This article was downloaded by: [University of Alberta]On: 01 December 2014, At: 20:07Publisher: RoutledgeInforma Ltd Registered in England and Wales Registered Number:1072954 Registered office: Mortimer House, 37-41 Mortimer Street,London W1T 3JH, UK

Commonwealth LawBulletinPublication details, including instructions forauthors and subscription information:http://www.tandfonline.com/loi/rclb20

Empowerment andaccountability: The questfor administrative justiceThe Rt Hon Sir Robin Cooke PC, KBE aa President of the New Zealand Court ofAppealPublished online: 13 Aug 2010.

To cite this article: The Rt Hon Sir Robin Cooke PC, KBE (1992) Empowermentand accountability: The quest for administrative justice, Commonwealth LawBulletin, 18:4, 1326-1332, DOI: 10.1080/03050718.1992.9986230

To link to this article: http://dx.doi.org/10.1080/03050718.1992.9986230

PLEASE SCROLL DOWN FOR ARTICLE

Taylor & Francis makes every effort to ensure the accuracy of allthe information (the “Content”) contained in the publications on ourplatform. However, Taylor & Francis, our agents, and our licensorsmake no representations or warranties whatsoever as to the accuracy,completeness, or suitability for any purpose of the Content. Anyopinions and views expressed in this publication are the opinions andviews of the authors, and are not the views of or endorsed by Taylor& Francis. The accuracy of the Content should not be relied upon andshould be independently verified with primary sources of information.Taylor and Francis shall not be liable for any losses, actions, claims,

proceedings, demands, costs, expenses, damages, and other liabilitieswhatsoever or howsoever caused arising directly or indirectly inconnection with, in relation to or arising out of the use of the Content.

This article may be used for research, teaching, and private studypurposes. Any substantial or systematic reproduction, redistribution,reselling, loan, sub-licensing, systematic supply, or distribution in anyform to anyone is expressly forbidden. Terms & Conditions of accessand use can be found at http://www.tandfonline.com/page/terms-and-conditions

Dow

nloa

ded

by [

Uni

vers

ity o

f A

lber

ta]

at 2

0:07

01

Dec

embe

r 20

14

Commonwealth Law Bulletin

Empowerment and Accountability: TheQuest for Administrative JusticeBy The Rt Hon Sir Robin Cooke, PC, KBE, President of the New Zealand Court ofAppealIt would be something of an over-simplification to say that all the principles ofadministrative law can be stated in ten words. But 45 years of learning, researching,teaching, practising and adjudicating the subject have left the impression that this is notvery far from the truth. The administrator must act fairly, reasonably and according tolaw. That is the essence and the rest is mainly machinery. Over a period that now seemsof depressing length, I have tried to pursue this theme in judgments and writings1. Ithas been encouraging that in fairly recent times somewhat similar formulations havebeen advanced with the authority of such English Judges as Lord Diplock2 and LordRoskill3, more felicitously of course.

On basics, perhaps one amplification may be ventured, likewise a return to a theme,concerning the fixation of English administrative lawyers on the West Midlands townof Wednesbury and the case that bears its name4. The actual decision seems incredibletoday: that a local authority could forbid parents of children from taking them to thecinema on Sundays, though this freedom remained on other days. The Court of Appealgave no specific reason for treating the particular restriction as within the properbounds of the authority's discretion, only general references to "the moral and physicalhealth of children" and "matters of high public policy of this kind". There will besome at the Colloquium who have had the anxious responsibility of determiningadministrative law questions relating truly to high public policy. The trivialisation oflanguage will be incongruous to them.

The broad proposition of law in Wednesbury is tautologous and, as Lord Lowry hasnow mentioned in the broadcasting directives case hereinafter cited it is also emotive:the court can interfere if the local authority "have come to a conclusion sounreasonable that no reasonable authority could ever have come to it". There could beno cavil with saying that the conclusion is within power if it could have been reachedby a reasonable authority, correctly understanding the task imposed on them and actingon relevant considerations. The "so unreasonable" and "ever" parts are surplusage.Wednesbury unreasonableness is an unfortunate expression in which the municipalepithet adds nothing of analytical value. Nor does the Wednesbury judgment seemconvincing in its suggestion that Atkin J (as he then was) did not mean what he saidwhen stating three times in a 1914 judgment5 that such restrictions must be reasonable.

In an indirect way the Hammersmith charge-capping case6 provides support forwhat has just been said. In the Court of Appeal judgment, after referring to Wednesburyand the Nottinghamshire County Council case7 in the House of Lords, Lord Donaldsonof Lymington MR said8:

. . . we have concluded that the Nottinghamshire case does not deny the "irrationality"jurisdiction. It asserts it, but at the same time warns against the risk of the courts exceedingthat jurisdiction by considering not whether the decision was irrational in the sense of beingperverse—no reasonable authority properly acting in good faith and within its powers,applying its mind to all relevant considerations and refraining from taking account ofirrelevant considerations could ever have come to it—but the wholly different question ofwhether the decision was reasonable, in the sense of being sensible or politic.

With only a quibble about the emotive "ever", one would respectfully have thoughtthat an impeccable observation. In the House of Lords, however, it was held in thespeech delivered by Lord Bridge of Harwich that the Nottinghamshire case had

1326

Dow

nloa

ded

by [

Uni

vers

ity o

f A

lber

ta]

at 2

0:07

01

Dec

embe

r 20

14

October, 1992

imposed a limit on the scope of judicial review in relation to Ministerial decisionsinvolving national economic policy. While these can be challenged for error of law, theground of irrationality is not available unless the Minister's decision is "so absurd thathe must have taken leave of his senses". The Secretary of State's decision on thepermissible level of local government expenditure could not be challenged on theground that it was "unreasonable in the Wednesbury sense"9. It would appear to beimplicit in these observations that, outside the field of national economic policy,irrationality or unreasonableness (whichever term be preferred) has real application asa ground of curial review. That is to say, there is a form of true accountability. Andthere are numerous statements in the speeches in the House of Lords in thebroadcasting directives case which surely confirm as much10. The question was seen aswhether there was material which would justify a reasonable Minister in making thedecision under challenge. None of the Law Lords placed broadcasting restrictionsaimed at proscribed terrorist organisations and the like within the same shelter fromreviewability as national economic policy.

Of course it is only rarely that a court will be persuaded, for instance, that areasonable Minister could not have reached a certain decision. More often the groundoverlaps with misconception of the statutory function—ie error of law. The courtconstantly reminds itself that in a judicial review proceeding it is not sitting on appealfrom the administrative decision. But the ground is not illusory. A case in which onemember of the court held it made out concerned broadcasting policy in New Zealandand the decay of the Maori language11. It being conceded for the responsible Ministerthat he was bound to have regard to Waitangi Tribunal recommendations, the viewtaken was that he could not reasonably do other than allow the Tribunal time to carryout their inquiry.

Accountability is an "in" word. The title allocated to this paper by the organisers ofthe Colloquium may be seen as in part an invitation to try to discern the place of basicadministrative law principles in the broad scheme of constitutional arrangements. Howare institutions concerned with administration empowered; in what sense and to whomare they accountable?

We should begin with the legislature, as it is the source through its enactments ofmuch administrative power. The legislature in the United Kingdom consists of theQueen, the Lords and the Commons, although often it is misleadingly thought of asonly the elected body. In the jurisdiction where I commonly sit the legislature nowconsists of the Queen or her vice-regal representative and the elected House ofRepresentatives, the upper house (the Legislative Council) having been abolished 42years ago without constitutional challenge in the courts.

In many countries the powers of the legislature can be traced to a constitutionaldocument. This is not so in England, a national word used here deliberately as distinctfrom the United Kingdom, since the Scottish position, for instance, is less clear on thejudicial authorities in that country12. In England a widely accepted but not necessarilyprecisely articulated view is that Parliament is sovereign; and the standard textbookview13 is that this results from the alliance of the common lawyers with Parliament inthe seventeenth century struggle with the monarchy. If those views are correct itfollows that Parliament is empowered by the courts, because of their perception ofpolitical reality.

It is perhaps less obvious that the same applies in some nations with writtenConstitutions, such as the United States of America. Even there, however, it is not self-evident that the courts as one arm of the State must assume jurisdiction to declare actsof the legislative arm invalid for excess of constitutional authority, and grant remediesaccordingly. As every student of American constitutional law knows, it was the

1327

Dow

nloa

ded

by [

Uni

vers

ity o

f A

lber

ta]

at 2

0:07

01

Dec

embe

r 20

14

Commonwealth Law Bulletin

decision of the United States Supreme Coutrt in 1803 in Marbury v Madison1* thatestablished that position and is the source of innumerable cases in various parts of theworld ever since. It is of interest that the present Chief Justice of the United Statesremarks15 that there was probably more for some of the contrary arguments than hispredecessor, Marshall, suggested. Insofar as the courts ultimately decide whethergiven legislation will be upheld or struck down, it may be said that the legislature isempowered by the courts, whatever the source of legislative and judicial powersrecognised by the courts. Again it may always ultimately be a matter of perception ofpolitical reality.

Empowerment by the courts, in the sense just outlined, carries accountability to thecourts. It is often said that the legislature is accountable to the electorate or the people.In relation to the kind of question pertinent to the Colloquium this seems mainlyillusory. With some exceptions (abortion perhaps) the issues arising under legislationwhich the courts have to interpret or rule upon are too particular to be identified withelectoral support for the general platform of the party currently in the ascendancy in thelegislature, or to figure as issues in the next general electoral struggle. Accountabilityto the courts is of more practical and more immediate importance.

In nations with written Constitutions of a federal kind or containing entrenchedhuman rights the courts are well accustomed to accepting this accountability. Duedeference to the policy of the legislature for the time being is universal, for no judgewants to supplant the legislature; but it is not decisive. Even in judge-made Consti-tutions like that of England the same is beginning to be more openly recognised.Factortame16 was a major exercise in the empowerment field by the House of Lords. Itis not unimaginable that their Lordships could have decided that on a traditionalprinciple the Merchant Shipping Act 1988 overrode the European Communities Act1972. One may speculate that at least they might have toyed with the possibility ofholding that thereby, or by some other doctrine of England law, the Merchant Shipping(Registration of Shipping Vessels) Regulations 1988 should be allowed to operate. Butso to hold would have been to undermine the British commitment to Europe. TheFactortame litigation may be seen as a watershed in the history of English law assignificant as the alliance against the claims of the Stuart Kings.

That is not to deny that the House of Lords is proceeding with caution. In thebroadcasting directives case it was held that, while ambiguous legislation was to beconstrued so as not to conflict with the European Convention on Human Rights, therewas no presumption that powers conferred by legislation should be exercised so as toavoid a conflict. In effect the courts empowered the Minister to disregard theConvention. The statutory language being very general, it might seem that speeches atleast as convincing could have been delivered in the opposite sense. Could it be saidthat as to media control the Convention is of such obvious importance, intended to bepart of the fabric of society, that Parliament must have meant it to be at least anessential consideration?17

Such a solution might emerge in New Zealand with regard to the Treaty of Waitangi.This 1840 compact between the Crown and representatives of an indigenous race is notusually regarded as an international treaty: Maori have not been seen as a "sovereign"people and by the compact they yielded whatever "sovereignty" they had. But it wasthe founding document of the State. In recent times various pieces of legislation haveincorporated what Parliament chose to call "the principles of the Treaty of Waitangi",thus leaving the courts to work out what these principles are—and, incidentally, toattract some political criticism for carrying out the very task imposed on them by thelegislature. In the view of some judges the Treaty is of such basic importance that itshould be presumed to apply in the exercise of statutory discretions whether or not it is

1328

Dow

nloa

ded

by [

Uni

vers

ity o

f A

lber

ta]

at 2

0:07

01

Dec

embe

r 20

14

October, 1992

expressly mentioned in the statute18. But political criticism may be taking its toll. It isdoubtful whether the most recent Court of Appeal decision on the principles of theTreaty19 is animated by the same spirit as its forerunners.

To return to England, some say that the European commitment could be abandonedby an ordinary Act of the United Kingdom Parliament. Thus in his preliminary note tothe title European Communities in Halsbury's Statutes20 Professor Lasok cites withapproval statements of Lord Denning21 and Megarry VC22 to that effect. Whether ornot that solution would prevail, Professor Lasok is certainly right when he says that bythe 1972 Act "the problem was shifted from Parliament to the Judiciary". The point isthat it would require from the courts a politico-legal judgment.

To link Dicey with Wednesbury might be thought to exceed the decent bounds oficonoclasm, yet in a way they are stablemates. In the perhaps unlikely event of anextremist party gaining parliamentary control in England it is not inconceivable, notonly that legislation would be passed purporting to abolish the monarchy or the Houseof Lords, but also that an Act might be forced through giving the Government almosttotal power to rule by decree and replacing the Supreme Court of Judicature by ahierarchy of administrative tribunals with members holding office at the pleasure of theGovernment. One can only speculate on the attitude which the mesmeric VinerianProfessor of 1882 to 1909 would recommend the courts of the nineteen-nineties orbeyond to take. Considerations such as these suggest that in their empowermentjurisdiction to courts could hold that some rights lie so deep that Parliament cannot takethem away, even without a Bill of Rights.

That is not to say that the empowerment function should be exercised in a negativeor unsympathetic spirit. It is of first importance that the courts should thoroughlyappreciate the policies and purposes of the Acts of the legislature, giving them agenerous interpretation where the legislative intent is sufficiently plain. Similarly thedevelopment of the common law can be influenced by settled legislative principle. Thepresent paper is not concerned with the latter subject, but as to the former we in NewZealand have been prepared to fill gaps in legislative schemes when the intent isobvious. Among the examples that could be given is the Northern Milk case in 198823

where there was a gap, as regards home deliveries, in the machinery for moving to anew licensing system while a new Milk Authority was setting the standards. It was heldthat the old requirements must have been meant to continue and that the largelyunfettered common law freedom of trade was not resurrected in the interval.

No doubt some would describe this as "a naked usurpation of the legislativefunction under the thin disguise of interpretation"24 but the brilliance of that famousphrase perhaps disguises the thinness of the thought. A different and perfectlyunderstandable lament is that the "make the statute work" approach impinges uponand limits intervention on the ground of illegality25. The response to this point is thatthe primary object of judicial review, as of other branches of law, is to achieve justice;respect for administrative law is not served in the long term by a narrow or technicalapproach; administrative law should not be subconsciously identified with strikingdown administrative decisions. Still less should it be represented as a struggle forpower between the courts and the legislature. Rather the theory is that the legislative,executive and judicial arms of the State should operate, through a system of checks andbalances, with the aim of results that are realistic and democratic, while fairly takinginto account competing interests and respecting minority rights. After all democracy isa state of society characterised by recognition of equality of rights and privileges26. Itis a fallacy to treat it as simply a synonym for majority rule.

As to the accountability of the excutive, in the sense of amenability to judicialreview, there are nothing like the same problems of theory as arise regarding the

1329

Dow

nloa

ded

by [

Uni

vers

ity o

f A

lber

ta]

at 2

0:07

01

Dec

embe

r 20

14

Commonwealth Law Bulletin

relationship of the courts and the legislature. It is orthodox Diceyism to say that the ruleof law insists on this kind of accountability. Notwithstanding some of the differences informulation of the doctrine already touched on, the real difficulties and challenges arisenot there, but in application. Almost everything can depend on the spirit or the light inwhich the judge sees his administrative law responsibility. Thus there is no hiding thatquite a profound difference in approach to the decisions of Ministers seems largely toexplain the differences between the English and the New Zealand courts in such casesas Rowling v Takaro Properties Ltd11 and Petrocorp Exploration Ltd v Minister ofEnergy28.

There would be no advantage in labouring such differences, but in the area ofexecutive accountability to the law one point of principle is worth stressing. It used tobe thought that, if the executive decision were an exercise of the royal prerogative, nokind of curial review was possible. As is well known, a line of English cases, followedin other jurisdictions, have broken through that rule, the most important being theHouse of Lords case of Council of Civil Service Unions v Minister for Civil Service29.It has become established that the mere fact that a decision is made under theprerogative does not exempt it from judicial review. The test is now held to be whetherthe subject-matter of the decision is justiciable. As in another famous case in analtogether different field, Hedley Byrne20, the advance has perhaps been facilitatedbecause on the actual facts of the case it did not fall to be applied. In Hedley Byrne therewas in fact no tort liability of the new kind because a duty of care had been expresslydisclaimed. In CCSU considerations of national security made the particular exerciseof the prerogative (as it was classified, pace Sir William Wade) non-justiciable.

A few months ago it became necessary in our court to consider the impact of the newtest of reviewability on the royal prerogative of mercy. In Burt v The Governor-General of New Zealand31 a man who had been convicted of murder and had served hissentence petitioned for a pardon on the ground of alleged failure by the police todisclose material evidence. On the rejection of his petition he brought proceedingsclaiming that the Governor-General and the Justice Department had failed to act fairlyand reasonably and in accordance with natural justice. In CCSU Lord Roskill had madea passing reference to the effect that "as at present advised" he would place theprerogative of mercy in the non-reviewable category; but no other member of theHouse expressed an opinion on the point, and it is clear enough that an allegation thatsignificant new evidence has come to light is of its nature wholly suitable for judicialdetermination. It is a kind of question often considered by courts of appeal onapplications for a new trial in criminal and civil cases.

In endeavouring to weigh the competing considerations as to whether review shouldbe available, the court in Burl's case put aside any lingering thought that theprerogative of mercy is no more than an arbitrary monarchical right of grace andfavour. The prerogative has come to be seen as a safety net, a constitutional safeguardagainst mistakes. It is not exhausted by a refusal: there may be more than one petition.Although recent English experience of apparently wrong convictions has been sounhappy, to date New Zealand has largely been free of the same problems—throughgood fortune or otherwise; the smallness of the population may well be a major reason.A practice has developed of referring petitions for the exercise of the prerogative ofmercy, if prima facie substantial grounds are raised, to a retired Judge or a seniorpractising barrister for full investigation. Taking into account the experience and thevarious safeguards, the court concluded:

Further, abuses of police powers are much less likely because of the provisions regardinginformation as to the right to consult a lawyer in the New Zealand Bill of Rights Act 1990. . . That Act has reinforced the common law safeguards. . . The price of such decisions is asense in some quarters that the system unduly hampers the police and allows guilty persons

1330

Dow

nloa

ded

by [

Uni

vers

ity o

f A

lber

ta]

at 2

0:07

01

Dec

embe

r 20

14

October, 1992

to escape. Obviously any such risk has to be balanced against an unacceptable risk ofconvictions of the innocent and the manifest desirability of a criminal procedure that overallcan be seen to be fair and in accordance with standards proclaimed internationally.

In our view the existence of the various safeguards just outlined is of importance indetemining the present appeal. Bearing in mind the safeguards there appears to be no reasonto think that the balance currently struck in New Zealand is wrong. In particular no pressingreason has been made out for altering the practice regarding the Royal prerogative of mercy.While accepting that it is inevitably the duty of the Court to extend the scope of common lawreview if justice so requires, we are not satisfied that in this field justice does so require, atany rate at present. Therefore we dismiss the appeal.

The penultimate sentence may perhaps serve as a indication of such judicial philoso-phy as there is in the present paper.

Even a brief discussion of accountability would be incomplete without reference tothe judiciary themselves. In what sense are they or should they be accountable for theirdecisions? So far as appellate tiers extend there is accountability within the judicialsystem; but a fashionable line of argument might suggest that somehow there should besomething more. One is only too well aware from the publications of the Centre for theIndependence of Judges and Lawyers of the hazards amid which some work—a crudeand brutal kind of accountability. Of course I am not talking about this, but about alegitimate argument that the courts should not be a law unto themselves.

Legitimate but not, I submit, sound. It is of the essence of the judicial function thatthere should be independence of influence by the executive or any non-judicialappointee of the executive. There is a responsibility to the State, but that is certainly notthe same as a duty to try to satisfy majority opinion within the community at anyparticular time. Popular reaction is not totally irrelevant, for the needs and mores ofcontemporary society require to be weighed, but popularity can be a most dangerouscriterion. The judge is supposed to try to take a long-term view reflecting enduringvalues. Some of the most "activist" judges—a misleading expression, as judgescannot initiate action—are therefore in truth essentially conservative. A reasonedrefusal to follow a particular precedent may represent a commitment to somethingmore deeply founded in history. Judicial accountability has to be mainly a matter ofself-policing; otherwise the very purpose of entrusting some decisions to judges isjeopardised. The old question quis custodiet ipsos custodes remains as unanswerableas ever.

Where there may be room for relevant institutional improvement is in systems forappointment of judges, to try to ensure the optimum combination of capacity andimpartiality. Appointments by the executive are inevitably political to a greater or lessdegree. Among candidates of roughly equal standing a Government must naturally bedisposed to select one whose sympathies are thought to be congenial to its policies.Probably the more senior the judicial office, the more significant the political orphilosophical factors. Undoubtedly systems of political appointment produce anynumber of excellent results, but an insidious concern remains and in some jurisdictionsthe grounds for it are sufficiently obvious.

With all the reluctance of a traditionalist I am coming increasingly to see the force ofthe argument for a judicial appointments commission. Administrative law and thewider field of human rights are as much an attitude of mind as a set of principles.Perhaps the best chance of approaching the impossible goal of complete impartiality iseither to limit political input in key judicial appointments or to devise a system underwhich political input itself is balanced.

Endnotes1. For instance, [1960] NZLJ 128, [1979] New Zealand Recent Law 225, Judicial Review of

Aministrative Action in the 1980's (Oxford University Press, 1986) 5.

1331

Dow

nloa

ded

by [

Uni

vers

ity o

f A

lber

ta]

at 2

0:07

01

Dec

embe

r 20

14

Commonwealth Law Bulletin

2. Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, 408-11.3. Wheeler v Leicester City Council [1985] AC 1054, 1078.4. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.5. Theatre De Luxe (Halifax) Limited v Gledhill [1915] 2 KB 49.6. Regina v Secretary of State for the Environment, exparte Hammersmith and Fulham London

Borough Council [1991] 1 AC 521.7. Regina v Secretary of State for the Environment, exparte Nottinghamshire County Council

[1986] AC 240.8. [1991] 1 AC at 563.9. [1991]1 AC at 596-8.

10. Regina v Secretary of State for the Home Department, exparte Brind [1991] 1 AC 696. SeeLord Bridge at 749, Lord Templeman at 751, Lord Ackner at 758, Lord Lowry at 765.

11. Attorney-General v New Zealand Maori Council [1991] 2 NZLR 129.12. MacCormick v Lord advocate 1953 SC 396, Gibson v Lord Advocate 1975 SLT 134.13. E C S Wade and A W Bradly, Constitutional and Administrative Law, 10th ed Longman,

1985, 60.14. 1 Cranch 137.15. William H Rehnquist, The Supreme Court, How It Was, How It Is, Quill William Morrow,

1987.16. Regina v Secretary of State for Transport, exparte Factortame Ltd [1990] 2 AC 85. Regina v

Secretary of State for Transport, ex parte Factortame Ltd (No. 2) [1991] 1 AC603,ECJ645(HL).

17. Compare Ashby v Minister of Immigration [1981] 1 NZLR 222, 226, Van Gorkom vAttorney-General [1977] 1 NZLR 535, 542; [1978] 2 NZLR 387.

18. Huakina v Waikato Valley Authority [1987] 2 NZLR 188, New Zealand Maori Council vAttorney-General [1987] 1 NZLR 641, 656.

19. New Zealand Maori Council v Attorney-General [1992] 2 NZLR 576.20. 4th ed, vol. 17, pp 26-7.21. Macarthys v Smith [1979] 1 CR 785, 789; [1979] 3 All ER 325, 328.22. Manuel v Attorney-General [1983] 1 Ch 77, 89.23. Northland Milk Vendors Association Inc v Northern Milk Ltd [1988] 1 NZLR 530.24. Magor and St Mellons Rural District Council v Newport Corporation [1952] AC 189, 191

per Lord Simonds.25. See Rodney Harrison in [1992] NZLJ 246, 255.26. This definition is taken from Chambers English Dictionary, whose Scottish provenance does

not dissuade me from describing it, albeit with admiration for all the Oxford dictionaries, asthe best single-volume dictionary of the English Language.

27. [1988] AC 473; [1986] 1 NZLR 22.28. [1991] 1 NZLR 641; [1991] 1 NZLR 1.29. [1985] AC 374.30. Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.31. As yet unreported, judgment 16 July 1992.

1332

Dow

nloa

ded

by [

Uni

vers

ity o

f A

lber

ta]

at 2

0:07

01

Dec

embe

r 20

14