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

In my two earlier posts on the "third source" (here and here) I discussed the appropriate test for classifying government powers and whether they could be treated as arising from statute (as, on a generous reading, Lord Sumption suggested in R. (New London College Ltd.) v. Home Secretary, [2013] UKSC 51.

Fettering the Prerogative: Form and Substance

R. (Sandiford) v. Foreign and Commonwealth Secretary, [2013] EWCA Civ 581 is a fascinating case.  A British citizen has been accused by the Indonesian authorities of drug trafficking, an offence which carries the death penalty in that jurisdiction. She wants the British government to fund her defence. Her arguments -- which were rejected by the Court of Appeal -- are admirably summarized over at the excellent UK Human Rights Blog. The one that caught my eye relates to the prerogative.

Lord Black's Day at the Advisory Council for the Order of Canada

If honours were given for services to administrative law, Lord Black would be a strong candidate. His lawsuit against Prime Minister Jean Chrétien gave rise to an important decision on justiciability, Black v. Canada (Prime Minister), 54 OR (3d) 215. His more recent attempt to maintain his membership of the Order of Canada has prompted another decision, again dealing with the prerogative powers of the federal government, which is likely to make the next editions of Canadian administrative law textbooks: Black v. Advisory Council for the Order of Canada, 2012 FC 1234. 

I think Justice de Montigny was broadly correct in his conclusion that Lord Black did not have the right to an oral hearing before the Advisory Council, though not necessarily for the right reasons.

Can Omar Khadr Apply for Habeas Corpus?

My colleague Stéphane Beaulac raises a question that has not (it seems) had any consideration: can Omar Khadr, now back in Canada, apply for habeas corpus? Khadr can apply for a conditional release next year, but perhaps he will not have to wait that long.

Some Justiciability Hypotheticals

Blogging has been light recently: teaching, writing and administrative commitments, allied to some technical problems, have been holding me up.

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.

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.