JUDICIAL REVIEW OF LEGISLATION

A paper prepared for the Anglo-Israeli Legal Exchange, Jerusalem, May 2007
David Feldman
! A recent article in Public Law as"s #hether $udicial re%ie# of legislation is
undemocratic!

In some $urisdictions the &uestion has come to dominate pu'lic-la#

theory! (onstitutional scholarship in the )*A, for example, seems o'sessed 'y &uestions
a'out the legitimacy of $udicial re%ie#, often assessed 'y reference to democratic theory
2

'ut also in relation to techni&ues of constitutional interpretation!
2! It #ould 'e #rong to ignore the &uestion of legitimacy, 'ut it is e&ually mista"en
to 'eha%e as if it #ere the only important issue concerning $udicial re%ie# of legislation!
+ther &uestions should 'e addressed first! ,oth critics and defenders of $udicial re%ie#
often proceed on the 'asis of &uestiona'le assumptions a'out the nature of $udicial
re%ie#! +ne assumption is that $udicial re%ie# is al#ays more or less the same acti%ity,
and that all forms of $udicial re%ie# are -therefore. more or less e&ually legitimate or
illegitimate! /his paper dra#s attention to the differences 'et#een different forms and
methods of $udicial re%ie# of legislation, 'efore 'riefly considering ho# #e might decide
#hether some forms and methods are more legitimate than others! It deals only #ith
primary legislation! Judicial re%ie# of su'ordinate or delegated legislation gi%es rise to
interesting issues, 'ut primary legislation lies at the heart of the argument a'out the
legitimacy of $udicial re%ie#!
Types of judicial review
0! 1e need to distinguish first 'et#een concrete and a'stract re%ie#, and secondly
'et#een post-legislati%e and pre-legislati%e re%ie#!
2! /he distinction 'et#een concrete and a'stract re%ie# relates to the #ay in #hich a
case raises the issue of consistency 'et#een one legal norm and another!
3! (oncrete re%ie# is conducted on the 'asis of the facts of a specific case! /he
&uestion for decision is #hether, on those facts, a piece of legislation produces a result
#hich is compati'le #ith a higher-order norm -typically, 'ut not necessarily, one #ith
constitutional status.! /he court focuses on the &uality of particular outcomes, e%aluating
them 'y reference to higher-order norms! /he need for this "ind of re%ie# typically arises
in the course of ordinary litigation, #here one party relies on a piece of legislation and
the other party argues that, if applied to the facts of the particular case, the legislation
#ould produce an unconstitutional outcome! *uch a challenge to legislation arises #here
a litigant4s primary purpose is not to esta'lish that legislation is in%alid, 'ut he or she
cannot succeed on the facts of the case if the legislation is %alid and applica'le! /he court
#ill need original or appellate $urisdiction 'oth to determine the su'stance of the dispute

Anna'el Le%er, 5Is $udicial re%ie# undemocratic64 720078 PL 290-2:9!

2
Le%er4s article is a criti&ue of Jeremy 1aldron4s article, 5/he core of the case against $udicial re%ie#4 3
Yale LJ 02; -200;.! Although not American-'orn, 1aldron is at the heart of this thread in )*
constitutional theory!

'et#een the parties and to conduct $udicial re%ie# of legislation if the consistency
'et#een the legislation and a higher legal norm 'ecomes rele%ant to the outcome!
(oncrete $udicial re%ie# then occurs incidentally in the course of a trial or appeal to
determine the su'stanti%e issue! /he constitutional re%ie# conducted 'y the )* *upreme
(ourt or the <igh (ourt of Australia on the 'asis of their original, appellate or certiorari
$urisdictions is normally of this "ind!
;! A'stract re%ie# typically occurs #hen a legislati%e pro%ision is suspected of
'eing intrinsically inconsistent #ith a higher-order norm! In a'stract re%ie#, the court
appears on the face of it to e%aluate the challenged legislati%e pro%ision #ithout 'eing
limited 'y or to the facts of a specific litigant4s situation! /he primary purpose of the
litigation is to decide #hether or not a legislati%e pro%ision is inconsistent #ith higher-
order legal norms! A decision on that matter does not in itself determine any su'stanti%e
issue arising on concrete facts 'et#een ascertained parties! A court conducting a'stract
$udicial re%ie# #ill need to ha%e a special $urisdiction, usually a constitutional
$urisdiction! If the higher-order legal norms are constitutional norms, the court #ill 'e
exercising a special function as a constitutional court, rather than as an ordinary trial or
appellate court! /he (onstitutional (ourts of *outh Africa, =ermany and ,osnia and
<er>ego%ina ha%e $urisdictions of this "ind!
0
7! (oncrete re%ie# is typified 'y the $udicial re%ie# $urisdiction of the federal courts
of Australia, and Australia4s state courts on #hich a federal $urisdiction has 'een
conferred! /hey ha%e no $urisdiction unless they are seised of a 5matter4 in issue 'et#een
parties? the issue must ha%e clear conse&uences for the parties in relation to a matter
re&uiring legal determination! In other #ords, federal courts in Australia can usually only
exercise concrete re%ie#@ an a'stract challenge to legislation #ould 'e regarded as moot!
/he same is 'roadly true of )* federal courts, including the *upreme (ourt!
9! In a court #ith $urisdiction to conduct a'stract re%ie#, the existence of a lis inter
partes of direct, tangi'le significance to the legal rights or o'ligations of the parties is
rele%ant only to the standing of the parties to raise the issue! Aor example, in ,osnia and
<er>ego%ina Article BI!0Ca of the (onstitution allo#s only specified people or 'odies to
petition the (onstitutional (ourt for an a'stract re%ie# of the constitutionality of
legislation, 'ut as long as the applicant falls #ithin one of the permitted classes the (ourt
is not concerned #ith the nature of the applicant4s interest!
:! I ha%e dra#n the distinction 'et#een concrete and a'stract re%ie# in star" terms!
In reality, of course, there is usually no 'right line 'et#een them! A'stract re%ie# has at
least some of the features of concrete re%ie#, for at least t#o reasons!
0! Airst, a $udge cannot conduct a'stract re%ie# #ithout attempting to imagine the
range of factual circumstances in #hich the challenged la# might 'e applica'le! In order
to decide #hether a pro%ision is capa'le of producing constitutional or unconstitutional
effects, one often has to try to understand the issues to #hich the pro%ision is or might 'e
applica'le! E%en if the challenge does not arise out of the facts of contested litigation, the
$udge must in%ent facts to pro%ide a context in #hich to understand the pro%ision and
assess its impact on higher legal norms!
0
*ee *outh Africa4s (onstitution Act ::;, s! ;7-2.@ =ermany4s Grundgesetz, Arts! :0-. and 00@ and
the ::3 (onstitution of ,osnia and <er>ego%ina, Art! BI!0Ca!
2
! *econdly, a'stract re%ie# does not al#ays result in a categorical decision that the
legislati%e pro%ision is either %alid or in%alid, constitutional or unconstitutional,
compati'le #ith the rele%ant high-order norm or incompati'le #ith it! Instead, the court
may say that the pro%ision is consistent #ith the higher-order legal norm if and only if it
is interpreted and applied in a particular #ay! (ourts exercising an a'stract re%ie#
$urisdiction can ma"e it a condition of compati'ility that the challenged pro%ision is read
do#n or applied in a particular #ay! /his interpretati%e function is usually the preser%e of
ordinary courts, not constitutional courts! In ordinary litigation, for example, courts #ith
a concrete re%ie# $urisdiction in all systems normally adopt a principle of interpreting
legislation magis valeat quam pereat, in order to minimise the num'er of cases in #hich
an ordinary court has to disregard or disapply primary legislation! *ometimes legislation
is drafted in a #ay that defeats any attempt to interpret it conforma'ly to the higher-order
norm! In that case, the court must treat it as in%alid! 1hen a court #ith an a'stract re%ie#
$urisdiction does this it may 'e contro%ersial! In the (onstitutional (ourt in ,osnia and
<er>ego%ina, some $udges used regularly to deny that the (ourt had any po#er to
interpret legislation in that #ay #hen exercising an a'stract re%ie# $urisdiction! In
Arance, some ordinary courts up to the le%el of the Cour de Cassation refuse to apply
interpretations of legislation mandated 'y the Conseil constitutionnel as necessary in
order to ensure that legislation is compati'le #ith the (onstitution! -+nce passed, a loi in
Arance is not in%alid or ineffecti%e 'y reason of inconsistency #ith the (onstitution!. ,ut
in normal circumstances, and lea%ing aside constitutional peculiarities and pro'lems of
$urisdiction, #hen a top court exercising a'stract re%ie# decides that legislation is
consistent #ith higher-order norms if and only if it is read and gi%en effect in a particular
#ay, other courts fall into line!
2! In these #ays -and no dou't others. the reality of conducting a'stract re%ie#
sometimes 'lurs the line 'et#een a'stract and concrete re%ie#! In the same #ay, the
reality of concrete re%ie# can display at least some of the characteristics of a'stract
re%ie#! A court can decide that legislation produces results that are inconsistent #ith
higher-order norms on the facts of a particular case! <o#e%er, if it follo#s that the
legislation is in%alid or unconstitutional, it is li"ely to pre%ent the legislation from
operating in circumstances #here it #ould produce results that are 'oth consistent #ith
the higher-order norm and social 'eneficial! (ourts conducting concrete re%ie# must
consider the #ider implications of their decisions for different factual circumstances
'efore deciding to go for the 5nuclear option4 of holding that the legislation is in%alid! If
one can do so, there is often much to 'e said for reading do#n the legislation to ma"e it
inapplica'le to the particular circumstances 'efore the court, or tailoring a remedy so that
the legislation is not gi%en effect in an unconstitutional #ay, rather than stri"ing do#n the
legislation! E%en if a court decides to stri"e do#n legislation follo#ing concrete re%ie#,
it #ill sometimes 'e possi'le -and desira'le. to employ a techni&ue #idely used 'y
constitutional courts conducting a'stract re%ie#, and hold that the legislation is in%alid ex
nunc rather than ex tunc -#here tunc is a time in the past #hen the legislation first entered
into force., or to suspend the $udgment so that it ta"es effect only from some time in the
future, allo#ing the legislature an opportunity to fix the pro'lem!
2
2
*ee for example Re Manitoba Language Rights 7:938 *(D 72! /he time-limit for complying #ith the
decision #as set in Re Manitoba Language Rights rder 7:938 2 *(D 027, and su'se&uently extended 'y
further orders of the *upreme (ourt of (anada in ::0 and ::2!
0
0! 1e can no# turn to the second dichotomy mentioned a'o%e, 'et#een post-
legislati%e and pre-legislati%e $udicial re%ie#!
2! In some constitutional systems, pre-legislati%e re%ie# of 'ills is confined to the
political institutions of the state, especially legislatures! /he )nited Eingdom4s
constitution is of that "ind! =o%ernment 'ills are scrutinised #ithin go%ernment! All 'ills
are then scrutinised 'y one or, more usually, 'oth of the t#o <ouses of Farliament!
Guring that process, scrutiny 'y one of the legislati%e (ommittees or on the floor of the
<ouse-s. may include discussion of the compati'ility of particular pro%isions #ith
higher-order norms, including human rights and constitutional rules! *pecialist select
committees, such as the (onstitutional Affairs (ommittee in the <ouse of (ommons, the
(onstitution (ommittee in the <ouse of Lords, or the Joint (ommittee on <uman Dights,
can re%ie# and report on the compati'ility of 'ills #ith standards falling #ithin their
respecti%e terms of reference! /he $udiciary does not 'ecome in%ol%ed at that stage! +nly
after a 'ill has 'een passed and has 'ecome an Act of Farliament does the $udiciary ha%e
a re%ie# $urisdiction! In the )E, this is restricted to re%ie#ing compati'ility #ith
(on%ention rights under the <uman Dights Act ::9 and #ith European (ommunity la#!
3! ,y contrast, in some $urisdictions the constitution allo#s for the $udiciary, or a
&uasi-$udicial 'ody, to exercise a re%ie# function 'efore a 'ill is passed or enters into
force! Aor example, In (anada section 30 of the *upreme (ourt Act of :93 allo#s the
*upreme (ourt to gi%e ad%isory opinions on a range of constitutional &uestions, #hether
of fact or of la#, if re&uired to do so 'y the =o%ernor of (anada in (ouncil -in reality, 'y
the go%ernment of the day.! In Arance, 'ills may 'e referred to the Conseil
constitutionnel, a hy'rid political-$udicial 'ody,
3
for a decision as to constitutionality
#hich 'inds the Farliament? a loi #hich is held to 'e unconstitutional cannot 'e
promulgated or implemented until either the constitution or the 'ill is amended!
;
In
,osnia and <er>ego%ina, the (onstitutional (ourt has no po#er to gi%e ad%isory opinions
-although a proposed amendment to the (onstitution, #hich failed to gain the necessary
ma$ority in 200;, #ould ha%e conferred such a function on it.! <o#e%er, under Article
IB!0C! of the (onstitution the ,osniac, (roat or *er' caucus in the <ouse of Feoples can
claim that a proposed la# #ould 'e destructi%e of a %ital interest of that people! If no
accommodation can 'e reached the (onstitutional (ourt has to decide #hether the claim
is procedurally regular! If it is, the proposed la# can only 'e passed if supported 'y a
special t#o-thirds ma$ority!
;! In%ol%ing the ordinary courts in re%ie#ing legislation 'efore it is passed gi%es rise
to t#o constitutional anomalies! Airst, it 'lurs the distinction 'et#een the $udiciary and
the legislature, compromising the separation of po#ers and ma"ing the $udiciary
functionally part of the political rather than legal process! *econdly, e%en if a special
part-$udicial, part-political 'ody is created to do the $o' -li"e the Conseil constitutionnel
in Arance. the status of an opinion gi%en pre-legislati%ely is &uestiona'le! Goes an
opinion #hich is necessarily 'ased on a'stract re%ie#, conducted #ithout consideration
of concrete facts in a case #hich has arisen from the application of the pro%isions in
&uestion, represent a relia'le guide to the outcome of a post-legislati%e challenge on the
'asis of hard facts in unforeseen circumstances6 If the constitution ma"es a pre-
3
+n the ma"e-up of the Conseil constitutionnel, see Art! 3; of the :39 (onstitution of Arance!
;
*ee Arts! 2, 2;, 32, ; and ;2 of the :39 (onstitution of Arance!
2
legislati%e opinion or decision 'inding post-legislati%ely -for example, as in the case of
Arance, to preser%e the so%ereignty of the final text produced 'y the legislature., is it fair
to those #ho might later #ant to assert that, on particular facts, the pro%ision is
unconstitutional 'ecause it %iolates their fundamental rights6
7! Aor these reasons, a po#er for a court to deli%er pre-legislati%e opinions on the
consistency of 'ills #ith higher-order norms is anomalous, re&uires special $ustification,
and should 'e exercised cautiously ha%ing regard to the special $ustification!
9! /hese pro'lems do not seem to me to afflict post-legislati%e scrutiny 'y courts!
+nce the legislature has produced a la#, its $o' is done for the time 'eing! /he tas" of
ad$udicating on that la# -including the function of deciding #hether the la# is consistent
#ith higher-order norms, if that function exists under the constitution. is properly
allocated to the $udiciary! It is not anomalous for the $udiciary to carry out that tas"! Fost-
legislati%e $udicial re%ie# may 'e contro%ersial for other reasons, 'ut it does not
compromise the separation of po#ers or force the $udiciary into the political process!
Methods of judicial review
:! 1e turn no# from the forms of $udicial re%ie# to the methods employed!
De%ie#ing the consistency of one rule #ith another al#ays entails attention to at least
t#o rules #ithin a frame#or" of fact, and re&uires careful attention to each of the rules
and the factual context! He%ertheless, #e can distinguish 'et#een t#o rule-centred
approaches, and 'et#een rule-centred and fact-centred approaches!
20! 1hat are the t#o rule-centred approaches6 1hen deciding #hether one rule is
consistent #ith another, one can either start from a predisposition to achie%e consistency
or from a position of neutrality as to the consistency or inconsistency of the t#o rules! -It
is theoretically possi'le for a court to 'e predisposed to find inconsistency, 'ut I "no# of
no court #hich adopts this approach to $udicial re%ie#!. )sually courts are predisposed to
find consistency 'et#een the lo#er-order and higher-order rules! 1hiche%er approach is
adopted, the court has to decide the meaning, or scope, or impact, of each rule in the light
of the other! /his re&uires one to mo%e 'ac" and forth 'et#een them, comparing their
impacts in the light of the real or imagined facts of cases!
2! If the court is neutral as 'et#een finding consistency and finding inconsistency,
this is a complex process, in%ol%ing a triangular comparison 'et#een a higher-order norm
often formulated in %ery general terms, a lo#er-order norm often stated in more concrete
terms, and the matrix of circumstances!
22! 1here the court is predisposed to find consistency 'et#een the higher-order and
lo#er-order norms, it fre&uently faces the additional complication of ha%ing to decide
ho#, and ho# far, it can properly try to achie%e consistency! /his can 'e done 'y
ad$usting one4s reading of the lo#er-order norm, or 'y ad$usting one4s reading of the
higher-order norm, or 'y ad$usting one4s reading of the circumstances in the light of the
norms, or 'y a com'ination of those approaches!
20! +ccasionally another higher-order norm #ill direct the court to adopt one rather
than another of these approaches! Aor example, section 0-. of the <uman Dights Act
3
::9 imposes a duty on e%eryone to read and gi%e effect to legislation in a manner
compati'le #ith the (on%ention rights, so far as it is possi'le to do so! /his is not entirely
unam'iguous? as the late Gr! =eoffrey Marshall pointed out,
7
it could 'e treated as
allo#ing interpreters to ad$ust the meaning of the rights rather than that of the legislation!
<o#e%er, that #ould 'e a per%erse approach, defeating the purpose of the re&uirement
and re%ersing the hierarchical ordering of the t#o norms? the statement of the right #ould
'ecome a lo#er-order norm, not the higher-order norm, as compared to other legislation!
*ection 0-. is therefore properly treated as re&uiring courts and others to ad$ust their
readings of -lo#er-order. legislation to -higher-order. rights, rather than the other #ay
round, #hen necessary to a%oid incompati'ility! Gespite the urgings of some )E and )*
politicians, it #ould not 'e proper to limit -for example. the protection offered 'y the
right to 'e free of torture in order to sa%e la#s authorising #hat are sometimes called
5coerci%e interrogation techni&ues4 from 'eing found to 'e inconsistent #ith the right!
22! (ourts face other methodological challenges #hen conducting $udicial re%ie#!
+ne of these is to settle on the outer limits of #hat range of flexi'ility is possi'le 'y #ay
of reading or gi%ing effect to a legislati%e norm, then to decide #hat reading is 'est
#ithin that range!
9
Aor example, courts in the )E treat the #ord 5possi'le4 in section 0-.
of the )E4s <uman Dights Act ::9 as re&uiring consideration not only of the -highly
elastic. limits to the linguistic flexi'ility or indeterminacy of #ords and phrases 'ut also
of the constitutional position and authority of the person or 'ody #hich is re&uired to
read and gi%e effect to the legislation! In addition, the courts must decide, or #or" #ith
tacit assumptions a'out, #hat is meant 'y 5consistent4 and 5inconsistent4, or 5compati'le4
and 5incompati'le4, #hen comparing t#o norms! I ha%e tried to sho# else#here ho#
many and %aried are the resulting techni&ues of constitutional and human-rights
interpretation, and ho# the propriety of one rather than another choice depends on the
constitutional frame#or" and the position of the institution doing the interpretation
-&uestions of 5institutional compati'ility4. as much as on &uestions of democratic theory
or accounta'ility,
:
and I shall not repeat those arguments here!
23! /he approaches outlined so far concentrate on the relationship 'et#een the norms,
ma"ing the circumstances of particular cases a relati%ely minor consideration! Another
approach is fact-centred, putting the facts of the case at the centre of the analysis! <ere
one does not as" #hether the lo#er-order norm is inconsistent #ith the higher-order norm
for all purposes and in all circumstances, 'ut #hether the results it produces on the facts
of a particular case #ould 'e consistent #ith the re&uirements of the higher-order norm
for that case! -I ha%e descri'ed these t#o &uestions as relating respecti%ely to
5unconditional4 and 5conditional4 compati'ility!. In the )E4s <uman Dights Act ::9,
7
=eoffrey Marshall, 5/#o "inds of compati'ility? more a'out section 0 of the <uman Dights Act ::94
7:::8 PL 077!
9
Aharon ,ara", "he Judge in a #emocrac$ -Frinceton, HJ? Frinceton )ni%ersity Fress, 200;., pp! 27-00
on the need to ta"e account of 'oth the o'$ecti%e, for#ard-loo"ing character of a constitution and the
framers4 su'$ecti%e purposes #hen interpreting constitutional pro%isions@ Aharon ,ara", Purposive
%nterpretation in Law -Frinceton, HJ? Frinceton )ni%ersity Fress, 2003.!
:
Ga%id Aeldman, 5Institutional roles and meanings of Icompati'ilityJ under the <uman Dights Act ::94,
in <elen Aen#ic", =a%in Fhillipson and Doger Masterman, Judicial Reasoning under the &' (uman
Rights )ct -(am'ridge? (am'ridge )ni%ersity Fress, 2007., forthcoming! *ee also Ga%id Aeldman,
5Aactors affecting the (hoice of /echni&ues of (onstitutional Interpretation4, in Aerdinand MKlin-
*ucramanien -ed!., L*%nterpr+tation Constitutionnelle -Faris? Les Lditions Gallo>, 2003., pp! :-09!
;
courts sometimes re%ie# for unconditional compati'ility! Aor example, in ), v, -ecretar$
o! -tate !or the (ome #epartment the <ouse of Lords made a declaration that section 22
of the Anti-terrorism, (rime and *ecurity Act 200, #hich authorised the indefinite
detention #ithout charge of certain foreigners suspected of ha%ing lin"s to international
terrorism, #as incompati'le #ith the right to li'erty and the right to 'e free of
discrimination under Articles 3 and 2 of the European (on%ention on <uman Dights as
gi%en effect in the )E 'y the <uman Dights Act ::9! ,ecause of the terms of section 22
there #as no possi'ility of its 'eing read or gi%en effect on particular facts in such a #ay
as to a%oid incompati'ility!
2;! At other times, the courts must loo" at the &uestion of compati'ility conditionally,
purely in relation to the compati'ility of the effects produced 'y the lo#er-order norm
#ith the re&uirements of a higher-order norm on the facts of a particular case! In the )E,
this is re&uired 'y section ; of the <uman Dights Act ::9, #hich pro%ides -and I
paraphrase crudely. that a pu'lic authority acts unla#fully if it acts incompati'ly #ith a
(on%ention right unless it is re&uired to do so 'y the terms of primary legislation #hich
cannot 'e read and gi%en effect to allo# (on%ention-compati'le action! /his pro%ision is
otiose unless a court can re%ie# the (on%ention-compati'ility of the acts of a pu'lic
authority exercising functions #ithin the po#er conferred 'y an Act of Farliament #hich
is not intrinsically incompati'le #ith a (on%ention right, to see #hether the effect of the
#ay the po#er #as used in a particular case is compati'le #ith such a right! *uch a
re%ie# re&uires a particularly fact-sensiti%e and fact-specific approach!
0
27! (ourts sometimes struggle to #or" out #hich of these approaches they should 'e
ta"ing! 1hen conducting a'stract re%ie#, #hether pre-legislati%ely or post-legislati%ely,
$udges are %ery li"ely to tend to#ards a rule-centred approach? as the nature of the re%ie#
precludes serious attention to concrete factual circumstances, and conclusions a'out
compati'ility must necessarily 'e general rather than particular, $udges are li"ely to loo"
more at the linguistic relationship 'et#een the norms, and concern themsel%es more #ith
unconditional than #ith conditional compati'ility! ,ut e%en #hen the re%ie# is concrete
rather than a'stract and the challenge is to the practical effects of the legislation rather
than its intrinsic compati'ility #ith a higher-order norm, $udges sometimes prefer to
concentrate on issues of unconditional rather than conditional compati'ility! In practical
terms this limits their role to a'stract re%ie#, and ma"es it less li"ely that they #ill 'e
a'le to pro%ide a remedy #hen a po#er is used in such a #ay as to produce an
unconstitutional result in a specific case!
29! /his, I respectfully suggest, is an error! It is manifested in the approach of a
ma$ority of the enlarged panel of se%en La# Lords in 'a$ v, Lambeth London .orough
Council!

/he claimants argued that decisions a'out the allocation of pu'lic-sector

housing had %iolated their right to respect for pri%ate and family life and the home under
Article 9 of the E(<D and section ; of the <uman Dights Act ::9! /he decisions #ere
#ithin the range of discretion conferred 'y housing legislation, 'ut #ere said to produce
(on%ention-incompati'le results on the facts of the cases and to 'e therefore unla#ful! A
ma$ority of $udges
2
held that they should re%ie# the (on%ention-compati'ility of
housing decisions only if it could credi'ly 'e argued that the legislation under #hich they
0
*ee Aeldman, 5Institutional roles and meanings of Icompati'ilityJ4, n! : a'o%e!

7200;8 )E<L 0, 7200;8 2 A( 2;3, <L!

7
had 'een made #as itself incompati'le #ith (on%ention rights! ,ut if it had 'een
incompati'le, it #ould in any e%ent ha%e denied the claimants any effecti%e remedy for
%iolation of their rights, 'ecause the <ouse could only ha%e made a declaration of
incompati'ility, #hich -'y %irtue of sections 0-2., 2 and ; of the <uman Dights Act
::9. #ould ha%e left 'oth the legislation and the decisions made under it %alid and
effecti%e!
0
/hat approach means that the duty under section ;-. of the Act to act
compati'ly #ith (on%ention rights is effecti%ely excluded from decisions a'out housing
allocation, an extraordinary conclusion!
2:! /he error is explained 'y the concern of the $udges in the ma$ority to a%oid
complicating procedures and #asting time on unnecessary in&uiries -per Lord <ope., and
to a%oid appearing to &uestion the $udgement of the legislature, encapsulated in a long
series of statutory pro%isions, as to the 'est #ay of allocating and controlling the
occupation of pu'lic-sector housing -per ,aroness <ale at paragraphs 93-9;.!
<o#e%er, the adoption of a norm-centred approach rather than a fact-centred approach to
the e%aluation of an exercise of official discretion improperly and #ithout statutory or
constitutional $ustification narro#s the scope of $udicial re%ie# to the point at #hich
those su'$ect to official discretion are depri%ed of any effecti%e $udicial remedy, ma"ing a
#hole area of pu'lic administration a no-go area for human rights and fundamental
freedoms!
00! /he choice 'et#een a norm-centred and a fact-centred approach re&uires $udges
to 'e sensiti%e to their constitutional position and o'ligations, and to the practical and
constitutional implications of their acti%ities! A decision to use an approach #hich unduly
limits $udicial re%ie# in one area can ha%e damaging conse&uences in other areas, and
can ma"e necessary difficult and em'arrassing intellectual contortions in future cases!
/his is demonstrated 'y the pro'lem faced 'y the <ouse of Lords in (uang v, -ecretar$
o! -tate !or the (ome #epartment
2
#hen trying to explain #hy the approach adopted 'y
the ma$ority in 'a$ v, Lambeth London .orough Council in relation to housing #as not
e&ually applica'le to the re%ie# of immigration decisions, as counsel for the <ome
*ecretary had argued! It is to 'e hoped that the refusal of their Lordships in (uang to
adopt the same approach as in 'a$ indicates that 'a$ #ill come to 'e seen as a mista"e
#hich, if follo#ed at all, must 'e strictly limited to its o#n particular context!
Conclusions: factors affecting the legitimacy of judicial
review of legislation
0! /he distinctions dra#n so far in this paper, if accepted, and the resulting re$ection
of the idea that $udicial re%ie# has a monolithic character, ha%e implications for
arguments a'out the legitimacy of $udicial re%ie#!
02! Airst, pre-legislati%e re%ie# is more difficult to $ustify than post-legislati%e
re%ie#, 'ecause the former in%ol%es a direct inter%ention in the process of legislation 'y
an institution #ith no special legislati%e authority! (onstitutions and legislatures should
2
Lord <ope at para! 0, Lord *cott, ,aroness <ale, and Lord ,ro#n! Lord ,ingham, Lord Hicholls and
Lord 1al"er dissented on this point!
0
,aroness <ale and Lord ,ro#n accepted this at paras! 99 and 203 respecti%ely!
2
720078 )E<L , 720078 2 1LD 39, <L, at para! 7!
9
'e %ery #ary of as"ing $udges to in%ol%e themsel%es in pre-legislati%e re%ie#! If a
constitution re&uires courts to conduct pre-legislati%e re%ie#, courts must carry out their
constitutional o'ligations, 'ut should restrict the scope of their acti%ities as much as
possi'le! /hey may do this in a num'er of #ays, including? -a. ma"ing it clear that pre-
legislati%e opinions #ill not 'e 'inding on them or other institutions or people post-
legislati%ely@ -'. adopting a norm-centred approach to the tas" appropriate to a'stract
rather than concrete re%ie#@ and therefore -c. concentrating on unconditional rather than
conditional forms of compati'ility!
00! *econdly, #hen conducting post-legislati%e re%ie#, courts are not acting
illegitimately in terms of the separation of po#ers! /he legitimacy of $udicial re%ie# of
this "ind depends on adopting the approach or techni&ue appropriate to the issue, 'earing
in mind that the primary role of $udges is al#ays to do $ustice 'et#een parties in
particular cases in accordance #ith the constitution! An approach #hich leads $udges to
adopt too narro# a %ie# of their role is constitutionally at least as illegitimate as one that
leads $udges into a %ery #ide-ranging role! /he constitution, #hether codified or
uncodified, is all-important!
02! 1hat of challenges to the legitimacy of $udicial re%ie# 'ased on political theory,
relying on theoretical models such as democracy or li'eral indi%idualism6 I ha%e
difficulty #ith such challenges, 'ecause they seem to me to 'e largely 'eside the point!
Judging is not and should not 'e regarded as a democratic acti%ity! It upholds the rule of
la#, #hich -as experience in ,osnia and <er>ego%ina, Ira&, Afghanistan and else#here
has sho#n. is a necessary condition for democracy and for respect for indi%idual
freedom! La#-ma"ing and controlling the political acti%ities of the executi%e are
&ualitati%ely different acti%ities from upholding the rule of la# and the constitution!
Gemocracy offers no guarantee of democracy! +nly a com'ination of good sense,
tolerance, 'roadmindedness and respect for legal and constitutional limits can maintain
the fragile plant #hich is democracy! /o su'$ect $udicial re%ie# to a criti&ue 'ased on
democracy is to undermine one of the essential props shoring up democracy! Judicial
re%ie# is not undemocratic@ it is extra-democratic and pre-democratic! As $udges and
legal academics #e should not 'e shy a'out reminding political philosophers, citi>ens
and politicians of that 'asic truth, 'orn not out of theory 'ut out of 'itter experience in
too many places and times for it to need reiteration!
03! 1hat, then, are the theoretical foundations for the legitimacy of $udicial re%ie#6 I
suggest three!
0;! Airst, there is the constitution! *ome codified constitutions expressly pro%ide for
$udicial re%ie#! Article BI line of the (onstitution of ,osnia and <er>ego%ina
commands, 5/he (onstitutional (ourt shall uphold this (onstitution!4 *imilar express
pro%ision is made in the *outh African (onstitution! 1here no such express pro%ision
appears, express limits on the competence of non-$udicial institutions of the state, such as
those in the Airst and Aourteenth Amendments to the (onstitution of the )*A or those
inherent in arrangements for the di%ision of po#ers on federal lines as in the )*A,
=ermany and Australia, at least strongly imply a $udicial re%ie# po#er, as courts in those
countries ha%e consistently held!
:
07! *econdly, in many 'ut not all countries, the people or the legislature ha%e the final
say! /hey can change the effect of the legislation, and as a last resort they can change the
constitution! )ltimate po#er resides outside the $udiciary!
3
09! /hirdly, there is the pu'lic accounta'ility inherent in $udicial method, particularly
'ut not exclusi%ely in common-la# traditions! /he re&uirement for decisions to 'e made
and $ustified pu'licly 'y arguments 'ased as far as possi'le on pu'lished, articulated,
authoritati%ely enunciated rules, principles and %alues, imposes on $udges a discipline
rarely accepted 'y other institutions of the state! It is a day-to-day discipline, rather than a
periodic, 'road-'rush accounta'ility to an electorate! It allo#s the indi%idual decisions of
indi%idual $udges or courts to 'e su'$ected to searching scrutiny and criticism
;
on
grounds of legal techni&ue and principle, social 'enefit, compliance #ith a %ariety of
%alues, or indeed any standards that critics -#hether $udicial peers, legal academics,
politicians or others. #ant to apply! Judges4 openness to this "ind of rigorous scrutiny
ensures that they are al#ays accounta'le -in the sense of ha%ing to gi%e an account of the
reasons for their decisions.!
0:! =i%en those constraints, I suggest that #e -$udges and legal academics. should
stop #orrying so much a'out #hether $udicial re%ie# is legitimate, and return our
attention to the tas" of ensuring that #e are al#ays as clear as possi'le a'out #hat #e are
doing and that #e use approaches that are appropriate to the %arious tas"s in%ol%ed in
dealing #ith the many different "inds of $udicial re%ie#!
3
As Aharon ,ara" points out, these t#o elements also help to pro%ide an ans#er to those #ho characteri>e
$udicial re%ie# of legislation as counter-democratic, if -contrary to my %ie#. that charge needs to 'e
ans#ered? Aharon ,ara", "he Judge in a #emocrac$, n! 9 a'o%e, pp! :-:2!
;
Aharon ,ara" refers to this form of accounta'ility? op, cit,, n! 3 a'o%e, p! :;!
0