In Canada, it has historically been very difficult to shed light on the decision-making processes of the highest levels of government. Cabinet decision-making is protected by conventions of confidentiality, public-interest immunity and, at the federal level, the regime under the Canada Evidence Act. Even when constitutional principles, such as judicial independence, are in play, disclosure of cabinet-level […] Read more

Policies, guidelines, operational manuals and soft law instruments are pervasive in contemporary public administration. But when can an applicant challenge a soft law instrument as unlawful on the basis of illegality, irrationality or procedural unfairness? The UK Supreme Court considered this issue in detail in two recent decisions, setting out the principles in R (A) v […] Read more

In a series of recent decisions, the Supreme Court of Canada has erected a divide between public and private law. First, judicial review of private organizations was restricted in Wall (see here), a restriction subsequently extended to judicial enforcement of private organizations’ constitutive documents in Aga (see here). Second, the appropriateness of judicial review of contractual arrangements was strongly doubted in J.W. (see here). […] Read more

First under President Trump and then under President Biden the Director of the Centers for Disease Control and Prevention issued a nationwide eviction moratorium in the United States of America. Under the Biden Administration’s narrower version, the moratorium prevented landlords from evicting tenants in areas where there are high transmission rates of COVID-19. At various […] Read more

The Supreme Court of Canada is scheduled to hear the appeals in R. v. Sullivan and R. v. Chan this fall. These appeals from the Ontario Court of Appeal concern the constitutionality of s. 33.1 of the Criminal Code, which limits the defence of automatism. The hearing may be delayed to accommodate the appellants in R. v. Brown, a decision of […] Read more

In a pair of well-written posts last year (here and here), Howard Kislowicz and Robert Hamilton considered the impact of Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 on the standard of review of decisions relating to the duty to consult and accommodate Indigenous peoples as a matter of Canadian public law. The current position […] Read more

As a matter of theory there is much to be said for the proposition that there is no hard-and-fast distinction between administrative law and constitutional law in Commonwealth countries. In the United Kingdom, without an entrenched, codified constitution, the distinction is entirely porous, with constitutional issues regularly seeping into judicial review cases (and, sometimes, when […] Read more

I have posted “Executive Power in the United Kingdom” to SSRN. Written for an edited collection on executive power in Europe, here is the abstract: This paper, written for a pan-European collection edited by Marcel Morabito (Sciences Po) is about the evolution of executive power in the United Kingdom. My goal is to describe the […] Read more

In the first year after Vavilov was released, I read pretty well every decision in which the Supreme Court of Canada’s reformulation of administrative law was cited. The result was “One Year of Vavilov” and a soon-to-appear chapter in Colleen Flood and Paul Daly eds., Administrative Law in Context, 4th ed.  Since then, I have been less assiduous in […] Read more