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Judicial Review, Justiciability and the Prerogative of Mercy

Published online by Cambridge University Press:  24 November 2003

B.V. Harris
B.V. Harris*
Affiliation:
University of Auckland
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Extract

“Justiciability determines whether there is a potential availability of judicial review of the exercise of the prerogative of mercy. “Justiciability is the name given to the constitutional concept which recognises the capabilities of the courts are limited. The societal concern is that the courts only perform functions that are appropriate to their place in the constitution and the way they are structured and expected to operate. Is it appropriate that the executive government's decision-making in respect of mercy be subject to judicial review? Different courts have made different assessments of this appropriateness. In a series of decisions in different common law jurisdictions over the last seventeen years the law has moved from the non-availability of judicial review, to recognising the potential for review, then back to denying the potential, and finally in the Privy Council in Lewis v. Attorney-General of Jamaica to accepting again its potential availability.

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Articles
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The Cambridge Law Journal , Volume 62 , Issue 3 , 03 November 2003 , pp. 631 - 660
Copyright
Copyright © Cambridge Law Journal and Contributors 2003

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Footnotes

I am grateful to Professor Peter Cane of the Australian National University, Professor John McEldowney of the University of Warwick, and Professor Michael Taggart of the University of Auckland for their comments on an early draft of this article. I am also grateful to Professor Michael Taggart and Janet McLean of the University of Auckland and an unknown referee for their comments on a later draft.

References

1 For background discussion of the nature of the prerogative of mercy and the courts’ attitude to judicial review of the exercise of that prerogative until 1991 see B.V. Harris, “Judicial Review of the Prerogative of Mercy?” [1991] P.L. 386. See also A.T.H. Smith, “The Prerogative of Mercy, the Power of Pardon and Criminal Justice” [1983] P.L. 398.

2 See generally Cane, P., An Introduction to Administrative Law, 3rd edn. (Oxford 1996) pp. 3439Google Scholar; Marshall, G., “Justiciability” in Oxford Essays in Jurisprudence, First Series (Oxford 1961)Google Scholar, ch. 10.

3 See de Freitas v. Benny [1976] A.C. 239.

4 See Burt v. Governor-General [1992] 3 N.Z.L.R. 672; R. v. Secretary of State for the Home Department, ex parte Bentley [1994] Q.B. 349.

5 See Reckley v. Minister of Public Safety and Immigration (No. 2) [1996] A.C. 527.

6 See Lewis v. Attorney-General of Jamaica [2001] 2 A.C. 50.

7 See Allan, T.R.S., Law, Liberty and Justice (Oxford 1993)Google Scholar, ch. 9, and Allan, T.R.S., Constitutional Justice (Oxford 2001)Google Scholar, ch. 6.

8 Law, Liberty and Justice, at pp. 212, 214, 215, 216, 218, 228, 229; Constitutional Justice, at pp. 173-174, 189-190.

9 Finn, Chris, “The Justiciability of Administrative Decisions: A Redundant Concept?” (2002) 30 Fed. L. Rev. 239, at pp. 246Google Scholar and 253.

10 Ibid., at p. 263.

11 Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374.

12 Ibid., at p. 407 per Lord Scarman; at p. 411 per Lord Diplock; at p. 418 per Lord Roskill.

13 Ibid., at p. 418 per Lord Roskill.

14 Allan, Law, Liberty and Justice, at pp. 212-213 and 222; Constitutional Justice, at pp. 164 and 177.

15 Finn, “The Justiciability of Administrative Decisions”, at pp. 253 and 262.

16 Allan, Constitutional Justice, at p. 177 and Finn, “The Justiciability of Administrative Decisions”, at p. 262.

17 Allan, Constitutional Justice, at p. 194.

18 See, e.g. Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147 and R. v. Medical Appeal Tribunal, ex parte Gilmore [1957] 1 Q.B. 574, at p. 583, per Denning L.J.

19 Reckley v. Minister of Public Safety and Immigration (No. 2) [1996] A.C. 527.

20 [2001] 2 A.C. 50.

21 See pp. 653-654 below.

22 See, e.g. M.C. Harris, “The Courts and the Cabinet: ‘Unfastening the Buckle”’ [1989] P.L. 251, at p. 279; Galligan, D.J., Discretionary Powers (Oxford 1986), pp. 240241Google Scholar; Williams, D.G.T., “Justiciability and the Control of Discretionary Power” in Taggart, M. (ed.), Judicial Review of Administrative Action in the 1980s (Auckland 1986), pp. 110111Google Scholar. See generally Harris, “Judicial Review of the Prerogative of Mercy”, at pp. 394-400.

23 R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 2) [2000] 1 A.C. 119.

24 Sirros v. Moore [1975] Q.B. 118.

25 Supreme Court Act 1981 (U.K.), s. 11(3).

26 R. v. Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 A.C. 513, at pp. 544-545 per Lord Keith of Kinkel, and at pp. 562-563 per Lord Mustill. See generally Allan, Constitutional Justice, at pp. 168-169.

27 Chandler v. Director of Public Prosecutions [1964] A.C. 763. Contrast Operation Dismantle Inc. v. The Queen (1985) 18 D.L.R. (4th) 481, at p. 504 per Wilson J. See also Curtis v. Minister of Defence [2002] 2 N.Z.L.R. 744.

28 Chandler v. Director of Public Prosecutions [1964] A.C. 763; Operation Dismantle Inc. v. The Queen (1985) 18 DLR (4th) 481; R. v. Secretary of State for the Home Department, ex parte Chahal [1993] Imm.A.R. 362; R. v. Secretary of State for the Home Department, ex parte Cheblak [1991] 1 W.L.R. 890.

29 R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mogg [1994] Q.B. 552. But contrast R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement [1995] 1 W.L.R. 386. See also Blackburn v. AttorneyGeneral [1971] 1 W.L.R. 1037; Buttes Gas and Oil Co. v. Hammer [1982] A.C. 888.

30 See R. v. Cambridge Health Authority, ex parte B [1995] 1 W.L.R. 898; R. v. Criminal Injuries Compensation Board, ex parte P [1995] 1 W.L.R. 845.

31 (1962) 369 U.S. 186. See Brennan J. at p. 217 for a definition of “political questions”. See Tribe, L.H., American Constitutional Law, 3rd edn. (2000), vol. 1 at p. 366ffGoogle Scholar.

32 See, e.g. the attempt in Craig, P.P., Administrative Law, 4th edn. (London 1999), pp. 862ffGoogle Scholar.

33 Finn, “The Justiciability of Administrative Decisions”, at p. 247.

34 See R. (Alconbury Development Ltd.) v. Secretary of State for the Environment, Transport and the Regions [2001] 2 W.L.R. 1389.

35 Operation Dismantle Inc. v. The Queen (1985) 18 D.L.R. (4th) 481, at p. 500 per Wilson J.

36 See R. v. Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 W.L.R. 242 where the Divisional Court (Mann L.J. and Sedley J.) conceded that it did not have the expertise to review an assessment of the quality of the research output of a college of the University of London which provided postgraduate teaching and research in dentistry. Similarly in Clark v. University of Lincolnshire and Humberside [2000] 1 W.L.R. 1988, at p. 1992 per Sedley L.J., and at 1996 per Lord Woolf M.R., it was held that some decision-making in respect of academic matters within universities will be non-justiciable.

37 See Fuller, Lon L., “The Forms and Limits of Adjudication” (1978) 92 (1) Harv. L. Rev. 353, at p. 393Google Scholarff. See also R. v. Criminal Injuries Compensation Board, ex parte P [1995] 1 W.L.R. 845, at p. 857 per Neill L.J.

38 John Allison, “The Procedural Reason for Judicial Restraint” [1994] P.L. 452; J.W.F. Allison, “Fuller's Analysis of Polycentric Disputes and the Limits of Adjudication” [1994] C.L.J. 367. See also Finn, “The Justiciability of Administrative Decisions”, at pp. 242ff, especially at p. 244; and Allan, Constitutional Justice, at pp. 188ff.

39 Allison, [1994] P.L. 452, at p. 467.

40 See above n. 7.

41 See above n. 9.

42 [1994] C.L.J. 367, at p. 382.

43 Ibid..

44 Ibid., at pp. 382-383. Suggestions for procedural reform in the United Kingdom which would soften the adversarial/inquisitorial distinction and extend justiciability were advanced by Rt. Hon. Lord Woolf M.R. (as he then was) in Access to Justice: Final Report (1996), ch. 13. The suggestions included better management of expert evidence and the idea that judges could be joined on the bench more often by assessors having expertise suited to the subject matter of the particular dispute. The boundaries of justiciability could be expanded by facilitating the presentation to the court of a greater range of empirical and scientific evidence. In the United States the “Brandeis brief” approach has long been available to facilitate the presenting to the court as evidence of wide ranging social and economic studies. See Muller v. Oregon (1907) 208 U.S. 412.

Many commentators have been supportive of the adjudication process being modified to better accommodate polycentricity. See, e.g. John Allison, “The Procedural Reason for Judicial Restraint” [1994] P.L. 452, at pp. 467-473; Chayes, A., “The Role of the Judge in Public Law Litigation” (1976) 89 Harv.L.Rev. 1281, at pp. 13111312Google Scholar; J.A.G. Griffith, “Judicial Decision-Making in Public Law” [1985] P.L. 564, at pp. 565 and 580ff; M. Loughlin, “Innovation Financing in Local Government: The Limits of Legal Instrumentalism—Part 2” [1991] P.L. 568, and M. Loughlin, Public Law and Political Theory (1992), pp. 216-217.

45 [1991] 1 A.C. 521.

46 Ibid., p. 593. See also Baker v. Carr (1962) 369 U.S. 186, at p. 217 per Justice Brennan.

47 See Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, at p. 410 per Lord Diplock, in respect of this labelling of the grounds for judicial review.

48 See above n. 14.

49 See above n. 15.

50 Allan, Law, Liberty and Justice, at pp. 212-213.

51 See, e.g. Reckley v. Minister of Public Safety and Immigration (No. 2) [1996] A.C. 527.

52 Allan, Law, Liberty and Justice, at p. 224.

53 Lewis v. Attorney-General of Jamaica [2001] 2 A.C. 50.

54 See e.g. Mark Elliot, “The Human Rights Act 1998 and the Standard of Substantive Review” [2001] C.L.J. 301; Mark Elliott, “The HRA 1998 and the Standard of Substantive Review” [2002] J.R. 97; Paul Craig, “The Courts, The Human Rights Act and Judicial Review” (2001) 117 L.Q.R. 589; Nicholas Blake, “Importing Proportionality: Clarification or Confusion” [2002] E.H.R.L.R. 19; Ian Leigh, “Taking Rights Proportionately: Judicial Review, the Human Rights Act and Strasbourg” [2002] P.L. 265.

55 See R. v. Lord Chancellor, ex parte Witham [1998] Q.B. 575; R. (Daly) v. Secretary of State for the Home Department [2001] 2 A.C. 532; R. (Alconbury Developments Ltd.) v. Secretary of State for the Environment, Transport and Regions [2001] 2 W.L.R. 1389, at para. [51] per Lord Slynn of Hadley. For foreshadowing of this development see Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, at p. 410 per Lord Diplock. See generally Mark Elliott, “The HRA 1998 and the Standard of Substantive Review” [2002] J.R. 97, at p. 108; Michael Fordham, “Common Law Proportionality” [2002] J.R.110; Richard Clayton, “Proportionality and the HRA 1998: Implications for Substantive Review” [2002] J.R. 124.

56 See e.g. R. (Daly), above n. 55, at paras. [26] and [27] per Lord Steyn and Association of British Internees-Far Eastern Region v. Secretary of State for Defence [2003] EWCA Civ 473.

57 See e.g. Elliott, “The Human Rights Act 1998 and the Standard of Substantive Review” [2001] C.L.J. 301; Craig, Administrative Law, pp. 585-586.

58 Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, at pp. 226 to 234 per Lord Greene M.R. Cf. R. v. Chief Constable of Sussex, ex parte International Trader's Ferry Ltd. [1999] 2 A.C. 418, at p. 452 per Lord Cooke of Thorndon and R. (Daly) v. Secretary of State for the Home Department, above n. 32, at para. [32] per Lord Cooke.

59 See e.g., R. (Mahmood) v. Secretary of State for the Home Department [2001] 1 W.L.R. 840, at p. 847 per Laws L.J.; R. v. Ministry of Defence, ex parte Smith [1996] Q.B. 517, at p. 554 per Sir Thomas Bingham M.R.; R. (Daly) v. Secretary of State for the Home Department [2001] 2 A.C. 532, at para. [27] per Lord Steyn.

60 See e.g. Mark Elliott, above n. 55, at p. 103. Cf. Paul Craig, “The Courts, the Human Rights Act and Judicial Review” (2001) 117 L.Q.R. 589, at pp. 589-590, and p. 594. See also R. v. Director of Public Prosecutions, ex parte Kebilene [2000] 2 A.C. 326, at p. 380 per Lord Hope of Craighead.

61 See e.g. R. (Alconbury Developments Ltd.) v. Secretary of State for the Environment, Transport and the Regions [2001] 2 W.L.R. 1389, at para. [69] per Lord Hoffmann. See Paul Craig, above n. 60.

62 For a similar observation see Elliot, above n. 57, at p. 315.

63 Elliot, Ibid., at p. 321.

64 Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374.

65 Ibid., at p. 418.

66 [1976] A.C. 239.

67 [1985] A.C. 374, at p. 418.

68 [1976] A.C. 239, at p. 247.

69 Ibid..

70 Ibid. Other pre G.C.H.Q. cases which have stated that judicial review is not available in respect of the prerogative of mercy include: Horwitz v. Connor (1908) 6 C.L.R. 38, at p. 40 per Griffith C.J.; Ex parte Kinally [1958] Crim.L.R. 474; Hanratty v. Lord Butler (1971) 115 S.J. 386, The Times, 13 May, 1971; Thomas v. The Queen [1980] A.C. 125, at p. 134 per Lord Edmund-Davies; R. v. Toohey; ex parte Northern Land Council (1981) 151 C.L.R. 170, at p. 261 per Aickin J.

71 [1992] 3 N.Z.L.R. 672. See Harris, “Judicial Review of the Prerogative of Mercy” (above note 1).

72 Ibid., at p. 678.

73 Ibid..

74 Ibid..

75 Ibid., at p. 681.

76 [1994] Q.B. 349.

77 Ibid., at p. 363. As a result of the decision of the Divisional Court the Home Secretary considered the application again and recommended the grant of a pardon limited to sentence to which the Queen consented.

78 Ibid..

79 Ibid..

80 Ibid..

81 [1996] A.C. 527. The Board consisted of Lord Keith of Kinkel, Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Hoffmann and Sir Michael Hardie-Boys. For criticism see Christopher Gelber, “Reckley (No. 2) and the Prerogative of Mercy: Act of Grace or Constitutional Safeguard?” (1997) 60 Mod. L.R. 572.

82 Ibid., at p. 542.

83 Ibid., at p. 540 quoting de Freitas v. Benny [1976] A.C. 239, at p. 247 per Lord Diplock.

84 Ibid. See also p. 542.

85 Ibid., at p. 542.

86 [2001] 2 A.C. 50. The composition of the Judicial Committee was Lord Slynn of Hadley, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann and Lord Hutton.

87 Ibid., at p. 74.

88 Ibid., at p. 75.

89 Ibid..

90 For commentary on Lord Hoffmann's understanding of the principles guiding final appellate courts when confronted with their own precedents which they consider to be wrong, see B.V. Harris, “Final Appellate Courts Overruling Their Own ‘Wrong’ Precedents: The Ongoing Search for Principle” (2002) 118 L.Q.R. 408.

91 Ibid., at p. 76.

92 Ibid..

93 Ibid., at pp. 78-79.

94 Ibid., at p. 75.

95 The decision of the Judicial Committee resulted in the six appellants being spared execution because the necessary reconsideration of the prerogative of mercy petitions would have caused any execution to be outside the acceptable maximum period between a convicted person being sentenced to death and being executed.

96 Allan, Constitutional Justice, at pp. 174-177 where the author comes to a similar conclusion via a different path of reasoning.

97 [1996] A.C. 527, at p. 539 per Lord Goff.

98 See e.g. de Freitas v. Benny [1976] A.C. 374 and Reckley v. Minister of Public Safety and Immigration (No. 2) [1996] A.C. 527. See also the affirmation of these decisions in Lewis v. Attorney-General of Jamaica [2001] 2 A.C. 50, at p. 88 per Lord Hoffmann.

99 See Association of British Internees—Far Eastern Region v. Secretary of State for Defence [2003] EWCA Civ 473.

100 [1976] A.C. 239, at pp. 247-248 per Lord Diplock.

101 [1996] A.C. 527, at pp. 539-540 per Lord Goff.

102 [2001] 2 A.C. 50, at pp. 77-79 per Lord Slynn.

103 Ibid., at p. 77 per Lord Slynn.

104 Ibid., at p. 88.

105 [1996] A.C. 527.

106 Ibid., at p. 87.

107 Allan, Law, Liberty and Justice, at pp. 212-213 and 222; Constitutional Justice, at pp. 164 and 177; Finn, “The Justiciability of Administrative Decisions”, at pp. 253 and 262.

108 [2001] 2 A.C. 50.