For public lawyers the press has been dominated by the decision of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. This decision has brought the issue of “judicial constitution-making” sharply into focus.[1] The debate is important when considering whether any aspects of statute law are immutable. Professor Mark Elliott has identified three emerging contexts.
First, the concept of “constitutional statutes” was considered in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) where Laws LJ departed from the classical view of Professor AV Dicey (that statutes are not supreme law) and found that we should recognise a hierarchy between “ordinary” statutes and “constitutional” statutes, and in R (HS2 Action Alliance Ltd) v Transport Secretary [2014] UKSC 3 where the Supreme Court when considering the compatibility of Parliamentary process with European Union law found that EU law should not override the Bill of Rights 1689. Elliott considered that such statutes will not be subject to the doctrine of implied repeal, and observed (based on HS2) that there will also be a hierarchy between constitutional statutes with some being considered “more fundamental than others”.[2]
Second, “embedded constitutional values” were considered in R (Evans) V Attorney General [2015] UKSC 21 where the court found that executive power could only be used to override a judicial decision where there had either been a change of circumstances or where the judicial decision was “demonstrably flawed”. This decision significantly broadens the scope for judicial review, including valid decisions previously protected by ouster clauses under the Anisminic doctrine.[3] Elliott therefore considered that these values are capable of “emptying statutory provisions of content” and will be “resistant” to legislative change when interpreted in this way.[4]
Third, the UK Supreme Court considered the impact of “impervious constitutional values” in R (Jackson) v Attorney General [2005] UKHL 56 where Lords Steyn and Hope found that Parliamentary sovereignty is not absolute, while Lady Hale went further and opined that the courts would reject legislative attempts to subvert the rule of law. In Moohan v Lord Advocate [2014] UKSC 67, Lord Hodge went even further and held out the possibility that the courts would declare such legislation unlawful. Elliott considered that these values are a “constitutional bedrock” and will be “wholly resistant” to legislative change when interpreted in this way.[5]
Overall, Elliott considered the relationship between the constitutional principles regarding Parliamentary sovereignty, the separation of powers, and rule of law. Generally, he observed that application of these principles is “contestable”, that the weight to be given to them in particular cases “may be context-sensitive”, and that sovereignty is now unlikely to provide an “absolute” or “constant” trump card to “blunt” the impact of the other principles.[6]
More recently, in Miller the Supreme Court clarified the law regarding the prerogative and the ability of the executive to repudiate or terminate a treaty. The court found that this power could generally be used “without legislative authority”, and would not normally be susceptible to judicial review. But the court found that in a dualist system where treaties do not automatically form part of domestic law, the prerogative could not be used to alter domestic law to confer rights or impose obligations on persons without Parliamentary intervention. Citing the work of New Zealand academic, Professor Campbell McLachlan, the court noted that Parliamentary sovereignty is “reinforced” when “the legislative power is engaged”.
While the Resource Management Act 1991 (RMA) does not expressly refer to any treaties it is nevertheless “treated” as implementing legislation for a number of multi-lateral environmental agreements.[7] These include the Ramsar Convention, the Convention on Biological Diversity, and the Framework Convention on Climate Change.[8] This position brings the discussion regarding constitutional provisions firmly into play.
First, there is a question about the method used to incorporate these treaties into the RMA in the absence of legislative power being engaged, and it is therefore doubtful whether the use of the prerogative to repudiate or terminate the Ramsar Convention or the Convention on Biological Diversity without legislative authority would be susceptible to judicial review.
Second, regardless of whether these treaties have been incorporated into the RMA in some way, there is a question about the “constitutional” status of the RMA. For example, if the RMA is a constitutional statute then the doctrine of implied repeal will not apply. Similarly, if the RMA includes embedded constitutional values (e.g. sustainable management or kaitiakitanga), then these values will be resistant to legislative change and more importantly the restriction on judicial review in s 296 of the RMA will not be available to protect invalid decisions. Likewise, if sustainable management or kaitiakitanga are found to be impervious constitutional values then these provisions will be “wholly” resistant to legislative change.
The writings of Hon Peter Salmon QC and Justice Christian Whata lend support to certain RMA provisions being considered as embedded constitutional values or impervious constitutional values. For example, Salmon compared role played by sustainable management in the context of environmental law with the role played by justice and the rule of law in the context of public law and more widely in the context of New Zealand law generally,[9] while Whata opined that s 6 of the RMA regarding kaitiakitanga is merely “declarative” of matters having national importance at common law.[10] More recently, the written constitution proposed by Sir Geoffrey Palmer and Dr Andrew Butler includes environmental rights in art 105, and the explanatory text advises that this provision “gives greater constitutional status” (emphasis added) to sustainable management,[11] and lends weight to the argument that the RMA may already have constitutional status in the context of our unwritten constitution. Viewing the RMA through the lens of these emerging contexts has the potential to radically affect how the statute is interpreted and the extent to which key provisions may prove to be resistant to change via the inexorable program of RMA reforms.
Dr Trevor Daya-Winterbottom
Faculty of Law
University of Waikato
Dr Trevor Daya-Winterbottom is General Editor of Resource Management Bulletin published by LexisNexis in which this blog was first published
[1] Mark Elliott, Public Law for Everyone, 11 October 2016 (www.publiclawforeveryone.com – accessed 17 February 2017).
[2] Mark Elliott, The Limits of Judicial Authority, Trends and Forecasts Conference (Public Law Project, 2016) presentation, 10.
[3] Anisminic v Foreign Compensation Commission [1969] 2 AC 147.
[4] Elliott, The Limits of Judicial Authority, 10.
[5] ibid.
[6] Elliott, The Limits of Judicial Authority, 10.
[7] Peter Salmon and David Grinlinton, Environmental Law in New Zealand (Thomson Reuters, 2015), 298.
[8] ibid (n167).
[9] Peter Salmon, “Sustainable development in New Zealand” in Justice and the Environment (Resource Management Law Association, 2007), 25.
[10] Justice Christian Whata, Environmental Rights in a Time of Crisis (Resource Management Law Association, Salmon Lecture 2012), para [21].
[11] Geoffrey Palmer & Andrew Butler, A Constitution for Aotearoa New Zealand (Victoria University Press, 2016), 171.