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Dame Sian Elias

On Friday 16th May 2008 the Centre for Public Law held the eighth in the series of lectures in honour of Sir David Williams. The lecture, entitled "Taking Power Seriously" was given by Dame Sian Elias:

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The text of the lecture is available to download (195kb PDF).

Introduction, Professor Christopher Forsyth

Ladies and gentlemen, the Sir David Williams Lecture is held annually in the Faculty of Law, under the auspices of the Centre for Public Law, to honour Professor Sir David Williams, QC, Emeritus Vice Chancellor of this university. 

The lecture is made possible, in the first place, through the generosity of Mr John Nolan of the firm, Steptoe & Johnson, of Washington DC and in the second place, the lecture is also supported by Mr Michael Russ of the firm, King & Spalding, of Atlanta, Georgia, whose most recent contribution to the Sir David Williams Fund was made less than three months ago.  Although neither John Nolan nor Michael Russ is with us this evening, it is appropriate to start proceedings with the Centre for Public Law recording its gratitude to those benefactors who have made this all possible. 

This is the eighth Sir David Williams Lecture and the names of the lecturers reads like a roll call of the most eminent judges and scholars in the common law world; following in that tradition is the Right Honourable Dame Sian Elias - the twelfth Chief Justice of New Zealand.  Chief Justice Elias studied law at the University of Auckland and was admitted to the bar in New Zealand in 1970.  She undertook post graduate work at Stanford before entering legal practice in Auckland.  She has served as a Law Commissioner in New Zealand in the 1980s and was appointed a Queens Counsel in 1988 and a judge of the High Court in 1997.  Chief Justice Elias became Chief Justice in 1999 and was appointed to the Supreme Court of New Zealand on its establishment in 2004.

Sir David Williams, I am sure, would like me to mention that the Chief Justice is also of Welsh extraction.  She is to address us this evening on “Taking Power Seriously”.  Ladies and gentlemen: Chief Justice Elias.

Dame Sian Elias

Greetings.  I am deeply honoured to give this lecture to celebrate one of the great public lawyers and university administrators of our time.  I know that previous speakers have said the same thing, but I am only too conscious that in their company and in yours, I look like “spot the difference”.  But it is also an outstanding pleasure to speak in honour of Sir David.  He is held in the highest affection, as well as respect, in my country as well as in yours and indeed, if he was not Welsh we would claim him for New Zealand.

It is also a personal pleasure, not only because of my own affection for Sir David, but because, as you have heard, we share a connection.  In fact, it is quite a close connection, because it is with the Tywi Valley and with Carmarthen and in my Carmarthenshire family he is referred to still as the clever son of the headmaster.  So, context is everything, as I am going to show.

Public power has exercised Sir David Williams throughout his distinguished career.  He has emphasised in his writing that administrative law, by which such power is controlled, is a subject in perpetual motion, constantly changing in emphasis, content and approach.  And of course, in this he echoes Badger’s view of the English constitution.  Indeed, the control of public power through judicial review lies at the heart of the area of law we call constitutional.

Felix Frankfurter thought that in administrative law we are dealing pre-eminently with law in the making, with fluid tendencies and tentative traditions.  Recent constitutional shifts have illustrated that point.  They have shaken the fig leaves covering judicial fundamentals.  Of the frenzied academic repositioning that has followed, Sir David has simply said that it was inevitable.  As a by-product of the new constitutional developments, the literature on judicial restraint and judicial activism will grow in a haze of genuine anxiety.  Now, as to how judges might meet such anxieties in controversial cases, his earlier advice presumably still applies.  “It depends,” he says, “in each case, on good sense and good timing”.  Good luck, judge. 

Now, mine is a jurisdiction where similar constitutional shifts have occurred.  In New Zealand we too have no constitutional written instrument.  Indeed, it is a widespread misconception that we have no constitutional law at all, or that if we do it begins and ends with the doctrine of parliamentary sovereignty.  Our Constitution Act does not purport to be constitutive.  It was enacted in 1986 to repeal an 1852 imperial statute which had simply conferred representative government on New Zealand and it simply recognises that in New Zealand the parliament consists of the sovereign in right of New Zealand and the House of Representatives and the parliament continues to have full power to make laws.  There is separate recognition of the executive council and the judiciary, but without identification of functions.  So these elements remain constant.

But since the early 1980s, our constitutional landscape has changed.  In 1982 we enacted freedom of information legislation, which enables anyone affected by an administrative determination to obtain reasons for it.  Since 1990, we have had a statutory bill of rights, broadly comparable to yours.  In 2003, we set up a court of final appeal, the Supreme Court, in place of the right of appeal to the Privy Council.  And in that legislation setting up the Supreme Court, in a break with our usual reticence about constitutional fundamentals the act provides “nothing in this act affects New Zealand’s continuing commitment to the rule of law and the sovereignty of parliament”.

Now neither of these two principles, the rule of law or parliamentary sovereignty, is identified in any other legislation in New Zealand and it has not been explored in our case law either.  It seems that the reference to parliament sovereignty was initially prompted by concerns to quell judicial overreaching.  Parliament balanced it with the rule of law.  In New Zealand Dicey still rules.

These reforms mean that in New Zealand we now have a final court of appeal which is visible to New Zealanders, as the Privy Council was not.  It means that much of the work of the courts is now concerned, as is the work of your courts, with application of overarching and broadly expressed human rights values and it means that administrative decision making comes to be assessed in a climate of openness and justification in public administration. 

All of these changes impact upon the work of the courts in judicial review.  As is the case in the United Kingdom, from which our common law did not greatly deviate, modern judicial review in New Zealand is itself the product of cases decided in the last 40 years.  This overall newness of institutions as well as law means that anxieties about judicial restraint, judicial techniques, political understandings and political controversies, seem amplified.  In the light of the Williams’ view that a snapshot cannot help but be misleading, I talk about some of the dynamics in play in administrative law today and how it addresses power.

Because our law is largely comparable to yours, you cannot hope that an antipodean perspective will be startling and in this seat of scholarly dispute I do not attempt more than an acknowledgement of the rich academic controversies in the United Kingdom that illuminate, or should illuminate, thinking even at the ends of the earth.  At the risk of being taken to an un-intellectual strand in New Zealand law, we have tended to pick our way by the simpler path, as Lord Cooke of Thorndon always urged and always mindful of context, which is, I think, as Sir David Williams would have it.

When I first studied administrative law in the mid 1960s it was a very new subject.  In New Zealand too we were only starting to wake up from the torpor which had prevented law responding to the challenges of administrative government.  The shock expressed by the American public lawyer, Kenneth Culp Davis, in 1962 at the unwillingness of the English courts to enquire into serious injustice in the administrative process applied equally in New Zealand.  We too failed Davis’ test as to the soundness or unsoundness of judge made law and its effect on living people.  Sir William Wade spoke of our courts as well when he said that in the period of their backsliding the judges declined to apply the principles of natural justice, allowed ministers unfettered discretion where blank cheque powers were given by statute, declined to control the patent legal errors of tribunals, permitted the free abuse of Crown privilege and so on. 

In New Zealand there were a few stirrings.  One concerned a very New Zealand issue, the powers of the dairy ward to control the area of operation of the dairy company and in that case the Court of Appeal, by some fancy footwork, distinguished Nikuda Ali’s case and sidestepped Lord Hewitt’s mis-statement of Lord Atkin and held that an administrative body was obliged to apply the principles of natural justice.  And although a couple of the judges in the majority granted the judgment on a rather narrower ground, Mr Justice Finlay was of the view that the re-zoning of the area in which a dairy company could operate was an issue that inherently required natural justice.  The Dairy Board, he said, was not entitled to act autocratically and in defiance of the fundamental principles of fairness.  But that was the high point of Professor Jack Northey’s casebook for the administrative law class in Auckland, taught by the new and very alarming case method that he had introduced from North America.

And when I began practising in the courts of New Zealand at the beginning of the 1970s, being female was not a particular advantage and my practice was largely concerned with what we would now call human rights law.  Human rights, however, is something that happened in other countries at that time.  The people I acted for were accorded little dignity by the justice system of the day.  There was little protection of the law for those who were beaten up in the police cells before court.  The law was confident that the removal of children from parents with disabilities or inadequacies was for their own good.  There was no redress available to a boxer who was deprived of his livelihood when his licence was withheld in breach of natural justice.  And for the protestor I acted for, who told a member of the Royal family that “she was a ‘bludger’ off the peoples of the earth”, that is, a sponger in our terminology, the indignation of the law was undiluted by concern about freedom of speech. 

They were days before we thought to invoke in argument international instruments respectful of family relationships or human dignity or political speech.  It was before we had ratified important human rights covenants.  It was long before we adopted the domestic Bill of Rights Act.  It was a time when the courts were deeply suspicious of social or political context.  Citation of foreign case law, apart from the case law of the United Kingdom or Australia, which did not count as foreign, was rare.  Nor did judges have the Bill of Rights Act responsibility to provide effective remedy to those whose human rights had been infringed.  For many who were harmed through abuse of public power there was no redress to be had.  Today, the cases from that period seem to belong to a different world when they are occasionally referred to as they are in support of expansive views of police powers or administrative discretion.

As is well known from the 1960s, the judges of the United Kingdom and some of our own judges too, executed the series of u-turns described by Sir William Wade and these put the law back on course.  In his opinion this was a response to the public mood.  The perception of administrative injustice had become too strong to be ignored.  The process took some time.  It may not yet be complete.  It seems now astonishing to recall that it is only recently that it has been accepted that requiring natural justice does not undermine police discipline and should be required for statutory procedures where revocation of licences or the granting of planning consents is an issue.  And with the same astonishment today I look back on the disbelief that greeted a New Zealand decision that the planning committee of the local council was under a duty to observe natural justice and had breached the duty by not disclosing a planning report prepared by its own town planning officer.  That was thought to be revolutionary.

In the preface to the essays in honour of Sir William Wade, Professor Forsyth takes mild issue with Lord Diplock’s verdict that the creation of the comprehensive system of administrative law had been the greatest achievement of the English courts in my judicial lifetime.  Professor Forsyth points out that this was not the achievement of the courts alone and he says that academic writing played a critical role.  Now I certainly accept that the interplay between academic writing and judicial development was critical.  Sir David Williams himself has written of the invaluable behind the scenes direct advice given by Sir William Wade both before and during the hearing in the House of Lords in R v Baldwin and the extensive citations from academic writing in the Pro Life Alliance case indicate that such interplay continues and Sir David’s own contribution to the illumination of the judiciary must be acknowledged.  But political actors too must be given credit.  I do not suggest that it is not said that they should not be and I have already referred to the legislative changes that have been critical in recent constitutional shift.  And I think there is an additional and very important, dynamic at work in evolving popular expectations.  Now these forces are, of course, interdependent.  Some constitutional change comes as a result of conscious political choice.  Speaking at the time of accession to Europe in 1972, Sir David Williams referred to a sense that the United Kingdom was on the verge of the greatest change since the seventeenth century.  Some others, such as Lord Denning, saw what was coming, but few are far-sighted enough to recognise when a constitutional moment comes.  It took another 20 years for the shift to be acknowledged, in Factortame number two, and by then it almost went without saying.

If sometimes change results from conscious political choice some constitutional shift occurs with changes in social and government culture.  The development of the modern administrative state was itself one of those shifts.  It was characterised by conferral of wide discretion and dispersal of executive power, both of rule making and application.  Felix Frankfurter, writing in 1926, described how the move to the modern administrative state had made it inevitable that the field of discretion would be greatly widened, opening, he said, the door to potential abuse arbitrariness.

Well, that shift caught the legal system flatfooted.  It should not have, because as Frankfurter recognised, although the issues of power were presented in more acute form and over a wider range of activities the modern administrative state threw up new aspects of what were familiar conflicts in private and public law between rule and discretion. 

Providing the restraints which identify and control discretion - the “hole in the doughnut” - as invoked by Ronald Dworkin, is a major pre-occupation of administrative law today.  It is, effectively, work of interpretation, comparable to and exacerbated by, the preference in modern legislation for open-textured drafting.  In such work it has been said that courts act as junior partners in the legislative enterprise.  Where broad discretion or open-textured legislation is an issue, adjudication cannot escape producing what is effectively supplementary legislation and as Sir David Williams has emphasised in his writing, statutory interpretation in administrative law cases must grapple with broad constitutional assumptions.  The common law value behind the hostility of the courts to ouster clauses and suggestions that administrative tribunals can decide questions of law conclusively, is the constitutional assumption that questions of law are for the court. 

Reluctance to intervene in matters of high national security or government policy is also the application of a constitutional value.  Sir David Williams has suggested that this role of the courts should be frankly acknowledged without recourse to fiction. 

In addition to changes brought about through social and political evolution, constitutional law develops also in small places.  Maitland posed the question how are we to define constitutional law?  Not at the beginning, but at the end of his series of lectures on constitutional history.  His view was that the constitution of a country can be discerned only from its general law and only at a particular time and he said that a classification of legal rules which suits the law of one country and one age will not necessarily suit the laws of another country or another age.  One may perhaps force the rules into the scheme that we have prepared for them, but the scheme is not natural or convenient.  Only those who know a good deal of English law are really entitled to have any opinion as to the limits of that part of the law which it is convenient to call constitutional.

The shifting constitution is to be found in general criminal and civil law, as well as in the law of judicial review.  Sir David Williams has paid close attention to these sources of constitutional law.  He has drawn attention, for example, to the significant supervision traditionally exercised in New Zealand over delegated legislation through collateral challenge in criminal proceedings.  But benevolent interpretation was never an Antipodean impulse.  We have always supervised quite strictly in collateral challenges. 

Policing and public assemblies have been areas of special interest for Sir David.  He considers that the parallels between criminal and administrative reasonableness illustrate the adaptability of Wednesbury principles permitting variable intensity control by the courts in the different circumstances of prior restraint where stricter justification may be required and on the spot law enforcement with some allowances for decisions taken under pressure and in circumstances of uncertainty may be appropriate.  Now these cases may not be as dramatic as some.  They are low order disputes in many respects.  But they are very important in vindication of law and in setting and developing standards, and they impact on the lives of living people.

Sir David Williams has rightly insisted that the task of the courts in these cases is to illuminate as well as to reinforce the processes of accountability.  He suggests that cautionary dicta and the expression of doubts are important, even where actions are upheld and in this he has recognised the importance of airing the issues at stake in the deliberative method of the court.  It promotes good administration and ensures that accountability mechanisms adapt to changing circumstances and the audience for public adjudication is wider than the parties.  So, for example, Lord Bingham’s admonition in the AB case, the case about the disclosure of the addresses of paedophiles, his admonition that those who had served their sentences should not be the subject of intimidation and private vengeance, harried from parish to parish like paupers under the old poor laws, was directed at the news media as much as the police.

Sir David Williams was a long time advocate for openness in government and thought the duties to give reasoned and principled decisions for administrative decisions were an indispensable element in a modern democracy.  In “Not in the Public Interest”, which he wrote in 1965, he put the case for reform. 

Now, I have attempted a slight review of some of Sir David’s work because it identifies things I want to consider further.  They are the contextual constitutional values and movements against which judicial review is exercised today and the use properly to be made of those values in doing justice to the living people affected by public power. 

I speak just briefly about constitutional law.  The constitution, as formerly understood and described, was the entire body of law, institutions and customs that comprised the Commonwealth.  Martin Laughlin has remarked on the modern alteration in meaning, which he attributes, I think rightly, to the influence of the American constitution.  The common law constitution however was not a constitutive instrument, but a developing system indistinguishable from the law of the realm, the sources of which Salmond put as legislation, custom, precedent, professional opinion and agreement.  The strength of the English common law system has been attributed to its combination of stability with elasticity. 

The sovereignty of parliament is a doctrine of the common law, but Dicey’s scientific method did not allow for the dynamism of the common law in the doctrine of parliamentary sovereignty.  He expressed it rather as universal truth.  When the assertion was seen to be out of step with the realities of post-war constitutionalism, devolution of empire and treaties of accession, Sir William Wade was pressed to describe constitutional change in terms of revolution rather than organic development.  This has not greatly convinced the judges, or at least the ones I have spoken to, perhaps because it undermines judicial legitimacy and perhaps because it does not accord with their impression of what actually happens.  Nor does it do justice to the long co-operation between the judges of the common law and the parliament which shaped the modern constitution. 

Moreover, in a common law tradition, where judges say what a statute means and must make statutes and common law together, the efforts of both parliament and the courts are both essential to the working legal system.  The view that the constitution does not evolve except by revolution sets up a rather jerky view of the constitution.  I have said elsewhere that I think it is a theory that does not fit and I do not want to go over that ground here.  My present purpose is to point out that changing values have to be accommodated in any legal system.  Richard Posner was clearly right to say that it was not pondering over the text of the fourteenth amendment that caused the Supreme Court in Brown v Board of Education to reverse Dred Scott.  The light bulb was switched on because the judges realised that the world had moved on.

Judges need to have insight into the values of their societies.  They certainly need to bring those insights to bear when they are required to assess what is in the public interest, or what is demonstrably justified in a free and democratic society, or what is reasonable or fair.  In Australia, where I have been in the last few weeks, there is much agitation at the moment over whether there should be an enacted statement of human rights, that is, a commonwealth one.  There is a widespread belief that any such statement of rights is foreign to the Australian constitution.  Opinion pieces in the press assume that Australian law is without values and that any enactment of rights would be revolutionary.  The attitude ignores the inevitable recourse of the courts to fundamental values and indeed there have been some eye catching examples in the past from the High Court of Australia, even from that proponent of strict legalism, Sir Alan Dickson. 

Does it make a difference if values are broadly identified in a democratically conferred statement rather than discovered by judges and presented as imminent in the common law?  Most would say, I think, that democratically conferred statements have more legitimacy, but however identified, such values cannot be avoided. 

Checking and controlling the exercise of power takes place within a constitutional framework, which includes parliamentary sovereignty, ministerial responsibility and the separation of judicial functions from the political functions carried out by the legislature and the executive.  This institutional framework may keep the overall system in some sort of balance, but if seen as marking out entirely distinct spheres of responsibility on its own, it would be unacceptably tolerant of government powers.  As the New Zealand Supreme Court indicates and as judges here have been affirming, the principle of the separation of powers is shadowed by the principle of the rule of law.  These are the two points around which the constitution appears to move today.  Their content and the relationship between them is the context in which administrative law comes to be considered in actual controversies.

Before considering the constitutional principles of the rule of law and the sovereignty of parliament I want to touch on the reach of administrative law in the corporatised and pluralist modern state.  It is impossible, it seems to me, to draw the line on a division between public and private law, as Dawn Oliver and many others have convincingly shown.  A strict distinction ignores both the distribution of public power and the overlapping development of legal principle and remedies.  The liability in negligence of public bodies, for example, raises questions about consistency in the standards of reasonableness and accountability.  Nor can the boundaries of administrative law be confidently drawn on the classification of the actors as public or private and I think we have seen some wrong turns by courts on this approach.

Public powers are increasingly exercised by private bodies.  Even if a functional approach to power is adopted, the lines are not clear cut.  Moreover there are risks in seeing the principles of the common law as if they follow from the classifications into which it is convenient for us to sub-divide areas of law.  Many of the principles and values are common, as the cases relied upon by Lord Bridge and Baldwin illustrate.  In one New Zealand case, a controversial case it has to be said, public law authorities were applied to reject a strike out of a claim for an injunction against the New Zealand rugby union to prevent a rugby tour of South Africa.  Ms Justice Cook, for the court, said that it was a case which had aspects of public law because of the position of rugby in New Zealand’s society.  Now, Sir David might approve.

The common law pays close attention to power wherever it is found.  In equity, company law, employment law, criminal law as well as in administrative law.  It confronts power imbalance and abuse.  When I was a law commissioner working on company law reform one of my colleagues remonstrated with me about using public law principles to effect company law.  But of course the principles we were drawing on overlap and cross-refer and are developed out of similar values.  It seems to me to impoverish the development of our law if we keep the thinking in these cases in separate compartments. 

I do not suggest that a sense of public power is not a very important concept.  The issues of control of power thrown up by deregulation and what has been called the contracting state have brought some welcome attention to what it entails.  There is more emphasis on identification of public law values.  Michael Taggart from Auckland has suggested that the starting point for a division between private and public law is where self‑regarding behaviour starts.  On his view administrative law is concerned with the primacy of public regarding behaviour and that seems to me to be similar to the opinion expressed by Sir John Laws building on Professor Wade.  A public body under this conception exists for no other purpose than to fulfil the duties which it owes others and I think that insight is important.  The considerable overlap and cross-fertilisation between private law principles and public principles will continue, but perhaps we will see greater attention to the nature of the wrong being asserted and some re-interpretation.

On separation of powers and the rule of law, Lord Diplock described the separation of powers as it had been developed in the unwritten constitution of the United Kingdom as taken for granted in all constitutions derived from the Westminster model.  His focus was protection of the judicial power, in support of which the doctrine has been effectively deployed to resist legislative encroachment in a number of jurisdictions, pre-eminently Australia and its development of its chapter 3 jurisprudence, but most recently in a cluster of cases in the House of Lords where the judges have used the concept of separation of powers when considering issues of institutional competence.

Separation of powers is a doctrine to be used perhaps with some caution.  It is difficult to uncouple it, at least in popular understanding, from the very different and well known American context.  I wonder whether its lazy repetition may have obscured the very different position of the executive in Westminster systems.  I think Sir David Williams is also sceptical, because he has described separation of powers as a doctrine at best selective in application.  Difference between legislative and judicial function can be readily acknowledged, although in filling in the gaps in statutes and discretions I have already suggested that the courts are engaged in a process that is partly legislative.  But recognition of difference does not make drawing the line straightforward in many cases and much of the debate about justicability takes place in this space.

But the greater difficulty is the application of the doctrine to the executive.  In our system the executive has no independent authority as it has under the constitution of the United States.  The executive must identify a statutory or prerogative authority for everything it does.  I think that Trevor Allan is right to point out that the perception might be different, or is different and he thinks it is an essential problem for administrative law control of administrative discretion that the executive is widely seen as an independent source of policy formation and governance reflecting its own views of the public interest.

I do not think however that the perception affects the constitutional position or the supervisory role of the court.  Recognising the executive as a source of authority independent of parliament, I think, would be revolutionary.  If the foundation or constitutional elements remain parliament and the courts, as in the New Zealand Supreme Court Act the twin constitutional doctrines of parliamentary sovereignty and the rule of law suggest, then the executive is answerable to both.  The executive is responsible to parliament politically and to the courts for the lawfulness of what it does.  Sir Stephen Sedley develops this to suggest a bi-polar sovereignty of the Crown in parliament and the Crown in its courts, to both of which the executive is accountable.

Invocation of the troublesome concept of sovereignty does not seem to me, however, to be entirely necessary and it is certainly one that I would like to avoid.  The courts determine the legality of executive action while acknowledging that political accountability is to parliament.  In some cases, the ones in the ‘hole of the doughnut’, political accountability is the only accountability.  In this way the difficult questions thrown up at the margins can be said to be addressed through the processes of democracy and under the security of law.  At the end of the day and subject to any ultimate constitutional restraint, I will say that very softly, parliament can loosen the constraints imposed by the courts if it thinks the courts have left the hole in the doughnut too small.

Lord Diplock was of the view that the executive was responsible only to parliament in respect of efficiency and policy.  Where policy ends and unlawfulness starts, however, is a line that is incapable of precise definition.  Much recent scholarship has been devoted to the porous nature of fact law and policy.  A categorical approach based on strict distinction between law on the one hand and fact or policy on the other is plainly unworkable and is not what the courts do.  Judicial review cannot help but engage with policy.  The difficult question the courts have to address is the size of the hole in the doughnut and that is the boundary they police.  It is not capable of determination except in context.  The decision as to the size of the hole amounts to a determination by the supervising court that the only accountability for a particular administrative action is to parliament. Not scope of power, but its application, I think, is the focus, and a consideration that may be important in that context is whether check by parliament is effective in the particular circumstances.

The boundary is set by reference to the substantive values of the legal system and there is nothing new in this.  All questions of legal liability, responsibility or authority are considered against such values.  They are also used in statutory interpretation to determine the meaning of legislation and I have already referred to the view that in supervising administrative decision making the courts are engaged in the same interpretive exercise, both in deciding what limits are set by the words conferring discretionary powers and by the context in which they are exercised.  On that basis values like the principle of legality, tapping into deeper substantive values in the legal order and presumptions of conformity within international law attach equally to discretionary decisions.  So too do the values extracted by the courts from the constitutional doctrine of the rule of law around which the courts seem to be re-positioning judicial review.

What are the principle values in the rule of law, as applied to administrative action?  In addition, to legality they clearly entail reasonableness and fairness.  Perhaps more controversially they may include human rights and, insofar as it is not a separate human right, the notion of equality before the law.  I comment briefly on these values before turning to the role of justification in administrative law and concluding with some remarks about administrative justice.

Is the protection of human rights part of the rule of law? Certainly, the preamble to the International Covenant on Civil and Political Rights asserts it is and Lord Bingham, politely disagreeing with Raz in his David Williams’ lecture on the point, maintains that human rights are part of the rule of law while allowing that the rule of law component may not be the same as the catalogue of rights which may be enacted or codified at any particular time.  The content of human rights may be contestable.

But in pointing out that the principle of the rule of law loses much of its virtue if it does not include human rights values Lord Bingham taps into an important insight about the moral validity of law in any society.  It is one long ago expressed by Lord Radcliffe when he suggested, only partly in jest, that we should find another name for statute law than law, and the point Lord Radcliffe was making was a serious one, that if law means little more than the vast and complicated mass of things a citizen is compelled to do or not do by virtue of some act of parliament or some order or regulation, then people will adhere to it only for the purely practical reason of keeping out of trouble and he said if that is so something has gone wrong, some clue has been lost.

What engaging with human rights means, in practice, is still being worked through.  Trevor Allan says that a human rights approach requires an abandonment of formal rationality and an unqualified deference to official value judgments in favour of an appraisal attuned to the moral imperatives discerned.  He suggests that it is important for the courts not to confuse the moral standards of the community, which account for the special importance of human or fundamental rights, with official views about the merits of a particular policy based largely on utilitarian grounds.

Now there are risks for human rights in their enactment.  Sir Stephen Sedley some time ago expressed the fear that in the hands of judges human rights may take on the throw away status of Wednesbury unreasonableness, or reasonableness, and the balancing undertaken by the courts in human rights litigation, I think, carries the risk of erosion of the standards that they set.  We have had to grapple with that in our Supreme Court. 

The methodology adopted by the courts in such cases needs care and some of the more difficult cases coming before the courts are rightly concerned with method.  If the emphasis on rationality in decision making leads to a “tick the box” scrutiny of process, if rights are balanced to blandness, if justifications for incursions on rights are used to manage them down, then there will be set backs.  Swings and such things are inevitable and human rights evolve.  What may be more important than the disappointments along the way is that the statements are accessible standards for the legal system and administrative law and that they are standards against which judicial decisions will themselves be judged.  In this they are rightly seen as having affected a radical shift in the relationship between citizen and state.

Now, in your human rights act, as in ours, there is no reference to equality before and under the law.  The white paper in New Zealand which preceded enactment of the Bill of Rights Act considered that the term equality before the law was elusive and its significance difficult to discern.  It was written by Sir Kenneth Keith.  He has expressed the view that the general notion of equality before the law was implicit in the rule of law.  The extent to which the concept of the rule of law contains the notion of equality before the law, as suggested by the white paper, remains unexplored in New Zealand.  The case law we have to date on discrimination on one of the identified proscribed grounds, suggests that the concept of equality is not a free-standing one demonstrated by identifying a comparator, something which may be controversial and the case law suggests that these cases need to be decided simply by looking at the justification for any distinction in context.

Formal equality in application of law is an essential general principle of justice.  It underpins the democratic foundation of modern legal systems by demonstrating that each individual is equally valued.  It is a central plank in the culture of law and law mindedness, essential to the rule of law and the protection of human rights under it.  In addition even application of law is a protection against arbitrariness and bad laws, the thinking that led Justice Jackson to say that courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.  The same consideration can be seen at work in the decision of the House of Lords in the A case.

Whether or not a standalone right, equality of treatment is a measure of its reasonableness for the purposes of considering limitations - perhaps on a Bill of Rights Act right or reasonableness in the exercise of statutory powers, more generally.  Linked to equality is the question of rule making and the extent to which a rule of law justification for judicial review may require processes to ensure equality of treatment.  The balance between maintaining discretion to deal with individual cases and making sure benefits and detriments are not arbitrarily distributed has not yet been greatly explored in my jurisdiction.

Equality of protection of law is very important, but it is not enough to secure substantive equality.  Over the past half century there has been a developing appreciation that the unequal effect of apparently equal laws is what Sir Stephen Sedley called “the snake in the legal grass”.  If substantive equality is properly seen to arise in part from historic social and economic disadvantage, its removal entails re-distribution of advantage through positive measures to promote equality.  That is so whether the strategy is affirmative action or reasonable accommodation and here judges of traditions which do not contain social and economic rights become very uneasy.

I want to talk about justification.  Quite apart from the emphasis on substantive values in the legal system through enactment of statements of rights and invocation of the rule of law, is it fanciful to think that there has been a shift in the way that law is seen in our societies?  The Chief Justice of Australia recently described a developing culture of justification in his country.  I do not think this climate, which we see in many societies, has come about solely, or even mainly, because of increased suspicion about government.  Nor do I think it has come about because of statutory recognition of rights.  I think the trends were there before.  They clearly have been affected by post-war adoption of statements of fundamental rights and the vocabulary and the organising principles they supply and their invocation in judicial review has undoubtedly been facilitated by relaxation in rules of standing. But what is cause and effect here? 

Part of it has to do perhaps with perceptions of the role of government and the place of the individual.  Archibald Cox, considering the role of the Supreme Court of the United States, spoke of a feeling that modern government is simply too large and too remote and too few issues are fought out in elections for a citizen to feel much more sense of participation in the legislative process than in the judicial.

Recourse to substantive values in political and legal discourse was also a feature of post-war societies.  It was refined and led by scholarly writing, particularly that influenced by Ronald Dworkins’ emphasis on legal principle and variable intensity review responded to the insight that in decisions of great important judicial indifference to what happens within the four corners of vast discretion does not meet the needs and aspirations of the community.  The mere possession of power does not justify its use.

A further cause for the shift in culture may be seen in the increasing diversity of modern societies and increased concern that social ends need to be balanced with individual autonomy and the increased openness of government.  These influences overlap.  In pluralistic modern societies, often secular, or with diverse beliefs, law is one of the more important sources of the principles by which society operates civilly.  The concept of human dignity as developed in the South African constitutional court, for example, is concerned not only with impact on the individual but with the interest of the whole community in promoting mutual respect, not only for individual difference, but for group difference.  Some commentators, indeed, see law providing an outlet for clashes of cultures.

The virtue of judicial process is to still controversies.  That is sometimes done through vindication of claim of legal rights in public law.  But much more frequently it is done through authoritative vindication of administrative conduct which is substantively compliant with legal obligations including obligations of fairness and reasonableness.  Although bold decisions may raise the temperature from time to time and inevitably provoke charges of judicial activism, those cases are rare.  Providing legitimacy is a principal contribution of legal process to the rule of law.  It is not achieved through supervision for procedural exactness but extreme deference in matters of substance.  Indeed the courts may forfeit their own legitimacy to legitimate administrative action if they abdicate responsibility in this way to the detriment to the rule of law.

Nor does such deference permit the contribution to wider civil discourse.  Now dialogue, I know, sets teeth on edge at times, but full exposition of the issues that may have been glossed over or overlooked in the political process is a benefit of the deliberative process of litigation which is valuable in itself.  Those who litigate are demonstrating expectations about the system.  They are working within it and sometimes in the patient examination of claims dismissed out of hand in less deliberative, less disinterested processes, there are important gains irrespective of form or outcome.

In New Zealand I have no doubt that litigation by Maori in the 1980s achieved a substantial shift in social and political values.  The decisions in the landmark cases we heard about lands, forests, fisheries and language, delivered relatively modest direct results, but they demonstrated a just political claim, long ignored and resulted in political will to respond.  Similarly cases formerly lost and seeking recognition for same sex marriages in New Zealand and in some US jurisdictions led to the enactment of civil union statutes through the political process. 

The reasoning of the courts in those cases demonstrated the justice to which the political processes responded.  Thoughtful writers have long realised that a critical role played by law in our societies is as a method of argumentation.  That is a major theme of Neil McCormack.  Expression of the values which bear on the outcome promotes understanding and participation.  Now this is not a claim for a process based theory of the constitution, it is a more modest and practical point for the explanation of constitutional law through common law method and real controversies is valuable in itself.  In any event, it seems to me that the cat is out of the bag on this one. 

The climate of openness and the emphasis on reasons has effected a change in the way administrative law is seen.  It has created expectations of justification and rationality of outcome which cannot help but affect administrative law.  Review for procedural exactness alone does not meet these expectations.  In administrative law today the practical questions for the courts may be thought to come down to by what authority and with what justification?  People want to know the reasons why official action is taken which affects them.  It is an aspect of human dignity.  It facilities participation and prevents human beings being regarded as objects.  Similar underlying themes are responsible for legislation which enables individuals to obtain information held about them by employers and public agencies.

Now references to human dignity make some people queasy.  They fear its malleability in the hands of judges bent on vindicating personal preferences.  It should be said that there are plenty of malleable legal concepts in law for those on missions.  Dignity is however a standard which underpins the UN declaration and the international covenants based on it, as a South African constitutional court has emphasised.  Now South Africa may have especial need for such social glue, but that hardly means we have no need for some ourselves and if people are given the dignity of reasons they want those reasons to justify the outcome.  Sir William Wade once explained judicial review for error of law on the face of the record on the basis that seeing such error was more than judicial flesh and blood could bear. 

Well, that is not just a judicial reflex.  Decisions which are clearly wrong are more than human flesh and blood can bear.  Clear error of material fact is as offensive as clear error of law.  Substantive unfairness rankles as much as substantive unreasonableness and probably does amount to unreasonableness in popular estimation too.  And since no one in real life thinks that an unreasonable decision is one so unreasonable that it must have been made by someone deranged, those adversely affected will hardly think kindly of the rule of law if told there is nothing to be done.  Holding the line against merits review, always difficult, is strained to breaking point in the new climate of openness that our societies have come to expect.  It is not necessary to throw the baby out with the bath water.  Review does not entail the court substituting its discretion for that of the decision maker even though in some cases there may be no effective area for discretion.  But the court should not simply defer to assertions of plenary political authority, promotion of the public good, fidelity to traditional moral values or social roles or financial constraints.

What then of the basis for intervention on judicial review?  Lord Cooke long expressed the view that the grounds of judicial review can be summed up on the basis that a decision maker must act in accordance with law and fairly and reasonably.  He contented that there is no need for any amplification of reasonableness or fairness and that both take their shape from context.  On the Cooke approach to reasonableness proportionality analysis is simply a method for assessing what is reasonable in context.  The discipline of proportionality may be preferable, but it is directed at the same variable standard and I am not sure why we have strained so long at this.  Contextual standards apply throughout the law.  Felix Frankfurter, who I quoted at the beginning, thought in administrative law was necessary to be on guard against an undue quest for certainty, born of an eager desire to curb the dangers of discretionary power.  Although there are fields of legal control where the mechanical application of fixed rules is attainable, he said there are other fields where law necessarily means the application of standards if it is to meet the infinite variety of life.

I want to end on justice.  Lord Denning thought doing justice between man and the administration was as important as doing justice between man and man.  That is the work of judicial review in administrative law, although it is easily overlooked.  Too many words, too many theories get in the way.  Sir David’s recipe for doing justice in administrative law is simple.  As I told you at the outset, in New Zealand we prefer the simpler path.  So I leave you with the views that Sir David expressed.  He said:

“The application of the principles of administrative law can sensibly be considered only with proper regard for the statutory institutional and broader social or policy context of a particular case, and in the long term the courts will help in the development of a more ordered legal system if they insisted on clear authority, where clear authority is needed,  if they classify it as legislative actions which deserve that classification and if they intervened where intervention is constitutionally desirable.” 

That really says it all.  Thank you.

Vote of Thanks, Professor Christopher Forsyth

The Chief Justice has said she will answer questions at the reception afterwards, so all I have to do now is to ask Professor Feldman to thank her.

Response, Professor David Feldman

Chief Justice Elias, Professor Forsyth, Sir David, my lords, ladies and gentlemen, one of the features of modern law and particularly, modern public law is the way in which, increasingly, members of the judiciary no longer limit themselves to judicial decision making.  More and more they are prepared publicly to reflect on and contribute to the scholarship of the subject with which they work and in which they work and also reflect on the roles of the judges, themselves.

Chief Justice Elias has just given us a marvellous example of how fruitful that can be for our understanding of law and of the judicial way of thinking, or anyway, a judicial way of thinking.  Mindfulness of context and of the value of simplicity, the interaction between social including moral standards and legal development, judicial development as well as legislative development, ran all the way through that lecture. 

Simplicity, particularly, is something which the Chief Justice is keen on, as I know.  Last time I heard her speak was at a conference in Wellington last year when, after a paper about the, I think, 13 different kinds of unreasonableness in administrative law, arguing that judges should first of all separate them clearly in their own minds and then explain for the benefit of counsel, the parties and readers of the Law Reports, including academics, exactly which of those types of unreasonableness they were purporting to apply in the particular case before them and that was said to be a condition for the legitimacy of the judicial decision, the Chief Justice erupted from the front row when the questions and discussions started and said:  “What was all that about?  For heavens sake have pity on the judges.  How are we supposed to do this?”  And I think what comes across is the way that sometimes the quest for clarity and certainty can be self-defeating and part of the indication that what you have is a mature system is the willingness and ability to accommodate and deal with uncertainty.

There is, of course, as the Chief Justice pointed out, a creative tension between institutions where judges, as she said, come in as partners in the legislative process when dealing with open texture broadly drafted legislation and with constitutional principles and the beauty of having a view from friends abroad is that it casts light not just on the way in which that tension is being worked out in New Zealand, but also in common law jurisdictions in many countries including our own.  I particularly remember hearing several European court of human rights judges at another conference who later refused to put this in print explaining how when they are deciding cases on the European Convention on Human Rights they virtually never look at the text.  What is important is first of all the background value that is in play and secondly the way things seem to be moving, both socially and jurisprudentially.

And that is very much a part of what the Chief Justice has been describing.  The idea that the legitimacy of judicial action is different from and not limited to or by and must not be limited to or by, the idea of democratic legitimacy specifically.  It recalls the, I think it is a Quaker, principle that one of our duties in life is that of speaking truth to power, and what the Chief Justice has argued powerfully for this evening is the idea that it is the legitimate job of the judges as much as anyone else in society to speak truth to power. 

Of course that does not answer all the questions because the big problem in life is not the conflict between truth and falsehood, it is the problem of the conflict between conflicting truths.  But that is a problem where we just have to get to grips again with understanding and accommodating uncertainty.

It is reassuring that we have judges like the Chief Justice who are prepared to come and reflect openly and publicly on those conflicts and tensions.  She has given us a huge amount to think about.  I am looking forward very much to reading the lecture in print.  It is certainly a really valuable lecture and a worthy extension of the long, distinguished series of lectures in honour of a distinguished scholar and public servant.  We are deeply grateful to you for coming and speaking to us this evening.  Thank you very much indeed for doing so.