I have a new post at the UK Con Law Group blog. I praise the Ménard report recently commissioned by the Assemblé Nationale while reiterating my earlier criticisms of the Irish High Court decision in Fleming v. Ireland, [2013] IEHC 2. Here is the closing paragraph: Whatever its ultimate fate, the Ménard report’s orientation is […] Read more

J’espère de voir plusieurs d’entre vous la semaine prochaine. Je donnerai la Revue annuelle de l’Association du Barreau Canadien, à Québec mercredi le 15 et à Montréal vendredi le 17. Vous pouvez vous inscrire au site-web de l’ABC. Au plaisir! Read more

Historically, judges have developed and enforced the rules of procedural fairness. Little or no deference is owed to procedural choices made by administrative decision-makers. In an important new decision, however, Bich J.A. of the Québec Court of Appeal has challenged the prevailing orthodoxy. Bich J.A. taught law at my institution, the Université de Montréal, before […] Read more

If you are a regular follower, you have probably seen these before, but two of my recent essays have been published and are now available for free download and citation: The Unfortunate Triumph of Form over Substance in Canadian Administrative Law (2012) 50:2 Osgoode Hall Law Journal 317. Courts and Copyright: Some Thoughts on Standard […] Read more

Public procurement is governed by a plurality of legal regimes. Statutes, regulations, international law and common law all have a say. Norms are enforceable by judicial review and (somewhat more lucratively) in private actions. Given the pluralistic nature of legal regulation of public procurement, it is unsurprising that norms associated more with public law have […] Read more

What should a government do when its system for processing immigration applications has ground almost to a halt and is no longer fit for purpose? The Canadian government tried reforming its “foreign skilled worker programme” on several occasions, to no avail. It ultimately enacted the following provision, s. 87.4 of the Immigration and Refugee Protection […] Read more

The Irish Government has published the heads of its proposed legislation to implement the Supreme Court’s judgment in the X Case and the European Court of Human Rights’ judgment in the A, B, C case. Abortion is illegal in Ireland: the unborn child has constitutionally protected status. But in some cases, as the Supreme Court […] Read more

Suppose there is an administrative decision-maker. Suppose the legislature, in its wisdom, provides for an internal means of appeal. What standard of review should the appellate decision-maker apply to the first-instance decision-maker? And how should a court judge the choice of standard on judicial review? Proceeding from first principles, I would say the answer is […] Read more

The Irish Supreme Court will shortly deliver its judgment on litigation commenced against the State by Marie Fleming. Ms. Fleming is terminally ill with multiple sclerosis. She has asked the courts to declare unconstitutional Ireland’s prohibition on physician-assisted suicide. At first instance, a very strong three-judge High Court (Kearns P., Carney and Hogan JJ.) upheld […] Read more

In most jurisdictions, courts have had difficulty in calibrating the appropriate procedures for public office-holders. It is easy to understand why: employment — and dismissal — by public bodies is bound up with statute and thus presents questions that are amenable to judicial review. However, many public employees also benefit from contractual protections, just like […] Read more