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Judicial Review in Kingdom and Dominions the Historical Foundations of Judicial Review in the U.K., Canada, and New Zealand

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Judicial Review in Kingdom and Dominions the Historical Foundations of Judicial Review in the U.K., Canada, and New Zealand University of Pennsylvania Judicial Review in Kingdom and Dominions The Historical Foundations of Judicial Review in the U.K., Canada, and New Zealand Abstract: Judicial review, whatever else it may be, provides a mechanism by which the judiciary can affect the implementation, contours, and the formulation of policy. As such, it provides a possible avenue of access to a variable ‘open’ state. Westminster democracies have historically avoided judicial review in order to concentrate policymaking authority in the legislature and responsible executive. In recent years a number of Westminster polities have incorporated and expanded judicial review. This paper explores how this occurred in three Westminster states, arguing that long-run processes shaped the conceptions of judges of their role in the constitutional order, affecting their willingness to assert powers of review. Importantly, structures of imperialism and federalism provided varying opportunities for the judiciary to assert this power. A full account of the emergence of judicial review needs to take account of these structural/institutional factors— the available resources of judges to assert a power to invalidate legislation and their institutionally shaped willingness to do so. I conclude with a discussion of how the different constructions of judicial review at the different moments in each state’s history affected the mobilization strategies of indigenous peoples, and the varying imposition of control by the state. David Bateman Doctoral Fellow – Penn Program in Ethnic Conflict Political Science – University of Pennsylvania 1 Table of Contents PART I............................................................................................................................................ 2 Introduction..................................................................................................................................... 2 Scope: Two Forms of Judicial Review ....................................................................................... 2 Methodology............................................................................................................................... 4 Historical Institutionalism....................................................................................................... 4 Comparative Methodology and Preliminary Analyses........................................................... 6 Key Concepts: Parliamentary Supremacy and the doctrine of ultra vires................................ 10 Parliamentary Supremacy ..................................................................................................... 10 Ultra Vires ............................................................................................................................ 13 PART II......................................................................................................................................... 14 The United States Literature ..................................................................................................... 14 HISTORICAL TRAJECTORIES ............................................................................................. 15 Glorious Revolution, Parliamentary Sovereignty, and the retreat of the Judiciary .............. 15 Pre-1688 Judicial Review ..................................................................................................... 15 Empire................................................................................................................................... 17 UNITED KINGDOM ................................................................................................................ 19 Supervisory Review in the UK ............................................................................................. 19 International Norms, Europe, and UK Jurisprudence........................................................... 22 Devolution and the Return of the Federal Idea..................................................................... 23 British Judges in the Constitutional Order............................................................................ 24 CANADA................................................................................................................................... 25 Imperial Jurisprudence in Canada......................................................................................... 27 Federalism............................................................................................................................. 29 Minority Rights..................................................................................................................... 31 Charter of Rights and Freedoms ........................................................................................... 32 NEW ZEALAND........................................................................................................................ 32 Judicial Review? ................................................................................................................... 33 Early Federalism and Empire................................................................................................ 34 Supervisory Review, BORA, and Judges in the Constitutional Order ................................. 35 Conclusion .................................................................................................................................... 38 Bibliography ................................................................................................................................. 45 2 PART I Introduction Central to the Westminster model of sovereignty is the notion that it is vested in the Crown- in-council, and that this council must maintain the confidence of the Parliament. Parliamentary supremacy is therefore at the heart of the Westminster model. Over the last century, however, a number of the classic Westminster polities have incorporated elements of judicial review in innovative and often unique ways. Judicial review, whatever else it may be, provides a mechanism by which the judiciary can affect the implementation, contours, and the formulation of policy. As such, it provides a possible avenue of access to a variable ‘open’ state. Westminster democracies have historically avoided judicial review in order to concentrate policymaking authority in the legislature and responsible executive. This paper explores how this occurred in the United Kingdom, Canada, and New Zealand, arguing that long-run processes shaped the conceptions of judges of their role in the constitutional order, affecting their willingness to assert powers of review. Importantly, structures of imperialism and federalism provided varying opportunities for the judiciary to assert this power. A full account of the emergence of judicial review needs to take account of these structural/institutional factors—the available resources of judges to assert a power to invalidate legislation and their institutionally shaped willingness to do so. I conclude with a discussion of how the different constructions of judicial review at the different moments in each state’s history affected the mobilization strategies of indigenous peoples, and the varying imposition of control by the state. The approach of this paper will be largely inductive, with any suggestion inferred from the analysis of the narrative being tentatively advanced as a possible explanation for convergence on judicial review, as well as its particular forms, as a result of commonalities and differences perceived in the historical trajectories of each country. The paper will be divided into two parts and will proceed as follows: I begin with an extended discussion of the scope of this paper and the methodology employed. I will then develop in greater detail some of the central concepts that will be encountered in the discussion. Subsequently, in Part Two, I will examine the historical trajectories of each case, looking for comparable circumstances and associations. Finally, I will conclude with some tentative suggestions and a proposal for further research Scope: Two Forms of Judicial Review Prior to discussing the comparative methodology or the cases themselves, it is important to outline the scope of this paper by providing a brief account as to what is meant by judicial review. This paper is concerned primarily with judicial review of statutory legislation—“primary legislation enacted by the elected legislature of a polity” (Waldron, 2006: p.1354)—as opposed to judicial review of executive actions, or the so-called ‘soft law’ of administrative decision- making. Accordingly, the main power relationship of interest here is that which exists between 3 the judiciary and the legislature, as opposed to that which exists between the judiciary and the executive.1 The form of judicial review emphasized in this paper is judicial review of primary legislation, and in the analysis will be referred to as either statutory judicial review or statutory review. This includes but is not limited to the classic American conception of judicial review that allows the judiciary (or a centralized judicial organ in the case of many European continental systems (Brewer-Carías 1989)) to overturn acts of the legislature; its defining characteristic is not, however, the right to set aside legislation but rather the right of the judiciary to review statutory legislation for conformity with higher order rights, processes, or jurisdictional divisions. This form
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