Feldman Public Interest Litigation and Constitutional Theory in Comparative Perspective

Public Interest Litigation and Constitutional Theory in Comparative Perspective
Author(s): David Feldman

Source: The Modern Law Review, Vol. 55, No. 1 (Jan., 1992), pp. 44-72
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Public Interest Litigation and ConstitutionalTheory
in ComparativePerspective
David Feldman*
The scope for citizens to use judicial processes to advance public, political ends
gives a discernibleindicationof social and legal attitudesto politics, the rightsand
responsibilitiesof citizenship, and the relationshipbetween electors, legislatures,
executives, courtsandthe disfranchised.This articlelooks at the way such relation-
ships are reflectedin the rules governingconstitutionalandpublic interestlitigation
by concerned citizens.
The article does not offer a comprehensivetheory of public interest litigation.
It does not examine the use of the criminallaw, equity or the law of tort for public
interestpurposes. Nor does it look at civil law systems. All these areas have been
dealt with very thoroughlyby others.' The primaryfocus of this article is on the
way prevailing ideas of democracyand constitutionalismshape (and are, in turn,
themselvesreshapedby) the capacityof privatecitizensto use the forms, procedures
and substanceof public law, and particularlyconstitutionallaw, to advancepublic
political aims. It will be suggested that the judges, in approachingpublic interest
litigation, have to develop a view of the constitutionand its underlyingprinciples.
This will draw on those commonly acceptedprinciples and beliefs which seem to
the judge to underpinthe constitutionaland political structure.This can be called
a constitutionalethic, and is a normative theory which establishes prescriptive
principlesaccordingto which the constitutionshouldbe developedand interpreted.
It sets the judge's understandingof currentarrangementsand power relations in
the context of a normativeconstitutionaland legal frameworkin which descriptive
and prescriptiveelements are entwined.
The judge does not have an entirely free choice of constitutionalethic. I do not
arguethatthere is a Dworkinianduty on judges to make the 'best' fit betweentheir
constitutionalethic and theirdescriptionof the pre-existingconstitutionalstructure,
but I do suggest thatthere is a weakerduty to adoptone of the constitutionalethics
which can be made to fit 'acceptably' in the light of operative techniques and
principles of legal reasoning. As 'should' implies 'can,' existing institutionsand
rules may prevent the judge from adoptingcertain sets of values. Because of the
historicaldevelopmentof a stateand its constitutionallaw andpractice,it may prove
impossible at a particularmomentto adopt (let us say) a capitalist, individualistic
constitutionalethic while stayingwithinthe constraintsimposedby the need to make
decisionscompatiblewithotheraspectsof constitutionallaw underan existingsocialist
structure.In such circumstances, fundamentalreform is needed which cannot be
providedby a judge unless the constitutionallows judges a role which is normally
given only to constitutionallegislatures.There may thereforebe 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 University
of Bristol in May 1990. I am grateful to the participants for the discussion, and to Jonathan Hill for making
valuable comments on a later draft. Much of the research for the paper was carried out during a period
as 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.
44 The Modern LawsReview 55:1 January 1992 0026-7961

January 1992] Public Interest Litigation and Constitutional Theory
a judge's view of the legallyavailablerangeof constitutionalethics, andothercitizens'

views of the most desirableconstitutionalethic. It is usuallyto be hopedthatlawyers
will striveto makeconstitutionallaw approximateas faras possibleto popularpolitical
aspirationsand understandings,and at the same time the judge's view is likely to
influence other people's understandingof the constitution,and so affect the future
development of political, as well as legal, discourse. The judicial view of the
applicable constitutionalethic and popular views of it constantly interact, while
offering more or less distorted reflections of each other.
Section I of the article distinguishesbetween interestgroup litigation and public
interestlitigation,andoutlinessome issues whichaffectthe constitutionalandpolitical
legitimacy of the latter. Section II examines locus standi rules: their relationship
with culturalfactors, and their effects on public interestlitigationby citizens under
different constitutions.The discussion illustrateswhat the status of such litigation
can reveal about social (ratherthan judicial) conceptions of democracy and the
relationshipbetween individualand collective interests. Section III examines how
structuralfeatures of constitutionsaffect judges' freedom to allow public interest
litigation, and explores ways in which four particularfeaturesof constitutionsmay
limit the rangeof constitutionalethicalnormswhich are availableto judges in public
interest disputes. Section IV suggests some implications which all this has for
constitutionaltheory.
I Interest Groups, Politics and the Democratic State

Interestgroups sometimes representthe interestsof their members;at other times,
they claim to be advancing interests which go beyond those of their immediate
membership.I will call the former kind of behaviour 'representativeactivity' and
the latter 'surrogateactivity' (becausethe group acts as a substitutefor people who
are unable or unwilling to representthemselves).2In either mode, the group may
be concerned with individuals' rights to property, freedom or welfare benefits
(materialinterests), or the implementationof values for society as a whole or a
sectionof it (ideologicalinterests).This is not a hardandfast distinction,as it relates
to the reasonswhy groupsare actingratherthanthe objectsto be attained:if a group
advocatesfree opera for the masses, it could be because membersare opera lovers
and the group is representingtheir materialinterestin having their desires satisfied
for free; it could be because members who feel no personal interest in opera are
acting as surrogates, representingthe interests (which may be either ideological
or material)of poor opera lovers who can neither afford to see opera nor afford
to advance their own interests in the competition for resources; or the members
might be advancinga vision of the good society as one in which opera improves
society by helpingto civilise it (an ideological interest, independentof any concern
for the material interests of poor - or rich - opera lovers).
The reason for distinguishingbetween types of interests and activities is that,
although they overlap to form a matrix of activities and reasons for action, the
differences are often constitutionallysignificant, and can affect the outcome of
litigationby groups or individualsin supportof their, or other people's, interests.
I argue that the differences between the constitutionalethics of different countries
explainthe varyingscope for differenttypes of intereststo be representedin different
2 This terminology is adapted from Richard B. Stewart, 'The reformation of American administrative
law' 88 Harvard Law Review 1667-1813 (1975) at pp 1742-1744.
45
The Modern Law Review [Vol. 55
ways in public law. To the extent that visions of people's roles in society and
relationships with the state are socially determined, opportunities for interest group
litigation 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 achieve
its immediate goal of stopping a particular whaling ship from operating or of
preventing a particular nuclear test, but the attempt may help to persuade people
to reassess the importance of various interests and the way in which their political
system 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 they
are acting as surrogates (their 'constituencies'), in the debate on the correct balance
between 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 a
decision-making capacity (governors, legislators or judges). Implicit in any public
interest activity by private citizens is a claim that it is proper for citizens to participate
in politics in this way. Interest groups may therefore be political in two distinct
ways: 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 cheap
publicity, raising public consciousness of the merits of a case and building up political
pressure in support of it, as part of a wider campaign.4 Even groups which appear
to 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 compensation
are clearly asserting private material interests; those seeking to improve the world
environment, public morality or political processes, are advocates for public and
ideological interests. But each type of interest group often asserts the importance
of public accountability in the exercise of power. Campaigns against private
companies whose business activities affect the public, for instance in environmental
matters, highlight the fragility of the distinction between public and private power
in capitalist societies, and direct attention to the need for public accountability for
private power (or, to put the issue another way, about the public responsibilities
of private corporations and individuals). In addition, interest group campaigns often
imply or entail a demand for public consultation and participation in governmental
decision-making and in the design of arrangements to control abuse of power. In
Britain, the campaign for compensation by investors who lost money in the failure
of 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 would
seek to advance their own private interests rather than a view of the general public interest: David
Hume, '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 interest
is 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 test
case 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 may
overstate the strategic sophistication of many campaigns. See Harlow and Rawlings, op cit.
46
was the regulatoryagency which allowed the firm to tradewhen it should not have
been allowed to do so; investorstrustedthe Department'sjudgmentand lost money;
therefore, the Departmentshould compensate for losses. But implied in this was
a derland for a thorough re-examinationof the way in which the governmental
regulatoryauthoritycarriedout its work. Similarly, groups of disastervictims are
often seeking not only compensationfor themselvesbut also changes in the methods
and scale of state control or regulationof the activities which cause the disaster.
For them, obtainingcompensationis only one objective. Others are to seek a full
public investigationof the causes of the disasters, and to ensure that the systems
which made the disasters possible are improved. These are moral or ideological
public interestobjectives, which go hand in hand with the materialprivate interest
in obtainingcompensationfor pastinjuries.They resonatein the field of constitutional
design as well as in the field of compensationfor private wrongs.
Such objectivesmay not fit well with the prevailingconstitutionalethic. Demands
for accountabilityand participationmay be accommodatedwithin various theories
of the state and society, but the theory adoptedwill affect the constitutionalstatus
and legitimacy of litigation which has the effect of advancing the demand. For
instance, liberal theory may advocate participationas one of the means by which
autonomousindividualsmay choose to advancetheir conceptionsof the good life;
while civic republicanismstressesthe obligationof citizens to participatein govern-
ment and regards it as both part of the educationfor citizenship and an aspect of
the good life.5 Under a liberal political theory, oriented towards personal auton-
omy, individualrightsand freedomof choice, litigationto protectindividualmaterial
interestswould certainlybe regardedas legitimate,while attemptsto representpublic
or ideologicalconcerns,or the interestsof futuremembersof the politicalcommunity,
would be problematic.Civic republicansor communitarianswould be much more
likely to regardthe lattertype of interestgroup litigationas politically legitimate,
and might consider the former type to be an illegitimate attemptto distort public
interest decision making.
Interestgrouplitigatorsseekingto advancetheirconcreteobjectivesin ways which
assertor imply the need for public participationwill often find, therefore,thattheir
campaigntechniquesare in tension with the prevailingmodel of democracyunder
the local constitution. In this way, interest group litigation often represents a
contributionto a debate about political theory, by challenging prevailing ideas of
constitutionalor political legitimacy. Society's response is shaped by its political
and constitutionalethics, which may in turnbe reshapedby the demandsthemselves.
Whetheror notthe rightto advancesuchclaimsin the legal processwill be regarded
as legitimate will depend, in part, on the capacity in which the plaintiff is acting.
Where an interestgroup appearsto be solely pursuingits own members' interests,
class actionsor representativeactionsmay raise difficultissues aboutthe relationship
between the representativeplaintiffand other membersof the class,6but these have
no directimpacton constitutionaltheory. Surrogateplaintiffs'activities,on the other
hand, raise the issue of the extent to which a particularcultureencouragescitizens
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, see
also James Gray Pope, 'Republican moments: the role of direct popular power in the American
constitutional 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 Review
1183 (1983).
47
to concern themselves with the interests of others, not a common feature of liberalism
as opposed to civic republicanism. Parties to litigation in liberal societies are usually
entitled 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 the
other hand, for third parties to use their economic or political power on behalf of
litigants has traditionally been held to interfere with fairness and the integrity of
the judicial process.7 In systems which regard it as imperative to insulate the
judicial process against social pressure in individual cases, campaigns by third parties
may look to the judges like an attempt to usurp their function as authoritative arbiters
on 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 sharply
focused in public interest litigation by surrogate plaintiffs. When litigation expressly
raises issues which go beyond the material interests of the litigants or those whom
they 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 question
depends on the model of the constitution which the judges adopt. If they have a
statist 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 see
the constitution as based on a participatory political theory, public interest litigation
by individuals or groups may be more acceptable. If everyone is permitted to raise
public interest issues, litigation becomes an alternative or a supplement to orthodox
political processes, taking the courts beyond their core function of adjudicating on
individuals' rights and duties. Judges must, therefore, then decide whether the
constitution, properly interpreted, contains principles which support such an extended
judicial role.
If, as is sometimes argued, judicial review (either of legislation or of administrative
7 This attitudedatesbackto attemptsbetweenthe thirteenthandthe sixteenthcenturiesto controlthe

mischiefof maintenance,which threatenedto underminethe enforcementof the commonlaw. King
HenryVII gave his new court, the Courtof Star Chamber,jurisdictionover maintenancecases in
1487 (3 H 7, c 1), andis usuallycreditedwitheradicatingmaintenancethroughthe Statuteof Liveries
1504(19 H 7, c 14), althoughan Act of 1540againfoundit necessaryto prohibitthepractice(32 H 8,
c 9, ?3).
8 Att Gen v Times Newspapers Ltd [1974] AC 273, HL. See further The Sunday Times Case, European
Courtof HumanRights,SeriesA, Vol 30, Judgmentof 26 April 1979;(1980)2 EHRR245; Contempt
of CourtAct 1981;N.V. Lowe, 'TheEnglishlaw of contemptof courtandArticle10 of the European
Conventionon HumanRights' in M.P. Furmston,J.R. Kerridgeand B.E. Sufrin(eds), TheEffect
on English Domestic Law of Membershipof the European Communitiesand Ratificationof the European
Conventionon HumanRights(The Hague:MartinusNijhoff, 1983) pp 318-351. In Australia,the
courts are very sensitiveto the risk of injusticecausedby thirdpartyactivity: see Prothonotaryv
Collins(1985) 2 NSWLR549, CA of NSW;M. Chesterman,'Contemptby the Media:how thecourts
define it', AustralianQuarterly,Summer1986, Vol 58, No 4, p 388. It has even been held thata
Royal Commissionappointedto inquireinto allegedly criminalbehaviourmight commitcontempt
of the (criminal) courts: Victoria v Australian Building ConstructionEmployees and Builders Labourers'
Federation(1981) 152 CLR 25, HC of Australia.
9 Thereare, in fact, four problems,althoughthis articleconcentrateson the first. (1) Shouldpublic
interestlitigationby citizensbe allowedat all, or shouldit be monopolisedby the state?(2) If citizens
can sue, shouldstandingbe restrictedto thosewho can showthattheyare speciallyconcerned,expert,
or representative?(3) Howcanthecourtscheckthatthe surrogateplaintiffsarerepresenting the interests
of their'constituency'groupas well as possible,andnot usingthemas a shieldfor theirown political
preferences?(4) Wheredo lawyers'responsibilitieslie whenfacedwitha conflictbetweenthe interests
of their (surrogate)clients and those of their 'constituency'?On problems(2) and (3), see Cass R.
Sunstein,'Nakedpreferencesand the constitution'84 ColumbiaLawReview 1689 (1984); Cass R.
Sunstein,'Interestgroupsin Americanpublic law' 38 StanfordLaw Review29 (1985); Comment,
op cit n 4 above.
48
January1992] Public Interest Litigation and Constitutional Theory
action) is legitimate in a democracy if it bolsters participation and limits the impact

of a lack of access to, or voice in, the political system,'0 the judge will need to
decide 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 liberal
individualist interpretation. It aims to maintain a high quality of decision-making
and foster satisfaction with the process among those affected by it, so that decisions
are more likely to be complied with." But there is also a liberal individualist
justification for principles giving effect to limited participation: the need to respect
the autonomy of those who are subject to official decisions, and are entitled to some
say in their own destinies. If the prevailing social and constitutional ethic is predomi-
nantly communitarian, an interpretationof the constitution which limited participation
rights on liberal individualist principles would run counter to the values of the
established constitutional structure. Conversely, if a judge in a liberal society adopts
a communitarian model of the constitution to justify extending rights to participate
in politics, the judge's reasoning is unlikely to be generally acceptable on either
political 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 ideology
emphasises the political nature of constitutional adjudication, and the link between
constitutional and political legitimacy.'3
The extent to which judges allow groups to litigate public interest questions is
likely to turn on ideas about the role of citizens in politics. Citizens, government
and judiciary must interpret the constitution in a way which is consistent with the
values of the particular model of democracy which underpins the constitution,
communitarian or liberal. But this model and its implications will usually be
controversial and contested. For example, Westminster-style constitutions are
committed to representative democracy and responsible government. Ultimate
legislative 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 the
representative 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-FascistRefugee Committeev McGrath, 341 US 123, 171-172 (1951), FrankfurterJ; Goldberg
v Kelly, 397 US 254, 264-265 (1970); Laurence H. Tribe, American Constitutional Law (Minneola,
NY: FoundationPress, 2nd ed, 1988) pp 666-667; Tellis v BombayMunicipal Corporation;Kuppusami
v State of Maharashtra [1987] LRC (Const) 351, 376-377, ChandrachudCJ (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 and
democratic principles: two theories' (1983) 57 ALJ 69-79; P.W. Hogg, 'The Charter of Rights and
American 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 appears
to be,' and 'as it is formulatedby the judge for her own purposes': see William E. Connolly, Appearance
and Reality in Politics (Cambridge: Cambridge University Press, 1982). This problem reappearsbelow.
In this article, I use 'legitimacy' as encompassing two elements: first, social acceptance; second, the
subjective belief that those standardsare proper ones, in that they are consistent with a political, moral
or constitutional theory to which one is prepared to subscribe. I have developed the distinction between
constitutional and political legitimacy in 'The Left, judicial review and theories of the constitution,'
paper presentedto 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.
49
Under the doctrine of responsible government, it is constitutionallylegitimate to

litigateto preventgovernmentfrom avoidingParliamentaryscrutiny,to drawpublic
attentionto the government's behaviour, and to provide time for proper political
debate.15Attemptsby governmentto subvert or evade Parliamentaryscrutiny are
unconstitutional,even if (undera Westminster-styleconstitution)it may not follow
that they are unlawful.16
On the other hand, where a decision has been reachedby Parliamentafterproper
public dialogue, litigation aimed at delaying the implementationof the decision,
or at improving the prospects of a particulargroup negotiating an amendmentto
the plan, is not easy to justify. In this case, the litigation is legitimateonly in order
to protect some constitutionalor supra-constitutionalvalue other than democratic
proceduresand responsiblegovernment.One such set of values might be individual
rights, if they form part of the constitutionalmorality.
UnderWestminster-styleconstitutions,the models of responsiblegovernmentand
representativedemocracy do not entail public participationin decision-making.
Constitutionaldutiesto consult, or to allow participation,could arise by convention,
but the existence and scope of any such convention is likely to be insecure. For
example, in the UK, until the early 1980s, the process of policy-makingby way
of consultationwith influentialcorporategroupswas well entrenchedin the constitu-
tion. Later, in the 1980s, consultation and participationincreased at the local
governmentlevel as power was devolved from health authoritiesto hospital trusts
andGPs' practices,fromeducationauthoritiesto school governors,andfromhousing
authoritiesto housing associations. On the other hand, the governmentsbetween
1983 and 1990 greatlyreducedthe scope of corporateor individualcitizen consulta-
tion and participationin central government, leaving many interest groups, such
as the trades unions, employers' organisationsand local authorities'associations,
with far less influence over policy-makingthanthey had previously enjoyed. Local
authorities,in particular,respondedby litigatingin an attemptto reasserttheir role
in decision-making.But while the courtswere often preparedto recognise a group's
legitimateexpectationof being consulted,they never forcedthe governmentto mould
its policies around the representationsreceived.17To have done so would have
flown in the face of the establishedstructureof UK constitutionaltheory, in which
the government, once chosen, has the right and responsibility to govern.
From one perspective, therefore, the claim by corporategroups to be consulted
and even to participate in governmental decision-making reflected the common
understanding(at least untilthe early 1980s) of the value of participationin fostering
informedand effective decisions. On this view, when central governmentreduced
opportunitiesfor dialogue, interestgroup litigationagainstcentralgovernmentwas
a legitimatepartof an attemptto reassertconstitutionalproprietiesand to maintain
an influence over policy formation when other channels of communicationwere
15 It may sometimes also be constitutionally legitimate to disobey the ordinary law in order to uphold
the 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, TheNoble Lie: The British Constitution
and 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 State
for the Environment, ex p Hackney LBC [1983] 1 WLR 524 (DC), [1984] 1 WLR 592 (CA); R v
Secretary of State for Transport, ex p Greater London Council [1986] QB 556; R v Secretary of State
for Social Services, ex p Association of Metropolitan Authorities [1986] 1 WLR 1; R v Secretary of
State for the Environment, ex p Gwent CC [1986] 2 All ER 18, DC, [1987] 1 All ER 161, CA.
50
January1992] Public InterestLitigationand ConstitutionalTheory
being closed, as issues were increasingly forced out of the public arena and into
private 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 in
governmental decisions, the use of litigation by interest groups to enforce consultation
or participation is challenging rather than reasserting prevailing constitutional
principles. Nevertheless, even on this view such litigation might be justified constitu-
tionally, either by constitutionally-protected rights or by supra-constitutional
principles. One such might be a principle of toleration: challenges in good faith
to 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, change or fail in response to changing values. It remains open to question
whether the court is an appropriate forum for challenging or reasserting conventions
(as opposed to legal rules) about consultation and participation, but this doubt is
related to issues of justiciability and standing, rather than the general propriety of
interest groups challenging constitutional values.
If litigation is seen as a legitimate vehicle for advancing participation, it may serve
either as a surrogate political process for debating the merits of issues, or as a
complementary system, checking any tendency of the political system to deny citizens'
expectations of consultation or participation. If one's constitution is based on a form
of hybrid democracy which allows citizens to participate in the formation of policy
on 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 practices
of the constitution (as interpreted) cease to permit participation, public interest
litigation which seeks to re-establish the old order is constitutionally legitimate only
to the extent that such action is tolerated under the constitution.
II Public Interests, Standing to Sue and ConstitutionalProcedures

This section shows how rules governing public interest litigation reflect a society's
conception of the public, political role and expectations of citizens. Differences over
questions of standing reflect diverging opinions about the role of public law, about
the distinction between public and private interests, and about whether individuals
have a legitimate role in asserting public interests. The Gouriet case19provides an
English example: in restricting standing to obtain injunctions and declarations in
respect of public rights to people protecting special interests, the House of Lords
restricted 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, representing
the 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. Schaffer
and Geoff B. Lamb, 'Exit, voice and access' (1974) 13(6) Social Science Information 73-90; Brian
C. 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 in
our 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.
51
followed in Australia, where the High Court refused to allow an incorporated

association to claim to represent the public interest in nature conservation in litigation
against the Commonwealth.20
Of course this can change, and arguably by the late 1970s many countries were
already becoming more receptive to the intervention of citizens in public interest
matters. Law reform bodies recommended departing from the Gouriet approach.21
English law developed the application for judicial review as a specialised public
law procedure.22 In Canada, the Supreme Court had already relaxed the standing
requirements for obtaining injunctions in constitutional litigation.23 One effect of
this was to divert attention from the interest of the applicant to the interest in lawful
administration, which a private citizen could now properly assert. This has been
developed enthusiastically in New Zealand, where the courts have exploited the
relaxed standing test to allow them to review environmental and sporting matters.
The extension of standing beyond the traditional ranks of those with a direct personal
interest in the result of the case is consistent with a communitarian view of the
responsibilities of individuals.24 Despite a tendency for standing to get mixed up
with the merits of a case, it was accepted in England that, in suitable cases, groups
like the National Federation of Self-Employed and Small Businesses and the Child
Poverty Action Group have standing to represent the interests of their members
or clients.25 Yet there are now signs of a reaction in England, with a return to the
idea that standing rules should be used to restrict litigants to asserting personal
interests.26 This is in tune with (even if not directly connected to) a resurgence of
liberal individualism in British society during the Thatcher years. In a political
constitution, 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 v
Commonwealth (1980) 146 CLR 493; Yates Security Services Ltd v Keating (1990) 98 ALR 68. For
the previous view, see Att Gen ex rel McWhirter v Independent Broadcasting Authority [1973] QB
629 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, LRC
46 (Vancouver, BC: Ministry of Att Gen, 1980), recommending that any citizen should have standing
to litigate alleged infringements of public rights if the Attorney General declines to act and there is
ajusticiable issue to be tried; Australian Law Reform Commission, Report No 27, Standing in Public
Interest Litigation (Canberra: AGPS, 1985), recommending that standing should be extended to all
save those who are mere meddlers.
22 Covent Garden CommunityAssociation 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 SelJfEmployedand Small Businesses Ltd [1982] AC 617.
For Australia: Onus v Alcoa of Australia Ltd (1981) 149 CLR 27: Administrativeand Clerical Officers
Association v Conn (1988) 93 FLR 38.
23 Thorson v Att Gen of Canada (1974) 43 DLR (3d) 1; Johnson, 'Locus standi in constitutional cases
after Thorson' [1975] PL 137.
24 EnvironmentalDefence Society Inc v South Pacific AluminiumLtd (No 3) [1981] 1 NZLR 216; Finn?igan
v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159.
25 IRC v National Federation of Self-Employed and Small Businesses Ltd [19821 AC 617; R v Secretary
of Statefor 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 Statefor 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 restrictionhas been criticised by an official watchdog: see AdministrativeReview Council, Report
No 32, Revielwof the Administrative Decisions (Judicial Review) Act: the Amrbitof the Act (Canberra:
AGPS. 1989).
52
system, with all its complications, still applies in relation to constitutional cases
in which the High Court has original jurisdiction, and to issues excluded from the
new 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 by
the 'person aggrieved' test, which seems narrower than a 'sufficient interest' test;
while (as noted above) a person seeking an injunction or declaration in a public
law matter must show a private right or 'special interest.' The 'new' statutoryjudicial
review system has liberated standing somewhat: it allows any person aggrieved by
a decision to apply for a remedy. The notion of the 'person aggrieved' is thought
by Australian commentators to be interpreted very liberally by the courts, but it
still requires that the applicant be personally affected by the decision.28 It still looks
rather more restrictive than England's 'sufficient interest.' The more relaxed aspects
of Lord Diplock's approach in the NFSE case have not generally found favour in
Australia, perhaps reflecting the long-standing dominance there of the values of
liberal individualism. As a result, it is difficult for interest groups to launch judicial
review applications either under the statutory scheme or under the prerogative orders
or common law remedies, unless a decision directly affects them. This tends to
restrict the pursuit of moral interests and the activities of surrogate plaintiffs in public
interest litigation.
India provides a vivid contrast. Article 32 of the Indian Constitution guarantees
a 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 constitutional
authority for 'public interest litigation' by plaintiffs to protect other people's
fundamental constitutional rights. The courts have therefore had to decide what
constitutes public interest litigation for Article 226 purposes. Kirpal J has said29:
As I understandthe phrase'Publicinterestlitigation,' it meansnothingmore thanwhat it
states, namelyit is a litigationin the interestof the public. Public interestlitigationis not
thattypeof litigationwhichis meantto satisfythe curiosityof the people,butit is a litigation
which is institutedwith a desirethatthe Courtwould be able to give effective relief to the
whole or a section of the society.
The Indian courts have used Article 226 to allow a wide range of matters to be
litigated in the public interest, and allow actions to be commenced without the
formalities which would normally be required. A simple letter, telegram or an article
in a newspaper may suffice. Furthermore, courts may act in an inquisitorial manner
rather than relying on the petitioner to provide evidence to support the claim, as
would be usual in an adversarial system.30
This is a communitarian response to India's socio-economic inequalities, in a
political culture which highlights the mutual responsibilities of citizens. In the light
of the vast differences in wealth, status and literacy in India, insisting on the usual
formal 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. Lanham
and 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, at
p 575.
30 Bandhua Mukti Morcha v Union of India (1984) 3 SCC 161; People's Union for Democratic Rights
v Minister of Home Affairs [1986] LRC (Const) 546, HC. However, Article 226 cannot be invoked
to force the court to adjudicate on contentious issues of scientific or technological dispute: Vincent
v Union of India, AIR 1987 SC 990; Shivarao Wagle v Union of India [1989] LRC (Const) 903.
53
community which lack education, money, access to legal advice, and familiarity
with the system. As Bhagwati J has said31:
When the Court finds, on being moved by an aggrievedparty or by any public spirited
individualor social actiongroup, thatthe executiveis remiss in dischargingits obligations
underthe Constitutionor the law, so that the poor and the underprivilegedcontinueto be
subjectedto exploitationandinjusticeor aredeprivedof theirsocialandeconomicentitlements
or that social legislationenactedfor their benefit is not being implementedthus depriving
themof the rightsandbenefitsconferreduponthem,theCourtcertainlycanandmustintervene
andcompelthe Executiveto carryout its constitutionalandlegal obligationsandensurethat
the deprivedandvulnerablesectionsof the communityare no longersubjectedto exploitation
or injusticeand they are able to realisetheir social and economic rights ... [I]t is vital for
the maintenanceof the rule of law that the obligationswhich are laid upon the executive
by the Constitutionand the law shouldbe carriedout faithfullyand no one shouldgo away
with the feeling thatthe constitutionandthe law are meantonly for the benefitof a fortunate
few andhaveno meaningforthelargenumbersof half-clad,half-hungry peopleof thiscountry.
This rationale also limits situations in which the relaxed proceduralrules can be
invoked to cases where the plaintiff is seeking 'enforcementof the constitutional
or legal rightsof a personin custodyor of a class or groupof personswho by reason
of poverty, disability or socially or economically disadvantagedposition find it
difficult to approachthe courts for redress ... .32
In addition, under Article 226 the courts can grant a wider range of remedies
thanusual: they can give any directionor orderwhich is requiredin orderto ensure
that an unconstitutionalsituationis rectified, subjectto the limitationsimposed on
the judicial role by the principle of the separationof powers.33For example, a
courtcan appointCommissionersto investigateallegationsof defaultby the executive
and, acting on their report, the court can then grant appropriateredress.
BecauseArticle226 is interpretedas facilitatinglitigationin the interestsof society
as a whole or of underprivilegedsectionswhichmightbe unableto protectthemselves,
Khalid J has expressed suspicion of interest groups which attemptto use Article
226 to litigate in supportof private ratherthan public interests.34This is because
Indianconstitutionalculture recognises the social value of public spirited citizens
taking responsibility for less fortunatepeople, and regards participationin legal
and political mattersas an integralpart of Indiandemocracy. Judges feel that they
have a duty underthe constitutionalscheme to rectify the failings of other branches
of governmentso far as compatiblewith the separationof powers doctrineas they
interpretit, and so facilitate the activities of interestgroups in advancingmaterial
and ideological interests in both representativeand surrogatecapacities.
Where the political system is not committed to equality in the enjoyment of
fundamentalrights, or the constitutionaltheory on which the system is based does
not encompass any hint of civic republicanvalues, the courts may restrictpublic
interest litigation by introducinga high substantivecontent to standingtests. For
example, in Nigeria, where the political system is dominatedby tribaltension, the
scope for public interest litigation on constitutionalhuman rights issues has been
limited by the Nigerian SupremeCourt's determinationto hold to a very restrictive
31 Stateof HimachalPradeshv Student'sParent,MedicalCollege, Simla[1986] LRC(Const)208, SC,

at p 213. See also Mehtav Unionof India [1989] LRC (Const) 885.
32 ibid at pp 213-214 per BhagwatiJ.
33 BhagwalDayal Sharmav Unionof India, ILR (1974) 1 Delhi 847; Stateof WestBengal 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 DemocraticRightsv Ministryof Home Affairs [1986] LRC (Const) 546, HC, at p 576 et seq
(KirpalJ).
54
standing test. The court in Nigerian Union of Journalists v Att Gen of Nigeria35
treated constitutional litigation essentially like private litigation, demanding of the
applicant a personal interest satisfying the Gouriet standard. The judges refused
to follow even the modestly liberalising trend of English decisions such as IRC v
National Federation of Self-Employed and Small Businesses Ltd,36 which recog-
nised the public interest element in public law litigation. The Nigerian response
keeps the constitution out of tribal and ethnic differences by rationing the availability
of judicial redress. The Nigerian judges' main concern appears to be to maintain
the separation of powers between judiciary and executive, but they have interpreted
the demands of this doctrine very differently from the Indian judges. The political
and constitutional cultures are different, and lead to different results.
These differences of opinion over the propriety of people advancing ideological
interests, or acting as surrogate plaintiffs in litigating public interest matters, highlight
the fact that interest group litigation in general is not synonymous with public interest
litigation. Interest group litigation is typically a medium for arbitrating between
competing 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 interest
of the whole community. The emphasis is communitarian rather than pluralist. If
the public interest were but an aggregation of individual interests, public interest
litigation could be seen as a form of maxi-private-interest litigation. However, the
range of interests which are encompassed in public interest litigation may be very
wide, including those of foreigners, future generations and fetuses, who might not
be considered to be directly affected and whose interests would, therefore, not be
represented under a strictly liberal individualist regime. Such a broadening of the
field of concern is achieved most easily where the dominant constitutional culture
incorporates a strong element of communitarian thought, as in India. Since much
of European Community law is profoundly liberal in its economic orientation, it
is 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 and
individual concern to, the applicant. (Another compelling reason in the Community's
constitutional ethic for restricting individual standing is that the European Community
originates in international law, where states and not individuals have legal
personality.) This makes it hard for representative plaintiffs, and impossible for
surrogate plaintiffs, to invoke the Court's original jurisdiction to impugn an act of
a Community institution.37 It is easier to pursue remedies in national courts,
seeking an Article 177 referral to the Court of Justice where necessary, because
standing is then governed by the referring court.
In the USA and Canada, liberal individualism is a significant component of
constitutional culture. This encourages public interest litigants to fit claims into right-
based categories. For example, the courts have dealt with the debate over abortion
as an aspect of the mother's right to privacy, or (as in Canada) due process.38 One
effect 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.
55
curiae briefs, which allow interestgroups with the leave of the court to participate
in a suit commenced by or against unrelatedpeople. This permits a wide range of
intereststo be fed into the decision-makingprocess, thoughthey will tend for tactical
reasons to be framed in terms of constitutionalrights. If the doors are opened in
this way, the courtroomcan properly be seen as part of the democratic process.
In the Americanprocess, constitutionallitigationis an integralpartof the dialogue
by which constitutionalstandardsare shaped and reshapedunder changing condi-
tions.39The same is true in Australia and Canada. In India, courts have used
Article 226 of the Constitutionto give effect to a vision of the Constitutionwhich
is both pluralist and communitarian,securing the benefits of the rule of law for
the weakest, most vulnerable members of society. In the UK, by contrast, there
is no equivalentof the amicus brief, and many judges see constitutionallitigation
less as a means of fostering political disclosure than as an illegitimate interference
with the political process.40Accordingly, there is no reason to encourage a wide
range of public interest plaintiffs or interveners.
III Four Constitutional Features

Section II examined the effect of constitutionalculture on locus standi in public
interest matters. This section looks at the reverse effect. It examines the way that
four particularlyimportantfeaturesof constitutionsaffect the feasibility of public
interestlitigation. The featuresare: (1) the availabilityof legal challengesto legisla-
tion, and the relationshipbetween such challenges and conceptions of democracy;
(2) the structureof the state, federal or otherwise; (3) the presence or absence of
policy directivesin the constitutionaldocument;and (4) the approachto humanrights
under the constitution.
1 Democracy, Ethics and Legal Challenges to Legislation

For a system to allow legal challenges to legislation, the constitutionmust allocate
limited powers to the legislature and the limitations must be justiciable. The two
need not go hand in hand. Where constitutionallimitations on legislative power
are treated as being justiciable, this may flow from a unilateralassertion by the
courts of a review power, as in the United States41and the AustralianCommon-
wealth,42or a constitutionalprovision as interpretedby the courts, as in Canada,43
or the creationof a supra-nationallegal framework,as in the duty of English courts
to disregarddomestic legislation which conflicts with directly effective European
Community law.44 The enforcing body need not be the ordinary judiciary. In
France, for example, the limits are enforceableonly before enactment,throughthe
conseil constitutionnel;no ordinarycourtcan hold primarylegislation,once enacted,
39 This presupposesa theory of interpretationwhich is not strictlyoriginalist:if we were limitedby

the concreteideasof the framers,Brandeisbriefs, showinghow social andeconomicconditionswere
changing, it would be of little value as an aid to constitutionalinterpretation.
40 This is exemplifiedby the dictumof LordTemplemanin Nottinghamshire CountyCouncilv Secretary
of State for the Environment [1986] AC 240 at p 267.
41 Marburyv Madison(1803) 1 Cranch137.
42 BrianGalligan,ThePolitics of theHigh Court(St Lucia,Qld:Universityof QueenslandPress, 1987)
on theAustralian
ch 2; G. Lindell,'Dutyto exercisejudicialreview'in LeslieZines(ed), Commentaries
Constitution(Sydney:Butterworths,1977) pp 150-190.
43 ConstitutionAct 1982, ss 24, 52; R v Big M Drug MartLtd (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).
56
to be ineffective by reasonof unconstitutionality.At the other extreme, in a purely

Diceyan constitution,judicial review would be excluded as being in conflict with
the political theory on which the constitutionis based.
Inconsistencies between constitutional values may restrict judicial review of
legislation. For example, the ethics of constitutionalismand the rule of law may
conflictwith a modelof democracy,a conceptualisationof, andlevel of commitment
to, the separationof powers, federalism, responsiblegovernmentor humanrights.
The AustralianCommonwealthConstitutionis committedto responsiblegovernment
(ie governmentalresponsibilityto an elected Parliament).As a form of account-
ability, this goes handin handwith representativedemocracy. Yet the Constitution
limits the capacity of the representativesto act. Again, Australian federalism
theoretically requires protection for the interests of the states against the federal
authorities,throughstates'representation in the Senate.Yet the doctrineof responsible
governmentmay make the government accountable to the lower chamberof elected
representatives of the voters. A clash of values of this sort between federalismand
representativedemocracy poses serious questions about the respective powers of
the two chambers, for example in regulatingsupply and in making and breaking
governments. In Australia, it was responsible for the constitutionalcrisis which
surroundedGovernor-GeneralKerr'sdecisionto dismissthe PrimeMinister,Gough
Whitlam, when the Senate blocked supply in 1975.45
The needforconstitutionsto accommodateinconsistentvaluesleadsto compromises
and ambiguities. For example, different countries adopt different models of
democracy, and a single country may subscribe to a numberof different models
over a periodof time or even (whenthereis no consensusaboutfundamentalpolitical
values) at the same time. Westminster-stylesystems are based on representative
rather than direct democracy, but they may incorporate an element of direct
democracy(forexample,a referendummaybe requiredto sanctiona proposedchange
to the constitution).46Judges who have to interpretthe constitutionmust form a
view for the purposesof litigationof whatthatpoliticalcultureis, in orderto construct
their constitutionalethic which will explain and illuminatethe futuredevelopment
of the constitutionalrules. To form their view of the political culturethey require
a descriptive account of political practices and institutions,but for legal purposes
this must be harmonisedwith any binding, prescriptiveconstitutionalrules. The
picture of politics which they paint for their purposes may thereforehave little in
common with the complex realitiesof politics. It need only be accurateenough for
the limited purposesof adjudication,and is likely to be distortedby being viewed
throughthe lens of orthodoxconstitutionaltheory. Discussionsof collective Cabinet
responsibility,and of ministerialresponsibilityto Parliament,are prone to display
this distortion. The judges' decisions will be most efficacious if their view of the
content and scope of constitutionalor political conventions is close to reality, but
a judicial decision can never authoritativelyestablishwhat a conventionis, because
thatdependson politiciansratherthanjudges who are not direct participantsin the
politicalprocess.47Nevertheless,the judges' views may contributeto the dialectical
process 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] PL
90-115.
46 See Geoffrey de Q. Walker, Initiative and Referendum: The People's Law (Sydney: Centre for
Independent 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.
57
An example illustrates the need for a judge to decide which conceptions of

constitutional values are dominant at a particular moment. Attempts by the legislature
to 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) v
Trethowan,48section 7A of the Constitution Act 1902 (NSW) prevented any Bill
to abolish the Legislative Council (the second chamber of the New South Wales
Parliament) being presented to the Governor for assent until it had been approved
by the electors of New South Wales. The plaintiffs challenged such a Bill, which
had not been submitted to a referendum, and the case was dealt with on the hypothesis
that the Bill had been approved by the legislature. The High Court of Australia
held that the court could grant an injunction restraining presentation of a later Bill
which had not been submitted to a referendum of electors. The decision turned on
the applicability of the Colonial Laws Validity Act 1865 (UK), s 5, to the Constitution
Act 1902 (NSW), s 7A, but at the heart of the case lay a choice between enforcing
the referendum requirement, thus entrenching an element of direct democracy, and
upholding the plenary power of the representative legislature. The majority of the
Court, sheltering behind the 1865 Act, chose to enforce the referendum requirement.
The dissenters expressly upheld the principle of representative rather than direct
democracy.49
Making a choice between models of democracy is justified by aspirations, reflected
in the constitution, towards a model of democracy. The constitution may even give
some guidance as to the type of democracy which is contemplated, and this may
limit the form which the legislature can take and its legislative capacity. For instance,
in West Lakes Ltd v South Australia,50a 1969 statute ratified an agreement between
the Premier and the company which provided that it was not to be amended without
the agreement in writing of the company. In 1980, a Bill was introduced to amend
the 1969 statute, without the company's consent. The company claimed that this
was outside the power of the legislature, being an attempt to change the constitution
of 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 Colonial
Laws Validity Act 1865 (UK). The company's claim was unsuccessful. King CJ said:
Trethowan's case ... concerned a requirement that an importantconstitutional alteration be
approved by the electors at a referendum. Such a requirement, although extra-parliamentary
in character,is easily seen to be a mannerand form provision because it is confined to obtaining
the direct approvalof the people whom the 'representativelegislature' represents. If, however,
parliament purports to make the validity of legislation on a particular matter conditional on
the concurrence of an extra-parliamentaryindividual, group of individuals, organisation or
corporation, a serious question must arise as to whether the provision is truly a law prescribing
the manner and form of legislation, or whether it is not rather a law as to substance, being
a 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 ineffective
to 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 StarkeJJ formedthe majority,which was upheldon appealby the PrivyCouncil:
[1932] AC 526. GavanDuffy CJ and McTiernanJ dissented:see particularlyMcTiernanJ, (1931)
44 CLR 394 at pp 441-443. On the proceduralimplicationsof injunctionsrestrainingsteps in the
legislative process, see P.J. Hanks, Australian ConstitutionalLaw:. Materials and Commentarv(Sydney:
Butterworths,4th ed, 1990) pp 174-177.
50 (1980) 25 SASR 389, SC of SouthAustralia.
51 (1980) 25 SASR at pp 397-398.
58
ence in the constitution to a representative legislature was used to allow the judges
to identify and build upon a model of democracy.
There are, however, limits to the willingness of courts to build detailed democratic
requirements on such tenuous constitutional foundations. These limits vary from
place to place. In Australia, the courts, while accepting that the requirement of
representativeness mandates some level of electoral fairness, have refused to hold
that the Constitution impliedly demands that each vote should be equally valuable
and that constituencies should be of equal size (so far as possible). The High Court
held that arrangements for representative may be more or less democratic, or more
or less representative, and the courts would not intervene unless the arrangements
adopted by a state were so grossly out of line as to make the legislature undeserving
of the epithet 'representative.'52 In the United States, by contrast, the Supreme
Court, which displays (by virtue of the nature of judicial review under its Constitution)
far less deference to state and federal legislatures and is influenced by the need to
escape from a history of systematic gerrymandering in the southern states, has been
prepared to enforce uniform numbers of voters in constituencies to protect the
representation of minority ethnic groups in the electoral process.53 Yet, even in the
USA, there is a vigorous debate about the proper extent of deference to the legis-
lature's judgment. Some judges prefer to assess outcomes of individual cases for
constitutionality, rather than strike down laws as inherently unconstitutional.54
The structure of the nation also affects the notion of democracy. In the UK, which
the dominant (English) constitutional ideology regards for most purposes as a unitary
state, there is no difficulty in identifying a limited form of representative democracy
as the dominant democratic model, coupled with political and administrative
centralism. Together, these form an important part of the constitutional ethic on
which judges develop (or refuse to develop) constitutional law. In a federation,
however, matters are more complicated. One must consider the relationship between
democracy (interest representation) at different levels. Does the opportunity to take
a complaint to another (Federal) legislature provide a sufficient remedy for failure
to grant adequate interest representation procedures at the state level?55 It is
possible that the UK judges may have to rethink their ideas of the constitution in
the light of these sorts of problems at some time, either through pressure for regional
devolution in the UK, or in response to European Community developments. For
example, it is arguable that the campaign of litigation by trades unions and others
to force the implementation of EC directives on equal pay undermines the legislative
decisions of the representative UK Parliament. It could also be said that the robust
principles of interpretation which British judges apply to subordinate legislation
touching on EC matters56reduces both the power and the political accountability
of an elected British government. But what is the relationship between ideals of
52 Att Gen of the Commonwealth;Ex rel McKinlay v Commonwealth(1975) 135 CLR 1 (Gibbs, Barwick,
Stephen and Mason JJ; Murphy J dissenting).
53 Baker v Carr (1962) 369 US 186; Gray v Sanders (1964) 372 US 368; Wesberry v Sanders (1964)
376 US 1.
54 See the arguments in United States v Monsanto (1989) 57 USLW 4826 and Caplin & Drysdale,
Chartered v United States (1989) 57 USLW 4836 at pp 4840-4841, 4844-4845, considered in David
Feldman, 'Individual rights and legal values in proceeds of crime legislation: a comparative approach'
(1989) 18 Anglo-American Law Review 262-288 at p 281 et seq.
55 Mark Tushnet, Red, White and Blue: A Critical Analysis of Constitutional Law (Cambridge, Mass.:
Harvard University Press, 1988) pp 72-83, points out that it does so only if informal (economic and
social) barriers to bringing influence to bear on the superior legislature are removed or ignored.
56 Pickstone v Freemans plc [1989] AC 66; Litster v Forth Dry Dock and Engineering Co Ltd (in
liquidation) [1989] 2 WLR 643 at pp 640-641 per Lord Templeman and 657 per Lord Oliver.
59
national democratic self-determination and supra-national European democracy? So

far, 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 democratic
credibility to make political union feasible, it will have to address the constitutional
task of allocating power only to bodies which have a respectable level of democratic
legitimacy and accountability. When (or if) that happens, the issue will become very
important, as domestic interest groups would be able to present their litigation as
giving effect to European democratic standards. This, in turn, may generate pressure
on the European Court of Justice to relax its locus standi rules in order to allow
a wider range of interests to be represented before it, in cases where it has original
jurisdiction, and the change in the constitutional ethic of the Community might make
it hard to resist the challenge.
The constitutional role of public interest challenges to the constitutionality of
legislation may be illuminated by looking at the stage in the legislative process at
which the courts are willing to entertain a legal challenge. If it is seen as a contribution
to dialogue, encouraging or providing a forum for public debate and participation
in legislation, it may be sensible to challenge the Bill as early as possible. This
may also be tactically useful, enabling the litigants to pre-empt any presumption
of the validity of legislation which has been passed and is valid on its face. On the
other hand, such a challenge will deprive the reviewing body of the benefit of knowing
the legislature's opinion of its constitutional powers, an opinion to which, in some
contexts 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 in
the internal processes of Parliament presents formidable obstacles. It has been said
that a court may grant an injunction preventing a party from promoting or opposing
a Private Bill, when to do so would constitute a breach of contract, but on the rare
occasions when it has been done, the injunctions have always been discharged on
appeal.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 presented
for the Royal Assent. This was done in Trethowan's case, but the correctness of
the course has been doubted. It is properly available, if at all, only where the Bill
has failed to comply with a mandatory (rather than directory) procedural requirement
for its passage (in that case, approval in a referendum).60
57 For example, by invalidating legislation only if the legislature has made a 'clear mistake' as to the extent
of its power. On this approach to the US constitution, see James B. Thayer, 'The origin and scope
of 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, esp
at 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 to
restrain consideration of a Bill by a subordinate legislature, although the injunction was refused as
a matter of discretion. Cf Cormack v Cope (1974) 131 CLR 432: injunction should be granted only
in 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 injunctions
will'ever be granted in future: Hughes & Vale Pty Ltd v Gair (1954) 90 CLR 203 at pp 204-250
per Dixon CJ (with whom McTiernan J concurred); Clayton v Heffron (1960) 105 CLR 214 at
60
Generally, in a Westminster-style constitution, challengers will have to wait for

the legislation and then challenging it retrospectively, in the hope that a declaration
of unconstitutionality (rather than an injunction) will force the government to re-open
the issue and observe the correct procedures for political debate and public
participation.61
If this is to be done effectively, the courts must have power to suspend the operation
of legislation or administrative orders made under it, and the scope of such power
is by no means well settled.62 But in the UK, in cases which do not involve
enforceable Community rights or obligations, interlocutory relief against the Crown
is not generally available.63
The position is different under constitutions which allow pre-legislative challenges
to the constitutionality of proposed legislation. In Canada, the federal government
can refer constitutional questions to the Supreme Court for advisory opinions, which
are influential but not binding.64 In France, where any legislation may, and some
must, be referred to the conseil constitutionnel during its passage through the National
Assembly or Senate, a reference has come to be regarded not as an extrinsic
interference with the legislative process but as an intrinsic part of it, and the conseil
has been able to lay down constitutional standards to be met by legislation, thus
influencing the final form which the legislation takes and eliminating the need for
subsequent challenges.65 Members of the Assembly or Senate may be encouraged
to demand a reference by pressure from interest groups, so that the hearing of the
reference 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 regards
review of legislation as being a part of, and an aid to, the process of producing
constitutionally proper legislation, as in France, or as an interference with democracy
ratherthan a bulwark of constitutionality. The position adopted in any country depends
on the local significance of the idea of constitutionalism (that is, the level of respect
for, and understandingof, the requirements of the local constitution), on the personnel
of the review body (do the officials enjoy the respect of the politicians?) and on
pp 233-235. It is possible that a declarationof invalidity might be grantedbefore enactmentin Australia:

Cormack v Cope (1974) 131 CLR 432. In Canada, the Supreme Court has power to give an advisory
opinion 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 v
Heffron (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 Constitutional
Law, 2nd ed, pp 77-82.
62 For the UK, see Factortame Ltd v Secretary of Statefor Transport [1990] 2 AC 85 and R v Secretary
of 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 of
State 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 Court
of Appeal.
65 Article 61 of the 1968 Constitution. Barry Nicholas, 'Fundamentalrights and judicial review in France'
[1978] PL 82-101, 155-177; Burt Neuborne, 'Judicial review and separation of powers in France
and the United States' (1982) 57 New YorkUniversityLaw Review 363-442, especially at pp 377-410;
Michael H. Davis, 'The law/politics distinction, the French Conseil constitutionnel, and the US Supreme
Court' (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 Tulane
Law Review 265-334; Tony Prosser, 'Constitutions and political economy: the privatisation of public
enterprises in France and Great Britain' (1990) 53 MLR 304-320.
61
the way in which the review is conducted (does the review body show proper respect
to principles of democracy, human rights, or whatever other principles constitute
the 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 primary
duty of deciding the scope of its own power, and being entitled to respect for its
decision from other coordinate bodies (such as the courts) so long as it is based
on some acceptable reasoning, embodying what has been called a 'coordinate' rather
than a 'hierarchical' model of constitutional power.66
2 Federalism
A federal constitution must allocate powers between the federal and state authorities.
Implicit in a federal structure is a constitutional commitment to a higher level of
citizen participation, especially in local politics, than is apparent in a centralised
unitary state.67 A federal allocation of powers makes it feasible, subject to other
factors such as standing rules, to challenge the activity of the legislature or the
government of either state or federation for unconstitutionality, on the ground that
it trespasses on the powers of the other.68 The challenge may be launched on
behalf of an individual or interest group, but the rights and duties of the federation
and states respectively will have to be worked out in the litigation, and it will almost
always lead to the states and federal government being joined as parties.
Australia provides a good example of this happening. The constitutions of the
Australian states are based closely on the orthodox Westminster model, but the
Federal Constitution is an uncomfortable mixture of 'responsible government' on
the Westminster model and Parliamentary arrangements to protect states' rights on
the USA model. The powers of the state Parliaments are in principle plenary, subject
only to the terms of the Commonwealth Constitution and the Australia Acts 1986
(UK and Cth). The powers of the Commonwealth Parliament and government are
restricted under the Commonwealth Constitution and may be exercised only for
defined purposes: the Parliament's powers are defined in section 51, and the
executive's powers extend, under section 61, to 'the execution and maintenance
of this Constitution, and of the laws of the Commonwealth.' However, the necessity
for central planning in a variety of fields has led Commonwealth Labour governments
to try to extend their powers to intervene in the States' control over matters not
expressly within the Commonwealth's constitutional legislative powers. Recently,
the High Court has been accommodating towards such attempts, tending to give
an expansive reading to the terms of section 51 and adopting an interpretation of
the 'incidental power' allowing the executive to take powers under section
51(xxxix)69 of the Constitution to the extent necessary to give effect to national
objectives. This was wide enough to allow the Commonwealth to introduce a national
welfare 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 applied
particularlyvigorously in Australia: see eg Re Toohey; exp NorthernLand Council (1981) 151 CLR 170.
69 s 51 provides: 'The Parliament shall, subject to this Constitution, have power to make laws for the
peace, order and good government of the Commonwealth with respect to: ... (xxxix) Matters incidental
to 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 or
officer of the Commonwealth.'
62
by statute.70 In some cases, this has been challenged (unsuccessfully) by the

States.7' In others, the resulting legislation has so closely affected individuals that
they have challenged the legislation by claiming that the Commonwealth has
overstepped its powers vis-a-vis the states, and that the legislation is accordingly
void.72 The challenges have so far met with little success, because the High Court
favours democratic centralism over state rights73; that could change at any time.
In the same way, challenges to state legislation can be launched for inconsistency
with Commonwealth legislation. A number of interest groups have initiated
challenges, 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 barristers
from other states were successfully challenged.75 In the United States, interest
groups have used similar challenges, notably in the context of environmental
protection, including the Snail Darter case.76 This sort of challenge cannot occur
in a unitary state in which ultimate legislative power is undivided, although other
grounds of challenge to legislation might be available, based for example on the
fundamental supra-constitutional significance of a treaty on which the state was
founded, such as the Act of Union 1707 in Britain or the Treaty of Waitangi in
New Zealand.77
3 Ideological Interests and the Political Community

Some constitutions impose policy directives, requiring that state bodies exercise
their powers with a view to particular objectives. Those objectives enjoy a privileged
place 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 they
are, the less enforceable they will be. For example, the constitutions of Canada,
the Australian Commonwealth and all the states except Victoria empower the
legislatures 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 the
federal 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 Authorityv 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 anniversary
of 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 Kenneth
Keith, '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,' ibid
pp 62-81; Alex Frame, 'A state servant looks at the Treaty,' ibid pp 82-96. For the attitudeof Scottish
commentatorsand judges to the Treaty of Union and the Acts of Union, see McCormickv Lord Advocate
(1953) SC 396; Stewartv 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 Professor
T.B. Smith in The Stair Memorial Encyclopaedia, vol 5, tit 'Constitutional Law' para 350. On the
status of Australian aborigines, see Peter Hanks and Bryan Keon-Cohen (eds), Aborigines and the
Law: Essays in Memory of Elizabeth Egglestone (Sydney: George Allen and Unwin, 1984); Coe v
Commonwealth (1979) 53 ALJR 403; Australian Law Reform Commission, Report No 31, The
Recognition of Aboriginal Customary Laws (Canberra: AGPS, 1986).
63
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 Grundgesetz
of the German Federal Republic. However, the extent and effects of constitutional
policy directives depend, first, on circumstances in which the constitution was
adopted, 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 Australian
state constitutions were intended to be flexible, and were based on the Westminster
model which, as theorised by Dicey, placed great weight on the democratic freedom
of elected representatives in Parliament. It is, therefore, not surprising that 'peace,
order and good government' clauses have been held to impose no limitations on
legislative competence. At the time of the framing of the constitutions, the legislatures
were subject to control by the Imperial Parliament, but any other limitations would
have been inconsistent with the theory of the legislative supremacy of a representative
assembly which provides the basis for Westminster-style constitutions.79
The US constitution lacks policy directives for other reasons. Although the framers
planned to exclude untramelled legislative supremacy from the newly-independent
federation, this was to be achieved not by tying successors' hands as to details of
policy, which were to be left to the judgment of posterity, but by demanding respect
for the basic freedoms (expressed at a high level of abstraction) needed to allow
posterity to exercise its judgment fairly and freely. Because the concrete meaning
of these rights was left to be reinterpretedby each generation, it was thoughtjustifiable
to entrench the abstract expression of them in the constitution.80 The German
Grundgesetz is relatively easy to amend for most purposes, needing only an express
provision in a law passed by a two-thirds majority in the Bundestag and the
Bundesrat.8' Even so, there are few policy directives in the Grundgesetz, the main
one being the outlawing of acts intended to disturb peaceful relations between
nations,82 a reaction against the militarism of the Hitler years.
Some of the most detailed and extensive policy directives appear in the Indian
Constitution. 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 Parliament
and two-thirds of those voting suffices. Part IV of the Constitution contains Directive
Principles of State Policy, requiring the state to direct its policy towards securing
(among other things) an adequate means of livelihood for all citizens, the distribution
of ownership and control of material resources best serving the public good, avoidance
of concentration of wealth detrimental to the common good, equal pay for equal
work for men and women, local government on a village basis, etc.83 Article 37
provides:
78 Union Steamship Co of Australia Ptr Ltd v King (1988) 166 CLR 1, disapproving suggestions to the
contrary in Building Construction Employees and Builders' Labourers Federation of NSW v Minister
for Industrial Relations (1986) 7 NSWLR 372, CA of NSW per Street CJ at p 384 and Priestley JA
at p 421; see also Port MacDonnell Professional Fishermen 's Association Inc v South Australia (1989)
168 CLR 340 at p 372.
79 See the Colonial Laws Validity Act 1865 (UK), s 5. The states are now free of UK Parliamentcontrol:
Australia Act 1986 (UK), s 2; Australia Act 1986 (Cth), s 2. On the legal status of the state Constitution
Acts, 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.
64
January 1992] Public InterestLitigationand ConstitutionalTheory
The provisionscontainedin this Partshallnotbe enforceableby anycourt,butthe principles

thereinlaid downare neverthelessfundamentalin the governanceof the countryand it shall
be the duty of the Stateto apply these principlesin makinglaws.
Despite the first thirteen words of the Article, courts have claimed a role in relation
to the Directive Principles. In Pandey v State of West Bengal,84 Chinnappa
Reddy J said:
Whenthe Courtis called uponto give effect to the DirectivePrincipleandthe fundamental
duty, the Courtis not to shrugits shouldersand say that prioritiesare a matterof policy
and so it is a matterfor the policy-makingauthority.The least thatthe Courtmay do is to
examinewhetherappropriateconsiderationsare bornein mindand irrelevanciesexcluded.
In appropriatecases, the Courtmay go further,but how muchfurthermustdependon the
circumstancesof the case. The Courtmay always give necessarydirections.However, the
Court will not attempt to nicely balance relevant considerations. When the question involves
the 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 steps
needed to meet the Directive Principles in appropriate cases.85
All branches of government, including (it seems) the judges, are obliged to have
regard to the Directive Principles, but the primary duty lies on the policy makers,
the executive and legislature, to ensure that their policy decisions and legislation
take account of the principles. The role of the courts and parties to litigation in
seeking to control the products of executive and legislative action is merely secondary,
overseeing the reasoning of the primary actors. On the other hand, when it comes
to interpreting the legislation and using it to decide cases, the constitution imposes
primary duties on the judges.86 Electors, too, should consider how far the candi-
dates for election are likely to advance the policy directives of the constitution, and
this places an incidental duty on the state to take the steps necessary to cultivate
a constitutionally literate electorate.87
The primary duty on policy makers is always to weigh the Directive Principles
against each other in the light of the particular problems faced. This does not place
certain objectives beyond political dialogue, but privileges them in that they may
not be ignored, even when nobody is actively pressing for them in the political
process. To make the principles determine outcomes might lead to other more
pressing interests being unfairly overridden and the judgment of the democratic organs
of government being disabled. The primary duty is accordingly limited. The
secondary duty, imposed on reviewers of policy decisions and acts, is also restricted.
Since it would be wrong to review the merits of legislation on the basis of principles
84 [1988] LRC (Const) 241, SC, at p 247. The case concerned the principles set out in Articles 48A
('The State shall endeavour to protect and improve the environment and to safeguard the forests and
wildlife of the country') and 51A(g) (citizens' fundamental duty 'to protect and improve the natural
environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures').
85 eg Centre for Legal Research v State of Kerala [1987] LRC (Const) 545, SC (securing free legal
aid as required by Article 39A). See also Bandhua Mukti Morcha v Union of India (1984) AIR SC
802, discussed in P.P. Craig and S.L. Deshpande, 'Rights, autonomy and process: public interest
litigation in India' (1989) 9 Oxford Journal of Legal Studies 356-373; Mehta v Union of India [1989]
LRC (Const) 885, on directions for remedying pollution in the Ganges in connection with the duty
to protect and improve the environment (Constitution of India, Art 51A(g)).
86 For the idea of a legislature's duty to interpret the constitution, see Paul Brest, 'The conscientious
legislator's guide to constitutional interpretation' (1975) 27 Stanford Law Review 585; Brian Slattery,
op cit n 66 above.
87 As Mark Tushnet has pointed out, nobody has yet explained how a conscientious (republican minded)
citizen should approach the constitution: Tushnet, op cit n 55 above, p 163.
65
which are stated in the Constitution not to be enforceable by courts, the most that
a court can properly do is to ask whether, in view of all the principles, a decision
could be sustained on a reasonable reading of the Constitution. Short of what might
be termed 'constitutional irrationality' or mala fides, the courts should defer to the
nice balancing of objectives carried out by the executive or legislature on which
the Constitution has imposed the primary obligation. Thus, in Pandey's case the
court accepted jurisdiction but, deciding that the state had taken proper account of
the relevant matters, deferred to its ultimate judgment.
Nevertheless, once the courts accept even a limited jurisdiction to enforce the
Directive Principles, it inevitably extends the capacity for public interest litigation
and tends to produce a more relaxed standing test. Where the constitution allows
or requires decision-makers to have regard to a particular objective, such as the
protection of the environment, there is no likelihood that anyone will be able to
show a special interest, above and beyond the interest of others, in securing
compliance. As government officers (on the model of the Attorney General in
England) are unlikely to take proceedings to enforce the requirement against their
colleagues, such provisions would be legally a dead letter unless private citizens
could bring proceedings.88 (In this respect, Directive Principles differ from
guarantees of individual rights, breach of which will be likely to cause special harm
to identifiable people.) Public interest litigation using such directives as a ground
for review has been held to be acceptable in principle in India under Article 226
of the Constitution, although some disquiet has been expressed.89 In such cases,
the action is brought by a surrogate plaintiff, asserting not the material rights of
another person or disadvantaged group,9" but an ideological interest.
The features of India's political and constitutional culture, noted in section II,
help to explain why public authorities are held to be obligated to interpret their
constitutional duties and powers in the light of the communal aspirations enshrined
in the Directive Principles.91 The Directive Principles reflect a constitutional
obligation of concern and respect for all citizens. Litigation by surrogate plaintiffs
is acceptable on behalf of groups too weak to protect their own interests. Once
surrogate plaintiffs are recognised, however, the problem arises of finding ways
to ensure that they are advancing the interests of those whom they claim to represent,
rather than a sectional view of those interests.92 This problem has two aspects:
first, identifying the 'true' interests of those represented; second, designing and
implementing procedural controls over the surrogate plaintiffs conduct of the action
to ensure that the 'true' interests are properly represented. In India, the first problem
is addressed by a provision of the Civil Procedure Code requiring public interest
plaintiffs to advertise their action to give interested parties the opportunity to
participate. The second problem is dealt with by the judges, who adopt a sceptical
88 In Tasmania in 1972, the Attorney-General resigned after being instructed by the Premier to withhold
his fiat for a relator action challenging a hydro-electric development which had the Cabinet's backing.
The Premier took over as Attorney-General and refused thefiat: Australian Law Reform Commission
Report, Standing in Public Interest Litigation (Canberra: AGPS, 1985) p xix.
89 Pandev v State of West Bengal, above, at p 275 per Khalid J; Craig and Deshpande, op cit n 85 above.
90 As in Gupta v Union of India (1982) AIR SC 149, where the use of Article 32 was linked to a breach
of individual rights, though not those of the plaintiff: see Craig and Deshpande, op cit.
91 See Paul Brest, op cit n 86 above.
92 Comment, 'The new public interest lawyers' (1970) 79 Yale Law Journal 1069-1152, especially at
pp 1119-1137 on potential conflicts between the interests of the lawyers themselves, their clients,
and their 'constituencies' (the groups theoretically represented by the clients) in welfare and public
interestlitigation; Deborah Rhode. 'Class conflicts in class actions' (1983) 34 Stalf)rd Law Reviews1183.
66
attitude to citizens' claims to represent, or have a uniquely authoritativeunderstanding

of, the public interest.
In the USA, the classical libertarian cast of most of the Constitution militates
against recognition of ideological interests in constitutional interpretation. This
seriously hampers the application of constitutional values to protect ideological
interests, such as the environment or the lives of fetuses, which may benefit no
current citizen materially. Future generations are under-represented in the political
process. As Tushnet puts it93:
[L]egislatorsareinterestedin re-election.Theywill be concernedonly withsecuringthe votes
of those who will be alive at the next election, and they will be indifferentto the interests
of futuregenerations,exceptinsofaras the presentelectoratecaresaboutthose interests.But
the presentelectoratetendsto sufferfromone formof the 'fiscal illusion.' Regulatorycosts
to be bornein the futureare more severelydiscountedthanthe rateof interestjustifies. As
voters, consumerswho are subjectto the fiscal illusion will comparepresentbenefitsand
excessivelydiscountedcostsandwill vote forpoliciesthatarenotin theirself-interest,because
they will contributeto an inflationthatthe voters, as consumersand parents,will come to
regret.
Tushnet notes that one possible implication of this might be that the courts should
interpret the constitution as requiring that such interests should be considered,
developing process values to protect future generations, granting standing to surrogate
plaintiffs in constitutional litigation, even though their interests in the matter would
be ideological only.94 However, Tushnet goes on to criticise reliance on process
values. In interpreting the Constitution in that way, he argues, judges would have
to select those substantive interests which deserve protection against under-
representation in political discourse.95 That selection is likely to be controversial
and reflect the interests of adherents to the dominant ideology.
This is an important point, but it should not be overstated. Any constitutional
adjudication necessarily involves judgments based on a judge's view of the dominant
constitutional ideology. It is part of the judge's job to make such choices. From
the controversies surrounding it will emerge a national constitutional ethic. This
may result in different types of interests being represented in different ways in
litigation. For example, India's acceptance of surrogate plaintiffs representing group
and ideological interests is paralleled by Canada's relaxed standing test for challenges
to the constitutionality of legislation based on legislative vires.96 Yet, where
challenges are based on individual rights, the standing test is stricter. In Operation
Dismantle v R,97 the judges struck out a challenge to the testing over Canada of
cruise missiles capable of carrying nuclear warheads. The plaintiffs asserted that
the government's testing policy violated 'the collective rights of the Plaintiffs and
their members and all Canadians, specifically their right to security of the person
93 Mark Tushnet, op cit p 103 (footnote omitted).

94 ibid p 103, n 76, discussingE. DonaldElliott, 'Constitutionalconventionsand the deficit' (1985)
Duke Law Journal 1077, 1091-95.
95 This imposeson courtsa dutyto choose betweensubstantiveinterests,in orderto say which are to
enjoy procedural and other protection. This is substantially what leads Tribe to criticise J.H. Ely's
interest-representation model of judicial review: see Lawrence H. Tribe, op cit n 12 above, ch 2;
Tushnet, op cit n 55 above, ch 2.
96 Thorson v Att Gen of Canada (1974) 43 DLR (3d) 1; Re McNeil v Nova Scotia Board of Film Censors
(1975) 55 DLR (3d) 632; Law Reform Commission of British Columbia, Report on Civil Litigation
in the Public Interest (1980) LRC 46, pp 42-46; B.L. Strayer, The Canadian Constitution and the
Courts (Toronto: Butterworths, 2nd ed, 1983) pp 64-76 (notice to be given to the Attorney-General
in public interest matters) and chapter 6 (standing).
97 Operation Dismantle v R (1985) 18 DLR (4th) 481.
67
and life' under section 7 of the Canadian Charter of Rights and Freedoms. The
judges accepted that the constitutionality of the government's nuclear defence
arrangements was justiciable, rejecting the government's argument that the political
nature of the matter took it outside the proper scope of judicial review. However,
since Canada's constitution (unlike India's) contains no relevant directive principles,
the Court held that it would be impossible for the plaintiffs to prove a causative
link between the tests, an increased risk of nuclear war, and the plaintiffs' rights.
One side-effect of this line of reasoning, ducked by the majority of the judges but
tackled head-on by Wilson J, is that plaintiffs relying on guarantees of individual
rights must show some threat to their own rights or those of someone whom they
represent, subject to the constraints of the rules on locus standi. A material interest
is required. Future dangers and, by implication, future generations, cannot be
protected judicially under human rights provisions, but only by other means which,
under the Canadian Constitution, are non-judicial. Wilson J said98:
It is not necessaryto acceptthe restrictiveinterpretation... which would limit section 7
to protectionagainstarbitraryarrestor detention,in orderto agreethatthe centralconcerns
of the sectionis [sic] directimpingementby governmentuponthe life, libertyandpersonal
securityof individualcitizens. At the very least, it seems to me, there must be a strong
presumptionthat governmentalaction which concernsthe relationsof the state with other
states,andwhichis thereforenotdirectedat anymemberof the immediatepoliticalcommunity,
was neverintendedto be caughtby section7 evenalthoughsuchactionmayhavetheincidental
effect of increasingthe risk of deathor injurythat individualsgenerallyhave to face.
There is, thus, a direct connection between judgments about the types of risk which
are to count as constitutionally relevant harm to different kinds of interests and the
power of citizens to represent the interests of disadvantaged or future members of
society. From the nature of the interests which are judicially protected and
unprotected, we learn something of the way in which the 'immediate political
community' is visualised.99
4 Human Rights
Under some constitutional cultures, the constitution embodies group rights as well
as individual rights. For example, Canada guarantees language rights for the French
minority, which has led to the striking down of all Manitoba legislation.'1 Although
usually a constitutional Bill of Rights will need to be enshrined in a constitutional
document to be effective, this need not be the case. The New Zealand courts have
recognised the Maori people's rights under the Treaty of Waitangi as constituting
a fundamental basis of the constitution.'10 In Australia, federal legislation to
implement human rights treaties has been held to be within the Commonwealth
Parliament's external affairs power.'02 However, in Australia and the UK, the
98 ibidp 518.
99 The scope of the immediate political community's right to interfere in individuals' freedom of choice,
and the responsibilitiesof members of the community, was considered in Wilson J's judgment concurring
in striking down anti-abortion legislation in Morgentaler, Smoling and Scott v R (1988) 44 DLR (4th)
385 at pp 484-485, 490-492, 498-500 (state has right to inquire into a woman's reasons for wanting
abortion in the later stages, but not the early stages, of gestation: the weight of the interest in foetal
life, which can be set against the woman's rights of autonomy, increases as the foetus develops).
The US cases on environmentalprotection offer anotherexample of the reluctanceof judges, interpreting
a Lockean, individualist constitution, to allow existing citizens to assert ideological or future interests
and claim judicial protection for them: eg United States v SCRAP (1973) 412 US 669.
100 Reference re Language Rights under the Manitoba Act 1870 (1985) 19 DLR (4th) 1.
101 Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680; n 77 above.
102 s 51(xxix) of the Constitution. See Koowarta v Bjelke-Petersen (1982) 153 CLR 168 (International
Convention on the Elimination of All Forms of Racial Discrimination justified enactment by the
68
legislatures have rejected proposals to introduce constitutional Bills of Rights. In

New Zealand, which finally enacted a Bill of Rights Act in 1990 (albeit almost entirely
without teeth), the judges had earlier responded to rejections of similar Bills by
hinting at the possibility of judicial action to entrench certain rights against statutory
violation, independently of the Treaty of Waitangi. These rights were said by Sir
Robin Cooke P to be so deeply entrenched in the common law that it would be
impossible to remove them without seriously damaging the structure of law itself.
In Australia, the High Court has at least left open the possibility that rights necessary
to maintain a democracy might be protected by common law and judicial action
against legislative infringement.'03 If it ever became necessary to do this, it would
presumably be justified by references to the basic value of representativeness in
the Commonwealth and state constitutions.
Is it proper for the judges to introduce special protections for certain rights where
the elected legislature has not done so? This depends on the relative importance
of rights and deference to the legislature or executive in a country's constitutional
theory. Sometimes the appropriate weighting will be disputed, and legal argument
on the matter mirrors a political discourse or dialectic between competing values.
This is happening in the UK, where courts have, in the twentieth century, regarded
the legislature as having primary responsibility for protecting human rights. Recently,
they have been challenged to revise their views in the light of a growing commitment
to human rights in international law and a sense of the inadequacy of the domestic
political process to safeguard rights.104A recent case illustrates the effect this has
had on judges' reasoning. In Brind v Secretary of State for the Home Depart-
ment,'05 the Secretary of State had issued directives to the IBA and the BBC
prohibiting them from broadcasting the sound of statements by representatives of
proscribed organisations in Northern Ireland. Journalists challenged the directives,
arguing that the directives were ultra vires, and that the Home Secretary had acted
perversely and disproportionately and had violated the right to freedom of expression
under Article 10 of the European Convention on Human Rights. The Court of Appeal
held that Parliament, in rejecting several proposals to incorporate the European
Convention, had shown that it intended that the Convention should not be used by
British judges. (Scottish judges have taken the same view.'06)
On appeal to the House of Lords, only Lords Ackner and Lowry took the same
line as the Court of Appeal, going so far as to hold that it would not be unreasonable
for a Home Secretary to refuse even to consider the Convention's requirements.
Lord Ackner concluded that requiring the Home Secretary to have proper regard
to the Convention 'inevitably would result in incorporating the convention into
English law by the back door.'07
Commonwealth Parliament of Racial Discrimination Act 1975). See further, on legislation to give
effect to the Convention for the Protection of the World Culturaland Natural Heritage, Commonwealth
v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1; Richardson v Forestry Commission (1988)
164 CLR 261; Queensland v Commonwealth (1989) 167 CLR 232; Geoffrey Sawer, 'The external
affairs power' (1984) 14 Federal Law Review 199-207.
103 eg Taylor v New Zealand Poultry Board [1984] 1 NZLR 394, 398 per Cooke P; Union Steamship
Co of Australia Pty v King (1988) 166 CLR 1 at p 10.
104 Att Gen v GuardianNewspapers Ltd [1987] 1 WLR 1248 at p 1286 per Lord Bridge; Att Gen v Guardian
Newspapers Ltd (No 2) [1990] 1 AC 190; Lord Scarman, 'The development of administrative law:
obstacles and opportunities' [1990] PL 490-495; Lord Hailsham, Elective Dictatorship (London: BBC,
1976).
105 [1991] 1 All ER 720, HL.
106 Kaur v Lord Advocate (1981) SLT 322; Moore v Secretary of State for Scotland (1985) SLT 38; J.L.
Murdoch, 'The European Convention on Human Rights in Scots Law' [1991] PL 40-51.
107 [1991] 1 All ER at pp 734-735 (Lord Ackner), 736 (Lord Lowry).
69
The other Law Lords gave more weight to rights. Lord Bridge accepted the
relevance of the Convention in preventing abuse of apparently unlimited discretions.
He concluded that Article 10 required a balancing of interests. The primary duty
to strike a balance lay on the Home Secretary, but the courts had a secondary,
reviewing, duty to decide whether the balance struck was reasonable. On the facts,
it could not be said that the directives had struck a balance unreasonably unfavourable
to the right to freedom of expression.108 Lord Templeman, whose speech was not
entirely unambiguous, nevertheless applied the Convention's principles, allowed
the Home Secretary the 'margin of appreciation' prescribed under the case-law of
the European Court of Human Rights, and concluded that the Home Secretary had
not abused his powers.109 The approach of the majority allows scope for rights-
based reasoning in settling standards for a carefully limited review of executive
action and secondary legislation.
By comparison with this cautious, gradualist approach, the hints falling from some
antipodean courts that they might be prepared to protect human rights against
abridgment by the legislature suggest that they have constructed a model of the
constitution, for the purposes of their work, which gives far more weight to rights,
and invests less trust in the workings of Parliament as a guarantor of the conditions
necessary for representative democracy, than that of English judges. This reflects
a substantial variation in the interpretation of political practice and the underlying
political theory between different Westminster-style constitutions.
IV Implications
The extent to which public law systems accommodate litigation in support of public
rights and interests is an indication of underlying notions of citizenship, particularly
the relationship set between public and private interests and the public rights and
capacities of individuals. Under a Diceyan constitution, based on the power of a
representative legislature and a responsible government, most decisions will be left
in the hands of the government, subject to Parliamentary scrutiny. Where the
prevailing ethic is individualist, judicial review will be limited to enabling individuals
to assert and protect their own (rather than the public's) interests in dealings with
the state. On the other hand, in a civic republican tradition in which citizens are
expected or permitted to achieve self-fulfilment by participating in political decision-
making, displaying Aristotelian civic virtues, there is good reason to adopt relaxed
standing rules for constitutional and public interest litigation, and to develop
constitutional theories which will allow citizens to act to secure public interests such
as observance of the rule of law and containment of governmental abuse of power.
As long as judges resist the temptation to act as a surrogate legislature, public interest
108 [1991] 1 All ER at pp 723-724 (Lord Bridge), 724 (Lord Roskill).

109 [1991] 1 All ER at pp 725-726. Lord Templeman said at p 726: 'The subject-matter and date of
the Wednesbury principles cannot in my opinion make it either necessary or appropriatefor the courts
to judge the validity of an interference with human rights by asking themselves whether the Home
Secretary has acted irrationally or perversely. It seems to me that the courts cannot escape from asking
themselves only whether a reasonable Secretary of State, on the material before him, could reasonably
conclude the interference with freedom of expression which he determined to impose was justifiable.
In terms of the convention, as construed by the European Court of Human Rights, the interference
with freedom of expression must be necessary and proportionate to the damage which the restriction
is designed to prevent. My Lords, applying these principles, I do not consider that the court can conclude
that the Home Secretary has abused or exceeded his powers.
70
litigation by citizens can contribute to both participatory democracy and public

scrutiny of government.'11 This is most marked where one purpose of review is
to advance the capacity of citizens to participate effectively in political dialogue,
as under Ely's representation-reinforcement model of constitutional law.
Public interest litigation may, therefore, operate as part of the political process,
encouraging dialogue and communication between groups in the search for a
consensus. Michael Perry has suggested that, in the search for a decision as to the
public interest, legislative coercion and constitutional litigation should be used only
when political discourse has collapsed."' This, however, assumes that politics is
a search for consensus - itself a controversial claim - and that legislation or litigation
is an admission of failure to establish consensus. This is not necessarily the case.
In its representation-reinforcing guise, litigation can lead to, even if it does not itself
offer, favourable conditions for rational political argument.
Judges and commentators work out their approaches to the nature and purposes
of public interest litigation by producing a model of the constitution which should
reflect both the facts of political and social life as they see it"2 and a theory of the
morally proper objects of the political process. This combines normative and
descriptive-empirical elements. Any model can be evaluated on either basis. But
even supra-constitutional normative argument, which takes place at the level of
political philosophy, is rooted in the needs and aspirations of particular societies,
while the notion of need itself combines factual and normative elements. Local
conditions will limit the range of constitutional theories which can be adopted for
practical purposes, because one of the most fundamental normative requirements
of a constitutional theory is that it should be capable of generating realisable
constitutional arrangements. 13
The importance of local conditions to constitutional values means that where there
is no consensus, or the constitution is an amalgam of rules and interpretations drawn
from different periods, there is no reason to expect a constitution to be based on
a consistent set of values. This point is ignored by some commentators from a Critical
Legal Studies standpoint. Mark Tushnet, for example, regards it as a test of a
constitutional theory that it should be internally coherent, by which he means that
all parts of the system should be explicable by reference to a single politico-legal
theory. It seems to be his view that this is a condition which positivist legal science
imposes on itself, and that a failure contributes to making legal rules insufficiently
determinate. "4 But a mature constitution is a rich amalgam of rules and values
reflecting different stages of its development and various interests, and a constitution
like the United Kingdom's, which grew organically rather than being created at
an identifiable moment, most obviously reflects its history. As new challenges are
presented, and the values of the citizenry change, citizens, especially constitutional
110 This fits a model of what has been described as deliberative, transformative politics: Michael Perry,
Morality, Politics and Law (New York: Oxford University Press, 1988) ch 6. Robert Burt,
'Constitutional law and the teaching of parables' (1984) 93 Yale Law Journal 455-502, considers
the role of courts when majority and minority interests define themselves as being irrevocably opposed
to each other; he argues that judicial review gives an opportunity for sober second thoughts by the
majority.
111 Perry, op cit ch 2 and pp 90-104, 151-160.
112 To some extent, the seeing of the facts may be influenced by the desired theoretical result: see David
L. Faigman, "'Normative constitutional fact-finding": exploring the empirical component of
constitutional interpretation' (1991) 139 University of Pennsylvania Law Review 541-613.
113 This may help to explain what has been called a 'strategic retreat from high abstraction to the middle
range': Geoffrey Wilson, 'English legal scholarship' (1987) 50 MLR 818 at p 826 et seq.
114 Mark Tushnet, op cit n 55 above at pp 180-182.
71
lawyers and politicians, must reinterpretor reshape the constitutionto cope with
the needs of the moment. It is, therefore, unlikelythatany one political theory will
suffice to justify, explain or legitimise all the constitutionalprovisions relatingto
different functionsof the state. A synthesis will be needed, based not on political
theory alone, but also on an interpretationof constitutionalhistory. Constitutional
adjudicationshouldthereforebe seen as partof a dialecticalprocess in whichvalues
and ideas coming from differentperiods and groups confrontone another.Judges
must decide on the weight to be given to different values, including fairness,
consistency and loyalty to tradition;their views on these mattersare constitutive
of their picture of the judicial role.' 5 New constitutionsnecessitate new theories
and new approachesto judicial review and public interestlitigation,16 as in Canada
under the ConstitutionAct 1982 with its Charterof Rights and Freedoms."7
A constitution,then, is a frameworkfor a debate about values. The framework
imposes some limits on the debate, but the outcomes will still vary with time and
place. In the contextof the debate,publicinterestlitigationperformsthreefunctions.
First, the litigation process itself is an opportunityto air ideas and contributeto
political discourse. Second, and less controversially, litigation can lead to the
reinforcementof procedureswhich guaranteethatpolitical debatewill be properly
conducted and decisions taken in the light of it. Third, for legal and political
commentators,attitudesto public interestlitigationin a given jurisdictionprovide
an indicatorof the relevantsuccess of differentmodels of politics and constitutional
theoriesin shapingstateandsocial institutions.Whilethe theoriescan competewithin
the constitutionalsystem, there is a fair chanceof avoidingover-rigidityof constitu-
tionaldesignandtyranny.Some degreeof theoreticalincoherencebetweenprinciples
may be a necessary price to be paid. By toleratingand facilitatinginterest group
challenges to constitutionalorthodoxies, politicians andjudges display sensitivity
to the competing demands of constitutional development through debate and
reasonablepredictabilityof outcomes.
115 See Alan Paterson, The Law Lords (London: Macmillan, 1982) ch 6.
116 On developing judicial review under the Australian Commonwealth constitution, see Galligan and
Lindell, op cit n 42 above.
117 Madame Justice Bertha Wilson, 'The making of a constitution: approaches to judicial interpretation'
[19881 PL 370-384.
72

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Public Interest Litigation and Constitutional Theory in Comparative Perspective

Author(s): David Feldman

*Reader in Law, University of Bristol.

44 The Modern LawsReview 55:1 January 1992 0026-7961

a judge's view of the legallyavailablerangeof constitutionalethics, andothercitizens'

I Interest Groups, Politics and the Democratic State

7 This attitudedatesbackto attemptsbetweenthe thirteenthandthe sixteenthcenturiesto controlthe

action) is legitimate in a democracy if it bolsters participation and limits the impact

Under the doctrine of responsible government, it is constitutionallylegitimate to

II Public Interests, Standing to Sue and ConstitutionalProcedures

followed in Australia, where the High Court refused to allow an incorporated

31 Stateof HimachalPradeshv Student'sParent,MedicalCollege, Simla[1986] LRC(Const)208, SC,

III Four Constitutional Features

1 Democracy, Ethics and Legal Challenges to Legislation

39 This presupposesa theory of interpretationwhich is not strictlyoriginalist:if we were limitedby

to be ineffective by reasonof unconstitutionality.At the other extreme, in a purely

An example illustrates the need for a judge to decide which conceptions of

48 (1931) 44 CLR 394, HC; [1932] AC 526, PC.

national democratic self-determination and supra-national European democracy? So

Generally, in a Westminster-style constitution, challengers will have to wait for

pp 233-235. It is possible that a declarationof invalidity might be grantedbefore enactmentin Australia:

by statute.70 In some cases, this has been challenged (unsuccessfully) by the

3 Ideological Interests and the Political Community

The provisionscontainedin this Partshallnotbe enforceableby anycourt,butthe principles

attitude to citizens' claims to represent, or have a uniquely authoritativeunderstanding

93 Mark Tushnet, op cit p 103 (footnote omitted).

legislatures have rejected proposals to introduce constitutional Bills of Rights. In

108 [1991] 1 All ER at pp 723-724 (Lord Bridge), 724 (Lord Roskill).

litigation by citizens can contribute to both participatory democracy and public

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