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

In my previous post, I laid out the details of the New London College case and some disagreement amongst the judges of the UK Supreme Court about third source powers. In this post I address the caveat I referred to previously and the possibility that third source powers can be statutory in nature.

Mark Elliott queries whether these powers can properly be described as statutory, as Lord Sumption suggests:

This is very odd, and suggests some muddled thinking about the source—and therefore the nature—of the power being exercised. If the power in question derives from statute, then it is not clear, for example, why it should not be possible to adopt “measures which are coercive”. If the correct construction of the statute were that the adoption of such measures were lawful, then such measures would indeed be lawful. Equally, if the statute, corrected construed, were to authorize the taking of measures that infringed the legal rights of others, then the taking of such measures would be lawful.

Adopting the prevailing view in England and Wales that the "third source" lies in the nature of the Crown as a corporation sole, Mark is right to say that Lord Sumption's thinking is muddled. If third source powers, exercisable by ministers and other government bodies, spring from the general existence of the Crown then the 1971 Act is entirely irrelevant unless proposed exercises of third source powers are inconsistent with it.

An alternative view, however, is that all government entities created by statute enjoy a category of power which is neither express nor implied. Third source powers, on this reading, spring from the creation of an administrative body and the vesting of decision-making authority in it. There are express powers, necessarily implicit powers, and the powers an analogous private body would have to go about its daily affairs. On a generous reading of Lord Sumption's judgment (especially at para. 28), he takes this view. (At this point, the "third source" label becomes inapt, because we are no longer talking about a power distinct from statute and prerogative, but I will persist with it for the sake of convenience; and I suppose I am proposing a tripartite division between the express, the implicit and the inherent.)

One advantage of this view it provides a further limitation on the use of third source powers. If the third source is located in specific statutes, the powers springing from it can only be used to further the objects of those statutes. No such restriction applies to powers exercisable by the Crown as a corporation sole. A contract could be ultra vires a statute, but not the third source. And it would be strange, though presumably theoretically possible if the third source lies in the Crown as a corporation sole, if a minister (or administrative body) responsible for one statutory scheme could lawfully issue a set of guidelines pertaining to a scheme under the jurisdiction of another minister.

Moreover, this view does not depend on the characterization of the Crown as a corporation sole. In England and Wales, several administrative bodies are also corporations sole. From whence do their third source powers spring? Are they limited by reference to their empowering statutes, in a way that third source powers exercisable by other bodies are not? In Ireland, government ministers are corporations sole: are they to be treated differently from other administrative bodies which exercise similar functions? And let us be honest: if the Crown were not seen as a corporation sole, would this make any difference to the analysis? Indeed, when Bruce Harris wrote his seminal article on the third source in 1992 (108 L.Q.R. 626), the prevailing view was that the Crown was not a corporation sole (M. v. Home Office [1992] Q.B. 270 (C.A.)).

On a less generous reading of Lord Sumption's judgment, he is actually offering an example of the dangers of what I previously described as option one by giving the minister a very broad range of implied powers: "ancillary and incidental" though not "spelt out" (see again para. 28). But if so, as Mark points out, there is no reason to limit the use of the powers to non-coercive measures and Lord Sumption ends up in a muddle in para. 29.

In my next post, I will try to give some practical examples which demonstrate the utility of recognizing that third source powers can be located in statute. I do not insist that I am right, but I think the possibility of a statutory third source is worth considering!

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

Over at Public Law for Everyone, Mark Elliott has an excellent post on the UK Supreme Court's recent decision in R. (New London College Ltd.) v. Home Secretary, [2013] UKSC 51. The decision features a slight divergence of views between Lords Sumption and Carnwath on the scope of governmental powers. I am going to break my comments down across at least two posts. In this post, I consider the relationship between express, implied and "third source" powers.

Furthering Substantive Equality through Administrative Law: Charter Values in Education

Angela Cameron and I have posted our forthcoming Supreme Court Law Review essay on Charter values and administrative decision-making in the context of education law: "Furthering Substantive Equality through Administrative Law: Charter Values in Education". Here is the abstract:

Recent decisions in the realm of Canadian public law have opened the door to Charter values. Administrative decision-makers must have regard to these values when making decisions. Through the use of a fictional example this paper is intended provide a guide for laypersons, lawyers, judges, administrators, arbitrators and academics on how to further substantive equality through administrative law. Our focus in this paper is on education law, but the framework we propose is capable of application across a wide range of areas. Those in other jurisdictions can replace Charter values with "constitutional values" and adopt a similar analysis.

The obligation to educate children about a “diversity of opinions and cultures” is at the heart of our exploration of administrative decision-making in the education system. We argue, however, that the obligation to pay attention to Charter values provides the lifeblood of substantive equality in the administrative law context.

The concept of applying Charter values as a juridical tool in decision-making, while not new, has been given a more dominant role in administrative decision-making by the Supreme Court of Canada in its Dore decision (2012). While the exact meanings and practical applications of this concept are as yet unclear, this paper makes a small step towards imagining the contours of Charter values. In particular we attempt to establish, as a first principle, the role of substantive equality as Charter values begin to solidify and take shape in the jurisprudence.

The paper is divided into three parts. In Part One we present a fictional administrative law decision-making scenario located within the public school system. This scenario provides a concrete backdrop against which to imagine the function of substantive equality within Charter values. In Part One we also discuss the public school system in Canada as a key site for the application of Charter values, and we lay out the empirical evidence showing that GLBTQ students, and the children of GLBTQ parents suffer an equality deficit in Canadian public schools. A deficit which, in our view, can be addressed through the proper application of Charter values by decision-makers within the education system.

Part Two develops an administrative law framework for furthering substantive equality. Specifically Part Two situates substantive equality within the existing framework of administrative law, and provides a blueprint for what substantive claims might look like under our proposed framework. Part Three treats the precise role of substantive equality, outlining a methodology for blending existing equality jurisprudence with the Court’s decision in Dore, using the fictional scenario as a backdrop.

We conclude with a demonstration of our proposed framework in the context of our fictional example.

You can download the essay here.

Functus Officio in Administrative Law

A long-running battle being waged by employees of Health Canada against their employer's drug-approval procedures gives a glimpse of the law on the reopening of administrative decisions: Chopra v. Canada (Attorney General), 2013 FC 644.

Child Adoption and the Rule against Bias

Nova Scotia (Community Services) v. T.G., 2012 NSCA 43 is a sad case about adoption. Sad because of the facts and sad because lengthy litigation has prevented a young child being placed in a permanent home.

Making Adverse Findings against a Party Who Withdraws an Appeal is a Breach of Procedural Fairness

Somewhat obvious, one would have thought! One can imagine the surprise of the applicant in Can-Euro Investments Ltd. v. Ollive Properties Ltd., 2013 NSCA 80, who, having withdrawn an appeal before the Utility and Review Board was nonetheless strongly criticized in a decision handed down weeks later.

General Norms, Individualized Decisions and Procedural Fairness

Economical Mutual Insurance Company v. British Columbia (Information and Privacy Commissioner), 2013 BCSC 903 is a very interesting case.