Abstract:
The objective of this paper is to analyse perceived judicial activism in the ‘rights
context’ and test whether this infringes Parliamentary sovereignty. I critically examine the
Court of Appeal decision of Ye v Minister of Immigration1 (and in particular Glazebrook J’s
innovative and rights based approach). I critically examine the Supreme Court’s sequel to this
case, which by contrast to Glazebrook J’s approach purports to use ordinary administrative law
grounds to achieve a rights based outcome. I also examine (albeit to a lesser extent) the
various judgments’ in Zaoui v Attorney General (No 2).2
I argue that what may be perceived as judicial activism, is rather an example of the
judiciary pushing the traditional boundaries of administrative law in order to facilitate a
‘meaningful dialogue’ with the Executive/Parliament about shortcomings within a statutory
scheme that are inconsistent with human rights. Glazebrook J’s approach in Ye does appear to
push administrative law boundaries in terms of what the role of the Court has traditionally
been. However, overall I conclude that her approach has merit, particularly in terms of her
application of the proportionality methodology as a basis for scrutinising administrative
decision making. On balance, her decision does not infringe the principle of Parliamentary
Sovereignty. Viewing the relationship between the Courts, Executive and Parliament as a
collaboration, as opposed to a power struggle, gives some credence to this view.
I also examine how dialogue from the courts (such as that illustrated in Ye and in Zaoui)
has prompted the other arms of government to re-valuate their stance on legislative provisions
(and decision making) that is inconsistent with human rights. I conclude that clear and
transparent dialogue from the courts opens up the possibility of reaching a better solution and
prompts refinement of the law in a way that facilitates greater rights recognition, while at the
same time meeting both administrative and constitutional law objectives. This will be tested
with reference to Parliament’s response to those more contentious aspects of Ye and Zaoui.
