Human Rights in Administrative Decision-making IV: An Informal, Good Faith Approach

This is the fourth and final post in a series: see the previous posts here, here and here.

Having explained in the previous section how front-line administrative officials should not exercise the discretion and judgement they inevitably exercise, I turn in this section to how they should do so. My answer has two prongs. First, front-line administrative officials should approach legal instruments such as statutes and constitutional texts in an informal manner, developing an understanding of the instruments which coheres with the officials’ understanding of the objectives of the regulatory scheme they are charged with administering.  Second, in applying legal instruments, front-line administrative officials should make a good faith effort to remain within the boundaries of the legal framework they are operating in. This should be part of the decision frame they use in their daily activities.

Having explained in the previous section how front-line administrative officials should not exercise the discretion and judgement they inevitably exercise, I turn in this section to how they should do so. My answer has two prongs. First, front-line administrative officials should approach legal instruments such as statutes and constitutional texts in an informal manner, developing an understanding of the instruments which coheres with the officials’ understanding of the objectives of the regulatory scheme they are charged with administering.  Second, in applying legal instruments, front-line administrative officials should make a good faith effort to remain within the boundaries of the legal framework they are operating in. This should be part of the decision frame they use in their daily activities.

In terms of informality, Abella J’s reasons for the Supreme Court of Canada in Doré v Barreau du Québec[1]are particularly notable. Abella J’s reasons targeted, in particular, the application of Canada’s Charter of Rights and Freedoms but the guidance they contain is of general relevance to front-line administrative officials. Here, the applicant was a lawyer who was reprimanded by his regulatory association for writing an intemperate letter to a trial judge with whom he had locked horns. The dispute between the two was extremely heated, but the letter was not made publicly available. The lawyer did not challenge the validity of the Code of Ethics under which he was punished by a disciplinary tribunal, but challenged the decision as a violation of his right to freedom of expression.

Doré has been much maligned for the risk it creates of under-powered judicial review of administrative action which infringes constitutional fundamentals.[2] It replaces the hard-edged proportionality test set out in R v Oakes[3]with the more deferential standard of reasonableness.  But this should not be allowed to obscure the crucial passage in which Abella J set out the analytical approach front-line administrative officials should take in Charter cases:

How then does an administrative decision-maker apply Charter values in the exercise of statutory discretion? He or she balances the Charter values with the statutory objectives. In effecting this balancing, the decision-maker should first consider the statutory objectives…Then the decision-maker should ask how the Charter value at issue will best be protected in view of the statutory objectives. This is at the core of the proportionality exercise, and requires the decision-maker to balance the severity of the interference of the Charter protection with the statutory objectives…^[4]

This approach recognizes that it would be unrealistic and inappropriate to require administrative decision-makers to have Professor Hogg’s loose-leaf Constitutional Law of Canada text to hand whenever they encounter a human rights issue and Ruth Sullivan’s text on the interpretation of statutes on the shelf in case a knotty interpretive problem arises in the course of their work. It deformalizes the process of decision-making by front-line officials. Rather than the Charter, they are directed towards Charter values; rather than statutory text, they are directed towards statutory objectives. And they are directed to balance Charter values against statutory objectives, having regard to “the specific facts of the case”.[5]

In terms of good faith Abella J’s approach recognizes that front-line officials should take the Charter seriously. The document is not “some holy grail which only judicial initiates of the superior courts may touch” but one which belongs to the people and, as a result, “law and law-makers that touch the people must conform to it”.[6] There is no free pass for front-line officials: they must make a good faith, conscientious attempt to apply the Charter and respect the human rights of those citizens with whom they come into contact. This does not require them to engage in a detailed proportionality analysis (the so-called “Oakes test”) but to balance Charter values with the statutory objectives.

There is further support for Abella J’s approach in an important recent book by Margaret Doyle and Nick O’Brien, Reimagining Administrative Justice: Human Rights in Small Places.[7] They argue, amongst other things, for a reinvigorated administrative justice system, shorn of formalism and legalism. They deplore the fact that, “[f]or the most part, human rights and administrative justice are ships that pass in the night”,[8] as there is now a “two-tier system which recognises civil and political rights as superior, with legal enforceability the essential criterion of credibility”.[9] What is required is a return to the original post-World War II vision of human rights, which “entails engagement more with the ‘culture’ or ‘mentality’ of human rights as an instrument for promoting social citizenship and equality than with human rights law as a vehicle primarily for protecting individual liberty, and with the implications of that culture for the specific issue of administrative justice design”.[10] In their view a human rights charter is not simply a “conventional legal instrument” but is rather “a charter for the achievement of relational rights and social citizenship more than merely individual civil rights in isolation from a broader communitarian vision”.[11] These rights are relational and “consistently with that relational focus, they articulate the foundations of an ethic of care and ‘active kindness’ as the overriding institutional value of the democratic state that administrative justice must serve”.[12]

For Doyle and O’Brien, administrative justice is “a set of principles for shaping humane relationships between citizen and state”,[13] not to be confused with legalistic notions of procedural fairness and human rights: “Too much ‘system’ can lead to precisely the uniformity, bureaucracy and inflexibility (associated so often with the legal system) that administrative justice has always aspired to counter”.[14] In the United Kingdom, a focus on “‘right first time’, has resulted in a ‘system’ that resembles an ever-busy assembly line of complaints and appeals rather than the ‘learning machine’ focused on improvement”.[15] They identify “the alternative values of ‘community’ (rather than individual user), ‘network’ (as opposed to system) and ‘openness’ (instead of closure)”[16] as a means of creating “demosprudence”, “a term intended to denote practices that build on the ability of social movements or mobilized communities to make, interpret and change the law. It is a means of making more democratic the process of responding to citizen grievance and of ensuring that legal change is embedded in broader cultural transformation”.[17] Indeed, theirs is a theory of law “that seeks to democratise the process of responding to grievance by fashioning values and processes that can enable civic participation and create bridges between different interests”.[18] Ultimately, the aims of administrative justice should extend to “the promotion of virtuous behaviour among street-level bureaucrats, to the cultivation of virtuous disposition and so to the support of an environment in which such dispositions might flourish”.[19] This can be understood as a call for informal, good faith decision-making by front-line administrative officials, where they are “oriented towards the legal principles implicit in [legal] rules and the public purposes that they are designed to advance”.[20]

Abella J’s approach is consistent with the empirical evidence. In terms of informality, front-line officials do not tend to think like lawyers. As Zach Richards reports, based on his empirical study of decision-makers in Australia’s Refugee Review Tribunal, front-line officials “argued that their decisions were most justified when they took the particular concerns of the refugee applicant into consideration, sensitively and perceptively working with the law to achieve a fair outcome”; they did not see themselves as automatons whirring into action when an application reached their desk and mechanically working from statute to facts to produce a decision but were, rather, “chameleon-like and flexible”.[21] In terms of good faith, deviations from authority are not treated lightly by front-line officials: “By substituting pragmatic judgments for the unrealistic and untenable views of those with formal and legitimate authority, street-level workers view themselves as acting responsibly. They are taking on the burden of making moral and pragmatic judgments that alter citizens’ everyday lives, justifying decisions and actions as workable improvisations of unrealistic rules, laws, and procedures”.[22] Indeed, street-level workers may make good faith efforts to square their sense of what is appropriate in a particular concrete context with the requirements of rules, developing for example “an elaborate account to enfold her moral judgment with her legal obligations”.[23] This emphasis on good faith is critical. Whilst it is unrealistic and inappropriate to expect front-line administrative officials to exercise discretion and judgement as lawyers would, it is nonetheless entirely realistic and wholly appropriate to expect them to make good faith efforts to remain within and to further the objectives of the applicable legal framework. Not, in other words, taking the decisions they imagine legally trained people would take, but exercising discretion and judgement in good faith in the context of the statutory or regulatory scheme at issue.[24]

Not only is an informal, good faith approach a more realistic and appropriate approach to front-line administrative decision-making but it can also support the rule of law, in particular by increasing congruence between law in the books and law in action. Given the empirical evidence that directives issued from upon high are singularly unlikely to deliver uniform behaviour on the front lines of public administration, informal, good faith efforts to implement legal instruments such as statutes and constitutional texts may be more likely to deliver decisions which are respectful of the legal edicts they implement. Marc Hertogh’s solution, based on his study of decision-making in a Dutch local authority, was as follows: “the recipe for stepping up control may not be to strengthen official authority or sanctions, but rather to increase the responsiveness of the courts to front-line officials’ own beliefs about administrative justice”.[25] The intuition here is that a de-formalized approach would be much more effective than a formalized approach which prioritizes lawyerly methods of legal and constitutional interpretation which it is unrealistic and inappropriate to expect front-line administrative officials to master.

There is a theoretical structure for this intuition. The informal, good faith decision-making I am advocating would involve the development of an interpretive community capable of “displacing the need for control by building up understandings within the regulatory system as to what the regulate is meant to do, how it is meant to act”.[26] In other words, statutory objectives constitutional values, broadly understood, would become part of the decision frame of front-line administrative officials and embedded in the culture of administrative decision-making organizations:

The analysis of interpretive communities explains this interaction: rules are based on tacit understandings; they require an informed reading. The greater the shared understanding of the rule and practices it is addressing, the more the rule maker can rely on tacit understandings as to the aim of the rule and the context in which it operates, the less the need for precision, and the greater the degree to which simple, vague rules can be used.[27]

For “rules” in this passage, read “legal instruments, including statutes and constitutional texts”. By developing a de-formalized approach to legal interpretation, whereby front-line officials and the citizens they serve develop a shared vision of what legal instruments mean, any gaps which exist between the law in the books and the law in action can be reduced, thereby enhancing the rule of law.

Finally, it bears emphasizing that this informal, good faith approach has democratic bona fides. It treats legal instruments as objects with which ordinary people can engage, not sacred texts reserved only for a select group of initiates. On this approach, democracy is not equated with the top-down imposition of legal norms, but is rather a bottom-up process in which ordinary citizens can contribute to the meaning of the law. Democracy does not begin and end at the door of the legislature. Rather, “a functioning democracy requires a continuous process of discussion”,[28] one which can occur between citizens and front-line officials on a regular basis across the vast terrain covered by the contemporary administrative state.

[1] 2012 SCC 12, [2012] 1 S.C.R. 395 (S.C.C.).

[2] Paul Daly, “Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms” (2014) 65 Supreme Court Law Review (2d) 247.

[3] [1986] 1 SCR 403.

[4] Doré at paras. 55-56.

[5] Dore, at para. 54, emphasis original.

[6] Cooper v. Canada (Human Rights Commission), [1996] 3 SCR 854, at para. 70, per McLachlin J.

[7] (Palgrave MacMillan, 2019).

[8] Ibid. at p. 4.

[9] Ibid. at p. 31.

[10] Ibid. at p. 22.

[11] Ibid. at p. 25.

[12] Ibid. at pp. 27-28.

[13] Ibid. at p. 3.

[14] Ibid. at p. 6.

[15] Ibid. at p. 20.

[16] Ibid. at p. 8.

[17] Ibid. at p. 90.

[18] Id.

[19] Ibid. at p. 105. See further Bernardo Zacka, From State to Street: Public Service and Moral Agency (Cambridge: Harvard University Press, 2018).

[20] Zach Richards, Responsive Legality: The New Administrative Justice (Routledge, Abingdon, 2019), at p. 66. Whilst I think Richards is right to emphasize front-line decision-makers’ “search for the implicit values inherent in rules and policies”, I do not agree that “particular rules, policies and procedures” can be “regarded as instrumental and expendable”. Ibid. at p. 67. Mindless literalism and legalism is to be guarded against, of course, but front-line officials should not be flippant about their obligation to act within the legal framework.

[21] Zach Richards, Responsive Legality: The New Administrative Justice (Routledge, Abingdon, 2019), at p. 69. See also the discussion of organizational and professional culture in the previous section. The front-line officials “perceive the viable margins of movement that the law may allow and sensitively seek to work within these margins in the pursuit of substantively fair outcomes”. Ibid. at p. 76.

[22] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 24.

[23] Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 87. On the other hand: “Legal and bureaucratic reasoning is offered to justify extraordinary actions, but these justifications often appear as a rubber band stretched around moral decision making, binding but not determining the decisions”. Ibid., at p. 88. This is less necessary where citizen-clients are viewed as unworthy. In such situations, “street-level workers become stringent rule followers, trying to limit services to the minimum allowable. Rather than cutting corners, they follow every procedure”. Steven Maynard-Moody and Michael Musheno, Cops, Teachers, Counselors: Stories from the Front Lines of Public Service (University of Michigan Press, Ann Arbor, 2003), at p. 151. This recalls Grant Gilmore’s quip in the Ages of American Law at pp. 110 that “In Hell there will be nothing but law, and due process will be meticulously observed”.

[24] See also Zach Richards, Responsive Legality: The New Administrative Justice (Routledge, Abingdon, 2019), at p. 3, suggesting an approach to administrative decision-making which is based on “a generalisation of purpose that aims to distinguish what is truly necessary for each particular applicant rather than what is taken for granted in traditions and routines”. He argues that modern trends in public administration have created a new mode of decision-making, which he terms “responsive legality”:

When justifying decisions according to this type, public officials value responsiveness in that they cling to a generalisation of purpose that aims to distinguish what is truly necessary for each particular applicant, rather than what has come to be taken for granted in traditions and routines. They deeply value flexibility and adaptability and aim to deal with situations on a case-by-case basis, drawing firm justification for their decision from the extent to which they were able to adaptively respond to the overall set of circumstances that presented themselves in that particular case. In this sense, decision makers operating within this mode are chameleon-like and respond with enthusiasm to changed circumstances in the purposive pursuit of good outcomes.

[25] 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. 223.

[26] Julia Black, Rules and Regulators (Oxford: Clarendon, 1997), at p. 218.

[27] Julia Black, Rules and Regulators (Oxford: Clarendon, 1997), at pp. 220-221.

[28] Reference re Secession of Quebec, [1998] 2 SCR 217, at para. 68.

This content has been updated on January 13, 2020 at 22:11.