The legitimacy of judicial review of executive decision-making
To what extent is it appropriate for the courts to engage in judicial review of government actions and decision-
making?
That was the subject of the 2009 Lord Cooke of Thorndon Lecture delivered at Victoria University of Wellington’s Law School in December by Queen’s University Professor Emeritus and Victoria University graduate David Mullan.
In his lecture entitled Judicial Review of the Executive: Principled Exasperation, Professor Mullan explored to what extent the exercise of executive power is justiciable – that is, capable of being examined by the courts.
"The question is the extent to which it is competent, appropriate or desirable for the courts to engage in that form of judicial review of administrative action," he told his audience.
"Is it functionally an appropriate way of dealing with the actions of the executive, and does it as a matter of principle infringe greatly on the prerogatives of Parliament and democratic principles?"
His starting point was the views of Lord Cooke himself.
"Lord Cooke in [a lecture entitled] The Struggle for Simplicity endeavoured to provide a recipe for the simplification of judicial review of administrative action. In that particular lecture, Lord Cooke propounded the idea that administrative action should be subject to review on the basis of whether or not it accorded with the law, had been taken fairly and had been taken reasonably."
That said, while endorsing Lord Cooke’s views that judicial review of the executive is legitimate in certain limited circumstances, Professor Mullan also acknowledged that it is a highly controversial issue, and – not surprisingly – the New Zealand and Canadian courts have traditionally shown a reluctance to engage in judicial review of high-level executive actions.
A number of commentators cited by Professor Mullan (notably fellow New Zealand law graduate and Canadian academic Professor Jeremy Waldron) argue that it is appropriate for courts to be circumspect in exercising a willingness to judge the merits of government decision-making or actions. They contend there are already well-established mechanisms for the executive to be held accountable, such as the doctrine of ministerial responsibility, scrutiny by Parliament and, ultimately, accountability to the electorate via the ballot box.
While accepting this argument, Professor Mullan also suggested that the reality does not always live up to the ideal. He argued that executives and legislatures generally have "a history of acting badly" in times of crises or national security emergencies. Then, turning specifically to Canada, he argued that its democratic institutions such as Parliament are not currently "in reasonably good working order". In his view, this justifies the courts adopting a more active judicial review role.
"We live at a time where the judiciary, perforce through the existence of Bills of Rights or Charters of Rights and Freedoms, are in fact engaging at a more and more detailed level with executive policy-making – at least in areas where the rights and freedoms protected by the New Zealand Bill of Rights Act and Canadian Charter of Rights and Freedoms are concerned."
He then briefly outlined three recent, high-profile Canadian cases – involving Ronald Smith, Abousfian Abdelrazik and Omar Khadr – where the courts ruled the Canadian Government or its agencies had acted illegally and unreasonably.
The Smith case is particularly notable in that it involved the Federal Government’s exercise of foreign policy, until then generally regarded by the courts as a "no go" or non-justiciable area.
"One senses [in Smith] that [Justice] Barnes was so exasperated by the government’s vacillation, including the vacillation of counsel in court, that he leaned over backwards to find judiciability and a remedy for Smith," he said.
Professor Mullan also touched on a few New Zealand cases, including the celebrated 1976 Fitzgerald case where the Supreme Court upheld Fitzgerald’s challenge to the actions of the then newly-elected Prime Minister Robert Muldoon. In December 1975 Muldoon had issued a press release purporting to abolish the compulsory superannuation scheme established by the previous Labour Government.
Wild CJ upheld Fitzgerald’s appeal, ruling that Muldoon’s announcement had been made in his official capacity as Prime Minister and hence made "by regall (sic) authority". He was purporting to suspend the law without the support of Parliament when only Parliament had the right to make or unmake laws. He therefore declared that Muldoon’s actions were illegal, being in breach of s1 of the Bill of Rights 1688.
However, while the New Zealand case law Professor Mullan cited dates back 20 or 30 years, the Canadian cases he cited are very recent – prompting him to examine why there has been a resurgence in the Canadian courts’ exercise of judicial review.
He argued there is growing judicial exasperation with the executive’s conduct and unwillingness to be held accountable for its actions.
"The extent to which the executive in Canada is exposed to answering meaningfully and consistently for policy decisions is remarkably limited given the way in which the House – Parliament and the provincial legislatures – operate these days.
"The concept of the executive being answerable in Parliament through the doctrine of ministerial responsibility is, in very large measure, an attenuated version of what would have been presented some 40 or 50 years ago. In other words, executive accountability to Parliament as a reality in terms of policy decision making exercises is, in fact, highly attenuated.
"In the country that I now live in, if in fact ministerial responsibility or political accountability is going to be achieved, it may be better achieved through the courts and the exposure ministers get in the sense of exposure to public scrutiny through the publicity that adheres to Khadr, Abdelrazik and the like.
"So there is some encouragement that the Canadian courts have proved themselves willing, where rights-based interests of individuals are at stake, to break beyond traditional barriers of justiciability, to break beyond traditional barriers about non-scrutiny of government decision-making in matters bearing upon the public interest and to at least call upon the government (albeit subject to proportionality analysis or [Canadian] deference theory or whatever) to justify their positions in the face of situations that indeed exasperate."
LawTalk 742, 1 February 2010