinion, participation will lead citizens to value their capacities tomake worthwhile contributions to political discourse.22 This will help toremove a threat to the ties of political obligation which cement democraticsocieties.23

The scope for popular democracy is restricted by rigid party systems such asoperate in the United Kingdom and Australia. Professor Anthony Birch andDawn Oliver, among others, have pointed to the way in which democracy whichconsists of a choice between major parties shifts the focus of these values awayfrom the general citizenry and its representatives in Parliament towards theconstitutions and members of the parties themselves.24 This is afortiori true insingle-party states. As a result, few modem political systems institutionallyrequire government to be continuously responsive to popular opinion.

In order to provide for a participatory style of government, it would benecessary to restructure the constitutional system. Westminster-styleconstitutions are unsuitable vehicles to allow for participation in central stategovernment. Constructed as they are around such doctrines as parliamentarylegislative supremacy and ministerial accountability to Parliament, they are noteasy to adapt to place the people, rather than the Parliament, at the pinnacle ofthe 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, moreunusually, situations where it is used as a technique for resolving an impasse ina dispute between the Houses of a bicameral Parliament over the passage of

21 G de Q Walker. Initiative and Referendum: The People's Law (1987).22 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 PublicLaw" (1982) 9 J Law & Soc 1; T Prosser, "Democratisation, Accountability andInstitutional Design: Reflections on Public Law" in J P W B McAuslan andJ 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 andD Oliver (eds), The Changing Constitution (1985) 77; D Oliver, "The Parties andParliament: Representative or Intra-Party Democracy?" in J Jowell and D Oliver (oos),The Changing Constitution (1985) 103. It also affects bureacratic influence overpolicy-making: V Subramaniam, "The Higher Bureaucracy and Policy Making in theAnglo-Saxon Commonwealth: the Psycho-Social Syndrome of Two-PartyParliamentarianism" (1985) 51 Int Rev Admin Science 199.

2S Eg Australian Commonwealth Constitution, s 128; Constitution Act 1902 (NSW),ss 7A, 7B.


controversial legislation.26 These have needed careful justification, however, inorder to maintain the integrity of the theory that Westminster democracy isrepresentative rather than direct. In one case, it has been suggested that areference to the whole electorate is permissible, where an abdication of authorityin favour of an extra-parliamentary individual, corporation or group would notbe, because "it is confmed to obtaining the direct approval of the people whomthe 'representative legislature' represents."27 Regular referenda on the Swissmodel, while undoubtedly feasible, do not fit the structure very comfortably.

Nevertheless, the idea that the electorate should be able to participate directlyin the legislative process, and perhaps even to initiate legislation, has powerfuladvocates. It has a place in many states of the United States, despite the strictseparation of powers which could frustrate attempts to constitute the people as alegislature.28 Although Western Canadian provinces have flirted with' directlegislation, its lack of fit with the allocation of legislative power to Parliamentin Westminster-model constitutions has led to it being held unconstitutionalwhere it has the effect of by-passing the legislature.29 This would make it hardto assert that the political structures current under Westminster-styleconstitutions do embody much in the way of democratic values going beyond therepresentativeness of Schumpeter's "elitist democracy". A further constitutionalbuttress to participatory democracy is the right to information about the conductof government. In Australia and numerous other advanced countries, there isstatutory provision for public access to governmental information; there is alsousually a statutory requirement that public decision-makers give reasons for theirdecisions.3O Such legislation facilitates a full range of democratic processes,helping to make public consultation and participation and judicial review moreeffective. It is noteworthy that the United Kingdom lacks both anycomprehensive requirement for reasons to be given and freedom of informationlegislation

26 Constitution Act 1902 (NSW), s 5B.27 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 andCommonwealth 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 operationof direct legislation systems, see DB Magleby, Direct Legislation: Voting on BallotPropositions 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 LegislativeAuthority of ParliatMnt to Alter or Replace the Senate (1980) 102 DLR (3d) 1. ThePrivy Council upheld Alberta's Direct Legislation Act 1913, and the Liquor Act 1916passed under it, in R v Nat Bell Liquors [1922] 2 AC 128, on the ground that the fonnalact 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 ed1985) 290-295.

30 There is freedom of information legislation in the Commonwealth (Freedom ofInfonnation Act 1982), Victoria (Freedom of Infonnation Act 1982), New South Wales(Freedom of Infonnation Act 1989), and the Australian Capital Territory (Freedom ofInfonnation Act 1989). The government of South Australia is committed to itsintroduction, and in all probability it will be recommended by the Electoral andAdministrative Review Commission of Queensland. Obligations to provide reasonsstatements are found in various pieces of legislation; for the Commonwealth, see s 13of the Administrative Decisions (Judicial Review) Act 1977, and s 28 of theAdministrative Appeals Act 1975.


E Democratic Autonomy and Democratic RightsThe techniques discussed so far in this Section aim to achieve one of two

objectives. Each is directed to securing either responsiveness to citizens inpolicy-making, law-making and administration, or accountability for action afterthe event. However, no purely political arrangement is capable of ensuringcontinuous accountability to the citizenry, nor can it guarantee that the valueswhich, I have argued, underlie and legitimate democratic government will berespected by governors, legislators and bureaucrats. To achieve such protectionfor democratic values within a system of political democracy, at least two otherelements are needed. First, the appropriate norms of executive and legislativebehaviour must be institutionalised within the system. Standards are necessaryto limit governmental arbitrariness, a matter to which we will return inSection 2 below; it is important that they should be democratic standards.Secondly, the operation of the system must be open to continuous monitoringto ensure, so far as possible, that the standards are met and, if breached, can beenforced. (The question of the appropriate methods of monitoring andenforcement will be addressed in Section 3 below; at the moment, it is onlynecessary to note that one possible method, though neither the only nornecessarily the best one, is through judicial review).

David Held has advanced a model which he calls democratic autonomy whichhas the potential to protect these fundamental democratic standards through asystem of democratic rights in a way which is compatible with the ideasadvanced above.31 He notes that democrats are generally concerned to create thebest environment for human development, to guard against arbitrary use ofauthority, to involve citizens in decisions which concern the polity, and tomaximise availability of economic resources. He argues that these aspirationsdemand recognition of personal autonomy, necessitating a theory of individualfreedom, 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 asit exists and as it might be."32 Held sets out his "principle of autonomy":33

... individuals should be free and equal in the determination of the conditions oftheir own lives; that is, they should enjoy equal rights (and, accordingly, equalobligations) in the specification of the framework which generates and limitsthe opportunities available to them, so long as they do not deploy thisframework to negate the rights of others.

Held thus relies on rights as guarantees of important minimal values whicharise from the benefits and responsibilities of citizenship, and contemplatessecuring them through a justiciable constitution and bill of rights, operatingalongside open political processes.34 This scheme avoids giving absolute powerover all aspects of one's life to social decision-making processes, a result whichnobody who values their moral autonomy could countenance. Forms ofdemocracy which are merely majoritarian, elitist or representative cannot achieve

31 D Held, Models of Democracy (1981) Ch 9.32 Ibid 212.33 Ibid 211.34 Ibid 284-286.


this. The potential of democratic autonomy to provide a theoretical structure forthe protection of democratic liberties is considerable.3s

Recognising and protecting democratic standards through rights is likely toresult in two orders of rights. Higher order rights will be those which areessential to the maintenance of a democracy. These will require specialprotection against infringement by governments, legislatures or others. Whilethe protection will limit the power of a majoritarian government or an electoralmajority, this should not be seen as anti-democratic: as noted above, a majoritywhich does not respect the fundamental conditions for democracy is notdemocratically entitled to impose its will on other citizens. Lower order rightssuch as freedom of contract and property and privacy rights delimit the sociallyacceptable scope of personal autonomy. They serve to mark off the area ofpersonal privacy from the scope of public power. Within that protected area,individuals can make choices without reference to public political processes. Ofcourse, a willingness to recognise personal rights does not prejudge their natureor scope, which can as a general rule legitimately be settled by means ofdemocratic processes. However, there is an irreducible minimum of higher orderdemocratic rights which in a democracy cannot be subject to political interferencewithout 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 oflegislative and executive power, which is the practical manifestation of rule oflaw principles. Accordingly it will be necessary to look briefly at the nature ofthe 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 suchthat government in its legislative program is under law as well as governingthrough law.36 For present purposes, the last two meanings, which are interrelated, are particularly relevant, and they comprise a number of elements. Thosewhich are of most immediate concern are (i) that government should operateunder legal principles, (ii) that the principles should be enforced, (iii) that thereshould be an independent judiciary, and (iv) that there should be a legal Geist, anattitude of legality (a commitment to the values of the rule of law) on the part ofthe people generally, not just legal officials.37 The rule of law is, then, asProfessor Jowell has argued,38 an institutional morality affecting all concernedwith public institutions requiring that certain politico-legal values be internalisedby politicians, bureaucrats, judges and others. Some of these values areintimately connected with democratic theory. They include the prima facieequality of citizens in politico-legal processes, procedural fairness, the need forlegal authority for government action, and use of power for proper purposeS.39

3S It has been explored by I Duncanson. "Law. Democracy and the Individual" (1988) 8Legal Studies 303. However. Duncanson (at 305) suggests that these liberties are arestraint on democracy. whereas Held. supra n 31. (and I) see them as intrinsic to anyworthwhile theory of democracy.

36 G de QWalker. TM Rule 01 Law: Foundation 01 ConstitutioMI Democracy (1988) 3-5.37 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) 210-229.38 J Jowell. "The Rule of Law Today". in Jowell and Oliver supra n 24. 19-20.39 Ibid 20-21.


They produce a regime which advances accountability through law in a waywhich is compatible with any system of values, including socialist legality,40which demands institutional constraints on arbitrary government. (By arbitrarygovernment I mean government which is not committed to principled action anddecision-making, and does not accept that any norms should operate as priorconstraints on its own action41). Whether rule of law standards are expressed interms of rules which structure and constrain power, or by reference to rights,42they can productively complement democratic ideals.

Such standards, whether based on law or convention or a combination of thetwo, should be reasonably clear, both to facilitate the exercise of individualautonomy, which has been the classic liberal justification for the rule of law,43and to structure government and make it accountable for its behaviour. The roleof law has been criticised on the ground that the form of accountability to whichit gives rise, judicial review, is either actively anti-democratic or is lessdemocratic than political accountability. For example, Allan Hutchinson andPatrick Monahan44 have portrayed the rule of law, and judicial review processesin particular, as necessarily undemocratic, undermining movement towardsparticipatory democracy by moving political questions into the forum ofspecialist legal discourse. Alternatively, they advance the weaker claim thatwhile current western political structures allow for too little citizen participation,judicial review of legislative or executive decisions is intrinsically lessdemocratic than other possible techniques of accountability. Yet legal andpolitical forms of accountability have different objects and operate according todifferent kinds of standards. Political accountability, in the form ofparliamentary censure motions, defeat in elections or loss of Ministerial office,may be exacted where the act or decision under scrutiny, while legally andconstitutionally correct, was politically unpopular. Conversely, legalaccountability in the form of judicial review or tortious liability may be imposedin respect of actions which were, in political terms, entirely appropriate.

Another argument, relating specifically to legislation, is that room for judicialreview indicates a failure by Parliament to articulate values, placing anunjustifiable legislative burden on the courts.45 Yet it is always open to ademocratic legislature to delegate standard-setting powers to a body like the

40 J Raz, supra n 37; L Lustgarten, "Socialism and the Rule of Law" (1988) 15 J Law andSoc 25. For consideration of the significance of accountability in relation to the rule oflaw, see J Jowell, supra n 38; J Jowell, "Administrative Law", in J L Jowell andJ 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 responsivenessfostered by citizen participation (the "consumer perspective" explained in relation to lawby E Cabn, "Law in the Consumer Perspective" (1963) 112 U Pa L Rev I, 12-17) as apublic law value distinct from accountability.

41 For alternative formulations, see J Waldron, "The Rule of Law in Contemporary LiberalTheory" (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 DemocraticCharacter of Judicial Review" (1952) 66 Harv L Rev 193, 208 argued that Thayer's viewwas unsupported by empirical evidence.


courts, and a democratic constitution such as that of the AustralianCommonwealth can expressly provide for judicial review.46 A constitution canplace such limitations on the effect of review as may be thought democraticallyappropriate. For example, s 24(1) of the Canadian Charter of Rights andFreedoms, which forms Part I of the Constitution Act 1982, expresslyauthorises judicial remedies for infringements of rights or freedoms guaranteed bythe Charter, a provision which has justified courts in striking down legislation,while s 33 permits the Canadian Parliament or the legislature of a province tooverride certain of the guaranteed rights by express declaration in an ACL Thishas led Professor Peter Hogg to comment:47

... a judicial decision striking down a law or act for breach of the Charter doesnot seriously disturb basic democratic principles, and Canadians need notagonize over the issue of legitimacy in the way that the Americans have done.

It is, however, important that judicial review should operate in a principledway in pursuance of proper purposes. These purposes are related to the politicalvalues 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 toprotect rights, judicial review in practice has the potential to advance two otherobjectives which are at least as important as rights in the context of public, asdistinct from private, law. These are structuring governmental action anddecision-making in the hope of improving its quality and rationality and limitingthe scope for arbitrariness, and ensuring that those who exercise public powersrespect the limits of those powers.48 Both these public interest justifications forjudicial review are independent of individual interests, although there may andprobably will be incidental benefits accruing to such interests from judicialaction in helping to structure and confine legislative and administrative power onrule of law principles.

The means by which these objects are pursued in relation to legislative powervary according to constitutional structures. Where there is a writtenconstitution, it normally sets limits on legislative powers. For example, theConstitution of the Commonwealth of Australia lists (mainly in s 51) thematters on which the Federal Parliament has legislative competence. Thisimposes justiciable limitations on the vires of the Parliament, enabling thecourts to use rule of law reasoning to justify judicial review. Yet there is someflexibility built into the limits, so that everywhere, and most obviously incountries like the United Kingdom and New Zealand where the limits onlegislative activity by Parliament are principally non-legal, this aspect of therule of law depends on the attitudes of people who participate in politics,administration and law. By contrast, the exercise of executive and administrative

46 See s 75(5) of the Constitution. The framers of the Constitution intended the HighCourt 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) 25Osgoode Hall U 87. 89.

48 The rights-based approach is epitomised by H W R Wade. Administrative Law (6th ed1988) and criticised by C Harlow and R Rawlings, Law and Administration (1984) Cbs1 and 10. For the meaning of structuring see K Davis. Discretionary Justice: aPreliminary Inquiry (1969) 97-99. 142-143 and D I Galligan, Discretionary Powers: ALegal 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) PublicAdministration 21.


power is always subject to some rules which are externally set and areenforceable through tribunals or courts.

I am not suggesting that legal accountability is a distinctively democraticideal: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 anillusion of democracy, "bourgeois democracy" based on constitutionalism,instead of the real thing, representative political power (rather than legal remediesfor abuse of power) for the citizens.50 What is more, rules can help to structurepolitical and bureaucratic procedures without being enforceable through legalprocesses. However, legal rules are one of the types of standards which can beapplied to government and administration, and if the rules are formulated withproper attention to the objectives and difficulties of governors and bureaucratsthey can serve to improve the processes of government, as well as offering,through judicial review, one forum for accountability. Legal standards cannotsubstitute for political standards and accountabilities, because they serve differentends, but if sensitively constructed and applied they can usefully complementother means of constraining tendencies towards arbitrary government

In the remainder of this Section, it will be argued that certain legal limits ongovernment are inherent in the use of law by government, and are no lessdemocratic (in the sense of enshrining or advancing democratic values) than theuse 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 rationalprocesses for securing accountability according to publicly accessible standards.Judicial review is a corrective factor to certain democratic shortcomings inWestminster-model constitutions.

Modem governments of all political complexions depend on law in order togive effect to their policies. Even governments trying to reduce the role of stateagencies need law. For example, since 1979 the Conservative government in theUnited Kingdom, trying to 'roll back' the state and 'get government off people'sbacks', has had to give a panoply of powers to central government to privatiseindustries, reduce the scale of local government, and control local governmentspending. Paradoxically, the attempt to produce a minimal stale has directly ledto an increasing concentration of power in central state agencies. In the sameway, earlier Labour governments relied on law to nationalise industries andextend the powers and responsibilities of state agencies.

Government policies receive legitimacy through approval in democraticpolitical processes, and mainstream critics of the rule of law do not normallysuggest that the use of legislation and law enforcement agencies by democraticgovernments to advance policies is undemocratic.51 Yet democratic use of lawimplies certain legal limits on government.

49 J Razt supra n 37.50 K Marxt The Revolutions of 1848 (1973) 200-204; B Finet Democracy and the Rule of

Law (1984) 122-133.51 Disapproval of some or all legislation of this son comes from four sources:

philosophical anarchistst who deprecate all state institutions; adherents to historicaltheories of law of the sort advanced by SavignYt positing a volksgeist which must berespected and is usually infringed by legislative change; economic liberals such asHayekt supra n 43t who deny that the "spontaneous order" of the market can beimproved by legislation except such as is needed to maintain the market; and advocatesof popular democratic legislation such as G Walker, supra n 21. The last three groupsall support the rule of law (in one fonn or another).


Law operates, at one and the same time, in a number of different ways withinwestern capitalist states.52 It constitutes and gives powers to state agencies, andin that mode can be used by democratic governments and legislatures as a meansof advancing legitimate policy objectives. (It can equally be used byundemocratic governments, or by democratically elected governments foradvancing illegitimate objectives.) But by the very process of granting powersand creating agencies for certain purposes, the law places limits on the powerswhich it grants. A governmental or bureaucratic decision to use law imposes itsown limits.

One kind of limit is inherent in law, and arises from the normative andarticulated nature of positive law. The use of law requires that power anddiscretion will be formulated in normative terms which automatically set limitsto the powers conferred. These limits will include questions of vires and properor improper purposes which will facilitate judicial scrutiny, distinct from thepolitical scrutiny which is likely to form part of the legislative process. AsProfessor Jowell has observed:53

... the legalization of policy does not simply allow officials to 'congratulatethemselves - and await obedience'.54 The process of making rules, as well asthe rules themselves, may generate scrutiny and appraisal that makes officialssubject to assessment on the basis of fidelity to whatever purpose is consideredapposite. 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 acloak of discretion.

Another kind of limit is imposed by the ethos of law. This incorporatescertain procedural standards which are worthwhile values even in bureaucraticsettings, such as the principle of due process, which encompasses the doctrine ofnatural justice.55 In an appeal to the Privy Council from Singapore, LordDiplock said:56

In a Constitution founded on the Westminster model and particularly in that partof it that purports to assure to all individual citizens the continued enjoyment offundamental liberties or rights, references to 'law' in such contexts as 'inaccordance with law', 'equality before the law', 'protection of the law' and thelike, in their Lordships' view, refer to a system of law which incorporates thosefundamental rules of natural justice that had formed part and parcel of thecommon law of England that was in operation in Singapore at thecommencement of the Constitution.

Indian courts have taken the same line.57 Thus the use of law by governmentmay allow judges to attach legal standards and accountability to the activitieswhich are empowered by the law in question.

52 The most penetrating analyses of the operation of law in society are generally bysocialist and Weberian theorists. See eg the discussion by S Picciotto, "The Theory ofthe 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.

53 J Jowell, su.pra n 38, 9-10.54 Quoting from P Selznick (with P Nonet and H M Vollmer), Law, Society and Industrial

Justice (1969) 29.55 Ong Ah ChUlJn v Public Proseculor [1981] AC 648; Haw Tua Tau v Public Proseculor

[1982] AC 136.56 Ong Ah Chuan y Public Proseculor [1981] AC 648, 670.57 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


This means that the rule of law requirement that government be subject to lawhas important implications for political and constitutional theory. It recognises,but attaches special restrictions (including due observance of proper politicalprocedures) 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 theproper constraints on the potential for arbitrary government. Even in ademocracy, constitutionality is subverted if judges allow politicians orbureaucrats to evade that constraint.

It might be thought to be sufficient if the same rules apply to government asto citizens. State agencies would then enjoy civil liberties at common law, sothat, as the High Court of Australia held in Clough v Leahy,58 the Governor ofNew South Wales would be entitled by letters patent to create a RoyalCommission of Inquiry into someone's guilt or innocence of a crime on thebasis that:59

... every man is free to do any act that does not unlawfully interfere with theliberty 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 withaccording to law, but, subject to that limitation, every person is free to makeany inquiry he chooses; and that which is lawful to an individual can surely notbe denied to the Crown, when the advisers of the Crown think it desirable in thepublic interest to get information on any topic.

Similarly, as Sir Robert Megarry held in Malone v Metropolitan PoliceCommissioner,60 the police would be entitled to do anything not positivelyforbidden by law except to the extent that it interfered with an individual libertyrecognised and protected by law. However, government was not created in theimage of citizens, but as a body which would necessarily tend to interfere withcitizens' individual interests in order to advance general public interests. Thecommon law traditionally took account of this by developing a presumption infavour of citizens' freedom from interference by government or other citizens, apresumption which formed the bedrock of civil liberties at common law. Thereis no reason to extend the idea of primafacie freedom to the executive; indeed, itwould 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 Carrington61Lord Camden CJ held that when the executive wanted to assert a power tointerfere with the property rights of a citizen it had to be able to point to somedistinct legal authority for doing so. The statutory authority in that case hadlapsed, and there was no common law authority, so the purported issue of awarrant had been unlawful. Malone62 was a more difficult case, in that the

[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] 3SCR 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 ofLands, Federal Territory [1982] 1 MU 204; but their position has been convincinglycriticised: A J Harding. "Property rights under the Malaysian Constitution", inF A Trindade and H P Lee (eds). The Constitution of Malaysia: FurtMr Perspectivesand Developments (1986) 59, 60-63.

58 (1904) 2 CLR 139.59 Ibid 157. per Griffith CJ.60 [1979] 1 Ch 34461 (1765) 19 St Tr 1030.62 [1979] 1 Ch 344.


plaintiff was not asserting well-settled property rights: the claim was either toprivacy, which Megarry V-C held was not recognised in English law, or toconfidentiality, which he decided could not apply to any telephonecommunications because of the inherent risk of being overheard.63 But MegarryV-C's core assertion, that the police were free to intercept people's telephonecommunications because tapping was not forbidden,64 subverts civil liberties. Inthe same way, the right asserted by the citizen being investigated in Clough vLeahy6s was a right to be free of inquiries into guilt or innocence except by dueprocess of law, essentially derived from a statute of Edward III and one of Charles1.66 Commissions to inquire solely into alleged criminal misconduct have beenheld to be invalid on this ground in New Zealand67 and British Columbia.68 Ifthey are to be upheld, it would be preferable to ground them in a specificprerogative power granted to the Crown by common law or statute, as has beendone by some Australian judges since Clough v Leahy,69 rather than to rely ongeneral freedoms to inquire. State agencies are not ordinary people; they arespecial legal constructs, and the rule of law requires that they should have noliberties or powers except those which are given or recognised by law.

It might seem that this would lead either to an unnecessary proliferation ofhighly detailed power-conferring statutes or to a huge number of claims againstwell-intentioned public officers. However, the powers of local authorities havealways been held to be strictly limited to those conferred by statute. This doesnot cause day-to-day problems because empowering statutes are customarilydrafted with reference to objects or programs, and they are interpreted asconferring the powers which are reasonably incidental to those objects. Underwritten constitutions, the powers of central government are interpreted in thesame 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 principleof responsible government requiring the executive (save in cases of establishednecessity) to obtain its powers from Parliament. It may also weaken theexecutive's accountability to Parliament for the way in which the powers are

63 This is unsatisfactory: it resembles denying a right to exclusive possession of propertyon the ground that one could be dispossessed, instead of developing rights to protectlegitimate expectations.

64 [1979] 1 Ch 344, 357, 366-367.65 (1904) 2 CLR 139.66 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.67 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; ReRoyal Commission on Thomas Case [1982] 1 NZLR 252, 263-264; Thompson vCommission of Inquiry into Administration of District Court at Wellington [1983] NZLR98, 104 per Barker J. The Privy Council has left it to the New Zealand courts to workout 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] 1NZLR 618, 625, (majority judgment).

68 Re Gartshore (1919) 44 DLR 623, 630-631 per Hunter CJ.69 (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.70 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 andHayden (1975) 134 CLR 338; Davis v Commonwealth (1988) 82 ALR 633.


exercised. If Megarry V-C in Malone?1 had decided that the right toconfidentiality had applied, and that in the absence of positive legal authority thepolice had acted unlawfully in interfering with the right (as in Entick vCarrington72), it would have forced the executive to subject itself to the will ofParliament to regularise (and, incidentally, to regulate) their behaviour. Instead,the government went to Parliament only reluctantly, years later, when forced todo 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 inWestrninster systems are structured according to democmtic standards and are heldaccountable according to those standards through political and bureaucraticprocedures. Where those procedures fail to provide adequate protection fordemocratic values, it will be argued that judicial review and the rule of law canlegitimately operate to restrain government, at any rate as long as the review isconducted on principles of legality which are consistent with democraticobjectives.

We have already seen in Section 2 some of the ways in which forms ofaccountability and democratic political processes could act to restrain electedgovernments and make them responsive to democratic values and public opinion.We noted the shortcomings of some of these constraints as tools to advance themodel of democracy called democratic autonomy, concluding that representativegovernment, however elected, is only weakly democratic; it is an example ofSchumpeter's "democmtic elitism".

But more surprising than the weakness of the processes for politicalaccountability of executive government is the relative lack of accountabilityimposed on the bureaucratic arm of government. At present, politicalaccountability to Parliament is enforced through the doctrine - or myth - ofministerial responsibility, which in reality operates more as a shield for publicservants than as a threat. The Ombudsman is able to pierce the veil whichMinisterial responsibility normally throws round individual public servants, butOmbudsmen are more concerned with advancing administrative values thanprotecting rights or enforcing the rule of law. In the United Kingdom, the entirejurisdiction of the parliamentary and local government ombudsmen is based onthe idea of "maladministration". Even in Australia, where the CommonwealthOmbudsman is empowered to examine questions of the legality of administrativeaction, he may not take cases where the complainant has a legal remedy unlesssatisfied that it is reasonable not to pursue that remedy.73 Internal departmentalreview is mainly designed to maintain bureaucratic standards and advancedepartmental goals rather than to give effect to standards of administration whichmight enjoy support outside the department.

71 [1979] 1 Ch 344.72 (1965) 19 5t Tr 1030.73 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 LocalAdministration; Ex parte Croydon LBC [1989] 1 All ER 1033. For the AustralianCommonwealth, see Ombudsman Act 1976 (Cth), ss S, 6(3), IS.


Nevertheless, it is sometimes said that bureaucratic procedures may be moreefficient means than judicial review for achieving the professed objectives of therule of law.74 On this view, only internal review processes have the capacity tostructure the decision-making procedures in a rational way. Internally-generatedrules are seen as a bureaucratic incarnation of the ideals of the rule of law, andinformal procedures as a more accessible and effective means of controllingbureaucracies than judicial review. However, the notion that removing externalreview processes will make the bureaucracy operate better is counter-intuitive: itwould seem to be at least as likely that public servants will take more care overdecision-making and improve their procedures if they are aware of a need tojustify themselves to outsiders. What is more, as we shall see, theadministrative process is far from encapsulating democratic ideals.75

Most bureaucratic review processes tend to insulate administrators fromoutside scrutiny. The standards applied, even in review processes such asombudsmen's investigations, are predominantly those which form what may becalled an administrative morality, not a public one. It leaves government opento domination by a corporate management model of public administration whichuses efficiency as the principal standard rather than democratic values, respect forlaw, quality of services, equity or procedural fairness.76 Corporate managementas a model for public administration is now pursued by central governments inAustralia, the United States and Britain, as it is well adapted for use in limitingpublic expenditure.

Judicial review, by contrast, stands out as the main review process to applystandards generated by rule of law principles, and has the added advantage ofbeing administered by independent officials (although the nature and scope ofjudicial independence under a democratic constitution is a complex matter whichwill be further adverted to in Section 4).

Although judicial review seems to exercise little real control over thesubstance of decisions, bureaucrats and governments are very conscious of itspresence and somewhat defensive in the face of it. Its effective influence onbureaucratic procedures varies according to the bureaucrat's awareness of its scopeand requirements. In Australia, public servants are acutely aware of theavailability of review on procedural grounds under the Administrative Decisions(Judicial Review) Act 1977 and review of the merits of decisions by theAdministrative Appeals Tribunal. These have therefore had an effect onbureaucrats' behaviour, at least to the extent of generating additional paperwork.It has also been argued that it has led to less adventurous decision-making,77although there is insufficient empirical material by which to evaluate suchclaims. The more effective review is, the more likely it is to be seen by

74 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 ofDemocracy (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 inPublic Administration" (1988) 62 AU 1040; P McAuslan, "Public Law and PublicChoice" (1988) 51 MLR 681; M Considine, "The Corporate Management Framework asAdministrative Science: a Critique" (1988) 47 AJPA 4. For a reply to the criticism, seeJ 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.


bureaucrats as an interference with managerial values, even when based onfamiliar, well-understood principles like ultra vires or natural justice. This isevident in the United Kingdom,78 and in moves by the Australian federalgovernment towards restricting the powers of the Administrative AppealTribunal and limiting the availability of material under the Freedom ofInformation Act.79 Fortunately for Australia, its judicial review system has bothconstitutional entrenchment and a sturdy supporter in the Administrative ReviewCounci1.8o Perhaps it is partly because the substantive grounds of judicialreview are outside the influence or control of administrators, so they can nolonger get away with conduct which would never have been challengeable before,that government departments are so nervous about review. Other reasons forpreferring internal review processes or independent but non-judicial tribunals tojudicial review include speed and efficiency of disposition (though this advantagecan be equally claimed by judicial review in urgent cases81) and the flexibility ofnon-adversarial procedures, all important values in administmtive morality.

For whatever reasons (and one cannot entirely acquit departments of wanting toretain maximum discretion for reasons of bureaucratic imperialism), independentreview by reference to externally set standards is unpopular with the bureaucracy.Where departments succeed in keeping control and restricting outside scrutiny, ashas been largely the case in the United Kingdom, external accountability ofbureaucrats is accordingly limited. When the bureaucracy comes to put thepolicy choices of the government into operation, it is not generally accountableto anyone other than itself and the government of the day. Although the PublicAccounts Committee and the Commons Select Committees are having some(limited) success in introducing a degree of accountability, the primary form ofaccountability for civil servants is managerial,82 according to criteria which arelaid down in advance by senior members of the administrative hierarchy.

A bureaucracy free from outside scrutiny and direct accountability to citizensseems to be accepted where a similarly unconstrained Parliament or governmentwould not be. This may be because people believe that political policies are setby government and ratified by Parliament, while bureaucrats are thought only toimplement (more or less mechanically) policies adopted by their politicalmasters. This is a convenient idea: it enables governments and bureaucratscampaigning for a restriction of judicial review not simply to rely on argumentsof efficiency but to deploy high-sounding arguments about democracy, popularmandates 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.

79 See P Bayne. "Administrative Law: the Problem of Policy" in R Wettenhall andJ R Nethercote (eds). Hawke's Second Government: Australian CommonwealthAdministration 1984-1987 (1988) 143; Bayne. supra n 76.

80 The Administrative Decisions (Judicial Review) Amendment Bill 1987, aiming to limitthe scope of review under the Administrative Decisions (Judicial Review) Act 1977(Cth). was disallowed in the Senate. The Administrative Review Council has gone ontothe attack. arguing for an extension of the scope of review: Report No 32: Review ofthe 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 Rev107. 121.

82 See the works cited supra n 76. On the work of parliamentary scrutiny committees. seeD Pearce. "Legislative Quality Control by Scrutiny Committees - Does it MakeAdministration Better?". in Collected Conference Papers from the Second Conference ofAustralian Delegated Legislation Committees (26-28 April 1989) 109. 117.


have been noted in Section 1, but the idea nevertheless lends some colour ofdemocratic legitimacy to bureaucracy, especially when allied with theories ofadministration which suggest that only day-to-day operating rules are set by theadministrators themselves.

But such theories of administration have their limitations. To illustrate them,take the model advanced by Professor Redford, who distinguished between themacro political system, which sets objectives and assigns powers to executivebodies, and micro systems, which are constituted to use those powers andadvance the objectives.83 Powers exercised by the micro systems never conferunfettered discretion, he argued, because the macro system provides pointers tothe right answer, or the appropriate weighting of interests, in the event ofdoubt.84 This stylised account seems to oversimplify government in fiverespects.

First, senior bureaucrats exercise considerable influence over policy formation,although the more politicised an issue becomes, the less influence civil servantshave.85

Secondly, policy decisions will sometimes necessarily be taken bybureaucrats. As Professor Dennis Galligan has observed, "not all conflicts andchoices are settled at the macro level, so that adjustments between competinginterests must be made at the micro level. "86 Decisions made within thebureaucracy will set values and objectives, some of which may be inconsistentwith those laid down by ministers, relevant legislation or the courts.

Thirdly, communications between government and the bureaucracy may breakdown or suffer from the equivalent of radio interference. Generally, bureaucraticrationality aims to achieve policy objectives as efficiently as possible.However, the objectives may be ambiguous, or the bureaucracy may be receivingconflicting signals from its political masters or may itself be generatingirrational policies. Examples are cuts in health spending, or a new streamlinedsocial security scheme. Is the objective to provide a comprehensive system ofbenefits to those in need or to reduce cost? Will an officer who is thought to begenerous in allocating resources meet with approval or disapproval? Thebureaucracy may fail to construct an appropriate picture of its objectives, andthus take a view of policy inconsistent with that set by the macro system.87

Fourthly, the methods for communicating policies to the junior officers whoactually administer schemes may fail. Senior officials often reduce policies intorules printed and promulgated to junior officers, which then provide the mainsource of directions on the implementation of the system. These rules are oftenvery detailed, and may have the effect of displacing the relevant legislation byforestalling reference to it Indeed, junior officers rarely examine the legislationon which schemes are based and which is intended to structure their activities.Although the interpretation embodied in the rules will have been checked withrelevant ministers, it means that the departmental line rather than the

83 E S Redford, Democracy in the Administrative State (1969), Chs 4 and 5.84 On various types of discretion, see D J Galligan, supra n 48, Ch 1.85 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), TheMandarins 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.


parliamentary one will be the standard for criticism and approval in day-to-daybusiness.

Fifthly, there will be informal norms which arise from the experience andmores of junior officials and depend on their perceptions of their roles. Thesenorms are especially likely to be out of tune with democratic values, and if thetwo sets of rules conflict, the informal type may influence the behaviour ofsubordinate officials more than the formal ones, forming a sort of folk-moralityamong junior officials, supported by social pressure to conform.88

It follows that a good deal of bureaucratic activity cannot be justified byreference to an elitist model of democracy. Nor is there much evidence ofconsultative or participatory democracy having much impact on procedures.Current trends in governmental attitudes, cost-cutting, legislation and publicservants' interests are combining to restrict the procedural rights of peopleaffected by public programmes. The government's answer to the problem ofrepresentation for those involved in public programmes is to remove them fromthe programmes (or to abolish the programmes themselves): there is a movefrom giving those affected a 'voice' in the proceedings towards 'exit' from theentire system of public provision and regulation.89

The move from away from 'voice' tends to undermine the conditions needed tomake democratic political arrangements respected, as there is no substantialreason for anyone (and particularly people who are unable to satisfy importantneeds) to consent to and co-operate with political arrangements unless othersgive them due opportunity to influence decisions affecting themselves.Although costs attach to allowing claimants a voice in programmes, it ismisleading to assess them in terms of an administrative morality based on theefficiency audit. Denying people a voice in political-administrative decisionsaffecting them has a cost both to the individuals concerned9o and to the rest ofsociety in the damage which is done to democratic values, and particularly to therights which buttress democratic autonomy. Calculations of efficiency are illsuited to measure these social costs. The right to fair procedures, natural justiceor due process ought to be one of the most significant contributions made byrule of law thinking to administrative theory, and it is as important to theprotection of social welfare rights as it is to individual proprietary rights.

If political-administrative arrangements were restructured to allow a largeramount of communal participation, it would provide a check on arbitrarygovernment which would make judicial review less urgently needed. However, itis unsafe to assume that reconstructing politics on a participatory model willmake bureaucratic secrecy impossible and cause arbitrary executive action towither in the new attitudes and the glare of public scrutiny which should beengendered. Nor would it necessarily produce a system which respects citizens'

88 See L W Shennan, Scandal and Reform (1978) 3-15 for valuable discussion of deviancewithin 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 Peoplein 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 ScienceInformation 73; P McAuslan, "Administrative Justice: a Necessary Report?" [1988] PL402.

90 Be Smith, "Access to Administrative Agencies: a Problem of Administrative Law orSocial Structure?" (1986) 52 Int Rev Admin Sciences 17 offers an illuminating analysisof the administrative morality and its impact on claimants.


democratic autonomy. Proposals that participatory democracy could replace,rather than complement, the rule of law and judicial review fail to take accountof the commonly-felt need to protect certain individual interests, includingindividual freedom of choice and action, concern for one's fellow citizens, andequality of access to the political decision-making process. I argued inSection 1 that recognising these interests, and protecting them againstinterference even from a legislative process which is fully democratic (in termsof public participation) is not anti-democratic but is an essential grounding forthe democratic legitimacy of any political system; while in this Section I havesuggested that relying entirely on public political institutions and bureaucraticprocesses to protect democratic values ignores the power of bureaucracies tosubvert 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 rationalbut is rarely open, while political accountability is open but too often irrational;neither takes sufficient account of the need to guarantee the democratic rights ofindividuals in political-administrative processes. Judicial review on rule of lawprinciples offers the potential for an open and rational process for structuring thepower of other public agencies and securing accountability through to publiclyaccessible standards and procedures.

On this view, judicial review of government and the public service bureaucracyis not anti-democratic. It is justified by democratic principles where it serves tosecure respect for rights and structure the exercise of public power on democraticlines. In the same way, judicial review of legislation may be justifiable if it isconducted in accordance with principles of democratic autonomy, bolsteringrepresentative structures incorporating and protecting higher order democraticrights.91 By using judicial review to develop participation rights in publicprocesses, through natural justice and the developing doctrine of legitimateexpectation, and insisting that public agencies of all sorts justify their actions,we may limit the dysfunctional and anti-democratic effects of the combination ofcost-cutting, corporate management strategies and tendencies to arbitrary use ofpower in government and public administration.

It follows that judicial review is not intrinsically undemocratic. It is wheninappropriate values are adopted, or principle is eschewed, that review, rights andthe rule of law are all brought into disrepute. However, the failure of the rule oflaw in such circumstances is contingent only, and can be rectified if thejudiciary, executive and bureaucracy adjust their attitudes to bring them into linewith the institutional morality represented by the rule of law.

This invites consideration of various criteria of democracy to see how far thecontingent characteristics of judicial review do or might match up with them.Rather than attempting to provide an exhaustive list of democratic criteria, thissection will address a number of factors in respect of which it has been suggestedthat judicial review is (contingently) undemocratic. There are criticisms of thejudges, who are said to be unrepresentative and unaccountable; criticisms ofjudicial 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) 57AU 69.


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 beconveniently divided into illegality, irrationality and procedural impropriety,although this is not an exhaustive catalogue.92 Review for illegality is easilyjustifiable on rule of law principles, which, it has been submitted, are notundemocratic. Review for irrationality is more troublesome, as it seems toinvite the courts to look at the political merits of decisions rather than thelegality; it is not a sufficient defence of review for unreasonableness to label itas a form of extended ultra vires and justify it by reference to the impliedintention of Parliament. It is easier to justify it by separating reason-basedunreasonableness (improper considerations and improper purposes, for example)from the "strong" form of Wednesbury unreasonableness.93 In reviewing for thefonner, courts are applying standards of administrative rationality, and there is noreason 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. Onthe whole, this seems well recognised by the appellate courts of England andAustralia, which are reluctant to review on this ground.94 Finally, review forprocedural impropriety is amply justified either as the application of standards ofgood administration or as offering protection to the participation interestsinherent in the idea of democratic autonomy. The ground for democraticcriticism in relation to review for natural justice, particularly in England, is thatit protects too few interests rather than that it is over-extensive.

What of judicial review of legislation? Where there is a democraticallyapproved constitutional text which requires review, the justification for thatreview should be relatively simple. Even where the constitution does notexpressly authorise review, it may be justifiable if it can be shown to be anessential to the maintenance of basic constitutional principles such as federalismor even responsible government, as in the case of the Australia's CommonwealthConstitution. Some people have suggested that judicial review of legislationcan be democratically justifiable only when it takes the form of interpretation ofan authoritative and democratically accepted constitutional text.95 Yetinterpretivism on its own is only a weak guarantee of democratic values injudicial review; there will be cases where interpretation to be democraticallyjustifIable will require reference to background principles of democracy, includingthe idea of higher order rights. The challenge is to construct a mode of judgingwhich will not be arbitrary when judges depart from strict interpretivism. This

92 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410411 per Lord Diplock, who recognised that there might also be a developing ground ofproportionality (although cfR v Home Secretary; Ex parte Brind [1989] NU Rep 1229per 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.


is particularly important if judicial review is to be justified in systems withoutwritten constitutions.

This is not as absurd as it sounds. Even in the United Kingdom, one shouldnot exaggerate the extent of Parliament's power or underestimate the judges'importance. Scottish courts have left open the possibility of treatingparliamentary sovereignty as dependent on and limited by the Treaty of Union1707 as the constitutive instrument of the British Parliament.96 Northern Irelandenjoyed a quasi-federal status of Northern Ireland in its relations with theWestminster Parliament before 1969.97 Sovereignty has been subordinated to thesupra-national legal order of the European community. In any case,parliamentary legislation is, as Allan has pointed out, always subject to theinterpretative powers of the COUrts.98 That power is used increasingly robustlyto give effect to European Community obligations regardless of the words usedby the draftsman of secondary legislation or the apparent intention of the relevantdepartment. Even when approaching primary legislation, literalism ininterpretation is less powerful than it once was, particularly where it wouldproduce 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 derogatefrom or conflict with the United Kingdom's obligations under the EuropeanConvention on Human Rights. It also seems to be accepted that the courts canand should ensure that common law developments are not inconsistent with thedemands of the Convention and the jurisprudence of the European Court ofHuman Rights.t oo In the final judgments in Attorney General v GuardianNewspapers (No 2),101 the courts considered and rejected the government'sassertion that serialisation in England and Wales of Spycatcher (Mr PeterWright's memoirs of his life as an MI6 officer) would cause more damage to thesecurity services than had already been inflicted by the book's publication andserialisation elsewhere in the world. They also held, adopting the standards ofthe European Convention on Human Rights and Australian decisions, that thegovernment could not use the civil law of confidence on the same terms as aprivate individual seeking to protect trade secrets or the confidences of the

96 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 Advocate1975 SLT 134, 137-8, criticised by the late Prof TB Smith in The Stair MemorialEncyclopaedia, Vol 5, tit Constitutional Law, para 350.

97 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" inJowell and Oliver (eds), The Changing Constitution (2nd ed 1989) 297.

98 T R S Allan, "Legislative Supremacy and the Rule of Law: Democracy andConstitutionalism" [1985] 44 CU 111, 117-125.

99 On secondary legislation, see Pickstone v Freemans pic [1989] AC 66; Litster v ForthDry Dock and Engineering Co Ltd (in receivership) [1989] 2 WLR 634, 640-641 perLord Templeman, 657 per Lord Oliver. In both cases there was a European Communitylaw 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 anEnglish statute being partially invalidated by judicial decision has been increased byFactortame Ltd v Secretary of State for Transport [1989] 2 WLR 997, where the House ofLords treated the validity of a statute which potentially conflicted with Community lawas a matter to be decided in accordance with Community rather than English law.

100 Attorney General v Guardian Newspapers Ltd (No 2) [1988] 3 WLR 776; cfIn re M andH (Minors) (Local Authority: Parental Rights) [1988] 3 WLR 485.

101 [1988] 3 WLR 776 per Scott I, CA and HL


marriage bed. Private citizens need only show that the information wascommunicated in circumstances which import an obligation of confidentiality.Governments have to go further, proving that some public interest wasthreatened by disclosure and that it was a weightier interest than that in publicscrutiny of government.102

At the same time, judges are understandably sensitive to accusations that theyare interfering with the democmtic process, and this has an effect both on judicialattitudes to questions of constitutionality and on the scope of judicial review ofthe executive. Judges tend to defer to what they see as expertise on the part ofgovernment. This deference sometimes makes it hard to maintain judicialindependence of government. For example, at the trial of Clive Ponting, chargedwith supplying material to an Opposition MP concerning the sinking of theGeneral Belgrano during the Falkland Islands campaign, in breach of s 2 of theOfficial Secrets Act 1911, McCullough J told the jury that the interests of theState 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.103

Such subservience has led some people to doubt the capacity of the common laweither to uphold individual liberties or to advance democratic principles.104

Taken too far, this can undermine the conditions for upholding the rule of law(including public confidence in the independence of the judiciary and theexecutive's respect for the judges) and democratic institutions (including higherorder democratic rights). But this deference is often exaggerated, and can belimited. 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. Thesigns are that judicial commitment to democratic rights, which, it was suggestedabove, are inseparable from democracy, is questionable. Judicial review inWestminster-model constitutions which lack bills of rights does not display aparticularly strong commitment to rights. 106

102 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) 14J Law & Soc 366. McCullough rs direction was based on the decision of the House ofLords in Chandler v DPP [1964] AC 763; but cf the view of Lord Devlin, 810: "thecourts will not review the proper exercise of discretionary power, but they will interveneto correct excess or abuse."

104 JAG Griffith, The Politics of the Judiciary (3rd ed 1985) 222-235; Attorney-Generalv 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 ofState 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 vR (1984) 154 CLR 404, A v Hayden (No 2) (1984) 56 ALR 82 and Church ofScientology v Woodward (1984) 154 CLR 25; Environmental Defence Society Inc vSouth 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 TheQueen in Right of Ontario (1986) 3S DLR (4th) 161; United States v Nixon (1974) 418US 683.

106 I argue this point in relation to the House of Lords in "Public Law Values in the Houseof 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


Such doubts argue for better trained judges with wider experience of humanrights law, aided perhaps by the adoption of a written constitution incorporatinga bill of rights in those countries which do not at present have them. A writtenconstitutional text incorporating a Bill of Rights could be a powerful stimulusto judicial creativity and also help to ensure that judges develop the law indemocratically justifiable directions. For example, in Canada, the Charter ofRights and Freedoms has produced a remarkable blossoming of democraticallyinfluenced rights-based jurisprudence, with the direction being set early by alandmark 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 placinglimits on the doctrine of parliamentary legislative supremacy. For instance, SirRobin Cooke of the New Zealand Court of Appeal has suggested that "somecommon law rights may go so deep that even Parliament cannot be accepted bythe courts to have destroyed them."108 These might include the right to resort tothe courts to have their rights determined109 (a suggestion in tune with rule oflaw principles and the 1960s attitude of the House of Lords to preclusiveclauses110) and the right to be free of torture) 11 The idea has been seriouslyargued, 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 amotley collection of whatever rights seem good to particular judges. To justifythis form of review in terms of democratic autonomy, one would need to ensurethat the specially protected supra-constitutional rights were the sorts of rightsnecessary for the maintenance of a democratic society; in other words, what wehave called higher order democratic rights. It would be feasible for judges toarticulate a theory which would serve to identify such rights, but it is far morelikely to be successful if done through statutory provisions or by reliance oninternational human rights conventions which, once settled, remove the need for

McLachlan [1985] IRLR 76; R v Secretary of State for the HOm/! Department; Ex parteNorthumbria Police Authority [1988] 1 All ER 556.

100 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. "AnAnalytical Framework for the Application of the Canadian Charter of Rights andFreedoms" (1987) 25 Osgoode Hall U 1.

1~ Fraser v State Services Commission [1984] 1 NZLR 116. 121 per Cooke J. SeeJ Caldwell, "Judicial Sovereignty - a New View" [1984] NZU 357.

1<JJ New Zealand Drivers' Association v New Zealand Road Carriers [1982] 1 NZLR 374. 390per Cooke J.

110 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.111 Taylor v New Zealand Poultry Board [1984] 1 NZLR 394. 398 per Cooke J.112 See the discussions in Building Construction Employees and Builders' Labourers

Federation v Minister for Industrial Relations [1986] 7 NSWLR 372. 385-387 perStreet CI, 402-406 per Kirby P, 409 per Mahoney JA. The High Court of Australiahas left the question open for future argument. at least so far as it turns on rights whichare 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.


judges (and others) to achieve consensus on the underlying legitimatingfactors__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 andaccountable? Is it undemocratic to allow review by an unrepresentative orunelected judiciary of elected legislatures and executives?

It is too easily assumed that the representativeness of any institution wieldingpublic power is a litmus test for its democratic status; to assume this is tomisunderstand democratic status. It will be recalled from Section 1 thatrepresentativeness even at its best is a limited form of democracy. It islegitimate only so far as it is likely that the representatives will tend to advancedemocratic values, including, most significantly, citizens' political and moralautonomy. Representativeness is not, therefore, a democratic value independentof the values which the representatives are committed to pursuing. It is adependent value. Unrepresentative judges are less democratic than representativepoliticians only if the politicians do, and the judges do not, pursue democraticvalues and objectives. In terms of democracy, the proper question is not "Arejudges representative?" but "Are the standards which they apply democraticallyvaluable?" (To say this is not to deny that there may be good prudential reasonsfor making the judiciary as representative as possible. A judiciary which reflectsthe make-up of society as a whole might serve to bolster the regard for law andthe state among some minority groups, even if the principles on which it decidescases is utterly out of tune with any democratic standards. However, this is nota democratic argument for a representative judiciary.)

Nevertheless, judges are public officers wielding public power, and there aregood democratic grounds for insisting that they should be accountable to thepublic for the way in which that power is exercised. This is not the place to gointo the mechanics of accountability, but it should be remembered that it isneither unheard of nor absurd to require judges to submit themselves to periodicelection or to set up judicial conduct reviews. Any country with a careerjudiciary must have such system, and states which treat the job of judging asseriously as it deserves will develop modes of accountability which leave intactthe important element of judicial independence of control by executivegovernment

C 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 raisesthree further issues. First, are review processes fair? Secondly, are they effectiveto structure the actions of public agencies? Thirdly, does review actuallyenhance democracy?

113 On the possibilities of using international law to fashion rights as a basis for judicialreview, see P Bayne, "Administrative Law, Human Rights and InternationalHumanitarian Law" (1990) 64 AU 203.

1990] Democracy. The Rule ofLaw & Judicial Review 29

(1) AccessibilityHow 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 theground, the odds seem stacked in favour of the department, particularly wherethere is no freedom of information legislation to help the applicant to prepare hiscase. The department is a repeat player, with all the advantages which thatentails. 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 anappearance of unfairness and exclusiveness. It is strange to think of such aprocess advancing the ideals of citizen participation in decision-making.Nevertheless, the criticism can have either of two implications. One is thatreview should be made more widely available. More decisions should bereviewable; more legal aid should be available; fewer procedural difficultiesshould be put in the way of applicants, enabling the court more easily to reachthe merits. This is, on the whole, the approach adopted by the AdministrativeReview Council in Australia and a recent review of administrative law in theUnited Kingdom114. It would lead to more judicial review, not less. The otherimplication which could be drawn is that in judicial review procedures the oddsare stacked too heavily in favour of the executive, and we should concentrate onpurely administrative or political forms of review. Some of my reservationsabout this will have become clear in Section 3; I would only add this contingentweakness of judicial review could be alleviated by procedural changes. Inparticular, if legal aid is made more generally available to allow representationby a specialist professional many of the repeat player advantages for thedepartment in any fonn of review can be reduced significant!y.

(2) EffectivenessDoes judicial review structure decision-making? Many people argue that case

by case review is too haphazard, and the principles of review too uncertain, togive much guidance to legislators, governors and bureaucrats.us This, however,depends on the degree to which those groups are prepared to take judicial reviewseriously, intemalising its values to the extent to which they are compatiblewith democratic government and developing institutional methods of turningjudicial decisions into administrative or legislative rules. Judges are constantlystriving to develop principles of general application or to explain the limits ofthe applicability of the principles which they use: that is part of the essence ofthe judicial role. They are also concerned (more so in the United Kingdom andCanada, perhaps, than in Australia) to use remedies flexibly so as to giveguidance 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) andReport No 32: Review of the Administrative Decisions (Judicial Review) Act: TheAmbit of the Act (1989); Committee of the Justice-All Souls Review of AdministrativeLaw 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 ofDevelopments Over the Last 25 Years on Administration in Central Government" (1986)64 Public Administration 163; H F Rawlings, "Judicial Review and the 'Control ofGovernment'" (1986) 64 Public Administration 135.


eminently reasonable approach, and deserves more credit than is customarilygiven 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 inreceipt of publicly funded legal aid. This distorts the kinds of issues which getlitigated, so that review only ever affects relatively few areas of government117Is the actual (though not inevitably necessary) effect of this to give specialprotection to the interests of capital in ways which discriminate against the poorand weak, and to militate against remedial governmental action?118 While thereis something in this, it can be exaggerated. Both in Australia and England,immigration and housing matters form a major part of the workload in judicialreview.119 Even where applications for review do not succeed, it need not meanthat they do not fulfil a function: Tony Prosser has shown how judicial reviewcan be used as part of a wider political strategy to achieve ends through a mixtureof publicity, political and legal action.120 What is more, propertied and businessinterests do not get it all their own way on judicial review applications,particularly in England, as those challenging regulatory agencies are finding totheir cost121

5 CONCLUSION

The conclusions to be drawn from all this are modest. Judicial review has aplace in democratic constitutions, alongside political and bureaucratic processes,in advancing the values on which democratic society is based. So long as itpursues those values, judicial review is not undemocratic. Some importantaspects of its job could probably not be done as well by any other means. Whatwe need is to make sure that its practitioners stay within their brief, andunderstand what their role is. One way of securing that is to have a writtenconstitution, preferably incorporating a justiciable bill of rights giving specialprotection to the higher order democratic rights discussed in Section 1. If thatcannot be arranged, the judges must make the best of it, seeking the rationale fortheir position in their own democratic theory. In so doing, they are not actingundemocratically, but are seeking to develop democracy without a lot of helpfrom the democrats.

116 For England: R v Secretary of State for Social Services; Ex parte Association ofMetropolitan Authorities [1986] 1 WLR 1; R v Panel on Tauovers and Mergers; Exparte Datafin pic [1987] QB 815; R v Panel on Tauovers and Mergers; Ex parteGuinness pic [1989] 2 WLR 863; D Feldman, supra n 48. For Canada: Reference relAnguage 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 inFonnative or Crisis Periods" in S Shetreet (ed), The Role of Courts in Society (1988) 7.

117 C Harlow and R Rawlings, supra n 48, Ch 9; M Sunkin, "What is Happening toApplications for Judicial Review?" (1987) 50 MLR 432.

118 E Z Friedenberg, "The Side Effects of the Legal Process" in R Paul Wolff (ed), The Ruleof Law (1971) 37.

119 M Sunkin, supra n 117.12D T Prosser, "Politics and Judicial Review: the Atkinson Case and its Aftennath" [1979]

PL 59-83; T Prosser, Test Cases for the Poor (1983).121 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.

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1990] Democracy, The Rule ofLaw Judicial Review 1 D