Wednesday, 18 September 2013

Formalism and Deference: a Striking Contrast

I have posted previously about the Irish courts' preference for a narrow approach to judicial review of administrative action. Another recent example is Walsh v. Revington, [2013] IEHC 408. This time, the judgment is useful as a means of throwing into contrast formal and deferential approaches to judicial review. A Canadian court, I suspect, would have come to a different conclusion.

The facts are interesting. An off-duty police officer attended a three-day music festival. Due to a drug-related death the previous day, security was heightened. Searches were conducted by the police. The off-duty police officer allegedly claimed that he was a police officer, resisted a search and used abusive language. These allegations led to an internal investigation.

A series of procedural comings and goings occurred before a Board of Inquiry found the police officer guilty of two breaches of discipline and not guilty of another. Dismissal was recommended in respect of each of the two breaches.

The next step, which was at the core of the case on judicial review, was an appeal to an Appeal Board. The Board affirmed one of the findings but reversed the other. The recommendation of dismissal was retained.

The Board's jurisdiction was set out as follows in delegated legislation:
      “(a) affirm the determination and either –

        (i) affirm the decision of the Commissioner in relation to the disciplinary action to be taken or recommended, or(ii) substitute another disciplinary action of a less serious nature;

      (b) quash the determination and the Commissioner’s decision;(c) if –

        (i) it decides that the member concerned has not committed the breach of discipline alleged but has committed another less serious breach of discipline,(ii) if it is satisfied that such a decision would not be unfair to the member concerned having regard to the fact that the other breach is not the breach alleged, quash the determination and decision and substitute another disciplinary action in respect of that breach, or

      (d) quash the determination and decision and decide that in the circumstances of the particular case another Board of Inquiry should be established by the Commissioner to determine whether the member committed a breach of discipline.”
The police officer argued that, on appeal, there was one single determination in respect of two separate breaches of discipline and that the Board had acted ultra vires in partially allowing the appeal but retaining the initial sanction (see para. 17).

Hogan J. quashed the Board's decision:
20. In my view, these infirmities, relating as they do to central features of the Appeal Board’s decision, are fatal to its validity. Perhaps the real problem which the very specific facts of this case have served to highlight is that the 2007 Regulations do not contemplate or otherwise make provision for the specific problem which arose in the present case, namely, where two separate breaches of discipline are contained in one single determination and where it is proposed to allow an appeal in respect of one those single breaches of discipline, whether the Appeals Board should have express power to address this issue. Be this as it may, my role is simply directly to apply the law as I currently find it.
21. On that basis, accordingly, it is plain that the decision of the Appeals Board cannot stand. For the reasons already stated, it is equally plain that the Board fell into error and acted ultra vires in these two crucial respects.
This is classical vires review. The reviewing court assesses the statutory provisions and determines whether the Board acted within the parameters set out in its constitutive statute (or, as here, statutory instrument). No deference is paid to the Board's determination that it had the authority to address the two breaches separately and treat them differently. Formalism is everything.

By contrast, a Canadian court would have had much more trouble with this case. Plainly, deference would be appropriate, because the determination (even if implicit) required an interpretation of the Board's constitutive statutory instrument. A reviewing court would have to treat seriously any argument for the Board that the four provisions should not be read disjunctively, or that paragraph (a)(ii), by permitting substitution of sanction, should be read as giving enough room to the Board to slice and dice matters as it did in the present case. And doubtless counsel would suggest that the Board's ultimate disposition was consistent with the purpose of giving it broad powers as to remedy.

Now, perhaps this would be to strain the statutory language too much. Particularly where the police officer's livelihood is at stake, a Canadian court might be persuaded by Hogan J.'s reasoning. And there is nothing at all wrong with it; the approach taken is exemplary (and the term formalism is not meant to be pejorative). However, it is exemplary of a particular approach to judicial review of administrative action, one strikingly different from that adopted in Canada.

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