Introducing Plural Public Law

My inaugural lecture as the University Research Chair in Administrative Law & Governance takes place on Wednesday evening, 5pm (register here). Here is the introductory section of the lecture. The rest will follow on Wednesday evening...

We live in a world of increasing complexity, submerged by tidal waves of statutes, delegated legislation, soft law, judicial decisions and administrative adjudication, and swept along by vicious rip tides of technological and social change. What role can and should public lawyers play in a world of complexity and change? For public lawyers to remain relevant and influential requires plural public law, an approach based on a plurality of principles, sources and methodologies.[1] 

As a self-described public lawyer – someone interested in the control of public power – I have skin in this game. But I am not in it only for myself. As will become clear, I believe that important challenges lie ahead of us. I also believe that public lawyers have an important role to play in responding to and resolving these challenges. A world influenced by public lawyers can be a better world – or so I will suggest.

I will lay out my argument in five stages. First, I will discuss the characteristics of the contemporary world before turning, second to the plurality of principles, third to the plurality of sources and fourth to the plurality of methodologies before finishing, fifthly with observations on the relevance and influence of plural public lawyers.

Our Complex World

Change

Technology has transformed the world in which we live. Consistent with Moore’s Law, computing power has increased enormously in recent decades.[2] In my adult life — a short period of time — we have gone from dial-up internet connections (where an incoming phone call could put paid to hours of assiduous downloading of music or videos) to smartphones with the capacity to stream high-quality live events taking place on the other side of the world. We now have not only smart phones but smart-meters in our homes, located in smart-cities, and smart-cars on our smart-highways.[3]

Public and private organizations have leveraged technological advances to create and maintain vast banks of data on how individuals live their lives.[4] Governments, unsurprisingly, are beginning to deploy the data and computing power at their disposal to increase the efficiency of public administration.[5] Ensuring that this is done in a rational and fair way respectful of privacy interests is an obvious and pressing challenge.[6]

Social media behemoths such as Facebook, Google, Instagram and Twitter, who owe their existences to technological advances, now dominate the public landscape but were not even twinkles in their creators’ eyes at the turn of the century. These entities and the technologies they use are largely borderless, certainly much more so than the oil and rail equivalents of the previous century, and occupy an even more prominent role in the public sphere.[7] Their terms of use, statements of values and content moderation policies are of capital importance in our world.[8]

Rapid technological change has been accompanied by rapid socio-economic change. 

Globalization allows goods to cross borders with greater physical ease than they could in previous eras. The smartphones we hold in our pockets are the products of complex cost-effective cross-border commercial supply chains which put to shame Milton Friedman’s tale of how the invisible hand directs lumberjacks, miners and dozens of other actors to cooperate to produce the humble pencil.[9] 

Securitization on a supra-national scale allows old-school utilities providers to sell consumers the phones over contracts of several years, safe in the knowledge that the consequences of isolated failures to repay can be spread across their balance sheets and those of financial institutions.[10] 

People can move much more easily too. Vigorous competition in air travel markets has made international travel cheaper than ever. Information technology allows news to travel seamlessly and drives down the emotional costs of emigration — long gone are the days when Irish immigrants would wait anxiously in New York and Boston taverns for the weekly papers from their homeland, to scour them for news of death and debt. Meanwhile, traditional communities are breaking down[11] and many of the social bonds which held people together are coming unstuck,[12] increasing the need for official regulation of behaviour. 

This technological and socio-economic cocktail means that change in our world is rapid and exponential. New technologies and new uses of existing technologies emerge at bewildering speed, challenging law and lawyers to retrofit them to existing legal constructs or urgently develop new ones.

Volume

One consequence of the complexity of the modern world is the volume of material produced by official bodies. Today’s legislatures produce huge volumes of legislation. The Revised Statutes of Canada occupy a large chunk of the real estate in this Faculty’s Brian Dickson Law Library. These are dwarfed by the huge volume of delegated legislation generated by government departments, a torrent to which municipal by-laws and regulations promulgated by independent agencies further contributes. Even legislation and delegated legislation, however, is a quiet backwater compared to the roaring river of soft law produced by governmental bodies of one sort or another.

I sit as a part-time member of the Environmental Protection Tribunal of Canada. Our parent statute is the Environmental Violations Administrative Monetary Penalties Act,[13] a modest creature of some 29 sections. It is supplemented by regulations with 11 paragraphs and 5 schedules setting out in detail the methodology for calculating penalties for violations of various statutory and regulatory provisions.[14] This is where the volume begins to increase. The Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations,[15] for example, run to 48 paragraphs and 3 schedules. Even this is not all, for Environment and Climate Change Canada (the responsible government department) has published a host of online guidance documents designed to educate storage tank owners and operators as to their legal obligations and to inform the enforcement officers’ exercise of their discretionary powers. A statutory trickle to begin with, a gush of soft law by the time the legislation has real-world effect.

Beyond statute, delegated legislation and soft law, there are judicial decisions. Here too there is a flood. The Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, until recently the seminal decision in Canadian administrative law,has now been cited more than 17,000 times since it was released in 2008, a statistic I have at the tip of my fingers thanks to the Canadian Legal Information Institute. In simpler times, keeping up with the law meant subscribing to the Ontario Reports or some specialist reporters and journals; editors were gatekeepers and one could typically safely assume that unreported decisions were of limited or no precedential value. With electronic databases, such assumptions can no longer be made. There is a flood of judicial decisions and whereas once vigilant editors kept the sluice gates closed, CanLII has prised them open.

Furthermore, there are administrative decisions. Here, there has been a sea change. Many administrative proceedings are subject to the open court principle,[16] backed up by access to information legislation, and considerations of fairness – égalité des armes between individual and institutional litigants – drive the publication of scores of decisions which, in previous eras, would have remained in dusty filing cabinets deep in the bowels of some nondescript government building.

Notice, too, that statutes, delegated legislation, soft law, judicial decisions and administrative decisions interact. In the Environmental Protection Tribunal, for example, Supreme Court jurisprudence gives our administrative decisions precedential value[17] and states that soft law is relevant to determining the meaning of legislation.[18] It is impossible to understand the role of the Tribunal without understanding the interaction between this plurality of sources of law.

Sometimes this is beyond the ken even of trained lawyers. Lord Justice Irwin commented in a recent case in the Court of Appeal of England and Wales, “on the extreme complexity and obscurity of drafting in the field of immigration law”, characterized by language which “serves to conceal rather than reveal meaning”, confusing “even the expert legally qualified reader, never mind those affected by the provisions”.[19] This “very complicated” system,[20] has “achieved a degree of complexity which even the Byzantine emperors would have envied”.[21]

Summary

We find ourselves drowning in information, pulled along by riptides of technological and socio-economic change. Staying afloat in such a world is a significant challenge. Remaining buoyant and being able to offer meaningful advice is even harder. This is the backdrop for plural public law: a plurality of principles, drawn from a plurality of sources, using a plurality of methodologies.

[1] By “plural”, I simply mean ‘more than one’. See e.g. Gillian Metzger, “Foreword: 1930s Redux: The Administrative State Under Siege” (2017) 131 Harvard Law Review 1, at p. 8; Bernardo Zacka, When the Street Meets the Street: Public Service and Moral Agency (Harvard University Press, Cambridge, 2017), passim. I do not mean to venture into the fascinating – but contested – terrain of legal pluralism. “Public” certainly includes governmental action in the form, for example, of legislation and administrative decisions but also includes private action which takes place or has consequences in the public domain; whilst I recognize that the “law of contract” is not “constitutional law” and “tort” is not “judicial review of administrative action”, I reject any strict division between “public” and “private” law.

[2] Gordon Moore, “Cramming More Components onto Integrated Circuits” (1965) 38 Electronics 114.

[3] See e.g. Karen Yeung, “‘Hypernudge’: Big Data as a Mode of Regulation by Design” (2017) (20) Information, Communication & Society 118.

[4] See generally Rob Kitchin, The Data Revolution: Big Data, Open Data, Data Infrastructures & their Consequences (Sage, London, 2014).

[5] See e.g. Cary Coglianese and David Lehr, “Regulating by Robot: Administrative Decision Making in the Machine-Learning Era” (2017) 105 Georgetown Law Journal 1147; Digital Disruption White Paper Series, Responsible Artificial Intelligence in the Government of Canada, version 2.0 (April 10, 2018).

[6] See e.g. Monika Zalnieriute, Lyria Bennett Moses and George Williams, “The Rule of Law and Automated Government Decision-Making” (2019) 82 Modern Law Review 425.

[7] See e.g. Broadcasting and Telecommunications Legislative Review Panel, Canada’s Communications Future: Time To Act (Ottawa, 2020).

[8] Tarleton Gillespie, Custodians of the Internet: Platforms, Content Moderation, and the Hidden Decisions That Shape Social Media (Yale University Press, New Haven, 2018).

[9] Free to Choose: A Personal Statement (Harcourt Brace Jovanich, New York, 1980).

[10] Barbara Casu and Anna Sarkisyan, “Securitization” in Edited by Allen N Berger, Philip Molyneux, and John O S Wilson eds, The Oxford Handbook of Banking, 3^rd ed. (Oxford University Press, Oxford, 2019).

[11] See e.g. Robert Putnam, Bowling Alone: The Collapse and Revival of American Community (Simon & Schuster, New York, 2000).

[12] See e.g. Peter Mair, Ruling the Void: The Hollowing of Western Democracy (Verso, New York, 2013).

[13] S.C. 2009, c. 14, s. 126.

[14] SOR/2017-109.

[15] SOR/2008-197.

[16] See e.g. Toronto Star v. AG Ontario, 2018 ONSC 2586, 421 D.L.R. (4th) 687; R (DSD and NBV) v. The Parole Board, [2018] EWHC 694 (Admin), [2019] QB 285.

[17] Vavilov v. Canada (Citizenship and Immigration), 2019 SCC 65, at para. 131.

[18] See Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 SCR 559, at para. 85.

[19] R (Firdaws) v. First Tier Tribunal, [2019] EWCA Civ. 1310, at para. 49.

[20] Hossain v. Secretary of State for the Home Department, [2015] EWCA Civ. 207, at para. 29.

[21] Pokhriyal v. Secretary of State for the Home Department,[2013] EWCA Civ. 1568 at para. 4, per Jackson L.J. As Beatson L.J. observed in Hossain v. Secretary of State for the Home Department, [2015] EWCA Civ 207, at para. 29: “The complexity is in part due to the considerable detail in the rules, and in part the frequency of the changes in them to meet what the Secretary of State considers to be evasion or undesirable avoidance of previous rules”.

This content has been updated on March 2, 2020 at 15:30.