Judicial Review of COVID-19 Legislation – How have the Courts Performed?

Abstract

This paper considers judicial responses to challenges to legislative action taken to address the COVID-19 pandemic, how these responses were affected by emergency conditions and the implications for judicial review generally and its role in society.

The paper begins by outlining the types of legislative measures taken and then considers in very general terms the rule of law and judicial review, including hurdles to judicial review arising in many of the challenges to COVID-19 legislation, which in turn go some distance towards explaining the failure of most challenges.

The paper looks next at the principal grounds advanced for challenging COVID-19 legislation in terms of the matters it addressed and the bases for the challenges. The bases for challenge are grouped under three headings:

1. constitutional law limits on law-making authority,
2. administrative law limits on delegated authority,
3. fundamental human rights and rights of Indigenous peoples.

This survey is by no means exhaustive. Its aim is to add to the growing body of commentary on emergency legislation by focusing on a limited number of cases, mainly from Canada with a few from the UK, New Zealand and Australia.

Keywords: legislation, judicial review, COVID-19

JEL Classification: K2