Deference and Reasonableness

In Canada, it is gradually becoming clear that the Supreme Court wants reviewing courts to presume that the standard of review of administrative action is reasonableness. The Court has not been perfectly clear about its intentions, however, so there are still pockets of resistance (see my articles here and here for discussion). As I suggest in those articles, the new battleground for deference is in the application of the reasonableness standard.

The Enlightenment of Administrative Law: Looking Inside the Agency for Legitimacy

In Sidney Shapiro, Elizabeth Fisher and Wendy Wagner's fascinating article, they contrast the "rational-instrumental" model of administrative decision-making, which they describe as dominant, with the "deliberative-constitutive" model, which they prefer. If you are interested in the legitimacy of the administrative state, the article is a must-read.

Under the former model, "agency accountability is ensured by deploying various scientific, technical, and legal oversight processes to prevent agency staff from exercising discretion". But under the latter, "agency professionalism is viewed as a positive attribute that helps ensure the integration of technical expertise in rulemaking and serves as a buffer against undue influence by highly interested stakeholders".

I was interested to see the authors trace the deliberative-constitutive model back to the progressive era. There has certainly been a revival of interest in deliberation and civic republicanism in recent years, but its administrative-law roots are deeper than one might have thought at first blush.

I was also very interested by their take on the various efforts, most notably by Mark Seidenfeld and Henry Richardson, to incorporate deliberation in the administrative process: "By portraying civic republicanism as a process that primarily engages those citizens who are not already engaged in civil service, legal scholars understand civic republicanism as a theory of democracy writ large rather than a theory of administrative constitutionalism". This they see as a continuation of a broader trend to look outside the administrative agency for legitimacy.

A better approach would be based on an appreciation of the "discursive" role of the bureaucracy:

Proponents of a discursive role for civil servants contend that the discursive process itself legitimizes the outcome of the process through debate and deliberation. For postmodernists, it is only possible to construct a legitimate policy through such vetting. But it is not necessary to endorse this viewpoint to understand the value of a discursive approach. With the demise of pluralism in rulemaking, the bureaucracy can offset or mitigate industry dominance by reaching out to individuals and organizations in policy networks with differing points of view, rather than relying passively on whatever information comes in through the rulemaking process. Professional values serve to further enhance the assimilation and processing of this evidence into regulatory products.

Part of their concern about the "demise of pluralism" is based on a perceived dominance of executive decision-making by powerful interests. It is worth noting that Cass Sunstein has a somewhat different view on this.

The abstract for the Shapiro, Fisher and Wagner article is as follows:

The discourse over the legitimacy of unelected administration has produced two paradigms. Administrative law scholarship has focused almost exclusively on a rational-instrumental paradigm that seeks to legitimate from the outside in, relying on political oversight, judicial review, and scientific and social methodologies to squeeze the discretion out of public administration. By comparison, public administration scholarship has focused on a deliberative-constitutive paradigm that seeks to legitimate from the inside out, relying on administrative expertise, deliberation, and reason giving to ensure reasonable decision-making. This paradigm accepts administrative discretion both as unavoidable and as necessary.

Besides failing at its own goal of eliminating discretion, the rational-instrumental paradigm has produced rulemaking ossification, bureaucracy bashing, a misunderstanding of the role of science in administration, and a failure to build a comprehensive theory of administrative accountability, one which takes into account both paradigms. Despite these defects, contemporary administrative law scholarship and practice is so deeply enmeshed in rational-instrumental accountability that it is difficult for administrative lawyers to imagine that there is a complementary approach to legitimacy. Yet, the history of administrative law in this and other jurisdictions highlights the significance of the deliberative-constitutive paradigm. In light of the demise of interest group pluralism in rulemaking, and the scholarly dead end in which we find ourselves, it is time to recognize and develop the deliberative-instrumental paradigm.

The paper can be downloaded here.

Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms

My paper for this Saturday's conference at the University of Ottawa in honour of Justice Charron is now available on SSRN. You can download it here. To whet your appetite, here is the abstract:

In interpreting the “prescribed by law” requirement contained in section 1 of the Charter of Rights and Freedoms, Canadian courts have struggled with an abundance of difficult distinctions: between law and discretion, general norms and individualized decisions, and administrative law and constitutional law.

A purposive approach assists in identifying the key functions of the “prescribed by law” requirement. First, it has both formal and substantive senses which are intimately related to the rule of law. Second, it performs an accountability function by forcing government to take responsibility for general norms that infringe Charter rights. Third, consistent with the intention of the drafters of the Charter, it provides additional protection for the individual from rights-infringing conduct by state actors.

These functions are frustrated somewhat by the analytical framework set out by the Supreme Court of Canada in Slaight Communications v. Davidson (1989). Unfortunately, in its recent decision in Doré v. Barreau du Québec (2012), the Court has only worsened the situation. It did away with the application of the proportionality test where Charter infringements can be attributed to individualized decisions of state officials, substituting instead the more deferential reasonableness test applied in judicial review of administrative action. Accordingly, a return to the pre-Doré situation, as outlined in the majority reasons of Justice Charron in Multani v. Commission scolaire Marguerite-Bourgeoys (2006), would be appropriate.

Moreover, improvements to the analytical framework within which the “prescribed by law” requirement is applied can be effected by using the tools of administrative law. Justification, transparency and intelligibility are the touchstones of reasonableness in administrative decision-making, as the Court itself has acknowledged. Accordingly, administrative decision-makers who fail to confine, structure and check their discretion by adopting “soft law” instruments, such as publicly available guidelines, risk seeing their decisions struck down as unreasonable by reviewing courts. And if decisions are unreasonable, they cannot be “prescribed by law” within the meaning of section 1 of the Charter.

Requiring the adoption of “soft law” instruments gives effect to the formal and substantive senses of the phrase “prescribed by law” by improving the accessibility and precision of administrative discretion; enhances its accountability function by allowing individuals to identify the source of rights-infringing official action and providing a focal point for debate; and hands an additional shield to the individual with which to fend off infringements of the Charter.

I will not be attending the conference in person -- my wife is due to give birth at any moment now -- but my friend Alexander Pless (Federal Department of Justice, Montréal) will be presenting it on my behalf. I welcome any comments.

Regulation and the Common Law

On May 10 next, we at U de M are hosting what we hope will be the first in a series of conferences on key concepts of the common law.

To kick off, the conference on May 10, 2013 is Regulation and the Common Law.

Our keynote speaker will be Gillian Metzger, the Stanley H. Fuld Professor of Law at Columbia Law School. The other speakers are identified on the poster for the event and you can find details of the programme here.

Here is the abstract for the conference:

Regulation is pervasive in modern liberal democracies. From dawn to dusk, regulation touches all aspects of the lives of citizens.

Construction of the framework of regulation in common law systems begins at the constitutional level. Different visions of the permissible reach of state regulation have recently been offered by the Supreme Courts of the United States and Canada. In previous decisions, common law courts there and elsewhere have sought to shape the common law in light of constitutional – and, increasingly, international – norms and values, thereby undermining any rigid distinction between public and private in the common law tradition. Attention to public law is thus necessary to understand the relationship between regulation and the common law.

Exploring the common law’s own character is also necessary. A flexible and supple common law can, in principle, respond to new demands for regulatory intervention, though perhaps in a slow and incremental fashion. One may push further and ask whether the regulatory imperatives of modern liberal democracies have changed the common law itself, perhaps by injecting urgency into its genetic make‐up. The common law’s underlying values may be subject to change too. Where laissez‐faire may once have been the dominant organizing principle in the common law tradition, its centrality seems less assured in an era of pervasive regulation.

To focus too closely on the principles, standards and rules of the common law, however, would be to lose sight of the ever‐growing importance of statutes and delegated legislation in modern liberal democracies. Once shunned by courts anxious to guard their prerogatives, parliamentary and executive legislation is now unavoidable. From a tradition in which, if anything, the common law shaped judicial treatment of statutes, it might be said that, now, statutory intervention has come to shape the substance of the common law and the mindset of its practitioners.

We will examine regulation in the context of the common law and the common law in the context of regulation by reference to three broad, overarching themes:

1. Regulation and its framework
2. Regulation and the public/private divide
3. Regulation and the substantive common law

Attendance is free, with lunch included. Contact me at paul dot daly at umontreal dot ca if you want to register.

Some Thoughts on Oral Argument in the Long-Gun Registry Appeal

The hearing of the federal government's appeal of the decision granting Québec an injunction to prevent the destruction of long-gun registry data and ordering the federal government to return data relating to Québec to the province finished up this morning.

Delegating Investigative Functions

A well-known rule of administrative law is delegatus non potest delegare: the beneficiary of a statutory power cannot delegate its exercise. This is only a rule of construction, though, and is subject to the famous Carltona exception, pursuant to which civil servants can act in the name of a minister named in a statute.

Irrebutable Presumptions and Fair Procedures

In Ireland last week, the High Court rendered a landmark judgment on surrogacy: M.R. v. An t-Ard Cláraitheoir, [2013] IEHC 91.

Here, the registrar of births had refused to register a biological (or genetic) parent as the mother of her twins. Instead, the state agency insisted that the surrogate (or gestational) mother should be registered. This even though the surrogate mother did not oppose the application by the biological mother.

More on the Unconstitutionality of the Destruction of Gun Data

Next week, the Quebec Court of Appeal will hear argument in the Gun Registry Destruction case: Québec (Procureur général) c. Canada (Procureur général), 2012 QCCS 4202 (unofficial English translation of the first-instance decision).

I have previously explained why the attempted destruction of the data by the federal government is unconstitutional (see my posts here, here and here). Having read the written submissions of both parties to the Court of Appeal, I have some further thoughts.

Pastagate: Enforcement Discretion

Language is the third rail of Canadian politics, so it is with some trepidation that I wander out onto the tracks to muse on enforcement discretion in the wake of recent controversy about the Charter of the French Language and the Office québécois de la langue française.

Henry VIII Down Under

There are limits to what courts can do to thwart legislative enactments of Henry VIII clauses, which grant powers to the executive to modify legislation. Typically, Henry VIII clauses are included in legislation for limited periods of time, to facilitate the implementation of the statutory provisions.

Much of what governs modern life is not produced by legislators in the form of laws, but by the executive branch in the form of regulations, statutory instruments (and much more besides). Some oversight is exercised by the legislative branch, but the deluge of delegated legislation is such as to overwhelm the parliamentary committees responsible for monitoring it. Henry VIII clauses are especially problematic, because they can be used by the executive to defeat the intention of the legislature. Their purposes may be innocuous, but their use might not always be.