The exclusion has always struck me as strange. Waldron's argument is that courts are ill-suited relative to the political branches to determining questions involving rights. For precisely this reason, many supporters of 'political constitutionalism' would prefer the judiciary to withdraw from the field of judicial review of legislation.
Yet courts engaged in judicial review of administrative action end up determining just these sorts of questions on a regular basis. A remarkable recent example is the decision of the UK Supreme Court in Kennedy v. The Charity Commissioner 2014 UKSC 20.
The issue here ought to have been straightforward. A journalist requested disclosure of records of an investigation conducted by the Commissioner into a trust run by a politician. Freedom of information legislation provides for a right of access to records held by public bodies. But several exemptions are available, one of which relates to inquiries conducted by public bodies. The Supreme Court concluded that the inquiry exemption applied to the records sought.
Ordinarily that would have been the end of the case. But the Supreme Court has been very anxious in recent times to assert the value of the common law. It is not as if, the judges remind us, the common law were swept away by the incorporation of the European Convention on Human Rights into domestic law.
Some time was spent in Kennedy on a Convention argument, which was ultimately unavailing.
Having rejected the Convention argument, however, the Supreme Court went on to demonstrate the robustness of the common law of judicial review. It noted that the journalist could ask the Commissioner for disclosure and seek judicial review of any refusal to release the information. And in any judicial review proceedings, the nature of the interests at stake (the journalist's interests in access to information in order to publish a story versus the privacy interests of the politician) would be central to the reviewing court's task of assessing the legality, rationality and procedural fairness of the decision.
As Lord Mance explained:
56. The Charity Commission's response to a request for disclosure of information is...circumscribed by its statutory objectives, functions and duties. If, as here, the information is of genuine public interest and is requested for important journalistic purposes, the Charity Commission must show some persuasive countervailing considerations to outweigh the strong prima facie case that the information should be disclosed. In any proceedings for judicial review of a refusal by the Charity Commission to give effect to such a request, it would be necessary for the court to place itself so far as possible in the same position as the Charity Commission, including perhaps by inspecting the material sought. Only in that way could it undertake any review to ascertain whether the relevant interests had been properly balanced. The interests involved and the balancing exercise would be of a nature with which the court is familiar and accustomed to evaluate and undertake. The Charity Commission's own evaluation would have weight, as it would under article 10. But the Charity Commission's objectives, functions and duties under the Charities Act and the nature and importance of the interests involved limit the scope of the response open to the Charity Commission in respect of any particular request. I therefore doubt whether there could or would be any real difference in the outcome of any judicial review of a Charity Commission refusal to disclose information, whether this was conducted under article 10, as Mr Coppel submits that it should be, or not. (emphasis added)Doubtless some might argue that judicial review of administrative action should focus simply on whether the decision-maker acted within the four corners of the authority granted to it by the legislature, obviating the need to take rights (or other constitutional principles or values) into account. Few adhere to this narrow position these days, however. Even a prominent political constitutionalist like Adam Tomkins feels compelled to support review for reasonableness and proportionality:
There is the possibility, therefore, that judicial review on grounds of reasonableness or proportionality may undercut any (or all) of the other values that we have identified as constitutional goods. This does not mean that judicial review on these grounds should never be countenanced. But when it is contemplated, it should be considered alongside our other constitutional goods and in their light. When it comes to review on grounds of reasonableness or proportionality, we need a judicial review that is appropriately responsive to, and respectful of, these other constitutional goods and accords them due weight. A reasonable and proportionate government is itself a constitutional good, but judicial review that over-invests in this one constitutional good at the expense of the others would make for an unbalanced constitutional order. Likewise, over-investment in any of the other constitutional goods at the expense of securing reasonable and proportionate government would be unbalanced. On this view, to say that we should never have judicial review on grounds of reasonableness or proportionality because it may sometimes undercut the value of other constitutional goods is going too far too fast. Likewise, saying that judicial review should always be available on these grounds, even at the expense of undercutting the value of other constitutional goods, is itself a disproportionate approach to constitutionalism. A balanced mix of these various constitutional goods is preferable, and a successful mix is one that achieves such a balance. (emphasis added)Given the centrality of substantive review, conducted under the rubric of reasonableness or proportionality, little or nothing of modern judicial review doctrine can be explained without reference to background constitutional principles and values, individual rights prominent among them.
It may be that there is something special about judicial review of legislation (and it is undoubtedly the case that justiciable bills of rights expand the judicial role). But even if it were abolished, common law courts would still exercise robust control over the political branches and refer to contestable constitutional principles -- and, yes, rights -- in doing so.