Session Reference - CiteSeerX

Law Conference 2001 Session Reference: Surname: Taggart First Name: Mike Title of Presentation: The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation. (2001) 1 Oxford University Commonwealth Law Journal 5-34

THE PRINCIPLE OF LEGALITY IN ADMINISTRATIVE LAW: INTERNATIONALISATION AS CONSTITUTIONALISATION∗ (2001) 1 Oxford University Commonwealth Law Journal 5-34 David Dyzenhaus, Murray Hunt & Michael Taggart+

INTRODUCTION Courts throughout the common law world have for some time given effect to international legal obligations (especially human rights norms) by way of administrative law doctrines and techniques. When the source of the international obligations constraining executive discretion is a convention ratified by the executive but not incorporated by parliament into legislation, traditional alarm bells ring. Such ‘backdoor’ incorporation seems to amount to executive usurpation of the legislature’s monopoly of law-making authority or to judicial usurpation of the same, or a combination of both. But the charge of executive usurpation is misleading not least because the executive without exception argues to the reviewing court, and sometimes beyond, that ratification without incorporation has no legal consequences. At stake, it seems, is the age-old question of the legitimacy of judges’ divining values or principles that constrain executive authority from any source other than the statute which delegated that authority. The ‘dualism’ involved in considering the spheres of domestic law and international law to be sealed off from each other turns out to be no more than the dualism that the traditional approach postulates between, on the one hand, any set of principles or values that are claimed by judges to be inherent in the common law or the rule of law and, on the other, the authority of the legislature to stipulate expressly when particular principles or values will govern the decisions of its delegates. And, the traditionalist charges, if judges are permitted to chip away at the right of the legislature to declare when its delegates have an unfettered discretion, soon the space of discretion will be squeezed to vanishing point and administrative decisions will become vulnerable to review on the basis of the judges’ highly contingent sense of fundamental legal values. The role of unincorporated conventions in administrative law then becomes another chapter in the sorry tale of the desire of common law judges to discipline the administrative state. We cannot in this article provide the complete answer to questions about the legitimacy of judicial review. And we do recognise that the internationalisation chapter in the tale of judicial review might pose new and difficult challenges to any attempt to provide that answer. But we will show in a survey of case law from New Zealand, Australia, Canada and England that a significant part of such an answer is likely to reside in what we term the principle of legality, ∗

This article originated from a seminar we taught at the University of Toronto Law School in January 2001. Thanks are due to the Law School at the University of Toronto for the opportunity, the students, and our friends and colleagues who participated - Colleen Flood, Hudson Janisch, Audrey Macklin, David Mullan and David Wright. We are particularly grateful to the editors and anonymous referees of this Journal, as well as to David Mullan, whose written comments led to significant revisions. + Professor David Dyzenhaus holds a joint appointment in the Law School and Department of Philosophy in the University of Toronto; Murray Hunt is a barrister at Matrix, London; Professor Michael Taggart teaches at the Faculty of Law in the University of Auckland and was a Distinguished Visiting Professor at the University of Toronto Law School in 2001.

the principle that broadly expressed discretions are subject to the fundamental values, including values expressive of human rights, of the common law. We will argue that this principle is properly located within a particular conception of democratic legal culture, the culture of justification, in which decision-makers are obliged to justify their decisions by showing either how the decisions conform to the values or that they are justifiable departures from the values. Our general thesis is that judicial review of such decisions should focus on the question whether the reasons given by the decision-maker are capable of justifying the decision and not solely on the decision itself. That requirement imports deference into the judicial evaluation of the decision since the judge is no longer concerned with establishing a match or mismatch between what she would have decided and what was decided, that is, with the correctness of the decision. Rather she is concerned with the reasonableness of the justification. Hence, the principle of legality requires both a duty on administrative decisionmakers to give reasons for their decisions and a duty on judges to defer to those reasons to the extent that they refrain from reviewing on a correctness standard. The combination of both duties makes decision-makers accountable to fundamental values without squeezing out the space for exercise of their discretion. Put differently, the principle of legality might be thought of as a constitutional principle, one that will in a sense constitutionalise administrative law. And it would follow that the concerns raised for the traditionalist by the role of conventions are then not properly cast as concerns about internationalisation alone, since they are also concerns about constitutionalisation. But the sense in which administrative law is constitutionalised is far removed from the kind of constitutionalism associated with the Bill of Rights model of the United States of America. It is much closer to more recent experiments in constitutionalism, where the legislature is given a legitimate role in either determining the content of constitutional values or even in determining when such values are justifiably overridden. It is then no accident that the role of unincorporated conventions comes to the fore in the era of these experiments. But, we will suggest, this sense of constitutionalism has a genuine claim to be not an entire novelty. Rather, it has roots in the common law tradition. So, at its most provocative, our argument could be understood to say to the traditionalist that he has not understood his tradition.

INTERNATIONALISATION IN NEW ZEALAND, AUSTRALIA AND CANADA In New Zealand, Australia and Canada, the main vehicle for internationalisation of administrative law by the judges has been the United Nations Convention on the Rights of the Child (CRC), a convention which all three jurisdictions have ratified but not incorporated by legislation. Art 3 of the CRC assigns weight to the ‘best interests of the child’. These interests are to be ‘a primary consideration’ in any proceedings concerning children. So a judge who finds that statutory discretions are subject to the obligation in Art 3 must, it seems, find not only that the decision-maker has to take the interests of the child into account, but also has to assign them that specified weight. And of course the greater the weight assigned by a Convention to a particular factor the greater the chance that judges might see it as inconsistent or incompatible with the language and spirit of the discretion assigned by statute to the decision-makers. One might suppose that judicial concern about this issue would be offset by the general level of comfort judges have with review when their jurisdictions have constitutions in place which provide a normative basis for judges to decide challenges to legislative authority even when the constitution is not the vehicle of the legal challenge. Thus one would suppose that in Canada there would be a high level of comfort, since the Charter of Rights and Freedoms is a clear inroad into parliamentary sovereignty, while in Australia there would be the lowest level of comfort since there is no statutory bill of rights, with New Zealand, which has a statutory Bill of Rights, somewhere in the middle. But, as we will see in the Canadian section, even when judges are explicitly given authority to decide challenges to legislative authority on the basis

of a constitutional document, some seem tempted to preserve a traditional dualism between the sphere of legal authority directly affected by the constitution and the rest of public law, including administrative law. 1

New Zealand: Interests as ‘starting points’

The New Zealand Court of Appeal had decided in 1981 that a ratified but unincorporated treaty could legitimately influence an exercise of discretion, that is, the obligation in it could be a 'permissive' though not a 'mandatory' relevant consideration.1 The Court of Appeal was anxious, however, to preserve this distinction because to hold that the Minister was 'bound' by the obligation would 'amount to legislation by the Court, which is not our function’.2 In 1990 the New Zealand legislature enacted the New Zealand Bill of Rights Act 1990, an ordinary statute intended in part to ‘affirm’ New Zealand’s commitment to the International Covenant on Civil and Political Rights (ICCPR).3 Three years later the Executive ratified the CRC. Shortly thereafter the CRC was raised in a case where an overstayer sought judicial review of a ministerial decision refusing to stay deportation on humanitarian grounds. The statute said that the Minister had to be satisfied that because ‘of exceptional circumstances of a humanitarian nature it would be unjust or unduly harsh’ for the court-ordered deportation to take effect.4 After the Minister had refused to exercise this discretion in the overstayer’s favour, the latter’s wife gave birth to a son, who by operation of law became a New Zealand citizen. Before the Court of Appeal in Tavita v Minister of Immigration5 Crown counsel conceded that the Minister had not had regard to the CRC, but argued that he did not have to as it was of no effect in the domestic legal system. Cooke P described this argument as ‘unattractive, apparently implying that New Zealand’s adherence to the international instruments has been at least partly window-dressing’.6 The Court did not have to decide the issue, as the case was adjourned so that the Minister could take into account the interests of the child born subsequent to the ministerial decision. The reasoning of the Court suggested that should the matter fall for decision the ratified but unincorporated CRC and unincorporated provisions in the ICCPR could well be treated as mandatory relevant considerations.7 Upon reconsideration the Minister permitted Mr Tavita to stay, and the case was abandoned. As a result of this case the Minister initiated a change in departmental policy, which now requires the interests of any affected children to be identified and weighed in immigration decision-making.8 Although the Court of Appeal in subsequent cases has been careful not to endorse Tavita enthusiastically,9 numerous High Court judges have read international human

1

Ashby v Minister of Immigration [1981] 1 NZLR 222 (CA) (‘Ashby’). Ibid 226 (Cooke J). 3 See the Long Title to the New Zealand Bill of Rights Act 1990. 4 Immigration Act 1987, s63B(2)(a). The second part of the test is that ‘[i]t would not in all the circumstances be contrary to the public interest to allow that person to remain in New Zealand’: s63B(b). In 1993 the jurisdiction was transferred from the Minister to the Deportation Review Authority. 5 [1994] 2 NZLR 257 (‘Tavita’). 6 Tavita, ibid 266. 7 The Court quoted arts 23 & 24 of the ICCPR (right to protection of family unit and children), art 9 of the CRC and cited cases relying upon art 8 of the European Convention for the Protection of Human Rights (respect for family life). None of these rights were included in the New Zealand Bill of Rights Act 1990, which was passed in part to ‘affirm New Zealand’s commitment to’ the ICCPR (above n3). There is no evidence that this was a deliberate decision by the legislature to ‘under-incorporate’ the ICCPR. 8 See further M Poole, ‘International Instruments in Administrative Decisions: Mainstreaming International law’ (1999) 30 Victoria University of Wellington Law Review 91. 9 Puli’uvea v Removal Review Authority (1996) 2 HRNZ 510 (CA) 517 (‘Puli’uvea’); Rajan v Minister of Immigration [1996] 3 NZLR 543 (CA). 2

rights norms as mandatory relevant considerations.10 Failure to consider these norms in a meaningful way has led to invalidation.11 The CRC is unusual among human rights treaties in that it assigns specific weight to the human right it protects. Usually human rights instruments affirm a right followed by a limitations clause. Then the argument is that the discretionary power in question should be exercised in accordance with that right. This entails a ‘balancing exercise’, whereby the human right and public interests are weighed. This is the approach, inter alia, of the European Court of Human Rights, whose jurisprudence on the right to family life was influential in Tavita’s case. There, Cooke P said a ‘broadly similar’ balancing exercise ‘may be required’ by the CRC and ICCPR, but stressed that ‘the basic rights of the family and the child are the starting point’.12 This is the only respect in which subsequently the Court of Appeal has expressly disagreed with Tavita. In Puli’uvea v Removal Review Authority the Court of Appeal observed that the ‘interim character’ of the judgment in Tavita explained the ‘cautious tone’, and went on to disagree about the starting point in immigration cases.13 For the Court, Keith J said in that context ‘the starting point must be the position of the person who is unlawfully in the country or who is being deprived of residency rights’.14 Counsel for the unsuccessful applicant in Puli’uvea sought leave of the Court of Appeal to appeal to the Privy Council, which was denied. He argued that the Court had ‘retreated’ from Tavita and the issue of ‘starting point’ was a matter of public importance, justifying the granting of leave. The Court did not see any ‘sharp contrast’ in approach, and thought the issue boiled down to one of presentation and semantics.15 However, Keith J's judgment can also be interpreted as resurrecting the concern that had initially led the Court to confine the legal force of unincorporated international obligations to the realm of permissive relevant considerations, the fear that if the Court were to do more, this would amount to legislation. For if the human right is not given the status of a factor that has to be demonstrably outweighed, then even if there is, as was the case here, a statutory duty to give reasons, the mere mention that the interests of the children had been taken into account would suffice to make the decision 'judge-proof'. In other words, the obligation will be mandatory but toothless if its observance is manifested simply by a tick in the box for consideration of the best interests of the child. The New Zealand Court of Appeal seems then to find itself caught in a dilemma. On the one hand, it manifests a desire to change the legal landscape for administrative decision-making by importing legal obligations from the international sphere into the domestic. On the other hand, its concern that this importation will amount to judicial constitutionalisation of the values leads the judges to eviscerate the force of the obligations. And that, or so we will argue below, is because the judges have trouble seeing the middle ground between no obligation and an obligation that squeezes out discretion altogether. 2

Australia - The Legitimate Expectations Approach

The Australian contribution to the movement to give greater effect in domestic law to ratified but unincorporated treaties has used the doctrine of legitimate expectations. The leading case is Minister for Immigration and Ethnic Affairs v Teoh,16 and again the CRC was involved. 10

See, eg, Elika v Minister of Immigration [1996] 1 NZLR 741 (HC); Mil Mohamud v Minister of Immigration [1997] NZAR 223 (HC); Patel v Minister of Immigration [1997] 1 NZLR 252 (HC). 11 These cases almost always involve stereotyping on the part of officials or fixation on one aspect to the exclusion of other primary relevant factors. See, eg, Mil Mohamud v Minister of Immigration, ibid & Lee v Deportation Review Tribunal (High Court, Auckland, 16 April 1999). 12 Tavita [1994] 2 NZLR 257 (CA) 261. 13 Puli’uvea (1996) 2 HRNZ 510 (CA) 517. 14 Ibid. 15 Puli’uvea v Removal Review Authority [1996] 3 NZLR 538 (CA) 540-41 (Keith J). 16 (1995) 183 CLR 273 (‘Teoh’).

Teoh was subject to a deportation order to his home country once he had served a prison sentence. The High Court of Australia granted judicial review of the administrative panel's decision that the hardship to his wife and her seven children (three of them fathered by Teoh) did not outweigh the policy against serious criminal offending. Mason CJ, Deane and Toohey JJ held that Australia's ratification of the CRC created a legitimate expectation in Teoh and his children that any decision relating to residency or deportation would be made in accordance with the principle in Art 3(1) of the Convention, namely by treating the best interests of the children as a primary consideration.17 That expectation could be validly defeated only by informing the Teohs that the Convention principle would not be applied and giving them the opportunity to persuade the decision-maker to change her mind.18 McHugh J wrote a stinging dissent, describing the result as ‘strange, almost comic’.19 Apparently the Australian Government agreed. In stark contrast to the relevant Minister’s response to Tavita, the Australian Executive reacted swiftly and angrily. A joint ministerial statement was issued intended to prevent any legitimate expectations arising or continuing to arise from the ratification of any treaties by Australia.20 Successive Australian Governments have thrice proposed legislation to reverse the decision though only the State legislature of South Australia has enacted so-called ‘anti-Teoh’ legislation.21 It was common ground in the case that neither Teoh nor his family relied on, or even knew of, the terms of the CRC. But the source of the expectation and its legitimacy or reasonableness was found in the act of ratification. Mason CJ and Deane J said ratification of the Convention was ‘a positive statement by the Executive ... to the world and to the Australian people that ...[it] will act in accordance with the Convention’.22 Similarly Toohey J held the assumption of international obligations by ratification created the expectation, describing ratification as ‘a solemn undertaking to the world at large’.23 As in Tavita – a case cited by several of the High Court justices - Mason CJ and Deane J refused to dismiss ratification ‘as a merely platitudinous or ineffectual act’.24 It was held to be irrelevant that the Teohs did not know of the existence of the CRC; it was enough that the expectation was reasonable in that it was adequately supported25 or reasonably engendered.26 Opinions differ markedly over whether this was a small step or a large leap in doctrinal terms. In our view, Teoh is a misguided and ultimately unsuccessful attempt to avoid the allegation of ‘back door’ incorporation of treaty law by the judiciary.27 It is also unsuccessful in that, as McHugh J revelled in pointing out, the obligation imported was a very funny sort of obligation, one with no force other than its imposition of a ritual on those who wished to escape it. The doctrinal and practical difficulties of using procedural fairness via legitimate expectation to achieve a greater status for unincorporated treaties in domestic law are considerable. Not the least of these is the recognition in Teoh that the Executive could by word or deed negate the

17

Ibid 291& 302. Gaudron J found that the true source of the obligation was domestic - the significance of the children's status as Australian citizens.; ibid 305. 19 Ibid 314. 20 See (1997) 8 Public Law Review 120. 21 Administrative Decisions (Effect of International Instruments) Act 1995 (SA). 22 Teoh (1995) 183 CLR 273, 291. 23 Ibid 301. 24 Ibid 291. 25 Ibid 291. 26 Ibid 301. 27 See M Taggart, ‘Legitimate Expectation and Treaties in the High Court of Australia’ (1996) 112 Law Quarterly Review 50 & M Hunt, Using Human Rights Law in English Courts (Hart Publishing, Oxford 1997) 242-47. See also E Handsley, ‘Legal Fictions and Confusion as Strategies for Protecting Human Rights: A Dissenting View of Teoh’s Case’ (1997) 2 Newcastle Law Review 56. For an influential early view to the contrary see M Allars, ‘One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government: Teoh’s Case and the Internationalisation of Administrative Law’ (1995) 18 Sydney Law Review 204. 18

expectation of application that would ordinarily flow from ratification.28 It is extremely unclear when, how and by whom such ‘contrary indications’ can be given. Certainly Australian commentators disputed the legitimacy of the post-Teoh joint ministerial press statements to the effect that it was no longer legitimate for the people of Australia to expect government decision-makers to apply ratified but unincorporated treaties.29 Despite these difficulties, the Australian approach has found favour among influential members of the British judiciary.30 But the highest courts in Australia and Canada have thus far restricted the doctrine of legitimate expectation to procedure.31 And recent obiter dicta endorsing the approach in Teoh in British courts for the most part have stressed that the doctrine is procedural, not substantive.32 In seeking to build a wall between procedure and substance, these courts seek to limit the force of the imported obligation in the same way that the New Zealand Court of Appeal in Puli’uvea signalled when it switched the starting point of official deliberation from children’s interests to the unlawful position of the person subject to a deportation order. Such an exercise in limitation is particularly stark when, as in the CRC, the obligation is assigned quite specific weight. It must be in part the appropriateness of that assignment of weight that leads both to ratification and to judicial willingness to import the obligation. But it is at least ironical, or, as McHugh J put it, comical, if the obligation once imported is eviscerated. Executive window-dressing is not cured by judges imposing a further window-dressing exercise on the Executive, whether this be in the form of box-ticking or in the Australian ritual. 3

Canada - Unreasonableness review

In yet another case involving the CRC, the Supreme Court of Canada in Baker v Canada (Minister of Citizenship & Immigration)33 held an immigration decision to be unreasonable for failing to give sufficient weight to the best interests of the child.34 Ms Baker was from Jamaica and entered Canada as a visitor in 1981. She overstayed and worked illegally, during which time she had four children. She applied to remain in Canada on ‘humanitarian and compassionate’ (H & C) grounds, but the application was refused. The case notes of one of the officials involved in the decision had treated Baker's children as a

28

(1995) 183 CLR 273, 291 (the act of ratification generates a legitimate expectation ‘absent statutory or executive indication to the contrary’) & 302 (no legitimate expectation if the actions of Executive are inconsistent with such an expectation). See on this Thomas v Baptiste [2000] 2 AC 1 (PC, Trinidad & Tobago) 25, 32 & Fisher v Minister of Public safety (No 2) [2000] 1 AC 434 (PC, The Bahamas) 446-47, 454. 29 Allars, above n17, 237-41. 30 Lord Woolf MR in an obiter passage in Ahmed v Secretary of State for the Home Department [1999] Imm AR 22 (CA) 36-37. See also R v Uxbridge Magistrates’ Court, ex p Adimi [2000] 3 WLR 434 (DC). 31 See Attorney-General (NSW) v Quinn (1990) 170 CLR 1 (HCA); Reference re Canada Assistance Plan [1991] 2 SCR 525 (SCC). 32 R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326 (DC) 353-55 (Laws J) (reversed by House of Lords, but not on this point: [2000] 2 AC 362.); Thomas v Baptiste [2000] 2 AC 1 (PC, Trinidad & Tobago) 25; Higgs v Minister of National Security [2000] 2 AC 228 (PC, The Bahamas) 241. 33 [1999] 2 SCR 817; (1999) 174 DLR (4th) 193 (‘Baker’); [1997] 2 FC 127; (1997) 142 DLR (4th) 554 (Fed CA)(‘Baker (CA)’); (1996) 31 Imm LR (2d) 150 (FC, TD)(‘Baker (TD)’). 34 For an excellent overview see D Mullan, ‘Baker v Canada (Minister of Citizenship & Immigration) – A Defining Moment in Canadian Administrative Law’ (1999) 7 Reid’s Administrative Law 145. For background to the case, analysis of the arguments presented and the holdings, as well as the public reaction to the decision – all viewed through the lens of protecting children’s rights – see S Aiken & S Scott, ‘Baker v Canada (Minister of Citizenship and Immigration) and the Rights of Children’ (2000) 15 Journal of Law and Social Policy 211. For further discussion of the jurisprudential implications of the case, see D Dyzenhaus & E Fox-Decent, ‘Rethinking the Process/Substance Distinction: Baker v Canada’ (2001) 51 University of Toronto Law Journal (forthcoming).

negative factor and disclosed such hostility to her that the Supreme Court found that they disclosed bias sufficient to invalidate the decision. The Federal Court of Appeal not only failed to quote the damning text of these notes, but accepted the Federal Court trial judge’s finding that ‘the situation of the children was a “significant factor in the decision-making process”’.35 This leaves the judgment ambiguous between the proposition that the interests were a permissive consideration and that they were mandatory with a tick in the box sufficing for consideration. At any rate, the Court of Appeal followed the dissenting judgment of McHugh J in Teoh, reasoning that to give weight to the children's interests would both attach substantive consequences to a procedural doctrine and be constitutionally improper on separation of power grounds.36 Just as the Federal Court of Appeal’s judgment is marked by the lack of reference to the notes, so Madame Justice L’Heureux-Dubé’s majority judgment for the Supreme Court is marked by the absence of any reference to Teoh. This is remarkable given that it was a focal point in the judgment appealed from.37 Even more puzzling is the fact that the two dissenting judges, who entered a brief and only partial dissent which raised the same concerns about the separation of powers as had McHugh J in Teoh, and the Court of Appeal below, did not mention Teoh either. There appears to have been a taboo in the Supreme Court on mentioning Teoh. And L’Heureux-Dubé J found that she did not have to consider the question whether an international instrument could give rise to a legitimate expectation since the doctrine of legitimate expectations would not enhance Baker’s procedural rights beyond what she was in any case entitled to.38 Instead, the Supreme Court decided that the continuum of standards it had developed for reviewing administrative interpretations of statutes in an appropriately deferential manner should be applied in determining the limits on broad discretionary powers conferred by statute. At one pole is the narrow area of jurisdictional error, where the courts decide what is the correct interpretation giving no heed to the expertise or identity of the administrative decision-maker. At the other pole the courts will acquiesce in any interpretation that is not ‘patently unreasonable’. In between the poles exists a standard called reasonableness simpliciter, which is a somewhat more probing examination than at the deferential patent unreasonableness pole but does not go as far as determining correctness.39 Until Baker’s case the area of discretionary power was insulated from this sophisticated body of law. Indeed, in all the jurisdictions surveyed here, questions of statutory interpretation have traditionally been considered essentially different from issues involving control of discretionary power.40 In Baker, the Supreme Court decided, after balancing the ‘pragmatic and functional’ factors pointing either way, to subject the discretion to the reasonableness simpliciter standard of review.41 This reasonableness standard was given teeth by obliging the decision-maker to give reasons for the decision. L’Heureux-Dubé J declared it was time for the common law of Canada to recognise a duty to give reasons if an administrative decision ‘has important significance for the individual’.42 She treated 35

Baker (CA) [1997] 2 FC 127, 136; (1997) 142 DLR (4th) 554, 557. The Trial judge, Judge Sandra Simpson, said: ‘The notes make it clear that Officer Lorenz emphasized the importance of the applicant’s children. Mention of them in capital letters and, in the text of the notes, he records the C.A.S.’s [Children Aid Society’s] concern that the children would suffer if their mother were to be returned to Jamaica. Accordingly, the evidence before me suggests that the children were a significant factor in the decision-making process’ (Baker (TD) (1996) 31 Imm LR (2d) 150, 156). 36 Baker (CA) [1997] 2 FC 127, 141; (1997) 142 DLR (4th) 554, 563-64. 37 Moreover, on another point the majority did refer to High Court of Australia authority, with which it disagreed: Baker [1999] 2 SCR 817, 845-46; (1999) 174 DLR (4th) 193, 217-18, citing Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 (HCA). 38 Ibid. 39 See DJ Mullan, Administrative Law (3rd ed, Carswell, Toronto 1996) ch 5. 40 See M Taggart, ‘The Contribution of Lord Cooke to Scope of Review Doctrine in Administrative Law: A Comparative Common Law Perspective’ in P Rishworth, The struggle for simplicity in the law: Essays for Lord Cooke of Thorndon (Butterworths, Wellington 1999) 189. 41 Baker [1999] 2 SCR 817, 858; (1999) 174 DLR (4th) 193, 228. 42 Ibid 848; 220.

the case notes as the reasons for the decision by the superior officer and held, as we have indicated, that they disclosed sufficient bias to invalidate the decision. L’Heureux-Dubé J required that the discretion be ‘exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter’.43 While international legal norms do not overtly appear on this list, it is clear from the majority’s treatment of the CRC that it was relevant. Just how relevant is a matter of conjecture. The statutory language of ‘humanitarian and compassionate considerations’ was held to demand ‘close attention to the interests and needs of children’.44 The central importance of the children’s interests was indicated also in three other places: namely, ‘the purposes of the Act, in international instruments, and in the guidelines for making H & C decisions published by the Minister herself’.45 Thus L’HeureuxDubé J portrayed the CRC’s role in the analysis of discretion as one of three concrete factors informing her evaluation whether the exercise of the discretion had in fact been reasonable. However, her judgment deliberately avoids the phraseology of the CRC (ie, a primary consideration) preferring to talk of the ‘centrality’ and ‘importance’ of the children’s interests, and insisting that they be given ‘substantial weight’ and requiring decision makers to be ‘alert, alive and sensitive to them’.46 She emphasised that to give the interests substantial weight is not to say that the ‘children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when the children’s interests are given this consideration’.47 But the spirit, if not the exact phraseology, of the CRC is manifestly influential in this part of the judgment. L’HeureuxDubé J said the ‘principles’ of the CRC and ‘other international instruments’ placing ‘special importance’ on children ‘help show the values that are central in the determining whether [the] decision was a reasonable [one]…’.48 In other words, they help illuminate the ‘fundamental values of Canadian society’, which the Court stressed limited the exercise of all discretionary power.49 There will be unease in some quarters over the divination of fundamental values by judges - perhaps less so in Canada where the Courts were handed that job on the Charter plate nearly twenty years ago. It is worth noting that Baker was actually argued in the alternative as a Charter case, but the Court treated it exclusively as an administrative law case.50 The Court simply reaffirmed that the ‘principles of the Charter’ condition the exercise of discretionary power.51 It is likely the Court went down the administrative law path because the Charter does not obviously protect the rights of children. It was the use of the CRC that inspired the partial dissenting judgment of Iacobucci J, concurred in by Cory J. The dissenters objected that the majority had allowed the appellant to ‘achieve indirectly what cannot be achieved directly, namely, to give force and effect within the domestic legal system to international obligations undertaken by the executive alone that have yet to be subject to the democratic will of Parliament’.52 Further, the dissenters objected to the fact that, as they understood it, the majority had accorded ‘primacy’ to the rights of the children in a manner which could be properly secured only by legislation.53 But the most striking feature of their dissent is the claim that had the majority’s judgment relied on the Charter rather than administrative law, the dissenters would not have balked at allowing the CRC to have domestic force.54 It is precisely this claim that establishes the traditionalist’s dualism between law and values, this time 43

Ibid 855; 226. Ibid 860; 230. 45 Ibid. 46 Ibid 864; 233. 47 Ibid. 48 Ibid 862; 231. 49 Ibid 855; 226. 50 Ibid 832; 206. 51 Ibid 854 & 861; 225 & 231, citing the leading case of Slaight Communications Inc v Davidson [1989] 1 SCR 1038; (1989) 59 DLR (4th) 416 (SCC). 52 Baker [1999] 2 SCR 817, 866; (1999) 174 DLR (4th) 193; 235. 53 Ibid. 54 Ibid 866; 235. 44

adapted for an era in which judges are forced by explicit legislative incorporation of values to take the values seriously. When the traditionalist is confronted by an expressly incorporated constitutional document, he finds that within a certain scope – the area most directly affected by the document – judges have free rein to interpret and apply their sense of appropriate values. But the rest of the law, including the rest of public law or administrative law is unaffected. So, on the one hand, one has the constitutional sphere in which values oblige in the sense of determining results, while on the other one a sphere devoid of values unless these are explicitly incorporated by statute. Paradoxically, the stronger the protection given to values in the constitutional document, the more traditionalist judges might be inclined to maintain seals on the spheres. And, as the next section illustrates, a weaker form of domestic rights protection can have the opposite result.

A COMMON LAW ‘PRINCIPLE OF LEGALITY’: THE EMERGING ENGLISH APPROACH In English law the full range of administrative law techniques has been deployed in order to give greater effect in domestic law to international human rights norms, notwithstanding their ‘unincorporated’ status.55 It is striking, however, that whereas in New Zealand, Australia and Canada the leading cases in which these developments have taken place have all involved the CRC in the context of deportations, this is not the case in the UK, where the various techniques have mainly been used in relation to the European Convention on Human Rights (ECHR). This is partly because of the UK’s reservation to the CRC, which means that the equivalent arguments cannot be made in English courts.56 But it is no doubt also because of the relatively advanced nature of the international enforcement mechanism for the ECHR. The European Court of Human Rights at Strasbourg is the world’s most established human rights court, and as it has grown in status so the normative force of its judgments has been increasingly felt in the legal systems of Council of Europe Member States. It is no coincidence that the vast majority of English cases concerning ratified but unincorporated human rights instruments have concerned the ECHR, with only a handful referring to other instruments such as the ICCPR, the UDHR or the CRC. Since the coming into force of the Human Rights Act 1998, however, Convention rights have been directly enforceable in English courts. The immediate stimulus for judicial creativity in this respect has therefore been removed. Nevertheless, the techniques which were used to give greater effect to the Convention before the enactment of the Human Rights Act are of general application, and are therefore equally available in principle in relation to other ratified but unincorporated international instruments. The range of administrative law techniques deployed has been characteristically eclectic. As was noted above, recently there has even been some surprising flirtation with the doctrine of legitimate expectation.57 In the series of cases during the 1990s in which English courts have placed greater emphasis on the protection of fundamental rights,58 however, two main techniques have been deployed. The first has been the development of a differential standard 55

See M Hunt, Using Human Rights Law in English Courts (Hart Publishing, Oxford 1997) ch

6. 56

Arguments to similar effect have generally relied on the European Court of Human Rights’ jurisprudence on art 8 (right to respect for family life), but this does not provide a very high level of protection. Indeed, the sorts of arguments that succeeded in Baker, Teoh and Tavita have generally failed in Strasbourg when complaints have been made about the ‘constructive deportation’ of children who are UK nationals but whose parent or parents are being deported. See most recently R v Secretary of State for the Home Department, ex p Mahmood (English High Court, 8 December 2000) (no breach of art 8 because Secretary of State’s decision by no means compelled the appellant and his wife to live apart, and the Secretary of State was entitled to conclude that it would be reasonable for her and the children to accompany him to Pakistan). 57 See Ahmed v Secretary of State for the Home Department [1999] Imm AR 22 (CA) & R v Uxbridge Magistrates’ Court, ex p Adimi [2000] 3 WLR 434 (DC). 58 See generally M Loughlin, ‘Rights Discourse and Public Law Thought in the United Kingdom’ in GW Anderson (ed), Rights and Democracy: Essays in UK-Canadian Constitutionalism (Blackstone Press Ltd., London 1999) 193.

of review by introducing greater sophistication into the previously monolithic Wednesbury standard for reviewing administrative discretion. The second has been the more explicitly interpretive technique of delimiting the scope of statutory powers against a strong background presumption that the power does not confer authority to interfere unjustifiably with rights which are recognised as a having a ‘constitutional’ status. Common to both of these techniques has been the discovery in the common law of a set of fundamental rights that are asserted to enjoy a special status, sometimes described as a ‘constitutional’ or ‘fundamental’ status. The courts have been at pains to stress the indigenous nature of these constitutional fundamentals. Where reference is made in these endeavours to international human rights treaties, it has very rarely been in a way that credits them with any operative part in the reasoning process. Rather it is usually as a postscript, in which the court records its satisfaction to see that the conclusion it has independently arrived at also happily coincides with the requirements of the UK’s international obligations. This avoids argument over the legitimacy of using the international human rights norms. Moreover, this indigenous turn obscures two quite different techniques and agendas. One is the active development of the common law catalogue of rights so as to bring it more up to date by recognising the sorts of values that are found in international human rights treaties. In this way the courts can give effect to values which otherwise would not find protection in English law. The other technique pre-empts any serious or conscientious consideration of international human rights requirements by the lazy assertion of an identity between them and the common law list. Thus the domestic law is insulated from the influence of what are perceived to be alien and threatening concepts and methodologies. 1

A Variable Standard of Review of Discretion

The decision of the House of Lords in R v Secretary of State for the Home Department, ex p Brind59 is most frequently cited as authority for the orthodox position that broad statutory discretions are not required to be exercised consistently with ratified but unincorporated international human rights norms.60 It will be recalled in that case that pursuant to a broad statutory power the Secretary of State had directed television and radio stations not to broadcast the voices of persons representing terrorist organisations. It was argued that the language of the broad statutory discretion should be interpreted against the background of a general treaty presumption, that Parliament does not intend to legislate inconsistently with the State’s international obligations, or alternatively that the language conferring the discretion ought to be treated as being ambiguous due to its uncertain ambit. Those arguments provoked two types of resistant response: that to apply the general treaty presumption would amount to ‘back door’ incorporation of the ECHR, and that there is nothing ambiguous in the open-ended language of a wide discretion. The decision of the House of Lords in Brind, however, faces both ways. At the same time as resisting the resort that was made to presumptions of statutory interpretation, the House of Lords took a very significant step towards modifying the previously monolithic standard of Wednesbury review. Having found that it would amount to a ‘judicial usurpation of the legislative function’ to apply a presumption that open-ended administrative discretions must be exercised within Convention limits, Lord Bridge went on to say that he did not accept that this meant that the courts were powerless to prevent the exercise by the Executive of such discretions in a way which infringes fundamental human rights. The courts were ‘perfectly entitled to start from the premise that any restriction of the right to freedom of expression

59

[1991] 1 AC 696 (‘Brind’). In terms of the impact of Brind on the law of the other countries surveyed, it was ignored in Baker, leg-glanced in Tavita (although en passant described as ‘controversial’ in some respects), and treated as orthodoxy in Teoh. See Tavita [1994] 2 NZLR 257 (CA) 266 (Cooke P); Teoh (1995) 183 CLR 273 (HCA) 288 & 300. For extra-judicial criticism see Sir Robin Cooke, ‘Empowerment and Accountability: The Quest for Administrative Justice’ (1992) 18 Commonwealth Law Bulletin 1326, 1328. 60

requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it.’61 This represented a very significant step on the way to the modification of the principles of reviewing administrative discretion in cases involving fundamental rights. The development was taken further in R v Ministry of Defence, ex p Smith, where the Court of Appeal held that ‘the more substantial the interference with fundamental rights the more the court will require by way of justification before it can be satisfied that the interference is reasonable in a public law sense’.62 Similarly in R v Lord Saville of Newgate, ex p A, Lord Woolf held that when a fundamental right is engaged, the options available to the reasonable decision-maker are curtailed, because it is not open to such a decision-maker to risk interfering with fundamental human rights in the absence of compelling justification: ‘even the broadest discretion is constrained by the need for there to be countervailing circumstances justifying interference with human rights.’63 In these cases, the English courts have in effect developed a variegated approach to the intensity of review, or what Laws LJ has described as a sliding scale of review: the graver the impact of the decision upon the individual affected by it, the more substantial the justification that will be required.64 It operates like a spring: the more the exercise of public power presses down on constitutional or fundamental rights, the more the law’s resistance increases requiring cogent reasons for the limitation before giving way.65 The new emphasis on justification is all-important.66 There is not space to explore whether the European doctrine of proportionality has a place on that sliding scale or an independent role or no place at all in English administrative law.67 In Brind, for instance, the majority of their Lordships were wary of recognising proportionality in that case and two Law Lords were downright hostile.68 The catechetic doctrine of proportionality, with its sequenced series of questions requiring reasoned answers from decision-makers, also underscores the need for justification. Vague assertions of deference or of non-justiciability under the cloak of Wednesbury unreasonableness will no longer do. 2

A Harder-Edged ‘Principle of Legality’

The second technique favoured by English courts has been to interpret the scope of statutory powers against a strong background presumption in favour of constitutional rights. In deciding what rights qualify as having this ‘constitutional’ status, the courts are clearly (though not always explicitly) guided by international norms such as those contained in the ECHR. This approach is rather more ‘hard edged’ than the variable standard of review approach, in that it more directly involves the reviewing court in making the determination as to whether there has been an infringement of the right concerned. Also, by recasting the question as one of

61

[1991] 1 AC 696 (HL) 748-49. [1996] QB 517 (CA) 554. 63 [1999] 4 All ER 860 (CA) 872. See also R v Secretary of State for the Home Department, ex p Launder [1997] 3 All ER 961 (HL) 988. 64 R v Secretary of State for the Home Department, ex p. Mahmood (8 December 2000). See also Sir John Laws, ‘Wednesbury’ in CF Forsyth & I Hare (eds), The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade QC (Clarendon Press, Oxford 1998) 185. 65 The spring metaphor is taken from WD Baragwanath, ‘The Dynamics of the Common Law’ (1987) 6 Otago Law Review 355, 367. 66 Cf R v Ministry of Agriculture, Fisheries and Food, ex p First Trading Ltd [1997] 1 CMLR 250 (QB) 279 (Laws J). 67 See G de Búrca, “Proportionality and Wednesbury Unreasonableness’ in M Andenas (ed), The Common Law of Europe and the Public Law of the United Kingdom (Key Haven Publications, London 1998) 1 & P Craig, ‘Unreasonableness and Proportionality in UK Law’ in E Ellis (ed), The Principle of Proportionality in the Laws of Europe (Hart Publishing, Oxford 1999) 85. 68 Ibid 762 (Lord Ackner) & 767 (Lord Lowry). 62

statutory interpretation, it begins to break down the traditional distinction, noted above, between such interpretation and judicial review of administrative discretion.69 In R v Lord Chancellor ex p Witham,70 for example, the challenge was to a piece of delegated legislation which removed from litigants in person who were in receipt of income support their relief from the obligation to pay court fees, and which also removed the Lord Chancellor’s discretion to reduce or waive the fee in any particular case on grounds of undue financial hardship. The provision being challenged had been made under a very broad rule-making discretion conferred by statute. The challenger was unemployed, had no savings, and was in receipt of income support. He wished to bring proceedings for malicious falsehood and libel, for which legal aid is not available, but he was unable to afford the court fee. The argument was that the rule which had been made was ultra vires the rule-making power, because there exists an implied limitation on the power to prescribe court fees, namely that it cannot be exercised in such a way as to deprive the citizen of his constitutional right of access to the courts. That right was said to derive from two sources: the common law and Art 6 of the ECHR. The argument was therefore in the nature of a vires argument, rather than a rationality argument. In reply the Lord Chancellor’s relied on the broad scope of the discretion which had been conferred by the statute to argue that no vires question arose, and the only ground on which the measure could be challenged was irrationality. Since Parliament had conferred on the Lord Chancellor a wide discretion to prescribe fees, it was argued, that was a matter for him, and that judgement was open to scrutiny on Wednesbury grounds, but was not limited as a matter of vires. The Court, however, adopted the vires approach. It did this by first discovering a right in the common law and then applying a strong presumption of legislative intent that such a right could not be abrogated save by clear words in a statute. Laws J found that the common law recognised what he described as a ‘constitutional right’ of access to court. That right was ‘constitutional’ in the sense that it could only be abrogated if there was specific, express authorisation by Parliament. It could not be done by necessary implication. Since there was no such express authorisation in the rule-making power, explicitly authorising rules to be made which had the effect of precluding the poor from access to court, the rule was ultra vires the rule-making power. In one sense the decision in Witham is merely an example of the application of a strong presumption of legislative intent when construing the scope of discretionary power. In discovering a fundamental right of access to court in the common law the Court adopted the ‘indigenous’ approach to fundamental rights protection referred to above. The challenger’s argument had sought to derive the constitutional right from both the common law and the ECHR, but the Court purported to eschew any reliance on the Convention and its case law, finding that ‘the common law provides no lesser protection of the right of access to the Queen’s courts than might be vindicated in Strasbourg’.71 In another recent example of this harder-edged interpretive approach, the House of Lords in R v Secretary of State for the Home Department, ex p Simms arguably went even further in constructing from the common law a fundamental right, which both primary and subordinate legislation were presumed not to be intended to violate in the absence of express words in the statute.72 The case concerned a challenge to decisions refusing to allow prisoners to have oral interviews with journalists unless the journalists signed written undertakings not to publish any part of the interviews. Those decisions were taken pursuant to a policy that the Home Secretary claimed to be entitled to adopt under provisions in the Prison Rules governing visits by journalists or writers. Those rules were in turn made by the Home Secretary under a very broad statutory discretion to make rules for the regulation and management of prisons and for the discipline and control of prisoners. The prisoners, who wanted to have oral interviews with 69

In that vein see the dissenting judgments in R v Secretary of State for the Environment, Transport and the Regions, ex p Spath Holme Ltd [2001] 1 All ER 195 (HL). 70 [1998] QB 575 (QB). 71 Ibid 585. 72 [2000] 2 AC 115 (HL).

journalists who had taken an interest in their cases in order to enlist the help of the media in having their convictions re-examined, argued that the relevant Prison Rules were ultra vires the rule-making power in the Prison Act. Lord Steyn took as the ‘starting point’ in his analysis the prisoners’ right of freedom of expression, which he described as the primary right in a democracy, a right without which an effective rule of law is not possible.73 He found this to be a common law right. Moreover, in the circumstances of this case that right was bound up with another right recognised to be of fundamental importance by the common law, the right of access to court to challenge a criminal conviction. Drawing these two strands together, what was said to be at stake here was ‘a fundamental or basic right, namely the right of a prisoner to seek through oral interviews to persuade a journalist to investigate the safety of the prisoner’s conviction and to publicise his findings in an effort to gain access to justice for the prisoner’.74 The reasons relied on by the Home Secretary to justify his policy, which mainly concerned discipline and order in prisons, did not establish a case of pressing need which could defeat the basic rights of the prisoner which were at stake. In such circumstances, said Lord Steyn, ‘even in the absence of an ambiguity there comes into play a presumption of general application operating as a constitutional principle ... “the principle of legality”’.75 As Lord Hoffman explained, this ‘principle of legality’ is in effect a strong presumption that broadly expressed discretions are subject to the fundamental human rights recognised by the common law:76 [T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document. Applying this common law ‘principle of legality’, the House of Lords held that the relevant provisions of the Prison Rules were not ultra vires, but rather had to be interpreted as leaving untouched the fundamental and basic rights of the prisoners. The policy of a blanket ban, and the individual decisions made under it, were therefore unlawful, but the Rules themselves were not: they merely had to be read so as not to be in conflict with the prisoners’ basic rights. This explicit recognition by the House of Lords of a common law ‘principle of legality’ is an important articulation of the basis on which English courts are giving greater effect to ratified but unincorporated international human rights norms. Until recently, the two techniques described above had generally been kept distinct: sometimes a court would treat the question before it as a rationality challenge only, while at other times the question would be characterised as one of interpretation. Now, against a background common law principle of legality, the House of Lords has indicated that the courts should determine the scope of an administrative discretion by an exercise of interpretation, which includes identifying the fundamental rights which exist at common law, deciding whether any interference with those rights is justified, and, in the light of that exercise, deciding on the scope of the power. The English courts (and for that matter those in Australia and New Zealand) have not yet gone as far as the Supreme Court of Canada in recognising a generally applicable common law duty to give reasons on administrative decision-makers, but it seems only a matter of time before the exceptions swallow the

73

Ibid 125. Ibid 130. 75 Ibid (emphasis added). 76 Ibid 131 (Lord Hoffman). 74

musty general rule that reasons need not be given.77 The constitutionalisation of administrative law requires this step.

BRIDGING THE LEGITIMACY GAP The preceding survey of the use of administrative law doctrines and techniques to give greater effect to unincorporated treaty obligations indicates what the judges are doing but says little about the legitimacy of what has been done. There are of course causal explanations, most notably, the phenomenon of ‘judicial globalisation’,78 a term which refers to the friendships and networks established by judges at international colloquia, and the increasing occurrence of ‘transnational judicial conversations’ on constitutional and human rights.79 There are at least four reasons for the increasing transnational ‘dialogue’ between judges: the same or similar issues face the courts in different countries; the international nature of human rights and the numerous ‘genealogical’ links between national, regional and international human rights documents; advances in technology aiding access to comparative law material; and increased personal contact between the judges.80 It seems the tide of judicial globalisation, like that of international human rights law itself, will continue to roll in. At the same time, judges seem to have been made more comfortable with the thought that the principles involved in the dialogue are becoming, as we put it above, harder-edged.81 But causal explanations will not bridge a legitimacy gap and that the judges feel the force of the legitimacy concerns is clear from the House of Lords’ decision in Brind and the recent attempts to discover fundamental rights in the indigenous common law, the High Court of Australia’s preference for legitimate expectation over mandatory relevant considerations, the New Zealand Court of Appeal’s retreat from ‘starting point’ analysis and the dissenting judgments in Baker and in Teoh. The recurrent fear is not just ‘back door’ incorporation but judicial reliance on any values that have not been explicitly incorporated. In other words, by requiring decision-makers to exercise discretionary powers in accordance with international human rights law, the judges would be overstepping their legitimate bounds and trespassing where Parliament should first tread. There is a legitimacy gap. We think the gap can be bridged. 1

Thinking inside and outside the squares

All of the judgments discussed above recognise the common law principle that in interpreting statutory text judges and other decision-makers should, as far as the language permits, reach a result consistent with international law.82 The legitimacy of this principle has long rested on both the legitimacy of international law itself, as generated by the consent of the international 77

See P Craig, ‘The Common Law, Reasons and Administrative Justice’ [1994] Cambridge Law Journal 282. For an overview of the current state of the law in the countries surveyed here as to the common law requirement on administrators and judges to give reasoned decisions, see M Taggart, ‘Administrative Law’ [2000] New Zealand Law Review 439, 439-42. Cf Cedeno v Logan [2001] 1 WLR 86 (PC, Trinidad & Tobago). 78 A-M Slaughter, ‘Judicial Globalization’ (2000) 40 Virginia Journal of International Law 1102. 79 See C McCrudden, ‘A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights’ (2000) 20 Oxford Journal of Legal Studies 499. 80 Justice L’Heureux-Dubé, ‘The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court’ (1998) 34 Tulsa Law Journal 15, 23-26. 81 It is instructive to contrast in this regard the difference between the statements of judicial obligation to give effect to international human rights norms in domestic law at high-level judicial colloquia over a decade (the so-called Bangalore principles). The direction to ‘have regard’ to international human rights norms when confronted with ambiguity or uncertainty (1988 version), has matured into a duty to interpret and apply statutes ‘in harmony with’ those norms in all situations (1998 version). The reference to ambiguity has been dropped, and within a year Lord Steyn did the same in the House of Lords - R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 (HL) 130. See generally Lord Lester, ‘The Challenge of Bangalore: Making Human Rights a Practical Reality’ [1999] European Human Rights Law Review 273. 82 Baker [1999] 2 SCR 817, 861; (1999) 174 DLR (4th) 193, 231 (SCC); Tavita [1994] 2 NZLR 257 (CA) 266; Teoh (1995) 183 CLR 273 (HCA) 287 & 300-1.

community, and the presumed will of Parliament, that it would not intend to legislate in breach of international law unless it did so deliberatively and deliberately. Little attention has been given to the genesis and historical development of this principle,83 possibly because until recently ‘the presumption has not been of great practical significance’.84 All that has changed with the advent of human rights treaties, and the commitment to take rights seriously. It appears far from coincidental that, at the point when human rights treaties were been relied upon increasingly in domestic litigation, some courts purported to restrict the operation of this principle to the resolution of ambiguity and also took a narrow view of what ambiguity meant. These judges took the view that a statutory discretion could not be ambiguous. Brind’s case is the best known example. This was a significant turn because it prevented the principle from applying to discretionary power. The requirement of ambiguity (narrowly conceived) created a wall between interpretation of words (where the interpretive principle is applied) and discretionary power (where the principle is not). Consequently, on this view, there is no role for interpreting statutory discretions in accordance with international legal norms, unless Parliament has so ordered explicitly. There are two questions here: (1) is the interpretive principle properly limited to ambiguity? and (2) is defining the limits of discretionary power an exercise in statutory interpretation? As to the first point, the majority of recitations of the interpretive principle over time have not required ambiguity.85 One of us has argued elsewhere that the ambiguity requirement is unwarranted by the earlier case law and is misconceived.86 The interpretive obligation is both consistent with parliamentary sovereignty and reflective of the changes taking place in the world. The illegitimacy of any ‘ambiguity’ precondition to the use of the interpretive principle in relation to statutes is shown by the absence of any such requirement in using the principle to develop the common law. The role of classical legal positivism in conditioning the common law’s response to international law is well known.87 The phrase ‘international law’ was first penned by Jeremy Bentham, but it was his disciple John Austin who denied it status as ‘positive law’, as it was not given by a ‘sovereign to a person or persons in a state of subjugation to the [sovereign]’.88 In the face of the onslaught of legal positivism, the prior Blackstonian notion that international law formed part of the law of the land ‘found expression’ in the interpretive principle.89 It became part of the decoding mechanism in the common lawyer’s headset worn when receiving messages from the legislature. As such, it became part of the common law – itself a source of law. Moreover, the interpretive principle shapes the development of the common law itself, most commonly through the portal of public policy.90 There use of the principle is 83

In contrast, there is a rich, contextual treatment of the principle’s operation in the United States over time. See generally C Bradley, ‘The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law’ (1997) 86 Georgetown Law Journal 479. 84 C Warbrick, ‘Current Developments: Treaties’ (2000) 49 International & Comparative Law Quarterly 953, 946. 85 Justice Keith, ‘The Impact of International Law on New Zealand Law’ (1998) 7 Waikato Law Review 1, 23. 86 M Hunt, Using Human Rights Law in English Courts (Hart Publishing, Oxford 1997) 39. 87 Ibid & A Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law’ (1999) 40 Harvard International Law Journal 1. 88 J Austin, The Province of Jurisprudence Determined (1954 ed) 140-42. See MW Janis, ‘Jeremy Bentham and the Fashioning of “International Law”‘ (1984) 78 American Journal of International Law 405. Bentham’s view of international law is not so odd, however, in the light of the revisionist work showing him to be anti-positivist in important respects. See O Ben-Dor, Constitutional Limits and the Public Sphere: A Critical Study of Bentham’s Constitutionalism (Hart Publishing, Oxford 2000). 89 H Lauterpacht, ‘Is International Law a Part of the Law of England?’ (1939) 25 Transactions of the Grotius Society 51, 57. 90 See eg Mabo v Queensland (No 2) (1992) 177 CLR 1 (HCA) 142 (Brennan J, with whom Mason CJ & McHugh J concurred): ‘The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights’.

justified by the Blackstonian notion of respect for the law of nations and the hospitality of the common law to all sorts of influences.91 As noted above, there is no requirement of ambiguity. The second question might be first stated rhetorically. ‘What on earth do common lawyers think they are doing in relation to statutory discretions if they are not interpreting them?’ The courts have always limited discretionary powers by reading into (or out of) statutes implied conditions on those powers. This is done by intuiting the purpose of the power, and identifying the factors or considerations relevant to its exercise. This is partly an exercise in divining statutory purpose and relevant considerations, and partly an application of the strong rule of law ideal that no power is unfettered. As L’Heureux Dubé J noted in Baker, these limits come from the common law, the rule of law ideal, the Constitution and societal values.92 The underlying fear in applying the interpretive principle to discretionary power appears to be that it will negate the discretion and thereby the legislature’s will.93 A staple definition of discretion is that it must leave the decision-maker a range of available options to choose from, for if there is no choice then there is no discretion.94 The thought seems to be that by directing decision-makers to decide ‘in accordance with’ an international treaty obligation the law is negating the very discretion Parliament intended to confer. One answer is that Parliament is not presumed to intend to act inconsistently with its treaty obligations, and there is no compelling reason why the conferral of a broad discretion should exclude that interpretive principle.95 The courts have no difficulty in holding that domestic Bills of Rights (whether entrenched or not) require those exercising discretionary powers to act consistently with the reasonably limited rights therein.96 There the legitimacy comes from the legislative act, whereas with treaties it comes from the interpretive principle recognised by the common law. In just the same way requirements of natural justice are read into statutes, unless clearly displaced. The fear of negation of discretion assumes that the intention or the effect of applying the interpretive principle to discretionary power is to substitute the court’s view of the merits for that of the primary decision-maker. There is no such intention and it will not have that effect. What is required is acceptance of the need for justification. It has not been part of the common law tradition that the exercise of public power must be justified publicly.97 The common law’s curmudgeonly attitude to reasons and whether they formed part of the record propped up this tradition. But times are changing, and the legislature and the courts are knocking away those props. Many decision-makers are subject to general or specific statutory duties to give reasons,98 and, where they are not, the common law is starting to fill the gaps. This allows the court to focus on the justification, not the result. That will not satisfy everyone, for some view requiring reasons for discretionary decision-making (or the imposition of lawyers’ reasoning processes) as threatening the very nature of discretion.99 A variation on this objection is that the imposition of a duty to give reasons will or may lead to excessive or 91

See HP Glenn, ‘Persuasive Authority’ (1987) 32 McGill Law Journal 261. Baker [1999] 2 SCR 817, 853-55 & 859-62; (1999) 174 DLR (4th) 193, 224-26, 229-31. 93 See, eg, Baker (CA) [1997] 2 FC 127, 141; (1997) 142 DLR (4th) 554, 563-64. 94 KC Davis, Discretionary Justice: A Preliminary Inquiry (University of Illinois Press, Urbana 1971) 4. 95 Sir Gerard Brennan, ‘The Role and Rule of Domestic Law in International Relations’ (1999) 10 Public Law Review 185, 190. 96 See Slaight Communications Inc v Davidson [1989] SCR 1048; (1989) 59 DLR (4th) 416 (SCC) & Television New Zealand Ltd v Police [1995] 2 NZLR 541 (HC) 549 (an appeal was dismissed without any comment on this matter: Television New Zealand Ltd v Police [1995] 2 NZLR 641 (CA)). 97 That does not preclude, of course, a reorientation of the law. Writing from different perspectives Denis Galligan and Tony Prosser reached the identical conclusion nearly twenty years ago that the future of public law lay in developing the law around principles of participation and reason-giving: D Galligan, ‘Judicial review and the Textbook Writers’ (1982) 2 Oxford Journal of Legal Studies 257 and T Prosser, ‘Towards a Critical Public Law’ (1982) 9 Journal of Law & Society 1. 98 See eg AP Le Sueur, ‘Legal Duties To Give Reasons’ (1999) 52 Current Legal Problems 150. 99 Cf R MacDonald and D Lametti, ‘Reasons for Decision in Administrative Law’ (1990) 3 Canadian Journal of Administrative Law & Practice 123. 92

unpredictable judicial intervention by allowing judges the freedom to select from a range of review standards.100 The tension between correcting administrative errors and preserving administrative expertise exists in all common law jurisdictions. The non-transparent and instrumental selection by judges from a flexible range of review standards is no better illustrated than by the history of Wednesbury unreasonableness.101 In other words, reason-giving will not necessarily solve one of the enduring paradoxes of administrative law – who guards the guardians? But what the Canadian experience does show other countries is that a formal and explicit calibration of review standards, with accompanying criteria to guide selection, does constrain somewhat judicial discretion. On one positivistic view, there is a tension between administrative decision-making and the giving of reasons. Frederick Schauer has argued that giving reasons involves a commitment to the generality of the reason and its application in similar circumstances.102 He correctly points out that on this conception ‘giving a reason is like setting forth a rule’103 and that makes it problematic to require reasons in circumstances where the power of particularism is strong – where ‘case-by-case decision making and flexibility are thought important’.104 That describes exactly the orthodox conception of discretionary power in administrative law, that underpins the ‘no fettering’ rule, and views notions of review for inconsistency, estoppel and substantive unfairness as anathema. Reason-giving is resisted because of the risk of judicialising administrative procedure. The taming of discretion in the interests of the rule of law appears to share something with the Diceyan rule of law objection to discretion.105 But we are not doomed to live in Dicey’s shadow once we appreciate the role of reasons in a culture of justification. The practice of reason-giving in such a culture mediates between the particularism of the circumstances in which the official has to make a decision and the universality or generality of values. The official’s reasons are an attempt to justify an understanding of how the values are best understood given those circumstances. No rule is set forth by the reasons. Rather, they demonstrate both the official’s competence to carry out the task delegated by the legislature and her understanding of the fundamental values, especially legal values, which underpin the legislature’s own legal authority to make that delegation. As long as judicial review of the official’s decision is a review not merely of the result but of the reasons offered for the result, such review can affirm the legislative delegation of power by requiring considerable scope for judicial deference. One of us has developed elsewhere this notion of deference as respect,106 which was referred to with approval in Baker.107 It is likely that on this view of reasons, the correctness standard is no longer appropriate if one understands correctness as a matter of the judge asking whether the official came to the same decision as the judge would have in the same 100

For the American context, see M Shapiro, ‘The Giving Reasons Requirement’ [1992] The University of Chicago Legal Forum 179, 181-89. 101 See A Lester and J Jowell, ‘Beyond Wednesbury: Substantive Principles of Administrative Law’ [1987] Public Law 369. 102 F Schauer, ‘Giving Reasons’ (1995) 47 Stanford Law Review 633, 642-44. 103 Ibid 651. 104 Ibid 659. 105 See R Baldwin & K Hawkins, ‘Discretionary Justice: Davis Reconsidered’ [1984] Public Law 570 & N Lacey, ‘The Jurisprudence of Discretion: Escaping the Legal Paradigm’ in K Hawkins (ed), The Uses of Discretion (Oxford University Press, Oxford 1992) 361. 106 D Dyzenhaus, ‘The Politics of Deference: Judicial Review and Democracy’ in M Taggart (ed), The Province of Administrative Law (Hart Publishing, Oxford 1997) 279, 286. 107 Baker [1999] 2 SCR 817, 859; (1999) 174 DLR (4th) 193, 229. As David Mullan has pointed out, it is no coincidence that L’Heureux-Dubé J’s citation of Dyzenhaus comes in a judgment in which the Supreme Court had earlier accepted for the first time the existence of a common law duty to give reasons for a decision involving the exercise of a broad discretion: D Mullan, ‘The Role of the Judiciary in the Review of Administrative Policy Decisions: Issues of Legality’ in M-J Mossman & G Otis (eds), The Judiciary as Third Branch of Government: Manifestations and Challenges to Legitimacy (Les Éditions Themis, Montreal 2000) 313, 374 n 223.

circumstances. A judicial focus on the question whether the reasons justify the result operates in accordance with a principle of interpretative charity, one which presumes that officials are operating in accordance with fundamental legal values, so that it is possible for them to justify their decisions in terms of those values. It follows that even when review goes far beyond a ‘somewhat probing examination’ because, for example, the values are constitutional values or the values of a Convention on the right to be free from torture, still the judge has to be open to the possibility that reasons could justify a result which the judge would not have reached de novo. Such a judicial stance recognises the fact that the battle for the legitimacy of administrative tribunal decision-making in our systems of government has long since been fought and won. Administrative decision-makers are no longer expected to act like Victorian children, being seen and not heard. 2

A culture of justification

The movement to a ‘culture of justification’108 entails more than the creation of a duty to give reasons. The notion of justification, as distinct from explanation, implies that the reasons supporting a decision be ‘good’ reasons, and this in turn requires norms or rules for determining what counts as a ‘good’ reason. In other words, a ‘culture of justification’ entails substantive commitments. These commitments are most fundamentally to a democratic account of legislative authority. The legislature has authority to decide on the content - and design the implementation - of public policy. It has the authority to do that because, in a representative democracy, it is the legal institution best placed to serve the interests of the people. But the interests of the people cannot be served outside of the framework of the fundamental values of the society, including the values of the rule of law and the constitution. The principle of interpretative charity outlined in the last section in regard to officials is at its most basic a democratic principle about the justification of legislative authority. It is because the legislature should be presumed, in the absence of explicit statements to the contrary, to be a democratic institution that judges should presume that the legislature intends its delegates to act in accordance with fundamental values. At one level, the principle is procedural in nature, since it does not tell officials what result to reach but rather that relevant values have to be demonstrably taken into account or given weight in deciding on the result. But the principle does have substantive effects since it will necessarily limit the range of results open to the official to those that she can show to be consistent with the values, given the particular context. Some administrative lawyers may feel uneasy about the word substance, but if we lift our heads above the parapet of administrative law and survey the wider public law scene it is evident that a process of ‘constitutionalisation’ is taking place, and justification is at its core. Recent experiments in constitutionalism in the Commonwealth either entrench fundamental values but explicitly permit appropriately justified or ‘proportional’ limitations on such values (Canada), or do not entrench but require pre-legislative scrutiny and allow for legislative override (UK, New Zealand). In all these instances, fundamental values are subject to limit or override through a process of public, legally structured justification. Even where judges have the task of evaluating the proportionality of the limit, their focus is directed to the process of justification. Once a right appears to be infringed the burden of justification falls on the government. In those jurisdictions where judicial invalidation of statutes that unjustifiably limit rights is not available, judges have been given (by statute in the UK109) or have asserted (as in New Zealand110) the power to declare incompatibility. This anticipates that the legislature will carefully evaluate the courts’ reasoning in formulating a response. The several waves of international human rights norms – first, generally expressed and then more specific elaboration of particular rights – have added to the norm pool upon which judges, lawyers and policy-makers draw. The influences and their varying normative pull can be seen in all the cases we have examined above.

108

See D Dyzenhaus, ‘Law as Justification: Etienne Mureinik’s Conception of Legal Culture’ (1998) 14 South African Journal on Human Rights 11 and work cited therein. 109 Human Rights Act 1998 (UK), s 4. 110 See Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA).

In Canada the Charter was a significant off-stage presence in Baker’s case. The judiciary in Canada has since the advent of the Charter in 1982 divined and articulated the fundamental values of Canadian society. But there are limits to the reach and scope of the Charter, and administrative law was used in Baker to bring in the primacy of children’s rights. In contrast, as noted above, the Europeanisation of British public law has taken place over a much longer period with many twists and turns. Australia and New Zealand do not fall under any regional human rights instrument. Both are parties to the so-called ‘International Bill of Rights’ (ICCPR, ICESCR and Universal Declaration). Both countries have acceded to the First Optional Protocol to the ICCPR (as has Canada but not the United Kingdom) but there have been very few petitions to the Human Rights Committee. The long road to New York or Geneva, has so far been less travelled than the one from the UK to Strasbourg. New Zealand was offered a Charter-style Bill of Rights but settled in the end for an ordinary statute Bill of Rights.111 The Australian High Court has discovered some civil and political rights in the recesses of the Federal Constitution, but so far the polity has resisted a domestic Bill of Rights of whatever stripe.112 Different, sometimes subtle influences may affect the judicial attitude to human rights, even between countries that otherwise share much in common.113 The challenge of constitutionalisation is to retain (and enhance) those aspects of administrative law doctrine and methodology that have served us well. The approach that broad discretionary powers should be exercised in accordance with human rights norms requires a different methodology than that traditionally used by administrative law. For instance, the mandatory relevant consideration analysis tends not to go far enough, and might easily degenerate into a ‘ticking the box’ exercise. Whereas using reasonableness review (even a lowered standard, with sensitivity to context and the need for deference) as in Baker might not provide sufficient guidance to administrative decision-makers. The English approach, focusing on fundamental constitutional rights suggests a flexible standard of review, where the intensity of review will depend on the degree of interference and the cogency of the justification for the imposed limitations. The harder-edged ‘principle of legality’ approach so far reserved for fundamental or constitutional rights may require something like a ‘correctness’ test to be applied. That is also a possibility now in Canada after Baker. The transposition of standards of review (correctness-reasonableness simpliciter-patent unreasonableness) from the interpretation sphere to the discretionary one may be seen to put temptation in some judges’ way. We suggested above that emphasis on the justification is likely to prevent undue interference in the merits. In truth, most of these approaches have always been on offer on administrative law’s methodological smorgasbord. Judges could chose the methodology that suited their purpose in administrative law cases. The difficulty is that there was little constraint in, or accountability for, the selection from the range of methodologies or approaches. The developments noted above point towards adoption of a ‘constitutional rights’ methodology, and that provides the opportunity for constitutional and administrative law to be unified in name and approach under the banner of Public Law. Some may see this ‘consitutionalisation’ of administrative law as a bad thing, but the alternative is likely to be a bifurcated public law, with certain issues involving selected rights being determined one way and other interests outside the charmed constitutional circle determined another way. For example, the European Court of Human Rights recently declared that the English Court of Appeal’s application of Wednesbury unreasonableness was not an ‘effective remedy’ for the violation of the particular right and so breached art 13 of the ECHR.114 The thought of an administrative law rump isolated from the rights-based developments is unappealing.

111

See P Rishworth, ‘The Birth and Rebirth of the Bill of Rights’ in P Rishworth & G Huscroft (eds), Rights and Freedoms: The New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 (Brooker’s, Wellington 1995) 1. 112 See G Williams, A Bill of Rights for Australia University of New South Wales Press, Sydney 2000). 113 Sir Anthony Mason, ‘The Role of the Judiciary in Developing Human Rights in Australian Law’ in D Kinley (ed), Human Rights in Australian Law: Principles, Practice and Potential (The Federation Press, Sydney 1998) 26, 46. 114 Smith & Grady v United Kingdom (1999) 29 EHRR 495 (ECHR). The Court of Appeal decision in question was R v Ministry of Defence, ex p Smith [1996] QB 517 (CA).

To generalise the methodology of constitutional balancing to the common law of judicial review is undeniably to reform administrative law. Elements that were part of administrative law but not central to it move to centre stage. Talk of unfettered discretion and jurisdiction becomes gradually obsolete, as it is replaced by talk of structures of justification. No hardand-fast distinction between process and substance is available, as the recognition grows of the inevitable substantive implications of process as well as of the fact that the justification for having process at all is in some sense substantive. 3

Strands of legitimation

In our view, the common law legitimates the use of the strong interpretive obligation that requires statutes to be interpreted, as far as the language permits, in conformity with international human rights law. It is a venerable principle that has assumed great significance in the age of (often overlapping) international, regional and domestic human rights treaties. Austin’s positivism and Dicey’s dogma drove all our fundamental principles into the sub-constitutional level of statutory interpretation. The work the common law judges have been able to do, when willing, to protect rights has not been greatly impaired by the constitutional overlordship of Parliament, which ensures Parliament can have the final word.115 But what legitimates the values or rights that comes into our law from international human rights through the conduit of the interpretive principle?116 A powerful legitimating force for giving effect to international human rights norms in domestic law is their aspirational quality and asserted universality. The Bangalore principles proclaim that ‘[t]he universality of human rights derives from the moral principle of each person’s personal and equal autonomy’ and that this principle ‘transcends national political systems and is in the keeping of the judiciary’.117 The common law shares this quality of aspirational self-improvement. The common law’s chequered career in relation to women’s rights, racial discrimination, freedom of expression and the like has not stood in the way of judicial attitudes and the law changing to keep up with society’s attitudes.118 International norms are a good steer as to what those values are. In the same way that reference to history and tradition assist in combating eclecticism or subjectivity in the identification of fundamental rights, human rights treaties are an ‘ostensibly objective source’119 expressing the opinions of many countries formed often over a considerable period of time. The fact that over a hundred and ninety countries have ratified the CRC – all except the United States (which has signed it) and Somalia – making it the most popular and fastest UN treaty to come into force, does tell us something about the importance of children’s rights, and at the very least provides a mirror to hold up to our own legal system. Of course, not all treaties, even human rights treaties, will be of that sort or elicit the overwhelming response 115

For further argument and references see M Taggart, ‘Expropriation, Public Purpose and the Constitution’ in CF Forsyth & I Hare (eds), The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade QC (Clarendon Press, Oxford 1998) 91. See also R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115 (HL) 131 (Lord Hoffman). 116 We want to raise one justification that might be made, only to reject it. The justification is that these international obligations are being given effect to in our ‘public law’, not in private law, and therefore the orthodox prohibition is not infringed because the obligations do not become part of our ‘law’ in the sense of being justiciable and enforceable in court action between citizen and citizen with a possible sanction of money damages. We think this easy course should be rejected. Such reliance on the public/private law distinction would run against the welcome recent trend to downplay or ignore the distinction. Also it would entail difficult issues as to who or what is the ‘State’ for these purposes. Moreover, it does not accurately represent the earlier case law. 117 The Bangalore principles 1998, art 3; quoted in Lord Lester, ‘The Challenge of Bangalore: Making Human Rights a Practical Reality’ [1999] European Human Rights Law Review 273, 288. 118 See Sir Stephen Sedley, ‘Law and Public Life’ in Lord Nolan & Sir Stephen Sedley, The Making & Remaking of the British Constitution (Blackstone Press, London 1997) 49. 119 D Crump, ‘How do the Courts really discover Unenumerated Fundamental Rights? Cataloguing the Methods of Judicial Alchemy’ (1996) 19 Harvard Journal of Law & Public Policy 795, 860.

that the CRC has. Much will depend on the nature and purpose of norm, the degree of international acceptance, its relationship to other international or regional norms, its resonance with domestic law and the values of the society, and the nature and purpose of the statutory provision in question. Much has been written about the ‘democratic deficit’ in treaty making, and very recently much has been done (for instance, in Australia and New Zealand) to inject more parliamentary and public participation into the ratification process.120 It is no coincidence that the most has been done in countries whose judiciaries have been most active in giving effect to unincorporated treaties. The courts’ role in this has largely gone unnoticed. This important development can only be touched on here, but it goes some way to overcoming the fears of uncontrolled, unsupervised and unaccountable exercises of the treaty-making power resulting in domestic law changes that the orthodox position forestalled. Moreover, it is often overlooked that in our system the Executive is selected from the ranks of elected Parliamentarians, and that they sit in Parliament. It may be at one remove, but the Executive does not entirely lack democratic credentials.

CONCLUSION The ‘dualism’ traditionally separating the domestic law and international law spheres reflects a deeper division between principles or values that are claimed by judges to be inherent in the common law and the authority of the legislature to stipulate expressly when particular principles or values will govern the decisions of its delegates. We have argued that the recent case law giving greater effect to international human rights norms in New Zealand, Australia, Canada and England should be seen in the context of the principle of legality in administrative law and ‘renaissance constitutionalism’121 in these countries. The principle of legality requires broadly expressed discretions to be read subject to the fundamental values, including values expressive of human rights, of the common law. We have argued that this principle is properly located within a particular conception of democratic legal culture, the culture of justification, in which decision-makers are obliged to justify their decisions by showing either how the decisions conform to the values or that they are justifiable departures from the values.122 These developments require both a duty on administrative decision-makers to give reasons for their decisions and a duty on judges to defer to those reasons to the extent that they refrain from reviewing on a correctness standard. The combination of both duties makes decision-makers accountable to fundamental values without squeezing out the space for exercise of their discretion. In this way internationalisation is kept safely within the fold of common law constitutionalism.

120

See further T Dunworth, ’Public International Law‘ [2000] New Zealand Law Review 217. Lord Steyn, ‘The New Legal Landscape’ [2000] European Human Rights Law Review 549, 552: ‘[T]here has been a renaissance constitutionalism in many countries including Australia, Canada, India, New Zealand and South Africa. …This renaissance has not bypassed the United Kingdom.’ 122 Ibid. 121