The Language of Administrative Law II: Mission Statements

(For the first post in this series, see here). The draft can be downloaded in its entirety here.

Perhaps the most attractive – though also the most facile – endeavour for those who think deeply about administrative law is to formulate a general principle that unifies disparate strands of case-law. This then functions as a mission statement, an administrative law raison d’être supposedly capable of guiding judges in the resolution of judicial review cases.[1] In reality, though mission statements may provide a high-level overview of the task of judicial review, they provide little in the way of concrete guidance. Although they are “sometimes applied as if they were labels, somehow determining the outcome of a particular matter”, rather, “they have to be seen for what they are, in their particular context”.[2]

A particularly popular mission statement involves “abuse of power”; ^[3] that through judicial review judges seek to prevent public officers from abusing their powers. Unfortunately, the abuse of power mission statement “goes no distance to tell you, case by case, what is lawful and what is not”. Rather, “[l]egal principle lies between the overarching rubric of abuse of power and the concrete imperatives of a rule-book”.[4] Much the same response can be given to the so-called “ultra vires” doctrine, which encapsulates the idea that in judicial review of administrative action courts do no more than enforce the formal boundaries established by legislation, but which has been exploded by the growing acceptance that judges have long looked to sources other than duly enacted laws to impose limits on executive action.[5]

Lord Diplock’s tripartite classification of judicial review is another popular mission statement for administrative lawyers. In the GCHQ case, he suggested that “one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review”: illegality, irrationality and procedural impropriety.[6] One finds echoes of this mission statement in a recent Canadian case: “Judicial review is directed at the legality, reasonableness, and fairness of the procedures employed and actions taken by government decision makers”.^[7]

But terms such as “legality”, “rationality”/“reasonableness” and “procedural impropriety”/“fairness” are not much more helpful than “abuse of power” in understanding the limits judges may place on administrative action: “though the general standards of legality, rationality, and procedural fairness may be firmly based in common law doctrine, their application to the facts of any particular case – and hence their concrete meaning – is largely dependent on the specific context under review”.[8] What is important is to be able to translate abstract, high-level mission statements into “hard clear law”.^[9] Precisely what is required by way of doctrinal precision is a controversial question,^[10] but at the very least the mission statement must be parsed into usable doctrinal tools. For instance, legality breaks down into various sub-requirements: decision-makers must interpret the law appropriately;[11] they must take into account relevant factors; they must use powers for proper purposes; and so on.[12] No doubt judicial judgement will be required at some point in determining, for instance, what is relevant or proper, but this is very different from enforcing free-standing norms of legality, reasonableness and fairness.

Of critical importance to the task of refining mission statements and deciding concrete cases is an understanding of the underlying principles of judicial review. It is thus significant that, in Dunsmuir, Justice LeBel, writing with Justice Bastarache, began not with a mission statement but with a recognition that Canadian judicial review doctrine is born of an “underlying tension” between two competing principles: “Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures”.[13] These principles have much greater capacity to shape administrative law doctrine and influence judicial review practice than have abstract references to legality and rationality.[14] Of course, these principles too must be implemented by more precise doctrinal rules, for “unless we commit to that sort of mapping project the law will continue to be rather chaotic, unprincipled, and result-orientated”;^[15] if first-order normative principles are given “immediate normative operation”, judges risk distributing palm-tree justice.[16] Without more, legality, rationality and fairness give little guidance to jurists tasked with shaping and applying administrative law.

In short, mission statements serve the limited purpose of providing a high-level overview of the function of judicial review of administrative action in a given legal system, but they provide limited detail on its operation in practice. For that, one must take a much closer look.

[1] Though his comments relate to mission statements adopted by administrative decision-makers, Keane C.J.’s observations in Keogh v. Criminal Assets Bureau, [2004] 2 I.R. 159, at p. 175 are worth quoting at length:

It is undoubtedly the case that documents such as the [Taxpayer’s] Charter of Rights under consideration in the present case, whether so described or called a ‘mission statement’ or given some other title, frequently contain what are no more than praiseworthy statements of an aspirational nature designed to encourage the members of the organisation concerned to meet acceptable standards of behaviour in their dealings with the public and to give the latter some form of assurance that complaints as to discourtesy or other shortcomings on the part of the former will be seriously entertained.

[2] Minister for Immigration and Ethnic Affairs v. Teoh (1995), 128 A.L.R. 353, per Toohey J.

[3] See e.g. In re Preston, [1985] 1 A.C. 835, at p. 851 (Lord Scarman), p. 864 (Lord Templeman); R. v. North and East Devon Health Authority, ex parte Coughlan, [2001] Q.B. 213, at para. 71; R. v. Department of Education and Employment, ex parte Begbie, [2000] 1 W.L.R. 1115, at p. xxx. For an early usage see Sir Alfred Denning, Freedom under the Law (London, Stevens & Sons, 1949), pp. 99-126.

[4] R. (Nadarajah) v. Secretary of State for the Home Department, [2005] EWCA Civ. 1363, at para. 67.

[5] See e.g. Sir John Laws, “Law and Democracy”, [1995] Public Law 72. For debate on whether it is necessary to reconcile judicial creativity with the sovereignty of parliament and, if so, how to reconcile the two, see Christopher Forsyth ed., Judicial Review and the Constitution (Hart, Oxford, 2000).

[6] Council of Civil Service Unions v. Minister for the Civil Service, [1985] A.C. 374, at p. 410.

[7] See similarly Canada (Attorney General) v. TeleZone Inc., [2010] 3 S.C.R. 585, at para. 24.

[8] T.R.S. Allan, “Doctrine and Theory in Administrative Law: An Elusive Quest for the Limits of Jurisdiction”, [2003] Public Law 429, at p. 431.

[9] R. v. Department of Education and Employment, ex parte Begbie, [2000] 1 W.L.R. 1115, at p. xxx, per Laws L.J.

[10] See e.g. Mark Elliott, “From Bifurcation to Calibration: Twin-Track Deference and the Culture of Justification” in Hanna Wilberg and Mark Elliott eds., The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Hart Publishing, Oxford, 2015), at p. 61.

[11] I say “appropriately” rather than “correctly” because in some jurisdictions the boundaries of error of law are supplied by reasonableness rather than the terms of the statute as interpreted by a court.

[12] Rationality and reasonableness too require further analysis, as I explain in Part III of this paper. Fairness also has sub-requirements relating to the conduct of a hearing; rules of impartiality; and guarantees of independence, to be discussed in Part IV.

[13] 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.

[14] See generally, Paul Daly, “The Unfortunate Triumph of Form over Substance in Canadian Administrative Law” (2012), 50 Osgoode Hall LJ 317.

[15] Michael Taggart, “Proportionality, Deference, Wednesbury” [2008] N.Z.L.R. 423, 453. See similarly Yves-Marie Morissette, « Rétrospective et Prospective sur le Contentieux Administratif » (2008-2009) 39 Revue de droit de l’Université de Sherbrooke 1, at p. 42, expressing his fear of « une floraison chaotique de normes contradictoires ».

[16] Minister for Immigration and Multicultural Affairs, ex parte Lam (2003), 195 A.L.R. 502, at p. 519, per Gummow J.

This content has been updated on August 18, 2015 at 11:13.