Of prerogatives, rules and guidance

The UK Supreme Court decided two very interesting immigration cases the week before last, touching on two very interesting issues.

Principles of (European) Good Administration

The Working Group on EU Administrative Law of Parliament's Committee on Legal Affairs recently reported on the desirability of an EU-wide code of administrative procedure along the lines of America's Administrative Procedure Act (or Ontario's Statutory Powers Procedure Act).

Taking Statutes Seriously

I have a guest post over on the UK Constitutional Law Group's blog explaining the utility of the approach to judicial review outlined in A Theory of Deference in Administrative Law to one of the most rancourous debates in common law academia. You can check it out here.

Vermeule on Conventions of Agency Independence

Adrian Vermeule has an engaging new paper on Agency Independence. Here's the abstract:

Kyoto, the Prerogative and Unwritten Constitutional Principles

My colleague Daniel Turp led a spirited challenge to the federal government's decision to withdraw from the Kyoto Protocol. Spirited and all as the challenge was, it failed before the Federal Court.

The Return of the Nordiques? An Icy Reception for the Applicants

They love their hockey up in Québec City, but have had nothing to love in the major leagues since the Nordiques decamped to Colorado in the mid-90s. Efforts are afoot to revive the local brand. One of the elements is a stadium, financed in part by the City of Québec and the provincial government. The City entered into a contract with media company Quebecor, exchanging management rights in respect of the facility, in return for Quebecor's participation in securing an NHL team for the City. But whether the City had complied with provincial contracting rules quickly became a bone of contention.

Dunsmuir's Flaws Exposed

I have a new paper on Canadian administrative law, which is forthcoming in the McGill Law Journal. Here is the abstract:

In its decision in Dunsmuir v. New Brunswick, the Supreme Court of Canada attempted to clarify and simplify Canadian judicial review doctrine. I argue that the Court got it badly wrong, as evidenced by four of its recent decisions.

The cases demonstrate that the categorical approach is unworkable and in fact a reviewing court cannot apply the categorical approach without reference to the much-maligned pragmatic and functional analysis factors (or some variant thereon). The categories regularly come into conflict, in that decisions could perfectly reasonably be assigned to more than one category. When conflict occurs, it must be resolved by reference to some factors external to the categorical approach.

I also maintain that the single standard of reasonableness is similarly unworkable without reference to external factors. It is not enough to say that reasonableness is a single standard that takes its colour from the “context”. Different types of decision attract different degrees of deference and they do so on the basis of factors that are external to the elegant elucidation of reasonableness offered in Dunsmuir.

Clarification and simplicity have thus not been achieved. I conclude by mischievously suggesting that the Court’s decisions fail to meet the standards of justification, transparency and intelligibility that the Court has deemed central to the conception of reasonableness in Canadian administrative law.

You can download the rest here.

Recording Hearings

There is a great post on Slaw.ca by Ian Mackenzie from last week on recording administrative hearings. He gives an excellent overview of the issues, embedded in an understanding of the old concern that increased formality may lead to decreased efficacy.

Standard of Review in the Copyright Cases

Last week the Supreme Court of Canada released its reasons in a "fivefecta" of copyright cases. Interesting questions were raised. Are additional royalties payable when a video game is downloaded rather than bought over the counter? Is streaming a communication to the public which requires payment to the copyright holder? When a consumer listens to a preview of a song on iTunes, is Apple on the hook for an extra royalty? How much copying can a teacher do to create course materials for students? And is a movie soundtrack to be treated as a whole or a collection of components? Amidst all this, the Court also found time to introduce a new innovation in standard of review.

Deference and Defence

Mindful of the threat of a terrorist attack during the Olympics, the British authorities have developed an Air Security Plan. One element of the plan is to install missiles on the roof of a residential apartment tower in Leytonstone. Unsurprisingly, the residents were upset. They went, unsuccessfully, to the High Court to judicially review the missile-siting decision.

Principles of Good (Digital) Administration

One of the drivers of the development and application of doctrine in administrative law is the concept of the principles of good administration. On one view, courts and administrators work collaboratively to produce rational and efficient policies and decisions.

Deference to Administrators' Interpretations of their Own Regulations

The Supreme Court of the United States recently cast a critical eye over the concept of Auer deference (so called even though the seminal case is actually Bowles v. Seminole Rock & Sand Co.). When administrative bodies promulgate rules, regulations and policies to fill in the gaps in statutory provisions, their promulgations may themselves have gaps and require further interpretation. Auer deference commands that any such further interpretation "becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation" (see here). 

A Theoretical Book but a Practical Approach

Over the next couple of weeks, I am going to blog occasionally about my new book, A Theory of Deference in Administrative Law:Basis, Application and Scope. For my first post, I thought I would start with something that does not really appear in the book at all: a brief overview of the approach I urge. Despite the daunting title, what I actually propose is, in my view, quite simple. I have drawn on Canadian cases to provide examples, solely because they feature in an article I am currently revising, which will shortly appear in the McGill Law Journal; I hope to post it on SSRN by the end of this week. In principle, this approach is applicable in any common law jurisdiction where there is judicial review of administrative action.

Human Rights Remedies and Administrative Bodies

Unlike many (perhaps most?) other countries, Canada allows administrative bodies to make non-binding interpretations of constitutional provisions and to grant remedies for human rights violations by state actors.

A Successful Closed-Mind Argument in the Citizenship Setting

A basic principle of administrative law is that a decision-maker must approach its decisions with an open mind. Demonstrating that a decision-maker had a "closed mind", however, is extremely difficult. A decision-maker bent on refusing an application come what may will, if clever enough, keep his or her prejudices to him or herself.

Changing Policy to Reflect Policy? Be Careful

As a Q.C., Rabinder Singh appeared in some of the most significant public law cases before the superior courts of England and Wales.

He was appointed to the bench in 2011. From the High Court, he recently issued an interesting judgment in H.A. (Nigeria) v. Home Secretary, [2012] EWHC 979 (Admin), a case concerning the lawfulness of the detention of an asylum seeker who suffered from mental disorders and was detained in a series of Immigration Removal Centres.

Of greatest interest is Singh J.'s treatment of an administrative policy which had been developed by the Home Secretary. The wording of the policy had been changed, but the Home Secretary argued that the change merely reflected administrative practice.

This was important because had the policy changed in substance, it would have been necessary to undertake an equality impact assessment; none had been conducted.

Singh J. held that a material change, requiring an assessment, had occurred, whatever the subjective intention of those involved:

1. In my judgement there was a change in at least the stated policy. There was obviously a change of wording, in other words a reformulation of it. Even if the Defendant did not intend that to be a substantive change in her own policy, there are two reasons why the public sector equality duties were triggered by that reformulation. The first is that the meaning of a policy is an objective matter: whatever the subjective intentions of its authors, the formulation matters because the words which express a policy affect the public, not just officials within a department, for example individuals who are liable to detention and those who advise them. The reason why public law has in recent years come to recognise the importance of adherence (in general) to policy statements is that they serve an important function in maintaining the rule of law, which is of particular importance when fundamental rights such as the right to personal liberty are at stake. 

1. The second reason is that, even on the Defendant's own evidence, she was seeking to reformulate the policy to re-align it to what had been thought within the department to be its practice all along. The courts had given an interpretation to the policy which did not accord with the practice of the Defendant's department. But that is implicitly to acknowledge that in fact there was a change of policy if not of practice. It was common ground before me that, in the present context at least, the meaning of a policy is ultimately a question for the courts, not one for the executive. If that is right, then when the words of a policy are altered, that is a change in policy. It was clearly intended to have some effect, otherwise it would have been a pointless exercise.

These comments on the interpretation of policies being wholly in the domain of the courts are very English (whenever I get around to my promised discussion of Auer deference, the difference of the American approach will be manifest). But the fundamental point is that when administrative policies change, the administrator in question is placed under a variety of public law duties, which are perilous to ignore.

While I Was Away

Penn Law's blog on regulation has published an interesting series of posts on Mitt Romney's regulatory policy, collected here. Gold star to Ron Cass, who identifies the malleability of cost-benefit analysis and suggests: "presidential enthusiasm for or suspicion of regulation (or sensitivity to particular aspects of it) can significantly affect how administrative agencies go about their business".

Staying in the United States, the Supreme Court issued a decision on the Federal Communications Commission's obscenity standards. As discussed here, the outcome was that the standards were unconstitutionally vague. Interestingly, this decision makes it twice that the Supreme Court has refused to consider the substance of broadcasters' complaints that the standards are an unconstitutional limitation of their freedom of speech: in 2009, the Court held (on administrative law grounds) that the FCC's decision to firm up its standards was lawful.

That Court also found time to question so-called Auer deference, a topic to which I shall return.

Across the Atlantic, Cambridge University Press published my A Theory of Deference in Administrative Law: Basis, Application and Scope. Much more on that in the coming weeks: you have been warned.

While there, Anthony Bradley's paean to the Administrative Court is worth reading.

In Ireland, an interesting judicial review application commenced yesterday. Treasury Holdings claims that the decision of the National Asset Management Agency (the government-established body/"bad bank" to which a huge portfolio of bank loans have been transferred) was unreasonable and procedurally unfair. The most interesting aspect is whether NAMA is under a duty to act in a commercial reasonable and fair manner. Coverage from the Irish Times of the first day of hearings here, the author noting the crowd-evaporating power of administrative law: "The hearing was well attended in the morning but the crowd had thinned out after lunch as the dry and technical nature of Mr Cush’s submission took its toll".

Oh, and the Supreme Court of the United States also decided whether President Obama's health care reform was constitutional. The only surprise was that the Internet did not spontaneously combust in the aftermath.