Feldman Public Interest Litigation and Constitutional Theory in Comparative Perspective

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Public Interest Litigation and Constitutional Theoryin Comparative Perspective

David Feldman *

The scope for citizens to use judicial processes to advance public, political endsgives a discernible ndication of social and legal attitudes o politics, the rights andresponsibilities of citizenship, and the relationship between electors, legislatures,executives, courts and the disfranchised. This article ooks at the way such relation-ships are reflected n the rules governing constitutional nd public interest itigationby concerned citizens.

The article does not offer a comprehensive theory of public interest litigation.It does not examine the use of the criminal aw, equity or the law of tort for publicinterest purposes. Nor does it look at civil law systems. All these areas have beendealt with very thoroughly by others.' The primary focus of this article is on theway prevailing ideas of democracy and constitutionalism hape (and are, in turn,themselves reshaped by) the capacity of private citizens to use the forms, proceduresand substance of public law, and particularly onstitutional aw, to advance publicpolitical aims. It will be suggested that the judges, in approaching public interestlitigation, have to develop a view of the constitution and its underlying principles.This will draw on those commonly accepted principles and beliefs which seem tothe judge to underpin he constitutional and political structure. This can be calleda constitutional ethic, and is a normative theory which establishes prescriptive

principles according o which the constitution hould be developed and interpreted.It sets the judge's understanding f current arrangements and power relations inthe context of a normative constitutional and legal framework n which descriptiveand prescriptive elements are entwined.

The judge does not have an entirely free choice of constitutional ethic. I do notargue that there is a Dworkinian duty on judges to make the 'best' fit between theirconstitutional thic and their description of the pre-existing constitutional tructure,but I do suggest that there is a weaker duty to adopt one of the constitutional thicswhich can be made to fit 'acceptably' in the light of operative techniques andprinciples of legal reasoning. As 'should' implies 'can,' existing institutions andrules may prevent the judge from adopting certain sets of values. Because of thehistorical development of a state and its constitutional aw and practice, t may proveimpossible at a particular moment to adopt (let us say) a capitalist, individualisticconstitutional thic while staying within the constraints mposed by the need to makedecisions compatible with other aspects of constitutional aw under an existing socialiststructure. In such circumstances, fundamental eform is needed which cannot beprovided by a judge unless the constitution allows judges a role which is normallygiven only to constitutional egislatures. There may therefore be a tension between

*Reader in Law, University of Bristol.

This is an expanded version of a paper presented to the Fifth Law and Politics Colloquium at the Universityof Bristol in May 1990. I am grateful to the participants for the discussion, and to Jonathan Hill for makingvaluable comments on a later draft. Much of the research for the paper was carried out during a periodas a Visiting Fellow in the Australian National University Faculty of Law in 1989.

1 See particularly Carol Harlow and Richard Rawlings, Pressure Through Law' (forthcoming, 1992);Mauro Cappaletti, The Judicial Process in Comparative Perspective (Oxford: Clarendon Press, 1989)pp 268-308.

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Public Interest Litigation and Constitutional Theory

a judge's view of the legally available ange of constitutional thics, and other citizens'views of the most desirable constitutional thic. It is usually o be hoped that awyerswill strive o make constitutional aw approximate s far as possible o popular political

aspirations and understandings, and at the same time the judge's view is likely toinfluence other people's understanding f the constitution, and so affect the futuredevelopment of political, as well as legal, discourse. The judicial view of theapplicable constitutional ethic and popular views of it constantly interact, whileoffering more or less distorted reflections of each other.

Section I of the article distinguishes between interest group litigation and publicinterest itigation, and outlines some issues which affect the constitutional nd politicallegitimacy of the latter. Section II examines locus standi rules: their relationshipwith cultural actors, and their effects on public interest itigation by citizens underdifferent constitutions. The discussion illustrates what the status of such litigationcan reveal about social (rather than judicial) conceptions of democracy and therelationship between individual and collective interests. Section III examines howstructural eatures of constitutions affect judges' freedom to allow public interestlitigation, and explores ways in which four particular eatures of constitutions maylimit the range of constitutional thical norms which are available o judges in publicinterest disputes. Section IV suggests some implications which all this has forconstitutional heory.

I Interest Groups, Politics and the Democratic State

Interest groups sometimes represent he interests of their members; at other times,they claim to be advancing interests which go beyond those of their immediatemembership. I will call the former kind of behaviour 'representative activity' andthe latter 'surrogate activity' (because the group acts as a substitute or people whoare unable or unwilling to represent hemselves).2 In either mode, the group maybe concerned with individuals' rights to property, freedom or welfare benefits(material interests), or the implementation of values for society as a whole or asection of it (ideological nterests). This is not a hard and fast distinction, as it relatesto the reasons why groups are acting rather han he objects to be attained: f a groupadvocates free opera for the masses, it could be because members are opera loversand the

groupis

representingheir material nterest n

havingtheir desires satisfied

for free; it could be because members who feel no personal interest in opera areacting as surrogates, representing he interests (which may be either ideologicalor material) of poor opera lovers who can neither afford to see opera nor affordto advance their own interests in the competition for resources; or the membersmight be advancing a vision of the good society as one in which opera improvessociety by helping to civilise it (an ideological interest, independent f any concernfor the material interests of poor - or rich - opera lovers).

The reason for distinguishing between types of interests and activities is that,although they overlap to form a matrix of activities and reasons for action, thedifferences are often constitutionally significant, and can affect the outcome of

litigation by groups or individuals n support of their, or other people's, interests.I argue that the differences between the constitutional thics of different countriesexplain he varying scope for different ypes of interests o be represented n different

2 This terminology is adapted from Richard B. Stewart, 'The reformation of American administrativelaw' 88 Harvard Law Review 1667-1813 (1975) at pp 1742-1744.

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ways in public law. To the extent that visions of people's roles in society andrelationships with the state are socially determined, opportunities for interest grouplitigation are specific to and constrained by particular social and constitutional

cultures.Any campaign by a group which is formed with the object of advancing its

members' interests may have a political and constitutional impact at different levels,either by achieving their concrete goals or by precipitating a change in the constitu-tional culture. An environmental group such as Greenpeace does not always achieveits immediate goal of stopping a particular whaling ship from operating or ofpreventing a particular nuclear test, but the attempt may help to persuade peopleto reassess the importance of various interests and the way in which their politicalsystem responds to them. Interest groups act as advocates rather than decision-makers.They represent the perceived interests of their members, or of those for whom theyare acting as surrogates (their 'constituencies'), in the debate on the correct balancebetween different interests,3 the object of which is to reach an authoritative conclu-sion about where the public interest lies at a particular time on a specific issue.They are seeking acceptance of their position on the issue by others acting in adecision-making capacity (governors, legislators or judges). Implicit in any publicinterest activity by private citizens is a claim that it is proper for citizens to participatein politics in this way. Interest groups may therefore be political in two distinctways: first, in seeking to advance a particular interest through the political process;second, as exemplars of a participatory model of politics.

In the same way, litigation may be intended to achieve limited concrete goals,or may be used to obtain tactical advantages, particularly obtaining relatively cheappublicity, raising public consciousness of the merits of a case and building up politicalpressure in support of it, as part of a wider campaign.4 Even groups which appearto be trying to achieve a fairly restricted private, material purpose may also(consciously or unconsciously) be doing something far more ideological and funda-mental. For example, groups of people injured in disasters who seek compensationare clearly asserting private material interests; those seeking to improve the worldenvironment, public morality or political processes, are advocates for public andideological interests. But each type of interest group often asserts the importanceof public accountability in the exercise of power. Campaigns against privatecompanies whose business activities affect the public, for instance in environmentalmatters,

highlightthe

fragilityof the distinction between

publicand

private powerin capitalist societies, and direct attention to the need for public accountability forprivate power (or, to put the issue another way, about the public responsibilitiesof private corporations and individuals). In addition, interest group campaigns oftenimply or entail a demand for public consultation and participation in governmentaldecision-making and in the design of arrangements to control abuse of power. InBritain, the campaign for compensation by investors who lost money in the failureof Barlow Clowes is an example. Campaigners argued that the Department of Trade

3 This is different from the factional political psychology of Hume, which assumed that groups wouldseek to advance their own private interests rather than a view of the general public interest: DavidHume, 'Of parties in general' in Essays Moral, Political and Literary (London: Longman, 1875)pp 128-133. Of course, in many cases, groups will be advancing the view that the public interestis that which best serves their own interest, but it need not necessarily be the case.

4 Comment, 'The new public interest lawyers' 79 Yale LJ 1069-1152 (1970); Henry Hodge, 'A testcase strategy' in M. Partington and J. Jowell (eds), Welfare Law and Policy (London: Francis Pinter,1979) pp 241-263; Tony Prosser, Test Cases for the Poor (London: CPAG, 1983). This picture mayoverstate the strategic sophistication of many campaigns. See Harlow and Rawlings, op cit.

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was the regulatory agency which allowed the firm to trade when it should not havebeen allowed to do so; investors rusted he Department's udgment and lost money;therefore, the Department should compensate for losses. But implied in this was

a derland for a thorough re-examination of the way in which the governmentalregulatory authority carried out its work. Similarly, groups of disaster victims areoften seeking not only compensation or themselves but also changes in the methodsand scale of state control or regulation of the activities which cause the disaster.For them, obtaining compensation s only one objective. Others are to seek a fullpublic investigation of the causes of the disasters, and to ensure that the systemswhich made the disasters possible are improved. These are moral or ideologicalpublic interest objectives, which go hand in hand with the material private interestin obtaining ompensation or past injuries. They resonate n the field of constitutionaldesign as well as in the field of compensation for private wrongs.

Suchobjectives may

not fit well with theprevailing

constitutional thic. Demandsfor accountability and participation may be accommodated within various theoriesof the state and society, but the theory adopted will affect the constitutional tatusand legitimacy of litigation which has the effect of advancing the demand. Forinstance, liberal theory may advocate participation as one of the means by whichautonomous ndividuals may choose to advance their conceptions of the good life;while civic republicanism tresses the obligation of citizens to participate n govern-ment and regards it as both part of the education for citizenship and an aspect ofthe good life.5 Under a liberal political theory, oriented towards personal auton-omy, individual ights and freedom of choice, litigation o protect ndividual materialinterests would certainly be regarded s legitimate, while attempts o represent ublicor ideological concerns, or the interests f future members of the political community,would be problematic. Civic republicans or communitarians would be much morelikely to regard the latter type of interest group litigation as politically legitimate,and might consider the former type to be an illegitimate attempt o distort publicinterest decision making.

Interest group itigators eeking to advance heir concrete objectives n ways whichassert or imply the need for public participation will often find, therefore, that theircampaign techniques are in tension with the prevailing model of democracy underthe local constitution. In this way, interest group litigation often represents acontribution o a debate about political theory, by challenging prevailing ideas of

constitutional or political legitimacy. Society's response is shaped by its politicaland constitutional thics, which may in turn be reshaped by the demands hemselves.Whether r not the right o advance uch claims n the legal process will be regarded

as legitimate will depend, in part, on the capacity in which the plaintiff is acting.Where an interest group appears o be solely pursuing ts own members' interests,class actions or representative ctions may raise difficult ssues about he relationshipbetween the representative laintiff and other members of the class,6 but these haveno direct mpact on constitutional heory. Surrogate laintiffs' activities, on the otherhand, raise the issue of the extent to which a particular ulture encourages citizens

5 For an excellent survey of these traditions and their impact on the constitutional law of two nations,see P.P. Craig, Public Law and Democracy in the United Kingdom and the United States of America(Oxford: Clarendon Press, 1991) chs 8, 9 and 10. On the civic republican tradition in the USA, seealso James Gray Pope, 'Republican moments: the role of direct popular power in the Americanconstitutional order' 139 University of Pennsylvania Law Review 287-368 (1990).

6 This occurred in the litigation over Opren: see, eg, Davies (Joseph Owen) v Eli Lilly & Co 11987]3 All ER 94, CA. See also Deborah Rhode, 'Class conflicts in class action' 34 Stanford Law Review1183 (1983).

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to concern themselves with the interests of others, not a common feature of liberalismas opposed to civic republicanism. Parties to litigation in liberal societies are usuallyentitled to exploit their own economic power for the purposes of litigation, this being

seen as a legitimate exercise of in principle unfettered rights of property. On theother hand, for third parties to use their economic or political power on behalf oflitigants has traditionally been held to interfere with fairness and the integrity ofthe judicial process.7 In systems which regard it as imperative to insulate thejudicial process against social pressure in individual cases, campaigns by third partiesmay look to the judges like an attempt to usurp their function as authoritative arbiterson the merits of the plaintiff's claim, and be condemned as a contempt of court.8

Controversy about the legitimate interests of third parties in litigation are sharplyfocused in public interest litigation by surrogate plaintiffs. When litigation expresslyraises issues which go beyond the material interests of the litigants or those whomthey claim to represent, the courts face major political and constitutional choices.Is litigation in the public interest to be the prerogative of the state and its organs,or is it to be the right of some or all citizens?9 The answer to such a questiondepends on the model of the constitution which the judges adopt. If they have astatist or elitist view, they will tend to give the state, or members of a ruling elite,a monopoly in deciding where the public interest lies and enforcing it. If they seethe constitution as based on a participatory political theory, public interest litigationby individuals or groups may be more acceptable. If everyone is permitted to raisepublic interest issues, litigation becomes an alternative or a supplement to orthodoxpolitical processes, taking the courts beyond their core function of adjudicating onindividuals' rights and duties. Judges must, therefore, then decide whether the

constitution, properly interpreted, contains principles which support such an extendedjudicial role.

If, as is sometimes argued, judicial review (either of legislation or of administrative

7 This attitude dates back to attempts between he thirteenth nd the sixteenth enturies o control hemischief of maintenance, which threatened o undermine he enforcement f the common aw. KingHenry VII gave his new court, the Court of Star Chamber, urisdiction over maintenance ases in1487 (3 H 7, c 1), and s usually credited with eradicating maintenance hrough he Statute f Liveries1504 (19 H 7, c 14), although n Act of 1540 again ound t necessary o prohibit he practice 32 H 8,c 9, ?3).

8 Att Gen v Times Newspapers Ltd [1974] AC 273, HL. See further The Sunday Times Case, European

Court of Human Rights, Series A, Vol 30, Judgment f 26 April 1979; 1980) 2 EHRR 245; Contemptof Court Act 1981; N.V. Lowe, 'The English aw of contempt f court and Article 10 of the EuropeanConvention n Human Rights' in M.P. Furmston, J.R. Kerridge and B.E. Sufrin eds), The Effecton English Domestic Law of Membership of the European Communities and Ratification of the EuropeanConvention n Human Rights (The Hague: Martinus Nijhoff, 1983) pp 318-351. In Australia, hecourts are very sensitive to the risk of injustice caused by third party activity: see ProthonotaryCollins 1985) 2 NSWLR 549, CA of NSW; M. Chesterman, Contempt y the Media: how the courtsdefine it', Australian Quarterly, Summer 1986, Vol 58, No 4, p 388. It has even been held that aRoyal Commission appointed o inquire nto allegedly criminal behaviour might commit contemptof the (criminal) courts: Victoria v Australian Building Construction Employees and Builders Labourers'Federation 1981) 152 CLR 25, HC of Australia.

9 There are, in fact, four problems, although his article concentrates n the first. (1) Should publicinterest itigation by citizens be allowed at all, or should t be monopolised y the state? 2) If citizenscan sue, should

tandinge restricted o those who can show that

heyare

speciallyoncerned,

xpert,or representative? 3) How can the courts heck hat he surrogate laintiffs re representing he interestsof their constituency' roup as well as possible, and not using hem as a shield or their own politicalpreferences? 4) Where do lawyers' responsibilities ie when aced with a conflict between he interestsof their (surrogate) lients and those of their 'constituency'? On problems 2) and (3), see Cass R.Sunstein, Naked preferences nd the constitution' 84 Columbia Law Review 1689 (1984); Cass R.Sunstein, Interest groups n American public law' 38 Stanford Law Review 29 (1985); Comment,op cit n 4 above.

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action) is legitimate in a democracy if it bolsters participation and limits the impactof a lack of access to, or voice in, the political system,'0 the judge will need todecide what sort of participation or representation in politics is required by the

constitutional scheme. Utilitarian and civic republican interpretations of the constitu-tion, imposing civic obligations on citizens to contribute to general social welfare,are likely to produce wider participation in public interest litigation than a liberalindividualist interpretation. It aims to maintain a high quality of decision-makingand foster satisfaction with the process among those affected by it, so that decisionsare more likely to be complied with." But there is also a liberal individualistjustification for principles giving effect to limited participation: the need to respectthe autonomy of those who are subject to official decisions, and are entitled to somesay in their own destinies. If the prevailing social and constitutional ethic is predomi-nantly communitarian, an interpretation of the constitution which limited participation

rightson liberal individualist

principleswould run counter to the values of the

established constitutional structure. Conversely, if a judge in a liberal society adoptsa communitarian model of the constitution to justify extending rights to participatein politics, the judge's reasoning is unlikely to be generally acceptable on eitherpolitical or constitutional grounds.12 The need for a judge to interpret the constitu-tion in the light of society's political arrangements and its dominant ideologyemphasises the political nature of constitutional adjudication, and the link betweenconstitutional and political legitimacy.'3

The extent to which judges allow groups to litigate public interest questions islikely to turn on ideas about the role of citizens in politics. Citizens, governmentand judiciary must interpret the constitution in a way which is consistent with thevalues of the particular model of democracy which underpins the constitution,communitarian or liberal. But this model and its implications will usually becontroversial and contested. For example, Westminster-style constitutions arecommitted to representative democracy and responsible government. Ultimatelegislative authority is vested in a representative body, rather than (for instance)a private corporation or hereditary body.'4 It is both constitutionally and demo-cratically legitimate to use any legal means, including litigation, to ensure that therepresentative legislature has adequate opportunity to consider public interest matters.

10 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass.: Harvard

University Press, 1980); David Feldman, 'Democracy, the rule of law and judicial review' (1990)19 Federal Law Review 1-30.

11 Joint Anti-Fascist Refugee Committee v McGrath, 341 US 123, 171-172 (1951), Frankfurter ; Goldbergv Kelly, 397 US 254, 264-265 (1970); Laurence H. Tribe, American Constitutional Law (Minneola,NY: Foundation Press, 2nd ed, 1988) pp 666-667; Tellis v Bombay Municipal Corporation; Kuppusamiv State of Maharashtra [1987] LRC (Const) 351, 376-377, Chandrachud CJ (Supreme Court of India).

12 This seems to be the basis for some of the criticisms of Ely's theory by Ronald Dworkin, A Matter

of Principle (Oxford: Clarendon Press, 1986) pp 57-69; Laurence H. Tribe, Constitutional Choices

(Cambridge, Mass.: Harvard University Press, 1985) pp 3-20; D.J. Galligan, 'Judicial review anddemocratic principles: two theories' (1983) 57 ALJ 69-79; P.W. Hogg, 'The Charter of Rights andAmerican theories of interpretation' (1987) 25 Osgoode Hall Law Journal 87-113.

13 Such interpretation is problematic. There may be dissonances between politics 'as it is,' 'as it appearsto be,' and 'as it is formulated by the judge for her own purposes': see William E. Connolly, Appearance

and Reality in Politics (Cambridge: Cambridge University Press, 1982). This problem reappears below.In this article, I use 'legitimacy' as encompassing two elements: first, social acceptance; second, the

subjective belief that those standards are proper ones, in that they are consistent with a political, moralor constitutional theory to which one is prepared to subscribe. I have developed the distinction betweenconstitutional and political legitimacy in 'The Left, judicial review and theories of the constitution,'

paper presented to the conference of the Association of Legal and Social Philosophy, Bristol, April 1991.14 See eg Commonwealth Aluminium Corporation Pty Ltd v Att Gen of Queensland [1976] Qd R 231;

West Lakes Ltd v South Australia (1980) 25 SASR 389.

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Under the doctrine of responsible government, it is constitutionally egitimate tolitigate to prevent government rom avoiding Parliamentary crutiny, to draw publicattention to the government's behaviour, and to provide time for proper political

debate.15 Attempts by government to subvert or evade Parliamentary crutiny areunconstitutional, ven if (under a Westminster-style onstitution) t may not followthat they are unlawful.16

On the other hand, where a decision has been reached by Parliament after properpublic dialogue, litigation aimed at delaying the implementation of the decision,or at improving the prospects of a particular group negotiating an amendment othe plan, is not easy to justify. In this case, the litigation is legitimate only in orderto protect some constitutional or supra-constitutional alue other than democraticprocedures and responsible government. One such set of values might be individualrights, if they form part of the constitutional morality.

Under Westminster-style onstitutions, he models of responsible government andrepresentative democracy do not entail public participation n decision-making.Constitutional uties to consult, or to allow participation, ould arise by convention,but the existence and scope of any such convention is likely to be insecure. Forexample, in the UK, until the early 1980s, the process of policy-making by wayof consultation with influential orporate groups was well entrenched n the constitu-tion. Later, in the 1980s, consultation and participation ncreased at the localgovernment evel as power was devolved from health authorities o hospital trustsand GPs' practices, rom education authorities o school governors, and from housingauthorities o housing associations. On the other hand, the governments between1983 and 1990 greatly reduced he scope of corporate or individual citizen consulta-

tion and participation n central government, leaving many interest groups, suchas the trades unions, employers' organisations and local authorities' associations,with far less influence over policy-making han they had previously enjoyed. Localauthorities, n particular, responded by litigating n an attempt o reassert heir rolein decision-making. But while the courts were often prepared o recognise a group'slegitimate xpectation f being consulted, hey never forced the government o mouldits policies around the representations received.17 To have done so would haveflown in the face of the established structure of UK constitutional heory, in whichthe government, once chosen, has the right and responsibility to govern.

From one perspective, therefore, the claim by corporate groups to be consultedand even to participate in governmental decision-making reflected the commonunderstanding at least until the early 1980s) of the value of participation n fosteringinformed and effective decisions. On this view, when central government reducedopportunities or dialogue, interest group litigation against central government wasa legitimate part of an attempt o reassert constitutional proprieties and to maintainan influence over policy formation when other channels of communication were

15 It may sometimes also be constitutionally legitimate to disobey the ordinary law in order to upholdthe constitution, as recognised expressly by the German Grundgesetz, Article 20(4).

16 On constitutionalism, see S.A. De Smith, 'Constitutionalism in the Commonwealth today' (1962)4 Malaya Law Review 205-220; Ian Harden and Norman Lewis, The Noble Lie: The British Constitutionand the Rule of Law (London: Hutchinson, 1986) pp 297-299; David Feldman (1991) 107 LQR 39-45.

17 R v Secretary of State for the Environment, ex p Brent LBC [1982] QB 593; R v Secretary of Statefor the Environment, ex p Hackney LBC [1983] 1 WLR 524 (DC), [1984] 1 WLR 592 (CA); R vSecretary of State for Transport, ex p Greater London Council [1986] QB 556; R v Secretary of Statefor Social Services, ex p Association of Metropolitan Authorities [1986] 1 WLR 1; R v Secretary ofState for the Environment, ex p Gwent CC [1986] 2 All ER 18, DC, [1987] 1 All ER 161, CA.

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being closed, as issues were increasingly forced out of the public arena and intoprivate decision-making fora.18

From a different perspective, however, any convention favouring consultation with

interested parties had been abrogated by the changing political practices of the 1980s.If people have no legitimate expectation of being consulted or of participating ingovernmental decisions, the use of litigation by interest groups to enforce consultationor participation is challenging rather than reasserting prevailing constitutionalprinciples. Nevertheless, even on this view such litigation might be justified constitu-tionally, either by constitutionally-protected rights or by supra-constitutionalprinciples. One such might be a principle of toleration: challenges in good faithto accepted constitutional values must be tolerated in order to test accepted inter-pretations and allow for constitutional development. In a system based on conventions,such challenge must ex hypothesi always be possible, or conventions would never

develop, changeor fail in

responseto

changingvalues. It remains

opento

questionwhether the court is an appropriate forum for challenging or reasserting conventions(as opposed to legal rules) about consultation and participation, but this doubt isrelated to issues of justiciability and standing, rather than the general propriety ofinterest groups challenging constitutional values.

If litigation is seen as a legitimate vehicle for advancing participation, it may serveeither as a surrogate political process for debating the merits of issues, or as acomplementary system, checking any tendency of the political system to deny citizens'expectations of consultation or participation. If one's constitution is based on a formof hybrid democracy which allows citizens to participate in the formation of policyon issues in which they have an interest, it is constitutionally legitimate for them

to respond to a threat to that arrangement by litigating. But if the rules and practicesof the constitution (as interpreted) cease to permit participation, public interestlitigation which seeks to re-establish the old order is constitutionally legitimate onlyto the extent that such action is tolerated under the constitution.

II Public Interests, Standing to Sue and Constitutional Procedures

This section shows how rules governing public interest litigation reflect a society'sconception of the public, political role and expectations of citizens. Differences over

questionsof

standingreflect

diverging opinionsabout the role of

public law,about

the distinction between public and private interests, and about whether individualshave a legitimate role in asserting public interests. The Gouriet case19 provides anEnglish example: in restricting standing to obtain injunctions and declarations inrespect of public rights to people protecting special interests, the House of Lordsrestricted the role of private citizens in litigation to advancing their own interests.Securing general public interests, such as that in the observance of the law was,henceforth, to be the exclusive responsibility of the Attorney-General, representingthe state's monopoly of legitimate concern with such interests. This decision was

18 Patrick McAuslan, 'Public law and public choice' (1988) 51 MLR 681-705; Bernard B. Schafferand Geoff B. Lamb, 'Exit, voice and access' (1974) 13(6) Social Science Information 73-90; BrianC. Smith, 'Access to administrative agencies: a problem of administrative law or social structure?'(1986) 52 Int Rev Admin Sciences 17-25. For discussion of the role of consultation participation inour constitutional structure and the legitimacy of judicial action to support it, see David Feldman,'Democracy, the rule of law and judicial review,' op cit n 10 above, at pp 7-9, 23-30.

19 Gouriet v Union of Post Office Workers [1978] AC 435.

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followed in Australia, where the High Court refused to allow an incorporatedassociation to claim to represent the public interest in nature conservation in litigationagainst the Commonwealth.20

Of course this can change, and arguably by the late 1970s many countries werealready becoming more receptive to the intervention of citizens in public interestmatters. Law reform bodies recommended departing from the Gouriet approach.21English law developed the application for judicial review as a specialised publiclaw procedure.22 In Canada, the Supreme Court had already relaxed the standingrequirements for obtaining injunctions in constitutional litigation.23 One effect ofthis was to divert attention from the interest of the applicant to the interest in lawfuladministration, which a private citizen could now properly assert. This has beendeveloped enthusiastically in New Zealand, where the courts have exploited therelaxed standing test to allow them to review environmental and sporting matters.The extension of standing beyond the traditional ranks of those with a direct personalinterest in the result of the case is consistent with a communitarian view of theresponsibilities of individuals.24 Despite a tendency for standing to get mixed upwith the merits of a case, it was accepted in England that, in suitable cases, groupslike the National Federation of Self-Employed and Small Businesses and the ChildPoverty Action Group have standing to represent the interests of their membersor clients.25 Yet there are now signs of a reaction in England, with a return to theidea that standing rules should be used to restrict litigants to asserting personalinterests.26 This is in tune with (even if not directly connected to) a resurgence ofliberal individualism in British society during the Thatcher years. In a politicalconstitution, constitutional values are necessarily likely to reflect changing political

ones.Australia also streamlined its judicial review system under the Administrative

Decisions (Judicial Review) Act 1977 (Cth), but this provides machinery for challeng-ing only administrative decisions made under statute.27 The old prerogative writ

20 Lopez v City of Brighton (1977) [1982] VR 369; Australian Conservation Foundation Inc vCommonwealth (1980) 146 CLR 493; Yates Security Services Ltd v Keating (1990) 98 ALR 68. Forthe previous view, see Att Gen ex rel McWhirter v Independent Broadcasting Authority [1973] QB629 at pp 648-649 per Lord Denning MR; Benjamin v Downs [1976] 2 NSWLR 199.

21 Law Reform Commission of British Columbia, Report on Civil Litigation in the Public Interest, LRC46 (Vancouver, BC: Ministry of Att Gen, 1980), recommending that any citizen should have standingto litigate alleged infringements of public rights if the Attorney General declines to act and there isajusticiable issue to be tried; Australian Law Reform Commission, Report No 27, Standing in PublicInterest Litigation (Canberra: AGPS, 1985), recommending that standing should be extended to allsave those who are mere meddlers.

22 Covent Garden Community Association v GLC [1981] JPL 183; R v Stroud BC, ex p Goodenough(1980) 43 P & CR 59; R v Hammersmith and Fulham LBC, ex p People Before Profit Ltd (1981)80 LGR 322; IRC v National Federation of SelJfEmployed and Small Businesses Ltd [1982] AC 617.For Australia: Onus v Alcoa of Australia Ltd (1981) 149 CLR 27: Administrative and Clerical OfficersAssociation v Conn (1988) 93 FLR 38.

23 Thorson v Att Gen of Canada (1974) 43 DLR (3d) 1; Johnson, 'Locus standi in constitutional casesafter Thorson' [1975] PL 137.

24 Environmental Defence Society Inc v South Pacific Aluminium Ltd (No 3) [1981] 1 NZLR 216; Finn?iganv New Zealand Rugby Football Union Inc [1985] 2 NZLR 159.

25 IRC v National Federationof Self-Employed

and Small Businesses Ltd[19821

AC617;

R vSecretaryof State or Social Services, ex p Child Poverty Action Group (1984) The Times, 16 August: R v General

Council of the Bar, ex p Percival [1990] 3 All ER 137.26 R v Secretary of State or the Environment, ex p Rose Theatre Trust [1990] 1 All ER 754, Schiemann J.

See further Sir Konrad Schiemann, 'Locus standi' [1990] PL 342-353.27 This restriction has been criticised by an official watchdog: see Administrative Review Council, Report

No 32, Revielw of the Administrative Decisions (Judicial Review) Act: the Amrbit f the Act (Canberra:AGPS. 1989).

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system, with all its complications, still applies in relation to constitutional casesin which the High Court has original jurisdiction, and to issues excluded from thenew statutory system. The standing test for mandamus under the old system is very

demanding; the test for an applicant for certiorari or prohibition is governed bythe 'person aggrieved' test, which seems narrower than a 'sufficient interest' test;while (as noted above) a person seeking an injunction or declaration in a publiclaw matter must show a private right or 'special interest.' The 'new' statutory udicialreview system has liberated standing somewhat: it allows any person aggrieved bya decision to apply for a remedy. The notion of the 'person aggrieved' is thoughtby Australian commentators to be interpreted very liberally by the courts, but itstill requires that the applicant be personally affected by the decision.28 It still looksrather more restrictive than England's 'sufficient interest.' The more relaxed aspectsof Lord Diplock's approach in the NFSE case have not generally found favour inAustralia, perhaps reflecting the long-standing dominance there of the values ofliberal individualism. As a result, it is difficult for interest groups to launch judicialreview applications either under the statutory scheme or under the prerogative ordersor common law remedies, unless a decision directly affects them. This tends torestrict the pursuit of moral interests and the activities of surrogate plaintiffs in publicinterest litigation.

India provides a vivid contrast. Article 32 of the Indian Constitution guaranteesa number of fundamental rights, and Article 226 empowers the High Court to issue'directions, orders or writs' for the enforcement of fundamental constitutional rights'and for any other purpose.' The High Court regards this as giving constitutionalauthority for 'public interest litigation' by plaintiffs to protect other people's

fundamental constitutional rights. The courts have therefore had to decide whatconstitutes public interest litigation for Article 226 purposes. Kirpal J has said29:

As I understand he phrase Public nterest itigation,' it means nothing more than what itstates, namely t is a litigation n the interest of the public. Public interest itigation s notthat ype of litigation which s meant o satisfy he curiosity of the people, but t is a litigationwhich is instituted with a desire that the Court would be able to give effective relief to thewhole or a section of the society.

The Indian courts have used Article 226 to allow a wide range of matters to belitigated in the public interest, and allow actions to be commenced without theformalities which would normally be required. A simple letter, telegram or an article

in a newspaper may suffice. Furthermore, courts may act in an inquisitorial mannerrather than relying on the petitioner to provide evidence to support the claim, aswould be usual in an adversarial system.30

This is a communitarian response to India's socio-economic inequalities, in apolitical culture which highlights the mutual responsibilities of citizens. In the lightof the vast differences in wealth, status and literacy in India, insisting on the usualformal petition would effectively deny legal protection to those sections of the

28 Kioa v Ministerfor Immigration and Ethnic Affairs (1985) 62 ALR 321; see E.I. Sykes, D.J. Lanhamand R.R.S. Tracey, General Principles of Administrative Law (Sydney: Butterworths, 3rd ed, 1989)pp 328-329.

29 People's Union for Democratic Rights v Minister of Home Affairs [1986] LRC (Const) 546, HC, atp 575.

30 Bandhua Mukti Morcha v Union of India (1984) 3 SCC 161; People's Union for Democratic Rightsv Minister of Home Affairs [1986] LRC (Const) 546, HC. However, Article 226 cannot be invokedto force the court to adjudicate on contentious issues of scientific or technological dispute: Vincentv Union of India, AIR 1987 SC 990; Shivarao Wagle v Union of India [1989] LRC (Const) 903.

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community which lack education, money, access to legal advice, and familiaritywith the system. As Bhagwati J has said31:

When the Court finds, on being moved by an aggrieved party or by any public spiritedindividual r social action group, that the executive is remiss in discharging ts obligationsunder he Constitution r the law, so that the poor and the underprivileged ontinue o besubjected o exploitation nd njustice r are deprived f their social and economic ntitlementsor that social legislation enacted or their benefit is not being implemented hus deprivingthem of the rights and benefits onferred pon hem, he Court ertainly an and must nterveneand compel he Executive o carry out its constitutional nd egal obligations and ensure hatthe deprived nd vulnerable ections of the community re no longer subjected o exploitationor injustice and they are able to realise their social and economic rights ... [I]t is vital forthe maintenance f the rule of law that the obligations which are laid upon the executiveby the Constitution nd the law should be carried out faithfully and no one should go awaywith the feeling that he constitution nd the law are meant only for the benefit of a fortunatefew and have no meaning or the arge numbers f half-clad, alf-hungry eople of this country.

This rationale also limits situations in which the relaxed procedural rules can beinvoked to cases where the plaintiff is seeking 'enforcement of the constitutionalor legal rights of a person n custody or of a class or group of persons who by reasonof poverty, disability or socially or economically disadvantaged position find itdifficult to approach the courts for redress ... .32

In addition, under Article 226 the courts can grant a wider range of remediesthan usual: they can give any direction or order which is required n order to ensurethat an unconstitutional ituation s rectified, subject to the limitations mposed onthe judicial role by the principle of the separation of powers.33 For example, acourt can appoint Commissioners o investigate allegations of default by the executive

and, acting on their report, the court can then grant appropriate redress.Because Article 226 is interpreted s facilitating itigation n the interests of society

as a whole or of underprivileged ections which might be unable o protect hemselves,Khalid J has expressed suspicion of interest groups which attempt to use Article226 to litigate in support of private rather han public interests.34 This is becauseIndian constitutional culture recognises the social value of public spirited citizenstaking responsibility for less fortunate people, and regards participation n legaland political matters as an integral part of Indian democracy. Judges feel that theyhave a duty under the constitutional cheme to rectify the failings of other branchesof government so far as compatible with the separation of powers doctrine as they

interpret t, and so facilitate the activities of interest groupsin

advancingmaterial

and ideological interests in both representative and surrogate capacities.Where the political system is not committed to equality in the enjoyment of

fundamental ights, or the constitutional heory on which the system is based doesnot encompass any hint of civic republican values, the courts may restrict publicinterest litigation by introducing a high substantive content to standing tests. Forexample, in Nigeria, where the political system is dominated by tribal tension, thescope for public interest litigation on constitutional human rights issues has beenlimited by the Nigerian Supreme Court's determination o hold to a very restrictive

31 State of Himachal Pradesh v Student's Parent, Medical College, Simla [1986] LRC Const) 208, SC,at p 213. See also Mehta v Union of India [1989] LRC (Const) 885.

32 ibid at pp 213-214 per Bhagwati J.33 Bhagwal Dayal Sharma v Union of India, ILR (1974) 1 Delhi 847; State of West Bengal v Sampat

Lal (1985) 1 SCC 317.34 Pandey v State of West Bengal [1988] LRC (Const) 241, SC, at pp 272-275. See also People's Union

for Democratic Rights v Ministry of Home Affairs [1986] LRC (Const) 546, HC, at p 576 et seq(Kirpal J).

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standing test. The court in Nigerian Union of Journalists v Att Gen of Nigeria35treated constitutional litigation essentially like private litigation, demanding of theapplicant a personal interest satisfying the Gouriet standard. The judges refused

to follow even the modestly liberalising trend of English decisions such as IRC vNational Federation of Self-Employed and Small Businesses Ltd,36 which recog-nised the public interest element in public law litigation. The Nigerian responsekeeps the constitution out of tribal and ethnic differences by rationing the availabilityof judicial redress. The Nigerian judges' main concern appears to be to maintainthe separation of powers between judiciary and executive, but they have interpretedthe demands of this doctrine very differently from the Indian judges. The politicaland constitutional cultures are different, and lead to different results.

These differences of opinion over the propriety of people advancing ideologicalinterests, or acting as surrogate plaintiffs in litigating public interest matters, highlightthe fact that interest group litigation in general is not synonymous with public interestlitigation. Interest group litigation is typically a medium for arbitrating betweencompeting claims in a pluralist system, a legal extension of the politics of faction.Public interest litigators, by contrast, try to give effect to an allegedly common interestof the whole community. The emphasis is communitarian rather than pluralist. Ifthe public interest were but an aggregation of individual interests, public interestlitigation could be seen as a form of maxi-private-interest litigation. However, therange of interests which are encompassed in public interest litigation may be verywide, including those of foreigners, future generations and fetuses, who might notbe considered to be directly affected and whose interests would, therefore, not berepresented under a strictly liberal individualist regime. Such a broadening of the

field of concern is achieved most easily where the dominant constitutional cultureincorporates a strong element of communitarian thought, as in India. Since muchof European Community law is profoundly liberal in its economic orientation, itis not surprising that the European Court of Justice has very stringent standing rules,demanding that the decision challenged either be addressed to, or be of direct andindividual concern to, the applicant. (Another compelling reason in the Community'sconstitutional ethic for restricting individual standing is that the European Communityoriginates in international law, where states and not individuals have legalpersonality.) This makes it hard for representative plaintiffs, and impossible forsurrogate plaintiffs, to invoke the Court's original jurisdiction to impugn an act ofa Community institution.37 It is easier to pursue remedies in national courts,seeking an Article 177 referral to the Court of Justice where necessary, becausestanding is then governed by the referring court.

In the USA and Canada, liberal individualism is a significant component ofconstitutional culture. This encourages public interest litigants to fit claims into right-based categories. For example, the courts have dealt with the debate over abortionas an aspect of the mother's right to privacy, or (as in Canada) due process.38 Oneeffect is that some of those concerned (eg the fetuses) might be unrepresented.However, to some extent the USA has alleviated this problem by way of amicus

35 [1986] LRC (Const) 1. Compare the pre-Charter Canadian position: Thorson v Att Gen of Canada(No 2) (1974) 43 DLR (3d) 1, SC of Canada.

36 [1982] AC 617.37 Article 173 of the EEC Treaty; Article 146 of the Euratom Treaty. Compare the more generous terms

of Article 33(2) of the ECSC Treaty. See T.C. Hartley, Foundations of European Community Law(Oxford: Clarendon Press, 2nd ed, 1988), ch 12.

38 Roe v Wade (1973) 410 US 113; Webster v Reproductive Health Services (1989) 109 SCt 3040;Morgentaler, Smoling and Scott v R (1988) 44 DLR (4th) 385.

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curiae briefs, which allow interest groups with the leave of the court to participatein a suit commenced by or against unrelated people. This permits a wide range ofinterests o be fed into the decision-making rocess, though hey will tend for tactical

reasons to be framed in terms of constitutional rights. If the doors are opened inthis way, the courtroom can properly be seen as part of the democratic process.In the American process, constitutional itigation s an integral part of the dialogue

by which constitutional standards are shaped and reshaped under changing condi-tions.39 The same is true in Australia and Canada. In India, courts have usedArticle 226 of the Constitution o give effect to a vision of the Constitution whichis both pluralist and communitarian, securing the benefits of the rule of law forthe weakest, most vulnerable members of society. In the UK, by contrast, thereis no equivalent of the amicus brief, and many judges see constitutional itigationless as a means of fostering political disclosure than as an illegitimate interferencewith the political process.40 Accordingly, there is no reason to encourage a widerange of public interest plaintiffs or interveners.

III Four Constitutional Features

Section II examined the effect of constitutional culture on locus standi in publicinterest matters. This section looks at the reverse effect. It examines the way thatfour particularly mportant eatures of constitutions affect the feasibility of publicinterest itigation. The features are: (1) the availability of legal challenges to legisla-tion, and the relationship between such challenges and conceptions of democracy;

(2) the structure of the state, federal or otherwise; (3) the presence or absence ofpolicy directives n the constitutional ocument; and (4) the approach o human rightsunder the constitution.

1 Democracy, Ethics and Legal Challenges to LegislationFor a system to allow legal challenges to legislation, the constitution must allocatelimited powers to the legislature and the limitations must be justiciable. The twoneed not go hand in hand. Where constitutional imitations on legislative powerare treated as being justiciable, this may flow from a unilateral assertion by thecourts of a review power, as in the United States41 nd the Australian Common-wealth,42 r a constitutional provision as interpreted by the courts, as in Canada,43or the creation of a supra-national egal framework, as in the duty of English courtsto disregard domestic legislation which conflicts with directly effective EuropeanCommunity law.44 The enforcing body need not be the ordinary judiciary. InFrance, for example, the limits are enforceable only before enactment, through heconseil constitutionnel; o ordinary ourt can hold primary egislation, once enacted,

39 This presupposes theory of interpretation hich is not strictly originalist: f we were limited bythe concrete deas of the framers, Brandeis briefs, showing how social and economic conditions werechanging, it would be of little value as an aid to constitutional nterpretation.

40 This is exemplified y the dictum of Lord Templeman n Nottinghamshire ounty Council v Secretaryof State for the Environment [1986] AC 240 at p 267.

41 Marbury Madison 1803) 1 Cranch 137.42 Brian Galligan, The Politics of the High Court St Lucia, Qld: University of Queensland ress, 1987)

ch 2; G. Lindell, Duty o exercise udicial eview' n Leslie Zines ed), Commentaries n the AustralianConstitution Sydney: Butterworths, 977) pp 150-190.

43 Constitution Act 1982, ss 24, 52; R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321.44 Case 213/89, R v Secretary of State for Transport, ex p Factortame Ltd [1990] 3 CMLR 1 (ECJ);

Factortame Ltd v Secretary of State for Transport (No 2) [1991] 1 All ER 70 (HL).

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to be ineffective by reason of unconstitutionality. At the other extreme, in a purelyDiceyan constitution, udicial review would be excluded as being in conflict withthe political theory on which the constitution s based.

Inconsistencies between constitutional values may restrict judicial review oflegislation. For example, the ethics of constitutionalism and the rule of law mayconflict with a model of democracy, a conceptualisation f, and evel of commitmentto, the separation of powers, federalism, responsible government or human rights.The Australian Commonwealth Constitution s committed o responsible government(ie governmental responsibility to an elected Parliament). As a form of account-ability, this goes hand in hand with representative democracy. Yet the Constitutionlimits the capacity of the representatives to act. Again, Australian federalismtheoretically requires protection for the interests of the states against the federalauthorities, hrough tates' representation n the Senate. Yet the doctrine of responsiblegovernment may make the government accountable o the lower chamber of electedrepresentatives f the voters. A clash of values of this sort between federalism andrepresentative democracy poses serious questions about the respective powers ofthe two chambers, for example in regulating supply and in making and breakinggovernments. In Australia, it was responsible for the constitutional crisis whichsurrounded Governor-General Kerr's decision to dismiss the Prime Minister, GoughWhitlam, when the Senate blocked supply in 1975.45

The need for constitutions o accommodate nconsistent alues eads to compromisesand ambiguities. For example, different countries adopt different models ofdemocracy, and a single country may subscribe to a number of different modelsover a period of time or even (when there s no consensus about undamental oliticalvalues) at the same time. Westminster-style systems are based on representativerather than direct democracy, but they may incorporate an element of directdemocracy for example, a referendum may be required o sanction a proposed hangeto the constitution).46 udges who have to interpret he constitution must form aview for the purposes of litigation f what hat political culture s, in order o constructtheir constitutional thic which will explain and illuminate he future developmentof the constitutional rules. To form their view of the political culture they requirea descriptive account of political practices and institutions, but for legal purposesthis must be harmonised with any binding, prescriptive constitutional rules. Thepicture of politics which they paint for their purposes may therefore have little in

common with the complex realities of politics. It need only be accurate enough forthe limited purposes of adjudication, and is likely to be distorted by being viewedthrough he lens of orthodox constitutional heory. Discussions of collective Cabinetresponsibility, and of ministerial responsibility o Parliament, are prone to displaythis distortion. The judges' decisions will be most efficacious if their view of thecontent and scope of constitutional or political conventions is close to reality, buta judicial decision can never authoritatively stablish what a convention s, becausethat depends on politicians rather han udges who are not direct participants n thepolitical process.47 Nevertheless, the judges' views may contribute o the dialecticalprocess whereby conventions are developed.

45 Geoffrey Sawer, Federation Under Strain (Melbourne: Melbourne University Press, 1977); C.J.Stampford, 'Responsible government and the logic of federalism: an Australian paradox?' [1990] PL90-115.

46 See Geoffrey de Q. Walker, Initiative and Referendum: The People's Law (Sydney: Centre forIndependent Studies, 1987).

47 See eg Att Gen v Jonathan Cape Ltd [1976] QB 752; Gouriet v Union of Post Office Workers [1978]AC 435; Sankey v Whitlam (1978) 142 CLR 1; FAI Insurances v Winneke (1982) 151 CLR 242;Reference re Amendment of the Constitution of Canada (1982) 125 DLR (3d) 1.

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An example illustrates the need for a judge to decide which conceptions ofconstitutional values are dominant at a particular moment. Attempts by the legislatureto entrench statutory provisions by requiring a referendum on any proposed repeal

or amendment forces the courts to choose between one view of democratic propriety(representative democracy) and another (direct democracy). In Att Gen (NSW) vTrethowan,48 section 7A of the Constitution Act 1902 (NSW) prevented any Billto abolish the Legislative Council (the second chamber of the New South WalesParliament) being presented to the Governor for assent until it had been approvedby the electors of New South Wales. The plaintiffs challenged such a Bill, whichhad not been submitted to a referendum, and the case was dealt with on the hypothesisthat the Bill had been approved by the legislature. The High Court of Australiaheld that the court could grant an injunction restraining presentation of a later Billwhich had not been submitted to a referendum of electors. The decision turned onthe applicability of the Colonial Laws Validity Act 1865 (UK), s 5, to the ConstitutionAct 1902 (NSW), s 7A, but at the heart of the case lay a choice between enforcingthe referendum requirement, thus entrenching an element of direct democracy, andupholding the plenary power of the representative legislature. The majority of theCourt, sheltering behind the 1865 Act, chose to enforce the referendum requirement.The dissenters expressly upheld the principle of representative rather than directdemocracy.49

Making a choice between models of democracy is justified by aspirations, reflectedin the constitution, towards a model of democracy. The constitution may even givesome guidance as to the type of democracy which is contemplated, and this maylimit the form which the legislature can take and its legislative capacity. For instance,

in West Lakes Ltd v South Australia,50 a 1969 statute ratified an agreement betweenthe Premier and the company which provided that it was not to be amended withoutthe agreement in writing of the company. In 1980, a Bill was introduced to amendthe 1969 statute, without the company's consent. The company claimed that thiswas outside the power of the legislature, being an attempt to change the constitutionof the legislature (which, they claimed, included for this purpose the company)without regard to manner and form requirements (the company's consent in writing)incorporated by reference in the 1969 Act and protected by section 5 of the ColonialLaws Validity Act 1865 (UK). The company's claim was unsuccessful. King CJ said:

Trethowan s case ... concerned a requirement that an important constitutional alteration be

approved by the electors at a referendum.Such a

requirement, although extra-parliamentaryin character, s easily seen to be a manner and form provision because it is confined to obtainingthe direct approval of the people whom the 'representative egislature' represents. If, however,parliament purports to make the validity of legislation on a particular matter conditional onthe concurrence of an extra-parliamentary ndividual, group of individuals, organisation orcorporation, a serious question must arise as to whether the provision is truly a law prescribingthe manner and form of legislation, or whether it is not rather a law as to substance, beinga renunciation of the power to legislate on that topic unless the condition exists.

He held that the contractual condition was of the latter type, and was ineffectiveto restrict the representative parliament's plenary legislative powers.5' The refer-

48 (1931) 44 CLR 394, HC; [1932] AC 526, PC.49 Rich, Dixon and Starke JJ formed he majority, which was upheld on appeal by the Privy Council:

[1932] AC 526. Gavan Duffy CJ and McTiernan dissented: ee particularly McTiernan , (1931)44 CLR 394 at pp 441-443. On the procedural mplications f injunctions estraining teps in thelegislative process, see P.J. Hanks, Australian Constitutional Law:. Materials and Commentarv Sydney:Butterworths, th ed, 1990) pp 174-177.

50 (1980) 25 SASR 389, SC of South Australia.51 (1980) 25 SASR at pp 397-398.

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national democratic self-determination and supra-national European democracy? Sofar, that issue has not been raised, because Community arrangements are insuffi-ciently democratic to give rise to a conflict between national and Community

democratic ideals. However, if the Community is to achieve enough democraticcredibility to make political union feasible, it will have to address the constitutionaltask of allocating power only to bodies which have a respectable level of democraticlegitimacy and accountability. When (or if) that happens, the issue will become veryimportant, as domestic interest groups would be able to present their litigation asgiving effect to European democratic standards. This, in turn, may generate pressureon the European Court of Justice to relax its locus standi rules in order to allowa wider range of interests to be represented before it, in cases where it has originaljurisdiction, and the change in the constitutional ethic of the Community might makeit hard to resist the challenge.

The constitutional role of public interest challenges to the constitutionality oflegislation may be illuminated by looking at the stage in the legislative process atwhich the courts are willing to entertain a legal challenge. If it is seen as a contributionto dialogue, encouraging or providing a forum for public debate and participationin legislation, it may be sensible to challenge the Bill as early as possible. Thismay also be tactically useful, enabling the litigants to pre-empt any presumptionof the validity of legislation which has been passed and is valid on its face. On theother hand, such a challenge will deprive the reviewing body of the benefit of knowingthe legislature's opinion of its constitutional powers, an opinion to which, in somecontexts at least, the courts should show deference.57

In practice, it is unusual for a system to encourage a pre-emptive attack on proposed

legislation. Under Westminster-style constitutions, asking a court to interfere inthe internal processes of Parliament presents formidable obstacles. It has been saidthat a court may grant an injunction preventing a party from promoting or opposinga Private Bill, when to do so would constitute a breach of contract, but on the rareoccasions when it has been done, the injunctions have always been discharged onappeal.58 The court is extremely unlikely ever to attempt to restrain the introduc-tion of a Public Bill by the government.59 Once the Bill has passed through Parlia-ment, it is possible that an injunction might be granted to prevent it being presentedfor the Royal Assent. This was done in Trethowan's case, but the correctness ofthe course has been doubted. It is properly available, if at all, only where the Billhas failed to comply with a mandatory (rather than directory) procedural requirementfor its passage (in that case, approval in a referendum).60

57 For example, by invalidating egislation only if the legislature has made a 'clear mistake' as to the extentof its power. On this approach to the US constitution, see James B. Thayer, 'The origin and scopeof the American doctrine of judicial review' 7 Harvard Law Review 129-156; David A.J. Richards,Foundations of American Constitutionalism (NY: Oxford University Press, 1989) pp 157-166, espat 164, on the commerce clause.

58 Bilston Corporation v Wolverhampton Corporation [1942] Ch 391, discussed by W.S. Holdsworth,(1943) 59 LQR 2; J.M. Evans (ed), De Smith's Judicial Review of Administrative Action (London:Sweet & Maxwell, 4th ed, 1980) p 467.

59 Rediffusion (Hong Kong) Ltd v Att Gen of Hong Kong [1970] AC 1136: courts have jurisdiction torestrain consideration of a Bill by a subordinate legislature, although the injunction was refused asa matter of discretion. Cf Cormack v Cope (1974) 131 CLR 432: injunction should be granted onlyin an unusual case, for example where nobody would have locus standi to challenge it after enactment(per Barwick CJ at 453-455, Menzies J at 464-466, Gibbs J at 466-467, Stephen J at 472).

60 Taylor v Att Genfor Queensland (1917) St R Qd 208; Trethowan v Peden (1930) 31 SR (NSW) 183;Att Gen for New South Wales v Trethowan (1931) 44 CLR 394. It seems unlikely that injunctionswill'ever be granted in future: Hughes & Vale Pty Ltd v Gair (1954) 90 CLR 203 at pp 204-250per Dixon CJ (with whom McTiernan J concurred); Clayton v Heffron (1960) 105 CLR 214 at

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Generally, in a Westminster-style constitution, challengers will have to wait forthe legislation and then challenging it retrospectively, in the hope that a declarationof unconstitutionality (rather than an injunction) will force the government to re-open

the issue and observe the correct procedures for political debate and publicparticipation.61

If this is to be done effectively, the courts must have power to suspend the operationof legislation or administrative orders made under it, and the scope of such poweris by no means well settled.62 But in the UK, in cases which do not involveenforceable Community rights or obligations, interlocutory relief against the Crownis not generally available.63

The position is different under constitutions which allow pre-legislative challengesto the constitutionality of proposed legislation. In Canada, the federal governmentcan refer constitutional questions to the Supreme Court for advisory opinions, whichare influential but not

binding.64In France, where any

legislationmay, and some

must, be referred to the conseil constitutionnel during its passage through the NationalAssembly or Senate, a reference has come to be regarded not as an extrinsicinterference with the legislative process but as an intrinsic part of it, and the conseilhas been able to lay down constitutional standards to be met by legislation, thusinfluencing the final form which the legislation takes and eliminating the need forsubsequent challenges.65 Members of the Assembly or Senate may be encouragedto demand a reference by pressure from interest groups, so that the hearing of thereference becomes, in effect, interest group litigation conducted in the public interest.

The availability and effectiveness of pre-legislative challenges to proposed legisla-tion, then, seem to depend on whether a particular constitutional culture regardsreview of legislation as being a part of, and an aid to, the process of producingconstitutionally proper legislation, as in France, or as an interference with democracyrather than a bulwark of constitutionality. The position adopted in any country dependson the local significance of the idea of constitutionalism (that is, the level of respectfor, and understanding of, the requirements of the local constitution), on the personnelof the review body (do the officials enjoy the respect of the politicians?) and on

pp 233-235. It is possible that a declaration of invalidity might be granted before enactment n Australia:Cormack v Cope (1974) 131 CLR 432. In Canada, the Supreme Court has power to give an advisoryopinion on a reference by the federal government: Supreme Court Act, RSC 1970, c S-19; Peter W.Hogg, Constitutional Law of Canada (Toronto: Carswell, 2nd ed, 1985) p 177 et seq.

61 Hughes & Vale Pty Ltd v Gair (1954) 90 CLR 203, especially per Dixon CJ at p 204; Clayton vHeffron (1960) 105 CLR 214, especially per Dixon CJ, McTiernan, Taylor and Windeyer JJ at p 235.In the United States, a challenge to federal legislation before enactment would normally be inadmissible,as the case or controversy would be insufficiently 'ripe': Laurence H. Tribe, American ConstitutionalLaw, 2nd ed, pp 77-82.

62 For the UK, see Factortame Ltd v Secretary of State for Transport [1990] 2 AC 85 and R v Secretaryof Statefor Education and Science, exp Avon County Council [1991] 1 All ER 282, CA. For Canada,see Att Gen of Manitoba v Metropolitan Stores Ltd [1987] 1 SCR 110.

63 Factortame Ltd v Secretary of State for Transport [1990] 2 AC 85; Factortame Ltd v Secretary ofState for Transport (No 2) [1991] 1 All ER 70 at 106, HL.

64 Supreme Court Act, RSC 1970, c S-19, s 55. See P.W. Hogg, op cit n 60 above, pp 177-183.Provincial governments may also make references under provincial legislation to the provincial Courtof Appeal.

65 Article 61 of the 1968 Constitution. Barry Nicholas,'Fundamental

rightsand

judicialreview in France'

[1978] PL 82-101, 155-177; Burt Neuborne, 'Judicial review and separation of powers in Franceand the United States' (1982) 57 New York University Law Review 363-442, especially at pp 377-410;Michael H. Davis, 'The law/politics distinction, the French Conseil constitutionnel, and the US SupremeCourt' (1986) 34 American Journal of Comparative Law 45-92; Cynthia Vroom, 'Constitutional

protection of individual liberties in France: the Conseil constitutionnel since 1971' (1988) 63 TulaneLaw Review 265-334; Tony Prosser, 'Constitutions and political economy: the privatisation of publicenterprises in France and Great Britain' (1990) 53 MLR 304-320.

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the way in which the review is conducted (does the review body show proper respectto principles of democracy, human rights, or whatever other principles constitutethe foundations of the prevailing political and constitutional ethic?). It will also depend

on whether a constitution is held to recognise that the legislature has the primaryduty of deciding the scope of its own power, and being entitled to respect for itsdecision from other coordinate bodies (such as the courts) so long as it is basedon some acceptable reasoning, embodying what has been called a 'coordinate' ratherthan a 'hierarchical' model of constitutional power.66

2 FederalismA federal constitution must allocate powers between the federal and state authorities.Implicit in a federal structure is a constitutional commitment to a higher level ofcitizen participation, especially in local politics, than is apparent in a centralisedunitary state.67 A federal allocation of powers makes it feasible, subject to otherfactors such as standing rules, to challenge the activity of the legislature or thegovernment of either state or federation for unconstitutionality, on the ground thatit trespasses on the powers of the other.68 The challenge may be launched onbehalf of an individual or interest group, but the rights and duties of the federationand states respectively will have to be worked out in the litigation, and it will almostalways lead to the states and federal government being joined as parties.

Australia provides a good example of this happening. The constitutions of theAustralian states are based closely on the orthodox Westminster model, but theFederal Constitution is an uncomfortable mixture of 'responsible government' on

the Westminster model and Parliamentary arrangements to protect states' rights onthe USA model. The powers of the state Parliaments are in principle plenary, subjectonly to the terms of the Commonwealth Constitution and the Australia Acts 1986(UK and Cth). The powers of the Commonwealth Parliament and government arerestricted under the Commonwealth Constitution and may be exercised only fordefined purposes: the Parliament's powers are defined in section 51, and theexecutive's powers extend, under section 61, to 'the execution and maintenanceof this Constitution, and of the laws of the Commonwealth.' However, the necessityfor central planning in a variety of fields has led Commonwealth Labour governmentsto try to extend their powers to intervene in the States' control over matters notexpressly within the Commonwealth's constitutional

legislative powers. Recently,the High Court has been accommodating towards such attempts, tending to givean expansive reading to the terms of section 51 and adopting an interpretation ofthe 'incidental power' allowing the executive to take powers under section51(xxxix)69 of the Constitution to the extent necessary to give effect to nationalobjectives. This was wide enough to allow the Commonwealth to introduce a nationalwelfare assistance programme and to regulate the country's bicentenary celebrations

66 Brian Slattery, 'A theory of the Charter' (1987) 25 Osgoode Hall Law Journal 701-747.67 Slattery, op cit at p 735.68 This section concentrates on primary legislation. Delegated legislation and executive action can more

easily be attacked, being subject to ordinary administrative law principles which have been appliedparticularly vigorously in Australia: see eg Re Toohey; exp Northern Land Council (1981) 151 CLR 170.

69 s 51 provides: 'The Parliament shall, subject to this Constitution, have power to make laws for thepeace, order and good government of the Commonwealth with respect to: ... (xxxix) Matters incidentalto the execution of any power vested by this Constitution in the Parliament or in either House thereof,or in the Government of the Commonwealth, or in the Federal Judicature, or in any department orofficer of the Commonwealth.'

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January 1992] Public Interest Litigation and Constitutional Theory

by statute.70 In some cases, this has been challenged (unsuccessfully) by theStates.7' In others, the resulting legislation has so closely affected individuals thatthey have challenged the legislation by claiming that the Commonwealth has

overstepped its powers vis-a-vis the states, and that the legislation is accordinglyvoid.72 The challenges have so far met with little success, because the High Courtfavours democratic centralism over state rights73; that could change at any time.

In the same way, challenges to state legislation can be launched for inconsistencywith Commonwealth legislation. A number of interest groups have initiatedchallenges, including the aboriginal and Torres Strait Islanders' rights campaigners,an increasingly active group of litigators.74 Alternatively, individuals may litigate,as when Queensland's rules on the recognition of the qualifications of barristersfrom other states were successfully challenged.75 In the United States, interestgroups have used similar challenges, notably in the context of environmental

protection, includingthe Snail Darter case.76 This sort of

challengecannot occur

in a unitary state in which ultimate legislative power is undivided, although othergrounds of challenge to legislation might be available, based for example on thefundamental supra-constitutional significance of a treaty on which the state wasfounded, such as the Act of Union 1707 in Britain or the Treaty of Waitangi inNew Zealand.77

3 Ideological Interests and the Political CommunitySome constitutions impose policy directives, requiring that state bodies exercisetheir powers with a view to particular objectives. Those objectives enjoy a privilegedplace in political dialogue, since they must always be taken into account in decision-making. They may be expressed in very general terms, but the less specific theyare, the less enforceable they will be. For example, the constitutions of Canada,the Australian Commonwealth and all the states except Victoria empower thelegislatures to act for the 'peace, welfare and good government' or 'peace, order

70 Victoria v Commonwealth & Hayden (The AAP Case) (1975) 134 CLR 338; Davis v Commonwealth(1988) 166 CLR 79. The external affairs power has also been used to extend the authority of thefederal government and Parliament in environmental and human rights matters: see n 102 below.

71 Victoria v Commonwealth & Hayden (1975) 134 CLR 338.72 Davis v Commonwealth (1988) 166 CLR 79.

73 See Leslie Zines, The High Court and the Constitution (Sydney: Butterworths, 2nd ed, 1986)pp 263-268.

74 eg Koowarta v Bjelke-Petersen (1982) 153 CLR 168.75 Street v Queensland Bar Association (1989) 168 CLR 461.76 Tennessee Valley Authority v Hill (1978) 437 US 153. For an Australian equivalent, see the Tasmanian

Dam case (1983) 158 CLR 1.77 Te Weehi v Fisheries Officer [1986] 1 NZLR 680; Huakina Development Trust v Waikato Valley

Authority [1987] 2 NZLR 188. For commentary, see the symposium marking the 150th anniversaryof the Treaty: Sir Robin Cooke, 'Introduction' (1990) 14 New Zealand Universities Law Review 1-8;David V. Williams, 'The constitutional status of the Treaty of Waitangi,' ibid pp 9-36; Sir KennethKeith, 'The Treaty of Waitangi in the courts,' ibid pp 37-61; E. Taihakurei Durie and Gordon S.Orr, 'The role of the Waitangi Tribunal and the development of a bicultural jurisprudence,' ibidpp 62-81; Alex Frame, 'A state servant looks at the Treaty,' ibid pp 82-96. For the attitude of Scottishcommentators and

judgesto the

Treatyof

Union and the Acts of Union, see McCormick v Lord Advocate(1953) SC 396; Stewart v Henry (1989) SLT (Sh Ct) 34; Fraser v McCorquodale (1989) SLT (Sh Ct) 39.Cf Lord Keith in Gibson v Lord Advocate (1975) SLT 134 at pp 137-138, criticised by the late ProfessorT.B. Smith in The Stair Memorial Encyclopaedia, vol 5, tit 'Constitutional Law' para 350. On thestatus of Australian aborigines, see Peter Hanks and Bryan Keon-Cohen (eds), Aborigines and theLaw: Essays in Memory of Elizabeth Egglestone (Sydney: George Allen and Unwin, 1984); Coe vCommonwealth (1979) 53 ALJR 403; Australian Law Reform Commission, Report No 31, TheRecognition of Aboriginal Customary Laws (Canberra: AGPS, 1986).

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and good government' of the state but, far from being effective words of limitation,these words have been held to confer plenary power.78 More concretely, a consti-tution may entrench the objectives of socialism, as in the USSR constitution, or

exhort state organs to respect the dignity of man, as does Article 1 of the Grundgesetzof the German Federal Republic. However, the extent and effects of constitutionalpolicy directives depend, first, on circumstances in which the constitution wasadopted, including the political theory on which the constitution is based and, second,on the ease with which the constitution can be amended. For example, the Australianstate constitutions were intended to be flexible, and were based on the Westminstermodel which, as theorised by Dicey, placed great weight on the democratic freedomof elected representatives in Parliament. It is, therefore, not surprising that 'peace,order and good government' clauses have been held to impose no limitations onlegislative competence. At the time of the framing of the constitutions, the legislatureswere subject to control by the Imperial Parliament, but any other limitations wouldhave been inconsistent with the theory of the legislative supremacy of a representativeassembly which provides the basis for Westminster-style constitutions.79

The US constitution lacks policy directives for other reasons. Although the framersplanned to exclude untramelled legislative supremacy from the newly-independentfederation, this was to be achieved not by tying successors' hands as to details ofpolicy, which were to be left to the judgment of posterity, but by demanding respectfor the basic freedoms (expressed at a high level of abstraction) needed to allowposterity to exercise its judgment fairly and freely. Because the concrete meaningof these rights was left to be reinterpreted by each generation, it was thought justifiableto entrench the abstract expression of them in the constitution.80 The German

Grundgesetz is relatively easy to amend for most purposes, needing only an expressprovision in a law passed by a two-thirds majority in the Bundestag and theBundesrat.8' Even so, there are few policy directives in the Grundgesetz, the mainone being the outlawing of acts intended to disturb peaceful relations betweennations,82 a reaction against the militarism of the Hitler years.

Some of the most detailed and extensive policy directives appear in the IndianConstitution. Not surprisingly, it is relatively easy to amend. For most purposes,a Bill supported by a majority of the total membership of each House of Parliamentand two-thirds of those voting suffices. Part IV of the Constitution contains DirectivePrinciples of State Policy, requiring the state to direct its policy towards securing(among other things) an adequate means of livelihood for all citizens, the distributionof ownership and control of material resources best serving the public good, avoidanceof concentration of wealth detrimental to the common good, equal pay for equalwork for men and women, local government on a village basis, etc.83 Article 37provides:

78 Union Steamship Co of Australia Ptr Ltd v King (1988) 166 CLR 1, disapproving suggestions to thecontrary in Building Construction Employees and Builders' Labourers Federation of NSW v Ministerfor Industrial Relations (1986) 7 NSWLR 372, CA of NSW per Street CJ at p 384 and Priestley JAat p 421; see also Port MacDonnell Professional Fishermen 's Association Inc v South Australia (1989)168 CLR 340 at

p372.

79 See the Colonial Laws Validity Act 1865 (UK), s 5. The states are now free of UK Parliament control:Australia Act 1986 (UK), s 2; Australia Act 1986 (Cth), s 2. On the legal status of the state ConstitutionActs, see McCawley v R [1920] AC 691, PC, especially at pp 704-706.

80 David A.J. Richards, op cit n 57 above, at pp 167-170.81 Article 79.82 Article 26.83 See Articles 38-51 of the Indian Constitution.

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The provisions ontained n this Part hall not be enforceable y any court, but the principlestherein aid down are nevertheless undamental n the governance f the country and it shallbe the duty of the State to apply these principles n making aws.

Despite the first thirteen words of the Article, courts have claimed a role in relationto the Directive Principles. In Pandey v State of West Bengal,84 ChinnappaReddy J said:

When the Court s called upon to give effect to the Directive Principle and the fundamentalduty, the Court s not to shrug its shoulders and say that priorities are a matter of policyand so it is a matter or the policy-making uthority. The least that the Court may do is toexamine whether appropriate onsiderations re borne n mind and irrelevancies xcluded.In appropriate ases, the Court may go further, but how much further must depend on thecircumstances f the case. The Court may always give necessary directions. However, theCourt will not attempt to nicely balance relevant considerations. When the question involvesthe nice balancing of relevant considerations, the Court may feel justified in resigning itself

to acceptance of the decision of the concerned authority.The Court can therefore lay down guidance for the state in relation to the stepsneeded to meet the Directive Principles in appropriate cases.85

All branches of government, including (it seems) the judges, are obliged to haveregard to the Directive Principles, but the primary duty lies on the policy makers,the executive and legislature, to ensure that the

Feldman Public Interest Litigation and Constitutional Theory in Comparative Perspective

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