The Culture of justification

The HRA 1998 may not provide an ideal means through which to hold the government and Parliament to account for legislation which contravenes Convention rights. Nevertheless the HRA 1998 may uphold normative ideals of accountability through facilitating a culture of justification.

Dyzenhaus describes the culture of justification as providing a middle ground between the extremes of the culture of reflection and the culture of neutrality.^[544] A ‘culture’ is best understood as a series of values which provide normative justifica­tion for the powers of the institutions of government, understood in its broad sense to encompass the judiciary. The culture of reflection can be illustrated by the work of Bentham, who advocated legislation as the ideal form of law-making, reflecting the majority choices of the citizens governed by this legislation. The role of courts is merely to interpret legislation, ensuring that their interpretations correspond to the wishes of the legislature, reflecting majority preferences. In contrast, the culture of neutrality regards legitimacy as stemming from liberal principles, which underpin democracy. The role of the judiciary is to uphold these liberal principles, ensuring that they are not overridden by democratic decision-makers.

From this brief outline, one can begin to see how the culture of reflection and the culture of neutrality provide competing normative accounts of the role of the court and competing models of judicial review.^[545] The culture of reflection underpins the ultra vires theory of judicial review. According to this theory, judicial review is justified as a means by which the judiciary can ensure that the administration does not transgress the scope of its powers granted to it by the legislature.

The culture of neutrality is reflected in some interpretations of the common law theory of judicial review, which regards judicial review as legitimate when it upholds constitutional principles, often reflecting the values of liberalism, found in the common law. Actions of the administration are legitimate not because they are within the sphere of power granted to them by the legislature, but because they comply with legitimate principles of the common law. These principles derive their legitimacy, for the majority of common law theorists, from the value of the substantive principles reflected in the common law. The court is justified, therefore, in overturning actions of the administration that contravene these common law constitutional principles.

Mureinik's approach to administrative law provides the best explanation of how the culture of justification holds the middle ground between the culture of reflection and the culture of neutrality. Mureinik's approach was developed in the face of providing a normative justification for the role of the court under the Apartheid regime. Mureinik classified the prevailing culture under Apartheid in South Africa as a culture of authority. Under the culture of authority, the legislature took actions that were upheld by the judiciary, often due to the existence of ouster clauses removing judicial review, but where the legislation enacted did not reflect the view of the majority of the population governed by that legislation. As such, an applica­tion of an ultra vires theory of administrative law failed to provide a justification for judicial review.

Mureinik's theory aimed to respond to these pressures. The culture of justification aims, in part, to promote accountability. Mureinik argued that a focus on account­ability can provide a more justifiable means of promoting substantive values when these are not reflected in the law. He does not advocate that the judiciary should strike down actions of the legislature that undermine liberal principles. Nor does he advocate that courts should correct actions of the administration that are contrary to liberal rights.^[546] However, neither should courts merely ensure that the actions of the administration are within the scope of powers granted to them by the legislation. Courts are required to develop stronger procedural protections per­haps in the face of apparently contradictory legislation, particularly regarding the requirement that reasons are provided for the actions of the administration and the legislature.^[547] This provision of reasons facilitates the ability of the judiciary to hold the administration and the legislature to account through a detailed scrutiny of justifications and reasons provided for their actions.

The culture of justification is not merely concerned with enforcing procedural protections and the duty to provide reasons. This can be seen in particular in the work of David Dyzenhaus and Murray Hunt, both of whom use the culture of justification to justify a theory of human rights adjudication which focuses upon substantive controls, particularly relying upon proportionality and deference. There is a plethora of conceptions of proportionality. In this context, it is best understood as a legal test that is used to determine the extent to which the state can enact meas­ures that harm human rights. When balancing rights against other legitimate aims, the state may only take a measure that places a proportionate restriction upon the human right in question. A culture of justification requires that courts examine the reasons provided by the executive or legislature to justify their actions, ensuring that any purported restriction of a right is proportionate. Deference is used to modify the intensity of the scrutiny of the court.

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