Liberty, Vires and Fairness: the UKSC Decision on Workfare

The UK government has established a variety of schemes with the goal of returning welfare recipients to the workforce. Some require claimants to work in return for benefits. R. (Reilly) v. Secretary of State for Work and Pensions, [2013] UKSC 68 addresses the legality of two of these "workfare" schemes. Of particular interest, given the implications for the applicants' freedom of choice, is the interpretive approach taken by the UK Supreme Court. This, it seems to me, is long on principle, but short on practical effect.

Judicial Review and Administrative Decision-making

I am finalizing the proofs of my article (with Angela Cameron) on Charter Values and Substantive Equality (downloadable here). Some extracts might be of particular interest to readers of this blog. Here is the first of them, the section entitled "Judicial Review and Administrative Decision-making".

We traverse two linked avenues of inquiry in this paper. One allows us to explore the possibility of using judicial review doctrine to further substantive equality. The other permits an exploration of how substantive equality can be achieved through the workings of the administrative decision-making process. Our focus throughout is on the principal actors in the area of education: provincial ministers and their civil servants, school boards, principals and teachers.

Administrative lawyers have a tendency to focus on the first avenue of inquiry: the doctrines of judicial review are the focus of most teaching and scholarship on administrative law. In its preoccupation with legality, rationality and fairness,[1] judicial review is undoubtedly important. 

A British government handbook for civil servants is entitled The Judge Over Your Shoulder.[2] The title captures an important idea. When administrative decision-makers formulate policies and make decisions, theirs is not the only presence in the room. A ghostly shadow is cast on their deliberations by the spectre of subsequent review in the courts. With the ex post check of judicial oversight ever possible, administrative decision-making must conform to legal norms. Many individual decisions will be taken with these norms in mind.[3] 

Over time, assuming appropriate oversight mechanisms, institutional culture must move towards conformity with legal norms. Conformity cannot be taken for granted, however. It may be slow in coming and there may be areas of decision-making which are never exposed to the judicial microscope. Nevertheless, in the absence of compelling evidence to the contrary, logic and data suggest that judicial oversight must have some effect on administrative decision-making.[4] 

If nothing else, the norms embodied in judicial review doctrine provide benchmarks against which administrative actors can measure their performance. They have a reflexive quality.

 

Judicial review has a function, too, beyond the regulation of interactions between individuals and administrative decision-makers. Judges are public officials and the norms they develop and apply have a public quality. Judicially imposed norms must closely track social values. This is not to say that judges must respond slavishly to every twist and turn in public opinion. Rather, the past and present of social values, read large, provide a framework in which legal norms can be articulated.[5] For these reasons, judicial review is rightly a focus of attention. 

It ought not, however, to be the sole focus of attention. Decisions and the decision-making processes that produce them will always be individuals’ first points of contact with administrative law. Often, they will be the last. Lack of resources may preclude an individual from seeking judicial review, and judicial doctrines of justiciability may preclude judges from entertaining the merits of individual cases.[6] Placing too much emphasis on judicial review in the education context blithely presupposes that courts can consistently conduct necessary oversight. Yet it is more likely that judicial control will be exercised in fits and starts, if at all in the case of lower-level decision-makers. 

Moreover, when judicial review does take place, it does so at one remove from the decision-making process. The intimacy of the relationship between individual and administrative decision-maker has no equivalent in the judicial forum, a point of evident importance in the context of the relationship between vulnerable children and adolescents and those in positions of authority.[7] 

Where relationships are informed by power imbalances, the consequences of failing to respect the dignity interests of one of the parties can be devastating. Extra burdens are placed on decision-makers, moral burdens which weigh whether or not there is judicial or administrative oversight of their actions.

In addition, administrative policies may shape the exercise of discretion and the development of the individual/decision-maker relationship. This is hardly problematic: administrative policies serve important functions of efficiency and certainty.[8] But when “soft law” is framed and applied,[9] other considerations should be borne in mind. If exercises of discretion and decision-making procedures are shaped by soft law, it will affect individuals and ought to be designed, then, in the knowledge that soft law serves individuals and values other than simply efficiency and certainty. A focus on soft law is especially appropriate in the education context, where instruments other than binding legal rules significantly shape the decision-making environment: curricula, policy directives and school board policies, to name but a few, are of critical importance. 

Finally, articulation of the values of administrative actors is of great importance.[10] Concerns of an institutional and human nature attend exercises of discretionary authority. Decision-makers do not act in an institutional or moral vacuum; they live and act by reference to “civil servants’ values”.[11] As creatures of their environments, they can be expected to uphold institutional norms. Administrative actors exercising discretionary authority “build up sets of principles to guide them in the exercise of what is on paper an entirely unfettered discretion”.[12] 

In a similar vein, Dickson J. (as he then was) noted that knowledge, fairness and integrity are important characteristics of those charged with administering and implementing policy.[13] As humans, they can also be expected to uphold moral norms. As living, breathing creatures capable of reflection, we should also expect administrative actors to act compassionately, in a way responsive to the individuals they serve.[14] Fairness in judicial review and policy guidelines is important, but fairness at the heart of administration is vital.

Values, too, influence the exercise of discretion. Sometimes those values are immanent in the statute; they can form part of the “perspective within which a statute is intended to operate”.[15] An example is Baker v. Canada (Minister for Citizenship and Immigration).[16] Here, an immigration officer’s decision denying an application for an exemption on humanitarian and compassionate grounds was quashed, for the reasons he presented indicated that his decision was “inconsistent with the values underlying the grant of discretion”.[17] As he was bound to “act in a humanitarian and compassionate manner”,[18] his failure to do so vitiated the decision. 

Charter values also permeate perspective. Indeed, administrative actors must act consistently with those values.[19] Such is the importance of this edict that even where legislation precludes consideration of Charter guarantees per se, administrative actors must still take Charter values into account.[20] 

And what are these values, to which all administrative actors — including ministers, civil servants, school boards, principals and teachers — must have reference? Referring to section 1 of the Charter, Dickson C.J.C. gave a helpful précis:

The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.[21]

To invite reliance on Charter values is not to invite opacity. Still less is it an invitation to palm tree justice. Reasoned decision-making need not be sacrificed on the altar of Charter values. Decision-makers should be guided by fairness, as we argue, but also by the edict that reasons for decisions should “allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes”.[22] 

The Federal Court of Appeal has recently put the point very well, addressing a related concern about an administrative tribunal’s inability to precisely quantify factors it was required to take into account in reaching a decision:

When precise quantification is not reasonably possible for a given element, a rough estimate is to be preferred to a subjective judgement call. When neither a precise quantification nor a rough estimate is reasonably possible for a given element, then of course there will be a certain degree of discretion in attributing weight to any remaining qualitative [elements], but this discretion must be curtailed and limited by the principles of reasonableness. In other words, any weight given to the remaining unquantifiable qualitative effects must be reasonable, i.e., it must be supported by the evidence, and the reasoning behind the Tribunal’s weighting must be clearly articulated or otherwise discernable.[23]

Charter values are very important, but their importance does not legitimate departures from appropriately rigorous decision-making.

---

[1]       Canada (Attorney General) v. TeleZone Inc, [2010] S.C.J. No. 62, [2010] 3 S.C.R. 585, at para. 24 (S.C.C.).

[2]       The Judge Over Your Shoulder, 4th ed. (London: Treasury Solicitor’s Department, 2006).

[3]       Given the diffuse nature of administrative decision-making and its oversight, it would be too strong to state that all decisions will be taken with these norms in mind. See, e.g., Laura Pottie & Lorne Sossin, “Demystifying the Boundaries of Public Law: Policy, Discretion and Social Welfare” (2005) 38 U.B.C. L. Rev. 147.

[4]       Lorne Sossin, “The Politics of Soft Law: How Judicial Decisions Influence Bureaucratic Discretion in Canada” in Marc Hertogh & Simon Halliday, eds., Judicial Review and Bureaucratic Impact: International and Interdisciplinary Perspectives (Cambridge: Cambridge University Press, 2004) 129, at 158. Sossin cautions, however, that judicial review’s effect may be felt in different ways in different settings.

[5]       Jack Balkin, Living Originalism (Cambridge, MA: Harvard University Press, 2011).

[6]       See, e.g., Robert Summers, “Justiciability” (1963) 26:5 Mod. L. Rev. 530.

[7]       See generally Geneviève Cartier, “Administrative Discretion and the Spirit of Legality: From Theory to Practice” (2009) 24 C.J.L.S. 313. But see Evan Fox-Decent, Sovereignty’s Promise: The State as Fiduciary (Oxford: Oxford University Press, 2011).

[8]       Nabors Canada Ltd. v. Alberta (Appeals Commission for Alberta Workers’ Compensation), [2010] A.J. No. 1097, 324 D.L.R. (4th) 747, at para. 18 (Alta. C.A.).

[9]       Lorne Sossin has provided a helpful definition of “soft law” as encompassing “non-legislative instruments such as policy guidelines, technical manuals, rules, codes, operational memoranda, training materials, interpretive bulletins, or, more informally, through oral directive or simply as a matter of ingrained administrative culture” (“Discretion Unbound: Reconciling the Charter and Soft Law” (2002) 45 Can. Pub. Admin. 465, at 466-67).

[10]     See generally D.J. Galligan, Discretionary Powers: A Legal Study of Official Discretion (Oxford: Clarendon Press, 1986).

[11]     John Willis, “The McRuer Report: Lawyers’ Values and Civil Servants’ Values” (1968) 18:4 U.T.L.J. 351.

[12]     John Willis, “Foreword” in John Willis, ed., Canadian Boards at Work (Toronto: MacMillan, 1941), at 71.

[13]     Fraser v. Canada (Public Service Staff Relations Board), [1985] S.C.J. No. 71, [1985] 2 S.C.R. 455, at 470 (S.C.C.).

[14]     See, e.g., Lorne Sossin, “Public Fiduciary Obligations, Political Trusts, and the Equitable Duty of Reasonableness in Administrative Law” (2003) 66 Sask. L. Rev. 129.

[15]     Roncarelli v. Duplessis, [1959] S.C.J. No. 1, [1959] S.C.R. 121, at 140 (S.C.C.). See, e.g., Chamberlain, supra, note 28, at para. 71.

[16]     [1999] S.C.J. No. 39, [1999] 2 S.C.R. 817 (S.C.C.) [hereinafter “Baker”].

[17]     Id., at para. 65, per L’Heureux-Dubé J.

[18]     Id., at para. 66, per L’Heureux-Dubé J.

[19]     Doré, supra, note 3, at para. 24, per Abella J.

[20]     United Food and Commercial Workers, Local 401 v. Alberta (Attorney General), [2012] A.J. No. 427, 522 A.R. 197, at para. 42 (Alta. C.A.).

[21]     R. v. Oakes, [1986] S.C.J. No. 7, [1986] 1 S.C.R. 103, at para. 64 (S.C.C.) [hereinafter “Oakes”].

[22]     Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), [2011] S.C.J. No. 62, [2011] 3 S.C.R. 708, at para. 16 (S.C.C.).

[23]     Tervita Corp. v. Commissioner of Competition, [2013] F.C.J. No. 557, 446 N.R. 261, at para. 148 (F.C.A.).

Questions of General Law of Central Importance to the Legal System: Some Recent Decisions

One category of questions reserved to Canadian courts, rather than administrative decision-makers, is questions of general law of central importance to the legal system. The underlying idea is that there are some questions to which a uniform answer should be given, in the interests of the administration of justice.

Good Record Management Again: the Lori Douglas Affair

There is another interesting Federal Court case which followed hot on the heels of the Slansky case I posted about here:  Douglas v. Canadian Judicial Council. The theme is similar: what sort of material can a decision-maker be compelled to produce?

More on section 6 of the Supreme Court Act: Legislative History and Purpose

I have posted already on the controversy surrounding the nomination of Nadon J.A., a judge of the Federal Court of Appeal, to the Supreme Court of Canada. The question is whether he meets the criteria imposed by ss. 5 and 6 of the Supreme Court Act. Some have been dismissive of the case mounted by Toronto lawyer Rocco Galati, but the argument that Nadon J.A. runs afoul of ss. 5 and 6 is being taken seriously in Québec and seems (to me at least) to be plausible. It is all the more so in light of the legislative history I have consulted and which I will describe in this post.

Terms and Conditions May Apply: Tribunal Independence

There are two important Canadian doctrines which affect the structure of administrative tribunals: impartiality and independence. Impartiality arises where a well-informed observer would have a reasonable apprehension of bias in a substantial number of cases. Independence, meanwhile, concerns the insulation of tribunal members from outside influence, something to be judged by reference to security of tenure and remuneration and security from external interference.

As has been said:

Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word “impartial” . . . connotes absence of bias, actual or perceived. The word “independent” in s. 11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees.

However, the practical effect of these principles is somewhat limited. They are common law principles, rather than constitutional requirements. Accordingly, statutory authorization can justify breaches of either and, in the case of independence, the Supreme Court of Canada has even suggested that legislative requirements express the desirable level of independence, leaving nothing over for the common law of judicial review.

In Quebec, however, s. 23 of the quasi-constitutional Québec Charter assures the vitality of the concepts. Association des juges administratifs de la Commission des lésions professionnelles c. Québec (Procureur général), 2013 QCCA 1690, was a case brought by members of the province's workers' compensation tribunal, a case they won in part.

The basic argument was that the members of this quasi-judicial tribunal (the CLP) should be entitled to the same conditions as members of the Tribunal administratif du Québec, the province's general appeals tribunal, in order to maintain the appearance of impartiality. In particular, members of the CLP are appointed for renewable five-year terms (rather than indefinitely subject to good behaviour) and their remuneration is not fixed by an independent committee (as is now the case with Crown prosecutors in the province). In addition, a government decree had, the members alleged, interfered with their financial security.

Although these arguments mostly carried the day at first instance, they did not impress Bich J.A., who wrote for the Court. She emphasized that institutional impartiality and independence are flexible and should vary depending on context:

[27]        Les garanties conférées en cette matière aux tribunaux administratifs, et qui trouvent leur source dans les règles de la justice naturelle, peuvent donc varier et elles varieront en fonction de la nature précise du pouvoir décisionnel et des modalités d'exercice de ce pouvoir, le tout sous réserve des termes de la loi. Dans cet ordre fluctuant, le tribunal administratif qui exerce des fonctions purement juridictionnelles – et la Cour suprême, là encore, l'a confirmé – doit offrir le niveau de garantie le plus élevé, niveau qui n'a cependant pas, je me permets de le répéter, à être celui des cours supérieures ni même celui des autres cours de justice.

...

[40]        C'est ainsi que, bien qu'elles soient dans tous les cas essentielles, l'inamovibilité, la sécurité financière et l'autonomie administrative ne sont pas toutes atteintes par l'octroi des mêmes garanties exactement. Comme on le sait, les garanties accordées aux tribunaux administratifs n'ont pas à être celles des cours supérieures ni celles des autres cours de justice et varieront selon la nature et le contexte de leurs fonctions, selon la question de savoir s'ils statuent sur les droits de l'État ou les décisions de celui-ci ou sur des litiges privés, etc. La situation de chaque tribunal doit être évaluée à la lumière de la réaction du justiciable raisonnable et bien informé, qui étudierait la question en profondeur, mais de manière réaliste. Ce justiciable, ayant examiné les conditions de la nomination des décideurs, les garanties associées à leur sécurité financière et la question de leur autonomie administrative, craindrait-il que le tribunal soit ou paraisse à la solde de l'État, d'une partie, d'un groupe de pression, d'un tiers à la décision ou qu'il soit vulnérable à la corruption tant financière que morale et rende des décisions qui ne soient pas fondées que sur le droit et les faits du litige? Cet exercice, précisons-le, implique à la fois un examen des conditions individuelles de l'indépendance, mais aussi un exercice de soupèsement global : c'est l'ensemble des garanties offertes que l'on doit étudier, pour en tirer une conclusion générale.

In the case of quasi-judicial tribunals such as the CLP, the requirements are at their highest. Whether the requirements have been met is to be judged from the standpoint of the well-informed, reasonable observer who takes into account the criteria for appointment, financial security and level of protection from outside interference. The question, based on these considerations, is whether the observer would fear that the decision-maker is a stooge for governmental or private interests or unlikely due to outside pressures to take decisions based on the facts of individual cases.

The CLP members had sufficient security of tenure. Their five-year appointments are terminable only for cause and decisions not to renew a member's mandate are subject to a rigorous process. More interesting was the proposition that subjecting the CLP members to annual performance evaluations which could be taken into account in deciding not to renew their mandates undermined security of tenure. Bich J.A. was unimpressed:

[64]        Comme je l'ai déjà observé, l'idée de mandats à durée fixe (ou déterminée) ne va pas sans celle de renouvellement desdits mandats. Or, il va de soi qu'on ne peut pas faire du processus de renouvellement un mécanisme purement arbitraire, dépendant du seul bon vouloir des membres du comité; on ne peut pas non plus en faire un processus automatique n'obéissant à aucun critère qualitatif, sans quoi, ce serait l'équivalent d'une nomination durant bonne conduite, que le législateur, ici, n'a pas voulue et qui n'est pas requise. Que les membres du comité de renouvellement, désormais indépendants de l'administration publique (comme on l'a vu), puissent considérer les évaluations de rendement faites par le président de l'organisme (qui, lui, n'est pas membre du comité) paraît tout à fait normal dans ce contexte. Il n'est pas utile d'insister sur le fait que la compétence, tout autant que l'indépendance, est une condition sine qua non d'une saine administration de la justice, y compris la justice administrative. L'on ne peut pas raisonnablement se formaliser d'un processus de renouvellement qui tient compte de cette dimension de la fonction juridictionnelle. La Cour a déjà exprimé ce point de vue dans l'affaire Barreau de Montréal, lorsqu'elle conclut que, si l'évaluation du rendement de chaque commissaire ne peut être utilisée aux fins de fixer sa rémunération, elle peut néanmoins « être considérée par le comité indépendant chargé d'en recommander le renouvellement ».

The situation would be different, she noted, if an evaluation were used in bad faith, as a Sword of Damocles hanging over the head of a decision-maker (at para. 65), but no such incident had been reported.

In addition, the legislative choice to vest members of the Tribunal administratif du Québec with indefinite tenure during good behaviour did not suggest that fixed, renewable mandates violated s. 23 of the Québec Charter. Given the flexibility of the principles of institutional impartiality and independence, the legislature was entitled to apply a slightly higher standard to the TAQ than to the CLP.

The CLP members also had sufficient financial security. Here, the complaint was three-fold. First, while CLP members are paid on a salary scale determined in advance, a member's position on the scale may vary. Bich J.A. held that, on its own, this initial disparity (which eventually is corrected) does not undermine members' financial security. Second, the government had, in the midst of the 2008 financial crisis, adopted a decree which had the effect of reducing the salaries of some members and of slowing other members' progression up the salary scale.

Bich J.A. held that this general measure, applicable across the public service and not intended to single out members of the CLP, did not undermine the financial security of members of the CLP:

[105]     En l'espèce, la preuve ne révèle aucunement que le Décret 370-2010 a été imposé dans un but malhonnête ou spécieux ou que l'exécutif entendait cibler par là les commissaires de la CLP (ou d'autres tribunaux administratifs) ou de réduire leurs revenus à un niveau indéfendable ou d'établir entre eux des distinctions injustifiables ou d'influencer leurs décisions. Au contraire, ce décret répond à des impératifs économiques et budgétaires importants, il s'insère dans une politique générale d'austérité applicable à tous ceux dont la rémunération dépend des fonds publics et a par ailleurs un caractère temporaire.

[106]     Il n'y a donc pas lieu de conclure que le Décret 370-2010 attente à la sécurité financière des commissaires et à l'indépendance que requiert l'article 23 de la Charte québécoise, pas plus qu'il n'y a lieu de conclure que ce décret équivaut à une intrusion arbitraire de l'exécutif dans la sphère protégée de l'indépendance juridictionnelle.

The decree was, however, inapplicable to members of the CLP because it was inconsistent with s. 404 of the Loi sur les accidents du travail et les maladies professionelles. A minor victory for the members of the CLP.

Third, it was not necessary to provide for an independent committee to determine the remuneration of the CLP members (as had been done for Crown prosecutors in the province). Again, Bich J.A. emphasized, the principles of institutional impartiality and independence are flexible and do not require uniform solutions to problems that cut across different decision-making bodies.

And finally, the CLP has adequate protection from outside influence. The claim here was that the requirement to produce budgetary submissions and an annual report detailing its work could undermine its independence. But the absence of financial autonomy was not dispositive, according to Bich J.A., especially in the absence of any proof of interference:

[148]     Bref, en l'absence d'intervention ministérielle (de fait ou de droit) dans la « gestion juridictionnelle » de la CLP, je ne crois pas que tous « ces points de contact », pour reprendre l'expression du juge Gonthier, entre ce tribunal et l'exécutif nuisent de quelque façon à son indépendance. On notera que même les cours de justice québécoises (y compris la Cour supérieure) n'ont pas une autonomie budgétaire ou administrative parfaite[109] et que les contraintes qui leur sont imposées peuvent avoir un effet sur leur gestion juridictionnelle, dont elles demeurent maîtres cependant. Il n'en va pas différemment de la CLP.

An interesting review, then, of the principles of institutional impartiality and independence. Yet again, however, arguments based on these principles ultimately did not carry the day.

Eligibility to sit on the Supreme Court of Canada

Mr. Justice Nadon, a member of the Federal Court of Appeal, was named -- and indeed has been sworn in -- as a judge of the Supreme Court of Canada. But a challenge has been launched to his appointment. And until the challenge is resolved, Justice Nadon will not sit as a member of the Supreme Court. The applicant in the case is a Toronto lawyer, Rocco Galati. You can read his Notice of Application to the Federal Court here (via Trevor Guy).

Will the challenge succeed? I think the ultimate question here is a close one. There is a good argument that Federal Court of Appeal judges are not eligible for appointment to the three seats reserved for judges from the province of Quebec.

OBA Annual Update on Judicial Review

In Toronto on Thursday, October 24, I am speaking with Justice Stratas of the Federal Court of Appeal on developments in administrative law.

We will be poking at the entrails of recent Supreme Court of Canada decisions and trying to discern what the future holds.

Discussion will be informal and frank.

I am very much looking forward to it and hope to see you there!

Expertise and the Copyright Board

I spent yesterday afternoon at an excellent conference in Ottawa on the Copyright Pentalogy. I was among the contributors from the collection on the pentalogy edited by Michael Geist who gave presentations. I was also the only non-copyright lawyer who spoke. Regular readers will not be surprised that I urged deference from the courts to the Copyright Board.

This provoked an excited reaction from other presenters and attendees, much of it in the corridors and during the coffee breaks! The vast majority of experts in copyright law do not think much of the Copyright Board's "expertise". They applaud the Supreme Court of Canada's decision to take the reins of copyright law, suspecting that beneath the technical justifications for refusing to defer lies an appropriate disdain for the Copyright Board.

The running theme of the criticism was that members of the Copyright Board are not nominated at all for their expertise -- legal or otherwise -- and have not spent time working in areas which would allow them to develop in-depth knowledge of intellectual property issues.

Another important point -- in fairness to the Copyright Board -- is that it is difficult to persuade people to take on what is seen as a thankless task. The highly technical proceedings before the Copyright Board are quite a few steps removed from the glamour of the Emmys.

Am I shaken from my pro-deference position by these concerns? Not really (yet...).

The first answer to the criticism is that the problem is essentially a political and cultural one. If the government nominated people with greater expertise in copyright law, then the Board would be better off. If people with expertise in copyright law put themselves forward for consideration, then the Board would be better off. But these are political and cultural problems, which should be resolved by the political branches and members of civil society.

The second answer to the criticism is that we should not be too quick to assume that lawyers have some sort of magical prowess when it comes to questions of copyright policy. Over the centuries, legal experts have built up a superstructure of impressive-sounding legal principles and precepts. It must be dreadful to see these mangled by non-lawyers!

But at base, many of the questions that come before the Copyright Board are essentially questions of fact and policy which do not require legal knowledge as much as they require practical wisdom.

Doubtless the Copyright Board often explains decisions based on practical wisdom in terms that fit uneasily (or not at all!) with the body of copyright law built up over the years. But as the Supreme Court of Canada has wisely taught, reviewing courts should not engage in a "line-by-line treasure hunt for error". If a conclusion falls within the range of reasonable outcomes, it should not be disturbed solely because some of the decision-maker's reasoning was suspect.

Unsurprisingly, these "first, kill all the lawyers" responses didn't go over very well yesterday! I wonder what those from other fields think.

Referendum-itis

Apologies for this break from our usual fare, but my essay from last year on the referendum process in Ireland is no longer available on the Human Rights in Ireland blog. As we wait for the results of yesterday's referendum, I cannot resist reposting my mischievous polemic. The low turnout and poor understanding of the issues relating to abolition of the Senate and insertion of a Court of Appeal support a lot of what I had to say!

The Irish body politic suffers from referendumitis, a terrible disease that weakens those it purports to empower. My contribution to the shadow constitutional convention is to offer, in the form of a polemic, a tentative diagnosis and a tentative cure.

As to diagnosis, referendumitis courses through Irish political life, weakening both the Dáil and the people themselves. Some recent examples demonstrate that the country is worse off for its tendency to decide contentious issues by plebiscite: the referendums on European treaties, investigative powers of the Oireachtas, and judges’ pay.

As to cure, the power to initiate referendums should be removed entirely from the Dáil’s arsenal. Instead, only popular referendums should be put to the people, once 500,000 signatures have been affixed to a petition.

No doubt my medicine will be difficult to swallow, for the host is racked by the referendumitis malady. But allowing the solution to run its course will restore Ireland to health.

The Power of Amendment

Article 46.1 of the Bunreacht provides for amendment, “whether by way of variation, addition, or repeal”. Doubts have been raised by commentators as to the lawfulness of amendments which violate fundamental rights or contradict other constitutional provisions, but the courts have steadfastly read Article 46 broadly.

Barrington J., in Finn v. Minister for the Environment, was forthright:

           

[T]he people intended to give themselves full power to amend any provision of the Constitution and…this power includes a power to clarify or make more explicit anything already in the Constitution.

Subsequently, in In re Article 26 and the Regulation of Information (Services outside the State for Termination of Pregnancies) Bill, 1995, the Supreme Court rejected the suggestion that amendments to the Constitution in violation of natural law could be void and of not effect:

The People were entitled to amend the Constitution in accordance with the provisions of Article 46 of the Constitution and the Constitution as so amended by the Fourteenth Amendment is the fundamental and supreme law of the State representing as it does the will of the People.

Such stirring references to the power of the People – note the capitalization – can only thrill the blood. In substance, the people do indeed have a broad power of amendment. But the capitalization of the word “People” is jarring. Even in the Bunreacht the word is not capitalized. Barrington J. saw no need to aggrandize the citizenry in this way. Did the Supreme Court protest too much? Are the people really people with a capital “P”?

It turns out that an important formal barrier to the exercise of the power of amendment is mounted by Article 46.2:

Every proposal for an amendment of this Constitution shall be initiated in Dáil Éireann as a Bill, and shall upon having been passed or deemed to have been passed by both Houses of the Oireachtas, be submitted by Referendum to the decision of the people in accordance with the law for the time being in force relating to the Referendum.

Whatever power the people have, it can only be exercised when their hands are held by their elected representatives. Rhetorically, the People are captains of their fate. In reality, the people are vassals of their own elected representatives, allowed to make decisions only when they are asked to do so. Given that merely the passage of a Bill is required to pose a question to the people, referendums give politicians an easy way out.

The Powerlessness of Politicians

The ready availability of referendums has enfeebled the elected representatives, who are either unable to push back against wrong-headed judicial decisions or unduly afraid of being on the receiving end of the judicial lash. Consider three examples (best read in tandem with Conor O’Mahony’s previous contribution).  

The most egregious is the supine response to the Supreme Court’s decision in the Crotty case. There, a razor-thin majority of the Supreme Court held that the Single European Act fettered the power of the executive to make foreign policy. Ratifying it would thus amount to “clear disregard” of the provisions of the Bunreacht. Rather than pushing back, politicians bent the knee. All subsequent European treaties have been submitted to the People in referendums, even in cases where the treaties could safely be described as exercises in supranational housekeeping. A nadir was reached with the fiscal treaty amendment, where the treaty at issue was not even an EU treaty, and where no provisions of the amendment actually contradicted an existing judicial decision or term of the Bunreacht! At best, the referendum has a prophylactic effect, protecting against binding decisions far off in the future.

In a healthier jurisdiction, politicians would have pondered the implications of holding referendums on European treaties as a matter of course. They might have asked themselves whether complex questions of pan-European governance could really be reduced to a simple up or down vote. Such reflection ought to have been particularly acute on occasions when questions were reduced to a simple up or down vote for a second time, the required answer having not been furnished at the first time of asking.

They might then have asked whether the Supreme Court was actually right in Crotty. They might have turned to the text of the decision and wondered whether the conception of sovereignty articulated therein was one which should continue to bind the organs of state in the 21^st century; whether continued acquiescence by voters to pro-European parties and pro-European constitutional amendments gives the state more leeway in negotiating treaties; and, most of all, whether the reasoning of Crotty applied to every single treaty negotiated at the European level. Perhaps, they might have wondered, having read it closely, whether the logic of Crotty ought to be considered afresh.

A strong, healthy body of elected representatives would have taken account of these potential frailties in the reasoning of the majority of the Supreme Court and pushed back against the Crotty decision. Instead, they chose the easier route: ask the people, those with the ultimate power to bind the state.

Perhaps even more depressing is the tale of the investigative powers of the Oireachtas, emasculated by the Supreme Court in its Abbeylara decision. More depressing because in holding that the Oireachtas did not have the inherent power to make findings of fact adverse to individuals, the Supreme Court left plenty of room for interpretation. Politicians might have pushed back by forming new committees, with the power to make recommendations, but without the power to make findings of fact against individuals. Or new committees with the power to make findings of fact against institutions, but not against individuals. Or – most of all – new committees with a mandate to conduct investigations with a view only to formulating proposals for legislative change. On any of these grounds, clever counsel for the Oireachtas could have sought to distinguish Abbeylara. 

A changing climate might also have contributed to reconsideration by the Supreme Court of the scope of Abbeylara. Attacking individual Gardaí, only one step removed from most ordinary civilians, who were doing their best in a situation of severe pressure is one thing. Aggressively questioning financial regulators or the Captain Edward Smiths of the financial industry is quite another. Brave politicians concerned for the health of the legislature would recognize the distinction and the space in which to push back.

Instead, an ill thought-out and poorly worded amendment was put to a referendum. Virtually no context was provided. A decade had elapsed since the Abbeylara inquiry foundered. Those events had slipped deep into the public unconscious. Pushing back earlier and aggressively would have raised public awareness. Putting a question to the people in the aftermath of an adverse judicial decision would have had the benefit of focusing minds. An intelligent public debate might even have ensued. Failure to push back led instead to a debate in which the main ‘issue’ was whether voters wanted to give the likes of Mattie McGrath more power. Reduced to these terms, the debate was one the Oireachtas could never win.

Further evidence that politicians will not take tough decisions and prefer to follow the path of least resistance comes from the judicial pay saga. When extending public sector pay cuts to judges was first mooted, there was broad public support. Academics too noted that ordinary legislation would probably suffice: general legislation with an incidental effect on judges would violate neither the letter of Article 35.5 (“The remuneration of a judge shall not be reduced during his continuance in office”) nor the spirit of judicial independence enshrined in the Bunreacht. The Attorney General concluded otherwise. His advice has not been made public, but it was hardly ill-founded: there is an argument that treating judges as members of the civil service is a violation of the Bunreacht’s separation of powers between legislature, executive and judiciary.

What is interesting is what happened next. Faced with decent arguments on both sides, the government decided to pose a question to the people rather than answer it itself. It is difficult to see how this could possibly have represented the best strategy. Opposing ordinary people and members of the judiciary was a recipe for mutual incomprehension and disaster. It would have been far better to ‘legislate and be damned’. In that case, any erstwhile judge who sought to have the measure invalidated would have had to mount a constitutional challenge. His or her chances of victory could not have been more than 50%. A calculated risk, then, for the government. Why involve voters in what was essentially a technocratic dispute between organs of state? When, as was predictable, the debate turned to whether ‘fat cat judges should pay their share’, all opportunity for intelligent discussion was lost. The standing of the judiciary was hardly enhanced by this episode.

A healthier, stronger legislature and executive might have been able to push back against some or all of these adverse judicial decisions, real and potential. Doing so would take imagination and courage, involving a commitment to public debate on wide-ranging issues. What is the nature of sovereignty in the modern world? How should legislative powers be exercised and their scope increased? Does cutting the pay of judges, along with that of other public servants, endanger the separation of powers? Avoiding deep engagement on these difficult questions, Irish politicians have instead taken the path of least resistance by reducing them to a series of Yes/No propositions. Worse, once politicians have first gone down the referendum road, it becomes progressively more difficult to turn back. Expectations of public consultation increase. Desires to push back decrease.

One bright light can be noted on the horizon. The Public Accounts Committee’s current attempt to launch a wide-ranging investigation into the circumstances of the blanket guarantee of bank debt may demonstrate that elements of the body politic have been shocked into life by the defeat of the referendum on Oireachtas powers. Only time will tell, however, whether this is merely temporary respite or the beginning of a healing process.

The Powerlessness of the People

The formal constraint on the power of amendment means that the people are trusted to vote only when they are asked to. It means they are dragged out for matters they could evidently care less about: barely a third of the population voted in the first referendum on the Nice Treaty. Moreover, the formal constraint means the people are only allowed to vote where the political elites deem it acceptable for them to do so. A referendum on children’s rights and the place of the family would be politically sensitive. As a result, the issue of the appropriateness of some of the anachronistic provisions of the Bunreacht remains in permafrost, along with those provisions themselves.

Worse, referendums on European treaties have only one answer. When the wrong one is given, the people are called back to the polling stations after a ‘period of reflection’ (during which no reflection takes place) or the extraction of ‘concessions’ (in reality, statements of the blindingly obvious). The people are free to vote Yes, when they are asked. No stronger evidence of the powerlessness of the people could be adduced.

Such powerlessness may be linked to the very nature of referendums. In their function as vassals of the Oireachtas, the people merely provide votes. No forum for discussion is provided: just a ballot box and a sheet of paper. The reduction of the people to providers of votes is facilitated by the Yes/No, up or down propositions with which they are confronted in a referendum. People are viewed as atoms, clashing together and bouncing to rest on one side or the other of an artificially imposed line.

Parliamentarians fare little better in this process. Facilitation is their role: to hear his or her master’s voice and drag as many atoms as possible to the ‘right’ side of the line.

Nowhere in this process is there room for deliberation or discussion. Yet maybe a vote on a European treaty cannot be reduced to an up or down proposition. Perhaps the role of the Oireachtas cannot be distilled into a set of investigative powers. And what of those who think that it is simply inappropriate to subject the pay and pensions of judges to a referendum?

If democracy is viewed as a deliberative and discursive process, to which people are allowed to contribute in the way they choose, be it talking, writing, phone-calling, emailing, commenting on internet message boards, marching, demonstrating, encouraging, cajoling, or whatever, the reductionist nature of Irish referendums can only be damaging to the health of the body politic.

These questions – Ireland’s relationship with Europe, the nature of the legislative function, judicial independence – are ones which require an ongoing process of engagement and contestation. No political decision or commitment is forever. And no judicial decision is forever either. Politics and law have a dynamic quality: they respond to the exigencies of their time. That dynamism can only be fed through public deliberation and discussion. It is not nourished by treating citizens as atoms and reducing important questions to simple propositions to which the citizenry parrots in unison Yea or Nay.

In a deep and meaningful sense, Irish referendums are undemocratic.

Popular Initiatives

Article 46.2 should be removed from the Constitution. There is some attraction to removing referendums altogether. Even in jurisdictions where constitutional change can (in reality) be effected only by courts and then over a process of time, popular movements, shifts in public discourse and changes in the preferences of the citizenry can work to change constitutional doctrine.

But casting referendums out might be too dramatic a cure. The body politic might not tolerate such a sudden change to its system. And even in the United States, the possibility, however remote, of effecting constitutional change through a formal process has galvanized movements on both sides of the political divide. From the left with its Equal Rights Amendment to the right’s proposed Same Sex Marriage Amendment, popular movements for constitutional change have prompted public discussion and deliberation.

What seems necessary in Ireland is for the people to be released from the shackles of their elected representations. A real power of popular initiative should be introduced. Even if the final questions on the ballot paper were to remain Yes/No propositions (although there is no rule against multiplying the available choices), the need to accumulate thousands of signatures and the process of doing so would provoke public discussion and deliberation. A high threshold of 500,000 signatures is important to ensure that the process is taken seriously and that only propositions capable of attracting support from a broad cross-section of society get on the ballot paper.

Reflection on the choices to be made about law, politics and society would be the order of the day. Referendumitis would be banished. And the people would become the People.