The Ages of Administrative Law: The Age of Principle

I have posted “The Ages of Administrative Law“, my contribution to this year’s Public Law Conference, to SSRN. Here is the third and final substantive part. Thoughts and comments very welcome.

Already in the Age of Expansion general principles relating to administrative justice and administrative law had begun to emerge. That process accelerated from the 1970s. With the state descending from the commanding heights of public administration, a concern emerged to put the new style of governmental activity on a principled basis. There was also a push to account in principled terms for the revised role of the state. Meanwhile, judicial review of administrative action expanded rapidly, in breadth and depth, prompting concerns about legitimacy and – again – a desire to account in principled terms for the revised role of the judiciary.

The Structure of the State

In the late 20^th century, concerns about the efficiency and effectiveness of the contemporary administrative state led to significant deregulatory and regulatory reform initiatives across the western world. The state retreated from hands-on management of public utilities, breaking up nationalized entities and stimulating competition in markets overseen by independent regulatory bodies.  

Changed views of the role of government are associated with the rise of what came to be known as the New Public Management, a “suite of changes to public administration”[1] which comprised seven core principles relating to streamlined, user-friendly public services: (1) introducing hands-on professional management to the public sector; (2) developing explicit standards and measures of performance; (3) greater emphasis on output controls; (4) shifting toward disaggregation of units in the public sector; (5) introducing greater competition in the public sector; (6) stressing private-sector styles of management practice; and (7) emphasizing greater discipline in the use of resources.[2] The watchwords of the New Public Management are economy, efficiency and effectiveness.[3]

New Public Management initiatives have had long-lasting effects: even today, the Canadian federal government has rigorous policies on cost-benefit analysis,[4] regulatory burden reduction[5] and the automation of government services,[6] and non-governmental bodies play a large role in the provision of public services.[7] A focus on the what of regulation shifted to the how: from the substance of what is desired to the mechanisms by which it is achieved.[8]

Traditional ‘command-and-control’ styles of regulation, based on clear legislative commands and prohibitions backed by criminal sanctions have been replaced by more flexible approaches. There are several different types of “new governance regulatory techniques”,[9] such as principles-based and responsive regulation. Contemporary regulators have a variety of implements in their toolkits, the general goal of which is to ensure “the rule maker, regulated, and enforcer share those norms, values, goals that give rise to a shared understanding as to the rule’s meaning and application”.[10] Soft law has become pervasive in the operation of complex regulatory regimes.[11]

Meanwhile, the Data Revolution has transformed the world in which we live. With smartphones widespread, many individuals now have the world at their fingertips. In the administrative state, changing social conditions occasioned by the Data Revolution have generated a desire to leverage technology to enhance existing processes or create entirely new ones, digitizing the delivery of public services.[12]

Consider an early 21^st-century endeavour in British Columbia – the Administrative Justice Project – whose work led to the seminal Administrative Tribunals Act.[13] With dozens of diverse agencies operating at the time, “the dominant characteristic” of the provincial system of administrative justice was “the lack of any dominant characteristic”,[14] “a reflection of ad hoc decision making and political circumstance”.[15] The Project produced a White Paper, On Balance: Guiding Principles for Administrative Justice Reform in British Columbia, which was said to demonstrate the “government’s commitment to improving the administrative justice system as a system rather than as a constellation of discrete and unrelated agencies”.[16] The “core values and principles” guiding the reform process included the familiar faces of “fair treatment”, “openness and transparency” and “flexibility”.[17] Judicial oversight, internal appeals, Charter jurisdiction and statutory powers and procedures were all covered in detail. Recommendations relating to the creation of a “comprehensive ‘menu’ of statutory powers”,[18] an advisory body[19] and a review mechanism[20] were the stuff of the Age of Expansion – procedural harmonization, centralization of oversight and a rationalized set of principles.

But the White Paper went beyond streamlining.[21] In seeking to make the provincial system accessible, informal and simple, efficient, proportionate and affordable, the Administrative Justice Project’s goals were those of the New Public Management.[22] So too were some of its recommendations, for example, “the adoption of modern and innovative management practices”;[23] “establishing a management framework for tribunal governance that is proportionate to the scope of the tribunal’s activities”;[24] the encouragement of “broader use of consensual dispute resolution processes within the administrative justice system”.[25] This was an administrative justice spin on the New Public Management’s watchwords of economy, efficiency and effectiveness, which put users at the centre of administrative tribunal governance.[26]

Similarly, the late and lamented Law Reform Commission of Canada attempted in Independent Administrative Agencies: Report 26 to “offer a systemic view of the administrative process”,[27] concerned that the “present structure lacks any sense of individual agencies functioning as part of an administrative system”.[28] The Commission’s proposal for “a more highly integrated procedural framework for agency decision making” did not garner much legislative interest.[29] What is striking, nonetheless, is the list of principles set out in Report 26: accountability; effectiveness, economy and efficiency; fairness; integrity; authoritativeness; principled decision-making; comprehensibility; and openness.[30] Here, the Commission was mining a rich vein of principles concerned with the streamlining of administrative processes, with bringing order and cohesion to the disparate administrative tribunals and other bodies which littered the legal landscape by the mid-to-late 20^th century. In the Age of Principle, bodies such as the Commission took up the work commenced in the Age of Expansion by the Franks Committee and its counterparts.

These principles are also associated with what is sometimes called the ‘New Administrative Law’.[31] Along with rationalization of administrative decision-making came institutions of the “integrity branch”[32] of government – statutory reason-giving requirements, freedom of information legislation, ombuds – designed to make the state more transparent and accountable. The expansion of government led, eventually, to an expansion of mechanisms for ensuring good government and, above all, sustained engagement in the development of general principles relating to the operation of the administrative state.

These dramatic shifts in the size and role of the state occasioned significant sustained reflection on the administrative state. The late 20^th century saw an increased focus on the meaning of administrative justice (previously present only in “embryonic form”[33]). The term “has, until recently, been shrouded in obscurity”[34] and provoked “considerable disagreement”.[35] On the one hand, it can be treated as synonymous with the ensemble of decision-making and grievance-resolution mechanisms is treated.[36] On the other hand, the term can be used to denote “the justice inherent in decision making”,[37] or “those qualities of decision making process that provide arguments for the acceptability of its decisions”,[38] where the individual at the receiving end of public services is the central focus.[39]

In terms of individual-centered thinking, the landmark text is Professor Jerry Mashaw’s Bureaucratic Justice: Managing Social Security Disability Claims.[40] He set out three influential “models” of administrative justice.These have “attracted many commentators” because of the models’ “resonance with real world experiences of administrative systems”,[41] but in terms of understanding “how individuals should be treated”.[42] Mashaw’s focus on “processes which produce decisions”[43] yields extremely useful models and, indeed, “normative tool[s] which can be used to scrutinise and assess” new modes of decision-making.[44] Commentators such as Michael Adler[45] and Robert Kagan[46] have addressed the administrative justice implications of these broader social changes. Adler argues, for instance, that models of “[n]ew and better forms of management”[47] associated with the rise of New Public Management need to be incorporated into Mashaw’s schema.[48] In a recent contribution to the administrative justice literature, Zachary Richards has suggested a further development of the Mashaw/Adler models: that of responsive legality.[49]

The point here is not to arbitrate between competing conceptions of administrative justice but simply to note that scholars have been engaged in a sustained effort to tease out general principles about the appropriate structure of the state, with these debates acquiring a particular edge in the context of attempts to automate or digitize governmental functions.[50]

Judicial Review

The origin story of the contemporary law of judicial review of administrative action began in the Age of Expansion with academics, judges and politicians working in consort to transform judicial review of administrative action.[51]

Liberated from the shackles of the prerogative writs and outdated jurisprudence, judges (aided by academics) could begin to elaborate general principles of judicial review. It is no accident that Lord Diplock’s triptych – legality, rationality and procedural propriety – was elaborated in the 1980s, not long after the introduction of a unified judicial review procedure in England and Wales.[52] These grounds of review were picked up elsewhere in the common law world, though in recent decades the language of “intensity” and “context” have supplanted the language of “grounds”.[53] In Canada, the search for principle manifested itself in the development of a “pragmatic and functional” approach to judicial review[54] and, more recently, a contextual reasonableness standard to guide the review of most administrative decisions, emphasizing the need for decisions to be supported by coherent, logical reasoning and to be justified in light of the legal and factual constraints on the decision-maker.[55]

The abandonment of the rigidity of the prerogative writs and the common law frameworks which had grown up around them facilitated judicial creativity.[56] More rigorous judicial oversight was applied to a broader range of issues, with the boundaries of non-justiciability pushed back in a variety of ways: the law of standing was significantly liberalized;[57] judicial review was extended to substantive areas (such as immigration and prisons[58]) and types of decision (such as those with a preliminary character,[59] infused with policy considerations,[60] or made under the prerogative[61]) which had previously been sheltered from judicial oversight; duties of consultation have been imposed on public bodies;[62] and the courts have subjected some private bodies exercising public power to judicial review.[63] Charters of rights, in some jurisdictions, further expanded the judicial role or, at least, acted as barriers against government claims of non-justiciability.[64] In short, the identity of the applicant and the type of decision are much less important to contemporary administrative law than are the general principles of legality, rationality and procedural propriety. Even the procedural limits on judicial review (such as timeliness and the obligation to exhaust alternative remedies) are principled in nature.[65]

Developments in the structure of the state had an effect on the evolution of the law of judicial review of administrative action. The ‘New Administrative Law’ had a transparency-forcing effect: access to documents through freedom of information legislation and accountability mechanisms such as Ombuds meant that the aphorism “never write if you can speak; never speak if you can nod; never nod if you can wink” became increasingly anachronistic. Statutory reason-giving requirements were introduced (with European Union law especially influential in this regard, in the British Isles at least). Meanwhile, the Data Revolution made it easier for officials to produce reasoned decisions supported by detailed records.[66] The consequence of these developments was that those wishing to judicially review governmental action had access to more information, which ultimately could be put before a judge. Indeed, judges themselves began to impose duties of candour on respondents to judicial review applications, requiring them to place “all the cards face upwards on the table”.[67] With more information before them, judges became (I hypothesize[68]) more willing to develop more sophisticated principles of administrative law.

In any event, the relationship between the developments in the structure of the state and judicial review seems to be dynamic. This dynamism is particularly well captured by judicial statements about the duty of candour. For instance, Cooke J (as he then was) stated that the duty of candour is animated by the proposition that in order to perform their reviewing function, courts must be “as fully informed as reasonably possible of the facts and issues as they presented themselves at the time to the authority whose decision is under review”.[69] So, on the one hand, the scope of disclosure depends on the scope of judicial review; but, on the other hand, the scope of judicial review depends on the scope of disclosure (for if nothing were disclosed, there would be nothing to subject to the general principles of legality, rationality or procedural propriety).

In this era, the role of academics has also changed somewhere. In the Age of Expansion and the early years of the Age of Principle, academics were understandably concerned with systematization of the emerging general principles of judicial review of administrative action, building on the work of the great synthesizers, de Smith and Wade. More recently, however, particularly under the auspices of this august event, scholars have sought to account in principled terms for the Age of Principle, identifying the “public interest”,[70] “the rule of law”,[71] individual rights[72] or a range of values as the lodestar of administrative law.[73] It is true that other scholars, relying notably on the complexity-inducing features of the Age of Expansion, are dubious about the feasibility of identifying unifying principles.[74]  Again, the point is not to arbitrate between these competing perspectives but simply to note that the debates in courthouses and windowless university seminar rooms about procedural fairness, substantive review, the constitutional foundations of judicial review and so on could not conceivably have taken place in earlier eras. So too can contemporary discussions about automation and outsourcing be undertaken without worrying unduly about matters of procedure and remedy. Whatever the merits of the respective positions, this is the type of debate which, realistically, could only occur in the Age of Principle.

[1] Peter Cane, Controlling Administrative Power: An Historical Comparison (Cambridge University Press, Cambridge, 2016), at p. 438.

[2] Christopher Hood, “A Public Management for All Seasons?” (1991) 69 Public Administration 3, at pp. 4-5.

[3] See e.g. National Audit Act 1983 (UK), s. 6(1); Financial Administration Act, RSBC 1996, c 138, s. 4(1)(d); Auditor General for Local Government Act, SBC 2012, c 5, s. 3(2)(a)(iv); Act respecting the Caisse de dépôt et placement du Québec, CQLR c C-2, s. 13.8(3). See generally, Peter Cane, Controlling Administrative Power: An Historical Comparison (Cambridge University Press, Cambridge, 2016), chapter 12.

[4] See e.g. Treasury Board of Canada, Policy on Cost-Benefit Analysis <https://www.canada.ca/en/treasury-board-secretariat/services/federal-regulatory-management/guidelines-tools/policy-cost-benefit-analysis.html> accessed 23 June 2020.

[5] See e.g. Treasury Board of Canada, Policy on Limiting Regulatory Burden on Business <https://www.canada.ca/en/treasury-board-secretariat/services/federal-regulatory-management/guidelines-tools/policy-limiting-regulatory-burden-business.html> accessed 23 June 2020.

[6] See e.g. Treasury Board of Canada, Directive on Automated Decision-Making < https://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=32592> accessed 23 June 2020.

[7] Mary Liston, “3Ps: A Public-Private Primer” in Paul Daly and Colleen Flood eds., Administrative Law in Context, 4^th ed. (Emond Montgomery, Toronto, 2021).

[8] See e.g. Bernardo Zacka, Where the State Meets the Street: Public Service and Moral Agency (Harvard University Press, Cambridge, 2017), at p. 17.

[9] See generally Julia Black, “Paradoxes and Failures: ‘New Governance’ Techniques and the Financial Crisis” (2012) 75 Modern Law Review 1037.

[10] Julia Black, Rules and Regulators (Oxford: Clarendon, 1997), at p. 33.

[11] Paul Daly, “Plural Public Law” (2020) 51 Ottawa Law Review 396, at pp. 402-403.

[12] See e.g. Joe Tomlinson, Justice in the Digital State (Bristol University Press, Bristol, 2020).

[13] SBC 2004, c 45.

[14] Geoff Plant, “The Administrative Justice Project in B.C. or Do Governments Take Tribunals Seriously?” (2002-2003) 16 Canadian Journal of Administrative Law & Practice 1, at p. 2.

[15] On Balance: Guiding Principles for Administrative Justice Reform in British Columbia (Administrative Justice Project, 2002), at p. 16.

[16] Geoff Plant, “The Administrative Justice Project in B.C. or Do Governments Take Tribunals Seriously?” (2002-2003) 16 Canadian Journal of Administrative Law & Practice 1, at p. 9.

[17] On Balance: Guiding Principles for Administrative Justice Reform in British Columbia (Administrative Justice Project, 2002).

[18] Ibid., at p. 17.

[19] Ibid., at p. 17.

[20] Ibid., at p. 18. See also ibid., at p. 27.

[21] Ibid., at p. 18.

[22] Ibid., at p. ii. 

[23] Ibid., at p. 11.

[24] Ibid., at p. 12.

[25] Ibid., at p. 20.

[26] See similarly Sir Andrew Leggatt, Tribunals for Users One System, One Service (March, 2001), at para. 4.1. For a powerful counterpunch, see Margaret Doyle and Nick O’Brien, Reimagining Administrative Justice: Human Rights in Small Places (Palgrave Macmillan, Cham, 2019).

[27] (Department of Justice, Ottawa, 1985), at p. 11.

[28] Ibid., at p. 47.

[29] Ibid., at p. 50. This proposal was also leavened, however, by a healthy appreciation of the need to preserve the “dynamic nature of administration” and thus not to be too prescriptive in setting out procedural rules (at p. 67).

[30] Law Reform Commission of Canada, Independent Administrative Agencies: Report 26 (Department of Justice, Ottawa, 1985), at pp. 8-9.

[31] See e.g. Yee-Fui Ng, “Institutional Adaptation and the Administrative State” (2014) 44 Melbourne University Law Review 889. See also Sarah Nason, “The ‘New Administrative Law’ of Wales” [2019] Public Law 703.

[32] James Spigelman, “The Integrity Branch of Government” (2004) 78 Australian Law Journal 724.

[33] Robin Creyke, “Administrative Justice – Towards Integrity in Government” (2007) 31 Melbourne University Law Review 705, at p. 708. See e.g. William Robson, Justice and Administrative Law: A Study of the British Constitution (Macmillan & Co, London, 1928), at p. 33; HRW Wade, Towards Administrative Justice (University of Michigan Press, Ann Arbor, 1963). As Simon Halliday recently remarked, “the story of administrative justice is as old as the story of administration to which we might attach justice concerns”. “Review” (2021) 28 Journal of Social Security Law 71, at p. 73.

[34] Michael Adler, “Introduction” in Michael Adler ed., Administrative Justice in Context (Hart, Oxford, 2010), at p. xv; Michael Adler, Cruel, Inhuman or Degrading Treatment? Benefit Sanctions in the UK (Palgrave Macmillan, Aldershot, 2018), at p. 87.

[35] Michael Harris and Martin Partington eds., Administrative Justice in the 21^st Century (Hart, Oxford, 1999), at p. 2.

[36] See e.g. Michael Adler, Cruel, Inhuman or Degrading Treatment? Benefit Sanctions in the UK (Palgrave Macmillan, Aldershot, 2018), at p. 87, using the term “to describe the justice encountered in the end-to-end process that starts with first-instance administrative decisions and ends with cases taken on appeal to the highest courts”.

[37] Michael Adler, “Understanding and Analyzing Administrative Justice” in Michael Adler ed., Administrative Justice in Context (Hart, Oxford, 2010), p. 129, at p. 129.

[38] Jerry Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims (Yale University Press, New Haven, 1983).

[39] See also Simon Halliday, Judicial Review and Compliance with Administrative Law (Hart, Oxford, 2004), at p. 114, referring to “normative and legal conceptions of the aims, values and focus of decision-making within government agencies”.

[40] Yale University Press, New Haven, 1983.

[41] Roy Sainsbury, “Administrative Justice, Discretion and the ‘Welfare to Work’ Project” (2008) 30 Journal of Social Welfare & Family Law 323, at p. 325.

[42] Michael Adler and Paul Henman, “Justice Beyond the Courts: The Implications of Computerisation for Procedural Justice in Social Security” in Agustí Cerrillo i Martínez and Pere Fabra i Abat, E-Justice: Information and Communication Technologies in the Court System (Information Science Reference, New York, 2008), 65, at p. 70.

[43] Simon Halliday and Colin Scott, “A Cultural Analysis of Administrative Justice” in Michael Adler ed., Administrative Justice in Context (Hart, Oxford, 2010), p. 183, at p. 184.

[44] Roy Sainsbury, “Administrative Justice, Discretion and the ‘Welfare to Work’ Project” (2008) 30 Journal of Social Welfare & Family Law 323, at p. 327.

[45] “A Socio-Legal Approach to Administrative Justice” (2003) 25 Law & Policy 323.

[46] “Varieties of Bureaucratic Justice” in Nicolas Parrillo ed., Administrative Law from the Inside Out: Essays on the Themes in the Work of Jerry Mashaw (Cambridge UP, 2016). See also Marc Hertogh, “Through the Eyes of Bureaucrats: How Front-line Officials Understand Administrative Justice” in Michael Adler ed., Administrative Justice in Context (Hart, Oxford, 2010), p. 203, at p. 217, distinguishing four different types of “legal citizenship”; and Simon Halliday and Colin Scott, “A Cultural Analysis of Administrative Justice” in Michael Adler ed., Administrative Justice in Context (Hart, Oxford, 2010), p. 183, at p. 192, setting out a “cultural typology” of administrative justice.

[47] Michael Adler and Paul Henman, “Justice Beyond the Courts: The Implications of Computerisation for Procedural Justice in Social Security” in Agustí Cerrillo i Martínez and Pere Fabra i Abat, E-Justice: Information and Communication Technologies in the Court System (Information Science Reference, New York, 2008), 65, at p. 69.

[48] “A Socio-Legal Approach to Administrative Justice” (2003) 25 Law & Policy 323.

[49] Responsive Legality: the New Administrative Justice (Routledge, Abingdon, 2019).

[50] See e.g. Sofia Ranchordas, “Empathy in the Digital Administrative State” (2022) 71 Duke Law Journal 1341.

[51] For a different perspective, see TT Arvind and Lindsay Stirton. “The Curious Origins of Judicial Review” (2017) 133 Law Quarterly Review 91.

[52] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

[53] See especially Mark Elliott and Hanna Wilberg eds., Traversing Taggart’s Rainbow: The Scope and Intensity of Substantive Review (Hart, Oxford, 2015); Dean Knight, Vigilance and Restraint in the Common Law of Judicial Review (Cambridge University Press, Cambridge, 2018).

[54] The apotheosis of this approach was Pushpanathan v Canada (Minister of Citizenship and Immigration) [1998] 1 SCR 982.

[55] Canada (Citizenship and Immigration) v Vavilov 2019 SCC 65, at paras. 102-107.

[56] It is also notable that many of the great American statements of administrative law principle date from a similar era: see e.g. Vermont Yankee Nuclear Power Corp v Natural Resources Defense Council 435 US 519 (1978); Motor Vehicle Manufacturers Association v State Farm Mutual Automobile Insurance Co 463 US 29 (1983); Chevron v Natural Resources Defense Council 467 US 837 (1984).

[57] See e.g. R v Inland Revenue Commissioners, ex parte National Federation of Self- Employed and Small Businesses Ltd [1982] AC 617; Finnigan v New Zealand Rugby Union Inc [1985] 2 NZLR 159;Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society 2012 SCC 45, [2012] 2 SCR 524.

[58] See generally Sarah Nason, Reconstructing Judicial Review (Hart, Oxford, 2016).

[59] See e.g. Re Pergamon Press [1971] Ch 388;  Dellway Investments v National Asset Management Agency [2011] IESC 4; [2011] 4 IR 1.

[60] See e.g. R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407.

[61] See e.g. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] AC 453.

[62] See e.g. Haida Nation v British Columbia (Minister of Forests) 2004 SCC 73, [2004] 3 SCR 511.

[63] See e.g. R v Panel on Takeovers and Mergers, ex parte Datafin plc [1987] QB 815.

[64] See e.g. Operation Dismantle v The Queen [1985] 1 SCR 441; Attorney-General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213.

[65] See e.g. Paul Daly, Understanding Administrative Law in the Common Law World (Oxford University Press, Oxford, 2021), chapter 6.

[66] R (Agyarko) v Home Secretary [2017] UKSC 11, at para. 71.

[67] R v Lancashire County Council ex p. Huddleston [1986] 2 All ER 941, at p. 945 per Sir John Donaldson MR. See also O’Neill v Governor of Castlerea Prison [2004] 1 IR 298, at p. 316; Re Downes [2006] NIQB 77, at para. 31; Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056, at para. 105, per Elias CJ and Arnold J. See also Janina Boughey, “Litigation by and Against Government” in Weeks et al, Governmental Liability: Principles and Remedies (Federation Press, Canberra, 2019).

[68] See generally Paul Daly, “Vavilov and the Culture of Justification in Contemporary Administrative Law” (2020) 100 Supreme Court Law Review (2d)279.

[69] Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 N.Z.L.R. 341, at p. 346, per Cooke P (as he then was).

[70] See e.g. Jason Varuhas, “The Public Interest Conception of Public Law: Its Procedural Origins and Substantive Implications” in Bell et al eds, Public Law Adjudication in Common Law Systems: Process and Substance (Hart, Oxford, 2016).

[71] See e.g. Mark Elliott, The Constitutional Foundations of Judicial Review (Hart, Oxford, 2001).

[72] See e.g. See Mary Liston, “Transubstantiation in Canadian Public Law: Processing Substance and Instantiating Process” in John Bell et al eds., Public Law Adjudication in Common Law Systems: Process and Substance (Hart, Oxford, 2016), p. 213, at pp. 226-230.

[73] See e.g. Paul Daly, Understanding Administrative Law in the Common Law World (Oxford University Press, Oxford, 2021).

[74] See e.g. Joanna Bell, The Anatomy of Administrative Law (Hart, Oxford, 2020).

This content has been updated on June 20, 2022 at 14:02.