The Thin Line between Law and Discretion

A recurring issue in the law of judicial review is the distinction between law and discretion. Where this matters the most is in substantive review: should a similar standard of reasonableness be applied to questions of law and exercises of discretion?

Paul Craig -- The Nature of Reasonableness Review

Professor Paul Craig has posted "The Nature of Reasonableness Review" on SSRN. Here is the abstract:

While there is a voluminous literature on proportionality, there is considerably less on reasonableness as a test for judicial review of discretionary determinations. This paper examines the nature of reasonableness as a test for judicial review of discretion in UK law. The paper is not predicated on the assumption that reasonableness always bears the same meaning whenever it is used in constitutional and administrative law in any legal system.

Subject to this caveat, it is argued that reasonableness as a test for judicial review of discretion in UK law is concerned with review of the weight and balance accorded by the primary decision-maker to factors that have been or can be deemed relevant in pursuit of a prima facie allowable purpose; that this is borne out through examination of the case law; that insofar as incommensurability is perceived to be a problem in the context of proportionality then this is also true in relation to reasonableness review; that the incommensurability problem is less problematic than is commonly perceived; and that a proper appreciation of reasonableness review has implications for the debate concerning reasonableness and proportionality as tests for judicial review in administrative law.

Craig's focus is on reasonableness in the context of review of exercises of discretion (rather than, for example, the unified reasonableness standard that Canadian courts (supposedly...) apply to both interpretations of law and exercises of discretion).

Craig's detailed discussion of weight, balance and incommensurability makes the paper an important contribution to understanding the nature of reasonableness review, a topic that has generally received scant attention. For those interested in reading further, I set out my preferred approach in a 2011 article and, in more detail, in chapter 4 of A Theory of Deference in Administrative Law.

Administrative Bodies Rectifying their Own Errors

We have all been there. A vital transaction needs to be made (think course registration, ticket purchase, visa payment) but, as you sit there drumming your fingers impatiently on the table, you are greeted with the message: "Our System is Currently Unavailable".

Now imagine that you wanted to access the system in order to re-register your gold holdings, assets on which you had spent $80,000 maintaining. Further imagine that, in the time you could not access the system, you forfeited your gold holdings because you missed the re-registration deadline and someone else swooped in and registered them.

This is the factual scenario of Valterra Resource Corp. v. British Columbia (Chief Gold Commissioner), 2013 BCSC 1172:

Groundhog Day: the Wiarton Willie Festival and the Scope of Municipal Conflicts of Interest Legislation

Big news in Québec at the moment is the attempt to remove the embattled mayor of Saint-Rémi. New legislation provides that elected municipal officials charged with certain criminal offences may be removed from office by a Superior Court judge. The judge has discretion in determining whether to remove the individual, which is a marked (and welcome) difference from the situation in Ontario. Regular readers will remember the Rob Ford saga.

Re-righting English Administrative Law

I have always been a bit dubious about claims that administrative law is becoming increasingly rights-based. Whether it should undergo a reorientation is a different question, of course, but it is difficult to discern a demonstrable pattern towards a markedly new approach to judicial review. Jason Varuhas makes this clear in "The Reformation of English Administrative Law: 'Rights', Rhetoric and Reality":

This article examines and responds to a doctrinal claim, made by an increasing number of commentators, that English administrative law is in the midst of a "reformation" or "reinvention", with the notion of "rights" at the heart of this radical recalibration. The article is critical of such claims on several grounds. First, these claims are steeped in ambiguity, such that the nature and doctrinal scope of the claimed metamorphosis are not clear. Second, these commentators have not undertaken the sort of detailed doctrinal analysis which is required to make credible claims about the development of the law, meaning their broad claims have a strong propensity to mislead, and pass over the nuances and complexities of doctrine. An analysis of significant features of doctrine tends to tell against a wholesale recalibration of administrative law around rights, and indicates an increasingly pluralistic rather than unitary legal order. Third, despite the centrality of the idea of "rights" to their claims, these commentators do not squarely address what they mean by "rights", in general using the term indiscriminately, and thereby plunging their claims into uncertainty. The article demonstrates the importance of conceptual clarity in analyzing "rights"-based developments through a doctrinal analysis of "rights" in administrative law, conducted through the prism of W.N. Hohfeld's analytical scheme.

A good example, explored by Varuhas, is the law on standing. If courts were more concerned with "rights", one would expect a tightening of access to judicial review. In fact, the opposite has happened. Varuhas has numerous examples; the reader can doubtless amuse herself by adding others.

Varuhas also has a good discussion of the meaning of "rights" in administrative law. Unsurprisingly, it turns out that "rights" refer to an awful lot of different things.

You can download the paper here.

 

Workers' Compensation Schemes and the Law of Tort

There are some interesting snippets in this morning's Supreme Court of Canada decision in Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44 on the nature of workers' compensation statutes and their relationship to the law of tort.

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.