Paul Daly

Updating the Procedural Law of Judicial Review of Administrative Action

The substantive law of judicial review of administrative action has grown in leaps and bounds in recent decades. However, the procedural law has lagged behind. On issues such as the content of the record on judicial review applications, the extent to which administrative decision-makers can participate in judicial reviews of their decisions, superior court review of federal prison decisions and tribunals’ capacity to reconsider their decisions, Canadian courts have recently come under pressure to update the procedural law to bring it into line with the substantive law. I develop a set of considerations which courts ought to keep in mind when updating the procedural law. Courts should not automatically assume that the procedural law of judicial review must move in lockstep with its substance. Wary of the dynamic relationship between procedure and substance in the common law tradition, mindful of constitutional fundamentals and sensitive to the need to develop the common law in an incremental fashion, consistent with those values that are immanent in the law, the judges should exercise caution in reshaping the procedural law of judicial review of administrative action. I apply the set of considerations to four areas of procedural law, concluding that Canadian courts have struggled with some issues – tribunal reconsideration and tribunal standing – but have done reasonably well on others – superior court jurisdiction over federal prisons and the content of the record. Indeed, the latter provides a model for the future development of the procedural law of judicial review of administrative action by Canadian courts.

Brexit: Legal and Political Fault Lines

The argument I will advance in this extended note on the United Kingdom Supreme Court’s decision in R (Miller) v Secretary of State for Exiting the European Union is that the decision and its aftermath can be usefully understood by reference to three fault lines: between form and substance (Part I); between the old constitution and the new constitution (Part II); and between political accountability and legal accountability (Part III). The decision and the academic debate the litigation provoked revealed that British lawyers are deeply divided about how to resolve important questions about the relationship between Parliament, the executive and the courts. And the legislative response to Miller reveals that the fault lines can operate differently in a political context than they do in a legal context (Part IV). Drawing the fault lines I have described and using them as analytical tools achieves three objectives. First, using the fault lines as analytical tools enhances the legal community’s understanding of Miller by placing the resolution of the issue relating to the triggering of Article 50 in a broader context. The litigation raised important questions about the way British lawyers understand their constitution, in particular, how to accommodate constitutional innovations such as EU membership, referendums and devolution. Second, illustrating that important tensions are to be found in the decision of the majority of the Court. For instance, on the juridical effect of triggering Article 50, substance trumped form, but when it came to the impact of triggering Article 50 on the devolution arrangements, form trumped substance; the ‘constitutional’ nature of the 1972 Act weighed heavily in the balance, but other constitutional innovations, such as referendums and devolution, exerted next to no weight at all; and although the executive’s political accountability as a matter of constitutional convention was deemed to be insufficient justification for avoiding parliamentary authorisation for the triggering of Article 50, the enforcement of constitutional conventions relating to devolution was left entirely to political actors. The fault lines thus expose important tensions in the reasoning of the Miller majority. Third, demonstrating that these fault lines are political as well as legal. The relationship between form and substance, old and new and political and legal shaped Parliament’s response to Miller just as much as it shaped the judgments of the Court and the first-instance courts. In the political arena, interestingly, form triumphed over substance, the referendum result carried decisive weight, and confidence about the effectiveness of conventional methods of parliamentary oversight of the executive outweighed concerns about the need for legal protection of the interests of individuals or Parliament. This does not represent an additional criticism of the judges. I mean only to highlight how the legislative response to Miller demonstrates that, under Britain’s constitutional arrangements, legal and political actors do not respond in the same way to the same stimuli. This phenomenon may not be unique to Britain, but if so, Miller is a striking example that ought to be of interest to constitutional lawyers in other jurisdictions.

Brewing Up Reasons

IT is trite law that good reasons must be given to justify infringements of fundamental rights protected by the European Convention on Human Rights, as incorporated into domestic law by the Human Rights Act 1998. But what reasons can one count as good reasons? In Re Brewsters Application [2017] UKSC 8; [2017] 1 W.L.R. 519, the United Kingdom Supreme Court addressed the question of how much deference courts should afford to post hoc rationalisations of decisions challenged for non-compliance with the Convention. The answer given by Lord Kerr, with whom Lady Hale, Lord Wilson, Lord Reed and Lord Dyson agreed, is interesting in its own terms and may have implications outside the confines of the Convention.

Royal Treatment: The Crown's Special Status in Administrative Law

My focus in this paper is on the treatment of the Crown by the courts, especially Canadian courts, in judicial review of administrative action. In three areas of administrative law, the Crown has been accorded a special status, distinct from that of statutory bodies: administrative powers, justiciability and remedies. In respect of administrative powers, the Crown qua Crown has inherent capacities that are not available to statutory bodies. In respect of prerogative powers, the grounds of judicial review are restricted. In respect of the remedies that courts may grant, these may be more limited when exercises of the prerogative are involved. In the cases, the special status of the Crown is asserted rather than justified: it is a legal fact is search of a normative justification. The absence of a convincing normative justification for the special status of the Crown in judicial review of administrative action is significant, because the outcome of a case could well turn on whether the power deployed to effect a change in an individual’s legal position was exercised by the Crown or by a statutory decision-maker. My discussion of the three areas leads me to suggest that it should be possible to bring the treatment of the Crown into line with that of other administrative decision-makers without creating serious jurisprudential difficulties.