Regulation and the Common Law

On May 10 next, we at U de M are hosting what we hope will be the first in a series of conferences on key concepts of the common law.

To kick off, the conference on May 10, 2013 is Regulation and the Common Law.

Our keynote speaker will be Gillian Metzger, the Stanley H. Fuld Professor of Law at Columbia Law School. The other speakers are identified on the poster for the event and you can find details of the programme here.

Here is the abstract for the conference:

Regulation is pervasive in modern liberal democracies. From dawn to dusk, regulation touches all aspects of the lives of citizens.

Construction of the framework of regulation in common law systems begins at the constitutional level. Different visions of the permissible reach of state regulation have recently been offered by the Supreme Courts of the United States and Canada. In previous decisions, common law courts there and elsewhere have sought to shape the common law in light of constitutional – and, increasingly, international – norms and values, thereby undermining any rigid distinction between public and private in the common law tradition. Attention to public law is thus necessary to understand the relationship between regulation and the common law.

Exploring the common law’s own character is also necessary. A flexible and supple common law can, in principle, respond to new demands for regulatory intervention, though perhaps in a slow and incremental fashion. One may push further and ask whether the regulatory imperatives of modern liberal democracies have changed the common law itself, perhaps by injecting urgency into its genetic make‐up. The common law’s underlying values may be subject to change too. Where laissez‐faire may once have been the dominant organizing principle in the common law tradition, its centrality seems less assured in an era of pervasive regulation.

To focus too closely on the principles, standards and rules of the common law, however, would be to lose sight of the ever‐growing importance of statutes and delegated legislation in modern liberal democracies. Once shunned by courts anxious to guard their prerogatives, parliamentary and executive legislation is now unavoidable. From a tradition in which, if anything, the common law shaped judicial treatment of statutes, it might be said that, now, statutory intervention has come to shape the substance of the common law and the mindset of its practitioners.

We will examine regulation in the context of the common law and the common law in the context of regulation by reference to three broad, overarching themes:

1. Regulation and its framework
2. Regulation and the public/private divide
3. Regulation and the substantive common law

Attendance is free, with lunch included. Contact me at paul dot daly at umontreal dot ca if you want to register.

Some Thoughts on Oral Argument in the Long-Gun Registry Appeal

The hearing of the federal government's appeal of the decision granting Québec an injunction to prevent the destruction of long-gun registry data and ordering the federal government to return data relating to Québec to the province finished up this morning.

Delegating Investigative Functions

A well-known rule of administrative law is delegatus non potest delegare: the beneficiary of a statutory power cannot delegate its exercise. This is only a rule of construction, though, and is subject to the famous Carltona exception, pursuant to which civil servants can act in the name of a minister named in a statute.

Irrebutable Presumptions and Fair Procedures

In Ireland last week, the High Court rendered a landmark judgment on surrogacy: M.R. v. An t-Ard Cláraitheoir, [2013] IEHC 91.

Here, the registrar of births had refused to register a biological (or genetic) parent as the mother of her twins. Instead, the state agency insisted that the surrogate (or gestational) mother should be registered. This even though the surrogate mother did not oppose the application by the biological mother.

More on the Unconstitutionality of the Destruction of Gun Data

Next week, the Quebec Court of Appeal will hear argument in the Gun Registry Destruction case: Québec (Procureur général) c. Canada (Procureur général), 2012 QCCS 4202 (unofficial English translation of the first-instance decision).

I have previously explained why the attempted destruction of the data by the federal government is unconstitutional (see my posts here, here and here). Having read the written submissions of both parties to the Court of Appeal, I have some further thoughts.

Pastagate: Enforcement Discretion

Language is the third rail of Canadian politics, so it is with some trepidation that I wander out onto the tracks to muse on enforcement discretion in the wake of recent controversy about the Charter of the French Language and the Office québécois de la langue française.

Henry VIII Down Under

There are limits to what courts can do to thwart legislative enactments of Henry VIII clauses, which grant powers to the executive to modify legislation. Typically, Henry VIII clauses are included in legislation for limited periods of time, to facilitate the implementation of the statutory provisions.

Much of what governs modern life is not produced by legislators in the form of laws, but by the executive branch in the form of regulations, statutory instruments (and much more besides). Some oversight is exercised by the legislative branch, but the deluge of delegated legislation is such as to overwhelm the parliamentary committees responsible for monitoring it. Henry VIII clauses are especially problematic, because they can be used by the executive to defeat the intention of the legislature. Their purposes may be innocuous, but their use might not always be.