Channeling or Excluding Judicial Review of Administrative Action

Two recent cases, one from Canada and one from New Zealand, suggest that a  useful distinction can be made between excluding and channeling judicial review of administrative action. Legislatures often interfere with the supervisory jurisdiction of the superior courts, sometimes to eliminate it altogether (excluding), but more often to regulate it, for instance by imposing strict time limits on challenges to certain types of administrative action (channeling). The latter is much more likely than the former to prove acceptable to judges and, thus, effective.

Famously, in Anisminic v Foreign Compensation Commission [1969] AC 147, a majority of the House of Lords held that a clause purporting to oust the jurisdiction of the courts to review “determinations” of the Commission was ineffective in respect of a decision tainted by legal error. A “determination” which transgressed the principles of administrative law was a nullity; as it was beyond the jurisdiction of the Commission, it was no determination at all in the eyes of the law (and certainly not in the eyes of the relevant statutory provision). The majority thus avoided adopting an interpretation of the statute which would have excluded judicial review altogether.

Consider by contrast Smith v East Elloe Rural District Council [1956] AC 736. The provisions at issue here required individuals who wished to contest compulsory purchase orders to apply to the High Court within six weeks of receiving notice of the order, failing which the order “shall not…be questioned in any legal proceedings whatsoever” (Acquisition of Land (Authorization Procedure) Act 1946, Schedule I, para. 16). This language was held to oust even an allegation that an order had been made in bad faith. It was important that there was, in Lord Radcliffe’s words, “a complete statutory code for regulating the extent to which, and the conditions under which courts of law might be resorted to for the purpose of questioning, the validity of a compulsory purchase order within the protection of the Act” (at p. 768).

Lord Denning MR subsequently reconciled East Elloe and Anisminic by making a distinction between the channeling and excluding of judicial review:

[I]n the Anisminic case the Act ousted the jurisdiction of the court altogether. It precluded the court from entertaining any complaint at any time about the determination. Whereas in the East Elle case the statutory provision has given the court jurisdiction to inquire into complaints so long as the applicant comes within six weeks. The provision is more in the nature of a limitation period than of a complete ouster.

R v Environment Secretary, ex parte Ostler [1977] QB 122, at p. 135. See also R (A) v Director of Establishments of the Security Service [2010] 2 WLR 1 (proceedings for human rights claim to be brought before a tribunal in the first instance, not the High Court).

Two recent cases, one from New Zealand, one from Canada, further illustrate the analytical utility of the distinction between excluding and channeling. In the New Zealand case, H v Refugee and Protection Officer [2018] NZCA 188, the channeling of judicial oversight by the legislature survived an Anisminic-type argument, while in the Canadian case, Girouard v Canada (Attorney General) 2018 FC 865, an argument for the exclusion of judicial review did not pass muster (for further comment see here and here).

H applied for refugee and protected status under New Zealand’s immigration legislation. An interview with the Officer was scheduled, but H fell ill. Unfortunately for H, the Officer did not accept the medical certificate provided by H’s doctor (and emailed by H’s lawyer), because it was not in the required form. Unable to make any determination as to H’s credibility, the Officer declined the application.

At this point, H filed an appeal with the Immigration and Protection Tribunal and also sought judicial review of the Officer’s decision. This belt-and-braces approach seems sensible: although the Tribunal hears appeals de novo (see paras. 31-34), H had nonetheless been deprived of an opportunity to demonstrate his credibility at first instance — with apologies for mixing metaphors, H did not want to put all his eggs in the appellate basket. Successfully quashing the Officer’s decision would restore him to his original position.

However, s. 249 of the Immigration Act 2009 provides as follows:

(1) No review proceedings may be brought in any court in respect of a decision where the decision (or the effect of the decision) may be subject to an appeal to the Tribunal under this Act unless an appeal is made and the Tribunal issues final determinations on all aspects of the appeal.

(2) No review proceedings may be brought in any court in respect of any matter before the Tribunal unless the Tribunal has issued final determinations in respect of the matter.

(3) Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High Court has refused to do so, the Court of Appeal has granted leave.

(4) An application to the High Court for leave to bring review proceedings must be made — (a) not later than 28 days after the date on which the Tribunal’s determination in respect of the decision or matter to which the review proceedings relate is notified to the person bringing the proceedings; or (b) within such further time as the High Court may allow on application made before the expiry of that 28-day period.

On its face, the effect of s. 249 is to oust the High Court’s jurisdiction over claims like H’s. As Clifford J. explained, the provision “works by both deferring judicial review pending exhaustion of appeal remedies and, once that has occurred, requiring any application to be made promptly and with leave” (at para. 36). Counsel for H argued, based on Anisminic-style reasoning, that the decision to decline H’s application was not a “decision” for the purposes of s. 249(1): because of the failure to hear H in person, the Officer could not assess his credibility and was thus not in a position to make a “decision” on H’s application (at paras. 41-43).

In rejecting this argument Clifford J. commented that in contemporary administrative law, the effect of a privative clause “depends not just on the sort of error in question, but on the availability and appropriateness of alternative mechanisms for challenging the decision in question” (at para. 43). To put the point another way, it is perfectly acceptable for the legislature to channel, rather than to exclude, judicial review.

Here, the effect of s. 249 was held to be to “postpone” any consideration of H’s claim by the courts until after H’s appeal has been determined by the Tribunal (at para. 45. See further paras. 46-52). There was no reason to doubt that the Tribunal would “thoroughly and independently review all the circumstances of Mr H’s appeal, including the fact he was not interviewed by the RPO and the circumstances in which that occurred, before making its decision” (at para. 58). If dissatisfied at the end of the process, H could still seek leave from the High Court to review the Tribunal’s decision (at para. 58). Judicial review was, in other words, channeled, not excluded.

Girouard is a judge of the Superior Court of Quebec. He has been suspended with pay* since 2013. In that time he has been the subject of two inquiries by the Canadian Judicial Council. The first inquiry was triggered by the revelation (by the Director of Public Prosecutions to G’s Chief Justice) that a drug-dealer-turned-informant had identified G as a former client. One alleged transaction between them was caught on camera. G defended himself robustly during the first inquiry, denying that he had purchased an illicit substance. The Inquiry Committee accepted G’s account, on the balance of probabilities, but a majority questioned his credibility and conduct during the inquiry. A subsequent complaint based on G’s conduct during the first inquiry was filed by the federal and provincial Ministers of Justice. A second Inquiry Committee concluded that G’s conduct disabled or incapacitated him from performing judicial functions. The Canadian Judicial Council accordingly recommended to the federal Minister of Justice that G be removed from office — three dissenting members of the Council found that G had not been treated procedurally fairly.

G has filed multiple judicial review applications, with the overall goal of quashing the Council’s recommendation that he be removed from office. The Council, however, contested the Federal Court’s jurisdiction to review its decisions (see, in particular, paras. 173-183). Its arguments built on the membership and structure of the Council. The Council, established by the Judges Act, is composed of the Canada’s most senior judges, all of whom have been appointed under s. 96 or s. 101 of the Constitution Act, 1867 (s. 59). The Act permits a two-stage procedure, whereby an Inquiry Committee may be asked to submit a report to the Council, which will in turn determine whether or not to make a recommendation to the Minister of Justice.

Accordingly, the Council argued, as a body of superior court judges, it could not be reviewed by the Federal Court, for several mutually-supporting reasons: the Federal Court cannot review decisions of superior court judges (an argument that turns on the statutory scope of the Federal Court’s jurisdiction but which would seem to apply mutatis mutandis to the jurisdiction of the provincial superior courts); the Council is deemed by virtue of s. 63(4) of the Judges Act to be a superior court; the Council by virtue of its expert members is capable of ensuring that the Inquiry Committees respect the principles of administrative law; and review of the Council would violate the unwritten constitutional principle of judicial independence.

This is a mix of legislative and constitutional arguments, rather than a straight-up argument that the jurisdiction of the courts has been ousted by statute, but it did not persuade Noel J. A particular problem with this suite of arguments was the conflation of the judges’ constitutionally assigned roles with their statutory duties under the Judges Act:

“…it is not in their capacity as judges that the members of the CJC sit. It is the CJC’s enabling act that authorizes it to submit a report and recommendations to the Minister. Nobody in this context is rendering judgments as is done in the superior courts” (at para. 82. See also at para. 121, noting that the Council’s functions are investigative and inquisitorial, quite unlike the adversarial function of a superior court).

Another problem is that judicial review of the Council could not in any plausible sense be seen as undermining judicial independence:

I cannot imagine a situation in which an application for judicial review filed by a judge whose removal is being considered could violate judicial independence. Having recourse to judicial review before an independent court of justice for the review of a removal recommendation can only increase judicial independence, as the reviewing court can ensure that the removal recommendation is not fatally flawed and that is has been made in accordance with the standards of natural justice and procedural fairness (at para. 110. See also at para. 144, noting that judicial discipline matters are dealt with in substance within the judicial branch, without interference from Parliament or ministers and at para. 162, noting that judicial review of decisions of the Council ensures that Parliament and ministers do not have to adjudicate on the legality, rationality and fairness of the Council’s procedures).

Although the Council can fairly be taken as suggesting that its capacity to review decisions of Inquiry Committees has the effect of channeling rather than excluding judicial review, its other arguments were firmly in favour of exclusion (and, in any event, oversight of the Inquiry Committee is hardly the Council’s only function). For that reason, it is unsurprising that Noel J. was unpersuaded, even though the Council’s arguments had a constitutional hue. It is not impossible to establish that an area of decision-making activity has been excluded entirely from judicial oversight due to constitutional concerns. But as I wrote a few years ago, significant “caution should be exercised” before arriving at such a conclusion, because “rendering entire areas of the law judicially uninhabitable” is a striking conclusion, “a factor surely likely to influence judicial interpretation” (“Justiciability and the ‘Political Question’ Doctrine” [2010] PL 160, at p. 170).

The simplest point that emerges from this discussion is that attempts to channel judicial review are more likely to succeed than attempts to exclude judicial review. If counsel can characterise a particular legislative measure as channeling rather than excluding judicial oversight, a court is quite likely to be sympathetic (as happened in the Court of Appeal in the Privacy International case (see here and here)).

Beyond this, the analytical force of the distinction tends to undermine the argument that jurisdiction is the central organising principle of administrative law. These cases simply do not turn on the metaphysics of nullity. Rather, judges focus on what Parliament sought to achieve in enacting provisions regulating judicial review of administrative action and on whether such legislative measures compromise judges’ ability to oversee the legality, rationality and procedural fairness of the acts of public bodies.

* The original version of this post erroneously stated that he has been suspended without pay.

This content has been updated on September 30, 2018 at 19:12.