Introducing a new paper about judicial deference to administrative limitations of constitutional rights
When is law not really law? Or at least, something less than law? Well, for instance, when courts treat it as if it were something else. An aspirational statement, say, rather than a binding commitment. A matter for political institutions, not for themselves, to really give effect to.
That is precisely what is happening to legal guarantees of human rights enacted by various Commonwealth jurisdictions when these are being interfered with by administrative decision-makers. Or so I argue in an article that has just been accepted for publication in Public Law, and should come out some time next year: “Judicial Deference to Administrative Limitations of Rights: Between Law and Politics“. Here is the abstract:
In the past 40 years, not only the United Kingdom but also Canada and New Zealand have departed from their long-held understanding of rights as being subject to legislative compromise, and enacted legal protections for fundamental individual rights. Although these legal instruments do not all apply to legislation in the same way, they all bind administrative decision-makers. Yet when courts assess the compliance of administrative decisions with rights, they routinely defer to the decision-makers’ own judgments, which they would not do in analogous cases on other constitutional or statutory questions.
This article offers an explanation for why this is so. After reviewing the history of the legal codification of rights in and the principles applicable to ordinary legality and constitutionality review, it considers the ways in which deference manifests itself in adjudication concerning rights, as well as the explanations the courts give for deferring to legislative and executive decision-makers. It then argues that these explanations are not sufficient, and that the deeper reason for deference is that courts still regard rights as inextricably political rather than legal commitments.
In other words, I am arguing that the courts are simply not getting the message that existence of legally binding instruments such as the Canadian Charter, the New Zealand Bill of Rights Act, and the UK’s Human Rights Act really transfers rights preoccupations from the realm of the political ― that is, of compromise subject to no ex-ante rules on which courts can base their decisions ― to the realm of the legal. It is, of course, a conjecture ― and can be nothing else since I cannot pry into the judges’ minds. But that’s how many interpretations of judicial decisions work, so I don’t think that this is a problem. (A reviewer seemed to have doubts on this score, but really I don’t see why.)
Should In this paper, I make no argument that the judicial treatment of administrative limitations of rights as a political rather than a legal issue is a bad thing. As I see it, something similar is happening in jurisdictions like the UK and New Zealand whose general approach to judicial review of administrative decisions is sounder than the Canadian one, even after Vavilov, let alone before it, and in Canada, and that in itself is worth trying to understand. But readers of this blog will be familiar with my views on Canadian cases that enshrine, or at least purport to enshrine it into law, especially in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 and Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 SCR 293 (about which I have written both here and in an article in the Journal of Commonwealth Law), as well as Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31 (about which I have written here). Still, I hope that those who disagree with my normative views can still agree that something interesting is going in these cases and perhaps even share my analysis, even if their takeaway from reading would be “and a good thing too”.
