Robert Leckey — Bills of Rights in the Common Law
In this excellent study of how judges have implemented bills of rights in three common law jurisdictions (Canada, the UK and South Africa), Robert Leckey carefully dismantles many of the wilder claims about judicial review of legislative action. Replacing the cry of “judicial activism” with the more muted “judicial agency”, he identifies remedial discretion as a major, potentially problematic, source of judicial innovation in the interpretation and enforcement of rights instruments.
For Leckey, much of what common law judges do nowadays in assessing whether legislation respects constitutional rights is not far removed from what they did in earlier eras. Courts regularly had regard to fundamental values in interpreting statutes and, in the commonwealth, one aspect of the judicial role was ensuring that legislation complied with higher federal or imperial norms. In the conclusion to chapter 3 he writes:
This chapter has depicted a shared judicial function within the Commonwealth of reviewing legislation, on several bases, for its validity. The upshot is that judicial review of legislation for its conformity with superior norms long predates the arrival of the Canadian Charter, the Human Rights Act 1998 and the South African Bill of Rights…To overlook these other instances of judicial review of legislation in the Commonwealth tradition, including the indirect judicial review via statutory interpretation mentioned in Chapter 2, is to exaggerate the degree to which recent bills of rights are exceptional – or need to be…If this chapter’s historical survey of judicial review in the Commonwealth relativizes claims of novelty and radical change in connection with new bills of rights, it does not deny that those instruments have led to changes in the judicial role…What is misleadingly simplistic is to locate rights adjudication’s novelty in the mere fact of subjecting legislation to judicial review (at pp. 66-67).
Though Leckey only mentions the point in passing, it is significant that judicial review of executive action also regularly (perhaps even inevitably) requires judges to have regard to controversial values.
One could perhaps go further. In both administrative and constitutional review, judicial scrutiny of political action (in its executive and legislative guises) has become progressively more intense in recent decades. This is not true everywhere and it is not necessarily inevitable, but courts have become increasingly adept at reviewing the substance of administrative decisions and — albeit indirectly — the substance of legislative action. In addition, administrative law’s suspicion of ideological reasons for administrative decisions might well support a doctrine of proportionality that purports to apply a politically neutral, technocratic perspective to legislative choices often underpinned by value judgments. I throw this out as food for thought. There is much else worth reflecting on in Leckey’s book.
This content has been updated on September 14, 2015 at 11:53.