The judicialisation of public policy

The fact judges are not democratically accountable assists them in performing their traditional judicial functions in an independent and impartial manner. But this absence of accountability to the public is an important reason why judges should not perform a public policy role (other than as part of their constitutionally limited common law role).

Judges are eminently suited for the role of protecting the rights of individuals within the framework of the common law and existing legislation. However, giving content to legislation by way of judicial interpretation (as occurs with bills of rights) is an entirely different proposition. Applying legislation is one thing. Creating its content is another. In the interests of democracy, public policies having the force of legislation should be made only by democratically accountable authorities.

Whether entrenched or not, a national bill of rights would skew our system of government heavily in favour of special interest groups, particularly the lawyer class. The political consequences of being stigmatised as rights violators would deter governments from legislatively restricting judicially sanctioned rights. Our adversarial political system would be a further impediment to such legislation, especially at times when minorities hold the balance of power in the Senate.

As a result, public policies would be determined by a small group of judges who would be unrepresentative of, and unanswerable to, the public. A bill of rights would thus contribute to the “judicialization of public policy” (Tate and Vallinder, The Global Expansion of Judicial Power (1995)).

Some rights advocates contend that a bill of rights is needed to maintain an appropriate balance between the rights of the individual and those of the community. This dual classification of rights is based on a false dichotomy which artificially creates a hierarchy of rights with those relating to the individual at the top. In truth, all human rights relate to the individual - including collective rights such as the right of a people to self-determination which is shared among individuals in the group.

The fact that some rights are supported by a majority of individuals in the community is not a valid reason to regard those rights as not being among the rights of the individual. For example, the right to be protected from being blown up in a terrorist attack is just as much a right of the individual as is the right to not be arbitrarily searched or detained.

Rights advocates also claim that a national bill of rights would reflect the shared values of our society. That claim is probably correct. Like a Trojan horse, a national bill of rights would be an attractive-looking beast. However, appearances can be deceiving and there is a big difference between reflecting values and upholding them.

There are a number of reasons to seriously doubt that a national bill of rights would assist in upholding the shared values of our society.

First, it should be noted that our society does not have shared values on many of the issues which typically arise in legal challenges involving bills of rights. Community opinion is often divided on contentious issues such as same-sex marriages, polygamy, euthanasia, the death penalty, conscription, abortion restrictions, anti-terrorism laws and pornography.

In cases where the community does have shared values, it does not follow that the courts would necessarily uphold those values. With a bill of rights, the only majority that matters is the majority of the presiding judges. The courts, not the people or their elected representatives, would be responsible for interpreting and balancing the protected rights and deciding what limits can be justified in a free and democratic society.

In addition, judges tend to see themselves as being protectors of the individual against the will of the majority, especially when interpreting bills of rights. This tendency is exemplified by the following words of Chief Justice Beverley McLachlin of the Canadian Supreme Court: “The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion.”

This willingness of judges to disregard the opinions, and thus the values, of the public is appropriate when the courts are performing their traditional role of settling controversies between litigants and adjudicating criminal guilt through the application of objective legal criteria.