I contract, therefore I am: the Third Source Powers of Government Entities: Part Two

In my previous post, I laid out the details of the New London College case and some disagreement amongst the judges of the UK Supreme Court about third source powers. In this post I address the caveat I referred to previously and the possibility that third source powers can be statutory in nature.

Mark Elliott queries whether these powers can properly be described as statutory, as Lord Sumption suggests:

This is very odd, and suggests some muddled thinking about the source—and therefore the nature—of the power being exercised. If the power in question derives from statute, then it is not clear, for example, why it should not be possible to adopt “measures which are coercive”. If the correct construction of the statute were that the adoption of such measures were lawful, then such measures would indeed be lawful. Equally, if the statute, corrected construed, were to authorize the taking of measures that infringed the legal rights of others, then the taking of such measures would be lawful.

Adopting the prevailing view in England and Wales that the "third source" lies in the nature of the Crown as a corporation sole, Mark is right to say that Lord Sumption's thinking is muddled. If third source powers, exercisable by ministers and other government bodies, spring from the general existence of the Crown then the 1971 Act is entirely irrelevant unless proposed exercises of third source powers are inconsistent with it.

An alternative view, however, is that all government entities created by statute enjoy a category of power which is neither express nor implied. Third source powers, on this reading, spring from the creation of an administrative body and the vesting of decision-making authority in it. There are express powers, necessarily implicit powers, and the powers an analogous private body would have to go about its daily affairs. On a generous reading of Lord Sumption's judgment (especially at para. 28), he takes this view. (At this point, the "third source" label becomes inapt, because we are no longer talking about a power distinct from statute and prerogative, but I will persist with it for the sake of convenience; and I suppose I am proposing a tripartite division between the express, the implicit and the inherent.)

One advantage of this view it provides a further limitation on the use of third source powers. If the third source is located in specific statutes, the powers springing from it can only be used to further the objects of those statutes. No such restriction applies to powers exercisable by the Crown as a corporation sole. A contract could be ultra vires a statute, but not the third source. And it would be strange, though presumably theoretically possible if the third source lies in the Crown as a corporation sole, if a minister (or administrative body) responsible for one statutory scheme could lawfully issue a set of guidelines pertaining to a scheme under the jurisdiction of another minister.

Moreover, this view does not depend on the characterization of the Crown as a corporation sole. In England and Wales, several administrative bodies are also corporations sole. From whence do their third source powers spring? Are they limited by reference to their empowering statutes, in a way that third source powers exercisable by other bodies are not? In Ireland, government ministers are corporations sole: are they to be treated differently from other administrative bodies which exercise similar functions? And let us be honest: if the Crown were not seen as a corporation sole, would this make any difference to the analysis? Indeed, when Bruce Harris wrote his seminal article on the third source in 1992 (108 L.Q.R. 626), the prevailing view was that the Crown was not a corporation sole (M. v. Home Office [1992] Q.B. 270 (C.A.)).

On a less generous reading of Lord Sumption's judgment, he is actually offering an example of the dangers of what I previously described as option one by giving the minister a very broad range of implied powers: "ancillary and incidental" though not "spelt out" (see again para. 28). But if so, as Mark points out, there is no reason to limit the use of the powers to non-coercive measures and Lord Sumption ends up in a muddle in para. 29.

In my next post, I will try to give some practical examples which demonstrate the utility of recognizing that third source powers can be located in statute. I do not insist that I am right, but I think the possibility of a statutory third source is worth considering!

I contract, therefore I am: the Third Source Powers of Government Entities: Part One

Over at Public Law for Everyone, Mark Elliott has an excellent post on the UK Supreme Court's recent decision in R. (New London College Ltd.) v. Home Secretary, [2013] UKSC 51. The decision features a slight divergence of views between Lords Sumption and Carnwath on the scope of governmental powers. I am going to break my comments down across at least two posts. In this post, I consider the relationship between express, implied and "third source" powers.

Furthering Substantive Equality through Administrative Law: Charter Values in Education

Angela Cameron and I have posted our forthcoming Supreme Court Law Review essay on Charter values and administrative decision-making in the context of education law: "Furthering Substantive Equality through Administrative Law: Charter Values in Education". Here is the abstract:

Recent decisions in the realm of Canadian public law have opened the door to Charter values. Administrative decision-makers must have regard to these values when making decisions. Through the use of a fictional example this paper is intended provide a guide for laypersons, lawyers, judges, administrators, arbitrators and academics on how to further substantive equality through administrative law. Our focus in this paper is on education law, but the framework we propose is capable of application across a wide range of areas. Those in other jurisdictions can replace Charter values with "constitutional values" and adopt a similar analysis.

The obligation to educate children about a “diversity of opinions and cultures” is at the heart of our exploration of administrative decision-making in the education system. We argue, however, that the obligation to pay attention to Charter values provides the lifeblood of substantive equality in the administrative law context.

The concept of applying Charter values as a juridical tool in decision-making, while not new, has been given a more dominant role in administrative decision-making by the Supreme Court of Canada in its Dore decision (2012). While the exact meanings and practical applications of this concept are as yet unclear, this paper makes a small step towards imagining the contours of Charter values. In particular we attempt to establish, as a first principle, the role of substantive equality as Charter values begin to solidify and take shape in the jurisprudence.

The paper is divided into three parts. In Part One we present a fictional administrative law decision-making scenario located within the public school system. This scenario provides a concrete backdrop against which to imagine the function of substantive equality within Charter values. In Part One we also discuss the public school system in Canada as a key site for the application of Charter values, and we lay out the empirical evidence showing that GLBTQ students, and the children of GLBTQ parents suffer an equality deficit in Canadian public schools. A deficit which, in our view, can be addressed through the proper application of Charter values by decision-makers within the education system.

Part Two develops an administrative law framework for furthering substantive equality. Specifically Part Two situates substantive equality within the existing framework of administrative law, and provides a blueprint for what substantive claims might look like under our proposed framework. Part Three treats the precise role of substantive equality, outlining a methodology for blending existing equality jurisprudence with the Court’s decision in Dore, using the fictional scenario as a backdrop.

We conclude with a demonstration of our proposed framework in the context of our fictional example.

You can download the essay here.

Functus Officio in Administrative Law

A long-running battle being waged by employees of Health Canada against their employer's drug-approval procedures gives a glimpse of the law on the reopening of administrative decisions: Chopra v. Canada (Attorney General), 2013 FC 644.

Child Adoption and the Rule against Bias

Nova Scotia (Community Services) v. T.G., 2012 NSCA 43 is a sad case about adoption. Sad because of the facts and sad because lengthy litigation has prevented a young child being placed in a permanent home.

Making Adverse Findings against a Party Who Withdraws an Appeal is a Breach of Procedural Fairness

Somewhat obvious, one would have thought! One can imagine the surprise of the applicant in Can-Euro Investments Ltd. v. Ollive Properties Ltd., 2013 NSCA 80, who, having withdrawn an appeal before the Utility and Review Board was nonetheless strongly criticized in a decision handed down weeks later.

General Norms, Individualized Decisions and Procedural Fairness

Economical Mutual Insurance Company v. British Columbia (Information and Privacy Commissioner), 2013 BCSC 903 is a very interesting case.

Adequate Alternative Remedies and the Right to Bring Judicial Review Proceedings

An interesting aspect of the Irish Supreme Court decision in EMI Records (Ireland) Ltd. v. The Data Protection Commissioner, [2013] IESC 34 is that judicial review proceedings were taken by the applicants even though they were not targeted by the enforcement notice issued by the respondent. This notice was legally flawed: see my previous post here.

The Irish Supreme Court Clarifies its Position on the Reason-Giving Requirement

I posted some harsh(ish) words previously about the Irish Supreme Court's position on the right to reasons. More recently, in EMI Records (Ireland) Ltd. v. The Data Protection Commissioner, [2013] IESC 34, the Court has laid its position out with more clarity.

The factual  background is important. An internet provider entered into a settlement with several record companies The regulator was worried that implementation of the agreement would have data protection consequences. An enforcement notice was issued against the internet provider. No notice was issued against the record companies, but one can easily understand their concern. The issue I address in this post is whether the reasons were so inadequate as to invalidate the enforcement notice.

Keeping a Close Eye on the Tsar

A provincial Irish newspaper called the Skibbereen Eagle famously concluded an editorial on European politics by noting that it would be keeping a close eye on the Tsar of Russia.

There is nothing provincial about the accomplished Lisa Heinzerling, but she has nonetheless been keeping a close eye on President Obama's former regulatory Tsar, Cass Sunstein. Sunstein wrote an essay recently recounting his experiences as head of the Office of Information and Regulatory Affairs. Heinzerling has now posted an engaging and important response based on her time in the Environmental Protection Agency:

The Obama administration has continued and deepened a longstanding practice of White House control over rules developed by the Environmental Protection Agency (EPA), with cost-benefit analysis as the guiding framework. The Office of Information and Regulatory Affairs (OIRA) is the central player in this structure: it reviews, under a cost-benefit rubric, all agency rules that it deems “significant” under executive orders mandating this review. EPA rules deemed significant by OIRA are not issued without OIRA’s imprimatur.

As I explain in this article, OIRA’s actual practice in reviewing agency rules departs considerably from the structure created by the executive orders governing OIRA’s process of regulatory review. The distribution of decision-making authority is ad hoc and chaotic rather than predictable and ordered; the rules reviewed are mostly not economically significant but rather, in many cases, are merely of special interest to OIRA staffers; rules fail OIRA review for a variety of reasons, some extra-legal and some simply mysterious; there are no longer any meaningful deadlines for OIRA review; and OIRA does not follow – or allow agencies to follow – most of the transparency requirements of the relevant executive order.

Describing the OIRA process as it actually operates today goes a long way toward previewing the substantive problems with it. The process is utterly opaque. It rests on assertions of decision-making authority that are inconsistent with the statutes the agencies administer. The process diffuses power to such an extent – acceding, depending on the situation, to the views of other Cabinet officers, career staff in other agencies, White House economic offices, members of Congress, the White House Chief of Staff, OIRA career staff, and many more – that at the end of the day no one is accountable for the results it demands (or blocks, in the case of the many rules stalled at OIRA). And, through it all, environmental rules are especially hard hit, from the number of such rules reviewed to the scrutiny they receive to the changes they suffer in the course of the process.

My main project here is descriptive. Misunderstandings of the OIRA process abound. Too often these misunderstandings are perpetuated by, or not contradicted by, the very personnel who have been involved in the process. I hope that the descriptive account I provide here, aimed at correcting the misimpressions that have grown up around OIRA review, will help to renew the debate over the role of OIRA and the larger White House in agency rulemaking.

You can download "Inside EPA: A Former Insider's Reflections on the Relationship between the Obama EPA and the Obama White House" here. 

Is the Supreme Court of Canada Decision in Agraira Consistent with the Halifax Citadel Case?

I have posted previously on the recent Supreme Court of Canada decision in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36.

One of the interesting aspects of the decision is the giving of deference to a ministerial interpretation of law, even though the interpretation was only "implied".

How does one square this conclusion (sensible, in my view) with last year's decision in Halifax (Regional Municipality) v. Canada (Public Works and Government Services), 2012 SCC 29, [2012] 2 SCR 108?

Dismantling Regulatory Structures: Canada's Long-Gun Registry as Case Study

I have a new paper up at SSRN, "Dismantling Regulatory Structures: Canada's Long-Gun Registry as Case Study". Here is the abstract:

The story of the creation and destruction of Canada’s long-gun registry tells us much about the legal framework for deregulation, a topic which has received little consideration. The abolition of the registry and the destruction of the data created during its operation have led to an important court challenge, two very interesting judgments and, potentially, a hearing before the Supreme Court of Canada. The issues canvassed will be of interest not only to Canadian public lawyers, but all those interested in administrative and constitutional law in the common law world, especially those jurisdictions with a federal structure.

I begin with a brief overview of gun control in Canada, including a description of the basic regulatory structure and the legal challenges it has withstood. I move on to consider the long-gun registry established in the 1990s and, again, the legal challenge it withstood. I turn then to the steps taken to dismantle the long-gun registry before considering the two key legal issues that arise: One, the scope of the power to repeal legislation; Two, the means of dismantling a regulatory structure. I conclude with some thoughts on the application of the principles of federalism.

The dismantling of Canada’s long-gun registry is an interesting case study on deregulation, especially deregulation effected in a federation. Political concerns are never far from the surface and they had a great deal of influence on the means of deregulation chosen by Parliament. The legality of the means employed, however, is questionable. I should not hide my ultimate conclusion: the attempt to destroy the long-gun registry data is unconstitutional; the constitutionally appropriate action would be to transfer the remaining data to the provinces.

You can download it all here.

Reasons -- Parroting the Statute as a Breach of Procedural Fairness, or Leading to Unreasonableness

The vexed question of the adequacy of reasons got another outing in Wall v. Independent Police Review Director, 2013 ONSC 3312.

Here, an individual arrested during an allegedly heavy-handed police operation at the 2010 G20 summit in Toronto made a complaint about his treatment. Having spent 28 hours in custody, he was released without charge.

Longstanding Interpretations of Law

When an administrative decision-maker's interpretation of a statutory provision is longstanding, is it entitled to extra deference from the courts?

Gun Registry and Data Destruction

My holidays have been delayed, much to my frustration! But on the plus side, I was at my desk for the Quebec Court of Appeal's decision in the gun registry appeal: Canada (Procureur général) c. Québec (Procureur général), 2013 QCCA 1138.

I criticized the decision in an oped for the Montreal Gazette yesterday. Here is a taste:

The court of appeal’s neglect of “cooperative federalism” led it to these two errors. Despite its admonition that the principle is an important “interpretive tool,” it did not use it. Properly applied, the principle would have pointed toward a narrower interpretation of the scope of the power to repeal legislation and of the power to destroy data in the original Firearms Act. The legal course consistent with this principle would have been to delete the records in the registry gradually, rather than in one fell swoop, or even better, to send them to the provinces.

These errors of law should be corrected by the Supreme Court. Permission to appeal will be sought by Quebec, and the country’s highest court ought to grant it in order to rectify the flaws in the reasoning of the appeal court.

My previous posts on the case (in reverse order) are collected below:

 

http://administrativelawmatters.blogspot.ca/2013/03/some-thoughts-on-oral-argument-long-gun.html

http://administrativelawmatters.blogspot.ca/2013/03/more-on-unconstitutionality-of.html

 

http://administrativelawmatters.blogspot.ca/2012/09/data-destruction-and-public-law-part-ii.html

 

http://administrativelawmatters.blogspot.ca/2012/09/data-destruction-and-public-law-part-i.html

http://administrativelawmatters.blogspot.ca/2012/05/why-abolishing-long-gun-registry-is.html

Administrative Interpretations of Judicial Decisions: Deference?

There is an interesting exchange of footnotes between the majority and dissenting opinions of the Supreme Court of the United States in Vance v. Ball State University (2013), 570 U.S. _____. At issue was the scope of Title VII of the Civil Rights Act. Previously, the Court had held that vicarious liability attaches to an employer for workplace harassment committed by a "supervisor". But what did "supervisor" mean?

Standard of Review: Plus Ça Change?

In my recently published article, "The Unfortunate Triumph of Form over Substance in Canadian Administrative Law", I argued that Dunsmuir did not make administrative law any simpler.

It is always gratifying to be proved right, so it is with (gloating!) pleasure that I note the decision in Manitoba v. Russell Inns Ltd. et al., 2013 MBCA 46. As Beard J.A. noted, determining the appropriate standard of review is no easy task. Assigning a decision to one of the post-Dunsmuir categories is not self-evident. As she put it:

38               There is a significant amount of academic commentary accumulating that questions whether this revised procedure has simplified the determination of standards of review or merely substituted one complex system for another.