Executive Policy Development and Constitutional Norms: Practice and Perceptions

Abstract

Much of the day-to-day work of implementing constitutional law falls to the executive actors. Ministers, policy advisers, public servants, government agencies, government lawyers and legislative drafts-persons develop public policy and legislation within the shadow of the Constitution The first contribution of this article is to advance a normative model to guide the work of these actors. It accepts the primacy of judicial review, but nonetheless supposes significant space for the other branches of government to engage normatively with the Constitution. In particular, we argue that areas of constitutional ‘uncertainty’ present the executive with space for particularly lively engagement with the Constitution. In these spaces, the executive should have institutional confidence to engage more autonomously with constitutional norms. In such areas, the executive should consider, with appropriate weight, the risk of breach of constitutional norms together with other legitimate influences on policy development, consistent with the executive branch’s institutional mandate. We also argue that key to this understanding of the relationship between the executive, the judiciary and constitutional norms is one particular, pivotal actor: the government lawyer. The second contribution of this article is its empirically informed study of the constitutional understanding and practice of executive officers. We find considerable evidence of careful executive deliberation in areas of constitutional uncertainty. However, perhaps paradoxically, we also see instances of executive over-cautiousness. Other interviews reveal evidence of constitutional recklessness in the development of new law and policy in areas of constitutional uncertainty. In either of these instances – over-caution or recklessness – we argue executive engagement with constitutional norms is sub-optimal.