David Miranda and the Constraints of the "Prescribed by Law" Requirement: Miranda v. Home Secretary, [2014] EWHC 255

Laws L.J. delivered the judgment of the Divisional Court yesterday in Miranda v. Home Secretary, [2014] EWHC 255, a judgment explained by Rosalind English and Carl Gardner, and aspects of which have also been discussed by Fiona de Londras and Colin Murray. Miranda, en route to Berlin to share confidential information with a journalist, was detained in Heathrow Airport under Schedule 7 of the Terrorism Act because officers wanted to question and search him. He challenged the legality of the detention, raising unsuccessful arguments based on freedom of expression and use of power for an improper purpose.

In the course of his judgment Laws L.J. threw a couple of digs, one at the UK Supreme Court and one at the European Court of Human Rights. Mark Elliott adjudges the dig aimed at London to have hit its mark, but in my view Laws L.J. at best grazed the cheek of Strasbourg.

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.

Section 1 of the Charter: A (Con)Way Out of the Morass?

Section 1 of the Charter of Rights and Freedoms provides that any infringement of a Charter right must be "prescribed by law", a requirement that must be satisfied by the government before an application of the proportionality test. The jurisprudence on section 1 is very messy and has been criticized. Indeed, the Supreme Court of Canada mentioned this criticism in its decision in Doré v. Barreau du Québec, 2012 SCC 12. It even relied on the criticism to justify overruling its previous decision in Multani (see my earlier post here). The funny thing is that the basic problem is not solved by Doré. I am going to suggest, however, that the Court's earlier decision in R. v. Conway, 2010 SCC 22 might point a way out of the morass.