The Unity of Public Law?

Doctrinal, Theoretical and Comparative Perspectives

Mark Elliott, Jason NE Varuhas, Shona Wilson Stark, Mark Elliott, Jason NE Varuhas, Shona Wilson Stark

• Publisher: Hart Publishing
• Year: 2018
• ISBN:
  9781509915200
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

This major collection contains selected papers from the second Public Law Conference, an international conference hosted by the University of Cambridge in September 2016. The collection includes contributions by leading academics and judges from across the common law world, including senior judges from Australia, Canada, New Zealand and the UK. The contributions engage with the theme of unity (and disunity) from a number of perspectives, offering a rich panoply of insights into public law which significantly carry forward public law thinking across common law jurisdictions, setting the agenda for future research and legal development. Part 1 of the volume contains chapters which offer doctrinal and theoretical perspectives. Some chapters seek to articulate a unifying framework for understanding public law, while others seek to demonstrate the plurality of public law through the method of legal taxonomy. A number of chapters analyse whether different fields such as human rights and administrative law are merging, with others considering specific unifying themes or concepts in public law. The chapters in Part 2 offer comparative perspectives, charting and analysing convergence and divergence across common law systems. Specific topics include standing, proportionality, human rights, remedies, use of foreign precedents, legal transplants, and disunity and unity among subnational jurisdictions. The collection will be of great interest to those working in public law.

1

Introduction

MARK ELLIOTT, JASON NE VARUHAS AND SHONA WILSON STARK

THIS COLLECTION ORIGINATES from the second biennial Public Law Conference, a major international conference held at the University of Cambridge Faculty of Law in September 2016. The theme of the conference, from which this volume derives its title, was ‘The Unity of Public Law?’.

The 2016 conference was the second in an ongoing series of major international conferences on public law, the first of which was also held in Cambridge in September 2014. This volume follows on from that derived from the first conference, John Bell, Mark Elliott, Jason NE Varuhas and Philip Murray (eds), Public Law Adjudication in Common Law Systems: Process and Substance (Oxford, Hart Publishing Ltd 2016). As recorded in the editors’ introduction to that collection, the motivation for founding the Public Law series was to provide a leading forum for common lawyers from a broad range of jurisdictions to discuss and debate the most important public law issues of the day. While the bedrock of commonality among common law systems offers a basis and framework for meaningful engagement—a ‘consensus ad idem’ of sorts—the shared problems faced by common law systems of public law and the inevitable variations across systems offer a basis for comparison, discussion and debate.

Since its inception the Public Law series has fulfilled this vision, emerging as the pre-eminent forum for the scholarly discussion of public law issues in the common law world. The 2014 conference and the volume deriving from it were very well received. The 2016 conference built upon the foundations laid by the first conference, cementing the importance of the series in facilitating cross-jurisdictional dialogue and debate at the highest level. The 2016 conference brought together over 200 participants drawn from over 20 jurisdictions including Australia, Bangladesh, Barbados, Canada, Egypt, France, Germany, Hong Kong, Ireland, Japan, Kuwait, Mexico, Nepal, New Zealand, Nigeria, Poland, Portugal, Singapore, South Africa, Switzerland, The Netherlands, the United Kingdom and the United States of America. The conference opened with a panel comprised of Robert French, the then Chief Justice of Australia, and Lord Reed, Justice of the UK Supreme Court, who discussed the uses of comparative law by apex courts; the keynote address was delivered by Dame Sian Elias, the Chief Justice of New Zealand. Approximately 60 papers were delivered by leading scholars, practitioners and judges drawn from across the common law world.

Consonant with the intellectual case for the conference series, it was always the intention of the convenors that following the first two conferences held in Cambridge, the third would be held outside the United Kingdom, in another common law jurisdiction. This would enable those in different parts of the world to more easily participate in the conference and focus attention on public law issues pertinent to different regions of the common law world. In this regard we are very pleased that the third biennial Public Law Conference will be held in Australia in July 2018 at Melbourne Law School, to be co-organised by the University of Melbourne and the University of Cambridge.

In common with the previous collection, this volume brings together leading scholars from across the common law world, drawn from the academy and the Bench, to discuss and debate cutting-edge issues in public law. The outstanding essays collected herein provide an invaluable reference point for public lawyers in common law jurisdictions (and civilian lawyers) seeking the views and perspectives of leading scholars and judges on the most important issues facing common law public law systems today. Importantly the essays will also serve to frame and prompt further debate and discussion across common law systems. More generally, the chapters in this book, and the papers presented at the 2016 conference, affirm the strength and vibrancy of public law scholarship in the common law world today and the appetite for, and rich insights to be gained from, scholarly engagement across jurisdictional boundaries.

I.THEME AND BOOK STRUCTURE

The theme of this collection is ‘The Unity of Public Law?’. The question mark is quite deliberate, inviting inquiry into the various ways in which public law—itself a term which calls for inquiry—may evince unity or disunity, with the aim that such inquiries will precipitate fresh and insightful perspectives on the nature of public law and emerging issues and recurrent themes in public law.

The spurs for this theme are multifarious. At the level of doctrine certain norms, concepts, values, or methods have increasingly been appealed to and at times claimed to provide a common basis for public law adjudication. These have included, for example, appeals to the rule of law, rights, rationality, deference, proportionality, and balancing. These moves towards unifying concepts, methods etc in turn have prompted responses which seek to emphasise and reinforce the plurality of public law fields, and the normative attractiveness of such plurality.

At a higher level of abstraction, on the plane of theory, scholars have increasingly searched for One Big Idea which might explain public law as a whole or provide a normative vision of a unified public law. These accounts have often sought to identify the distinctiveness of public law as a field, for example by appealing to a distinctive set of functions or a distinctive method or mode of reasoning which gives public law unity. Similarly private lawyers are increasingly engaged in the search for what makes private law, as a whole, distinctive from public law. Arguably this increased search for distinguishing features, and attempts at reassertion of the ‘autonomy’ of public law and private law, is a response to the reality that any distinction between the two fields is increasingly difficult to locate, as the public and private spheres of life—and as a consequence, law—become increasingly intermingled.

A further spur for the ‘Unity?’ theme is comparative. In this regard, questions arise about convergence and divergence among common law systems. To what extent do common law systems of public law share common features, and to what extent are they diverging? To the extent that patterns of convergence or divergence are evident, what are the drivers of change or maintenance of the status quo? Allied to these questions are debates over the limits of comparativism: is it desirable and/or feasible to search for common solutions across different jurisdictions and for one jurisdiction to transplant legal phenomena, ideas, doctrines etc, from another jurisdiction, and if so, in what circumstances? In this regard, do distinctive considerations arise in the context of public law, compared to other fields of law? These issues are of acute importance, not least because of increasing tendencies, spurred in part by the phenomena of ‘global administrative law’ and ‘global constitutional law’, to seek to distil common values or principles from across different jurisdictions or develop general explanations or theories of public law or fields of public law, which are claimed to hold across jurisdictions.

The multiple spurs for interrogating the ‘Unity?’ theme are in turn reflected in the variety of perspectives which the chapters herein bring to bear on the unity question: doctrinal, theoretical and comparative. The chapters are arranged along these lines: Part 1 is comprised of chapters which offer doctrinal and theoretical perspectives, and Part 2 is comprised of chapters which offer comparative perspectives. Dame Sian Elias’s chapter, the first substantive chapter, offers a critical introduction to both strands of inquiry.

Those chapters in Part 1 focus on specific doctrinal issues that arise in particular jurisdictions and/or specific theoretical questions. Albeit these chapters are not explicitly comparative in their orientation, they do often engage with case law from different jurisdictions and address issues which find their analogues in other jurisdictions. As such the chapters will be of relevance and importance across jurisdictions. Varuhas’s chapter examines the plurality of public law through the method of legal taxonomy. Chapters by Daly and Rock consider core values that are said to underpin public law. A number of chapters consider the theme of unity in the context of particular doctrines or trends. Hoexter examines difficulties faced by courts in distinguishing public from private power for the purposes of delineating the scope of review. Wilberg identifies plurality in the types of interpretive presumptions utilised by courts in public law. Masterman and Wheatle explore the themes of unity and disunity in the context of contemporary common law constitutionalist trends in the UK. Macklin’s chapter explores the intersection of administrative and human rights law, focusing on judicial method in substantive review. Stratas’s chapter serves as a concluding chapter for Part 1. He focuses on the decline of doctrine in judicial review, offering a critique of trends towards a more ‘intuitive’ judicial approach to public law adjudication.

Those chapters in Part 2 are more explicitly comparative in orientation. The first three chapters by French, Reed and Saunders consider issues in comparative common law in more general terms, the chapters by French and Reed examining the use of foreign legal material by common law courts and inter-jurisdictional dialogue while Saunders considers the phenomenon of legal transplants in public law. The remaining chapters consider particular topics from a comparative perspective. These include divergence among the jurisdictions of the UK (McHarg); consideration of the Commonwealth model of rights-protection (Geiringer); damages for breaches of constitutional rights (Chan); standing rules in new constitutional orders (O’Loughlin); the courts’ approach to fact-finding in the context of proportionality analysis (Carter); and jurisdictional error (Boughey and Crawford).

While this division between Parts 1 and 2 was adopted for organisational purposes, the boundary between the Parts is not impermeable nor is it intended to be. Indeed there are significant, sometimes surprising, synergies between chapters in each Part. For example Saunders’ chapter on transplants in public law raises similar methodological questions, albeit in a different context, to Varuhas’s chapter on taxonomy and public law, each exploring issues that arise when legal phenomena are extracted from their original ‘home’ context and imported into a new ‘destination’ context. Boughey and Crawford’s chapter offering comparative perspectives on jurisdictional error, and Carter’s chapter offering a comparative analysis of the judicial approach to fact-finding in proportionality analysis have natural synergies with a number of those chapters in Part 1 which address core issues in judicial review within single systems. Similarly both Chan’s chapter in Part 2 and Rock’s chapter in Part 1 address issues in public authority liability, the former from a comparative perspective and the latter from a doctrinal and theoretical perspective. Chapters in Part 1 which seek to offer a unifying account of the values underlying administrative law, such as Daly’s, have points of contact with those chapters in Part 2 which address the extent of variation in the nature of administrative law systems and doctrines across jurisdictions. More generally an interesting and perhaps unexpected recurring theme among the chapters in Part 1 is exploration of the legitimacy of judicial methods in contemporary public law, and concerns over intuitive or subjective judicial decision-making. Given that the chapters examine a range of different issues in the context of different common law jurisdictions, the emergence of this recurring theme may be suggestive of a certain unity across the public law systems of different jurisdictions in that they face a common set of emergent issues related to judicial decision-making and method in public law adjudication. There are many further interconnections to be explored.

II.THE CHAPTERS

The chapter by Dame Sian Elias derives from her keynote address at the Conference. It offers an important analysis of the different dimensions of the question with which this volume is concerned: the extent to which public law evinces unity. In so doing the chapter serves as a critical introduction to core issues and themes addressed by the chapters in this volume. The chapter considers a number of important issues in public law today from a comparative perspective. In a stimulating survey Elias examines convergence and divergence in the ways that different common law jurisdictions have approached and resolved key issues such as the role of judicial review in the context of other administrative justice mechanisms. The Chief Justice considers the nature of administrative law today, reiterating the discretionary nature of the field, and questioning the role of rigid legal classification and binary distinctions or labels such as law and merits and jurisdictional and non-jurisdictional error. The chapter then examines judicial supervision of discretion, observing the intimate connection between judicial review and constitutional values and traditions, which in turn helps to explain why common law systems may diverge in their approaches to controlling discretion, a theme also interrogated in the context of deference on questions of law and reasonableness review. The Chief Justice’s chapter ends with a provocative question: despite the illumination provided by good scholarship in this area, is the search for better doctrine ultimately doomed? Scholarly work keeps everyone up to the mark, but perhaps too much is expected of overarching theories: ‘Public law has unity and disparity and much of it is untidy and tentative’.

These questions posed by the Chief Justice’s chapter offer the ideal prompt for the chapters in Part 1 which engage with the ‘Unity’ theme from doctrinal and theoretical perspectives.

Jason NE Varuhas’s chapter takes the first steps towards developing a legal taxonomy of public law fields, systematically identifying, mapping and explaining different categories of law that are typically identified with English public law. Varuhas argues that legal categorisation is fundamental to full understanding of the law, rigorous and complete legal analysis and coherent and rational legal development. Yet legal taxonomy and debates over legal categorisation have not been a significant feature of public law scholarship, in contrast to contemporary private law scholarship. Varuhas’s chapter begins by exploring the reasons for this general absence of work in legal categorisation in public law. It proceeds to make the case for why legal categorisation is of fundamental importance in public law, and explains that such work is of peculiar significance today in the light of trends towards open-ended balancing in public law adjudication which threaten to radically undermine the rational ordering of the legal system and render coherent legal development impossible. The chapter begins the mapping process. The chapter rejects the division between public law and private law as a starting point for legal categorisation, placing no normative weight on that putative divide. Rather it seeks to simply categorise different fields of law, often associated with the label ‘public law’, according to their primary functions. The chapter identifies and explains two distinct categories: (1) the law relating to regulation of public power in the public interest; (2) the law relating to protection and vindication of basic individual rights. Having taken the first steps towards legal categorisation the chapter proceeds to demonstrate how identification of discrete fields has a bearing on analysis of contemporary legal issues, examining the question of whether the proportionality method developed in human rights law ought to be read across to the common law of judicial review.

Writing on substantive review, Audrey Macklin engages critically with Supreme Court of Canada decisions which have imported the strong notion of judicial deference found in ordinary Canadian administrative law into decisions concerning the Canadian Charter of Rights and Freedoms. Such deference is arguably inappropriate for cases where constitutionally protected interests are at stake and has resulted in the erosion of Charter rights. Where fundamental rights are concerned, Macklin calls for less fixation on labels such as reasonableness and proportionality—a ‘proxy war between administrative law and human rights law’—and more transparent reasoning focusing on the context of each particular case. She therefore proposes certain considerations which should be borne in mind by courts when evaluating exercises of administrative discretion which engage fundamental rights. These include: giving appropriate weight to Charter rights as compared to other interests; giving more consideration to the nature of the decision-maker (specifically considering closeness to the political world as a potential reason for being less, rather than more, deferential); and the court not supplying its own reasons for a decision-maker’s actions. Such considerations seem eminently suitable for adoption or adaption beyond Canada and her chapter reads as a ‘cautionary tale’ to other jurisdictions.

The impetus for Paul Daly’s chapter is the very substantial growth in the scope and intensity of judicial review in English law in recent decades. As Daly observes, the question arises whether such developments amount to ‘an illegitimate power grab’. Answering that question in the negative, Daly draws upon, and develops, some of his earlier work in which he argues that modern administrative law is structured and animated by four interacting values, namely: the rule of law, good administration, democracy and separation of powers. Using that earlier, interpretive work as a foundation, Daly seeks to demonstrate the relevance of his four values to the broader question of administrative law’s legitimacy. In particular, he argues that the legitimacy—in its democratic and normative, as distinct from its sociological and procedural, senses—of contemporary expansions of judicial review can be established by reference to those four values. This follows, he suggests, because the four values lend administrative law—including in its modern, extended form—coherence, and because the values are legal in nature. Critically, argues Daly, these characteristics of the values that drive administrative law’s development serve to shield judges from (what are on this view) unwarranted charges of improper activism.

In their chapter, Roger Masterman and Se-shauna Wheatle examine contemporary trends in UK public law from the particular perspective of the common law. They observe that in recent decades, the common law has acquired new prominence as a legal-constitutional medium in the UK, thanks to (among other things) the development of the notion of common law constitutional rights, the identification—by the common law—of ‘constitutional statutes’, judicial deployment of the principle of legality, and curial invocation of the common law as a potential constraint upon Parliament’s legislative authority. Masterman and Wheatle argue that while such developments have the potential to destabilise the domestic constitution—and the common law’s place within it—such risks may be obviated provided that judges proceed with sufficient sensitivity to relevant aspects of the common law tradition. Among other things, they argue, this requires: adherence to the incrementalism that is characteristic of the common law’s developmental trajectory; transparent judicial articulation and curation of the body of constitutional principle to which effect is increasingly given at common law, such that the relationship between principle and its application in particular cases is more carefully and clearly drawn; and an openness to inter-jurisdictional dialogue that might serve to make up for UK judges’ relative inexperience when it comes to more fully fledged forms of constitutional adjudication. Masterman and Wheatle conclude that proceeding in this way is not merely desirable: it may be essential if judges are to avoid charges of subjectivity and overreach.

Cora Hoexter’s chapter examines the vexed distinction (and relationship) between the notions of public and private power. Hoexter observes that the need to make such a distinction—so as to determine amenability to judicial review—arises in many common law jurisdictions, and that the drawing of the line is rarely unproblematic. Hoexter’s focus, however, is on the issues to which the demarcation of public powers has given rise in the particular context of South Africa, where the carrying out of public functions is critical to the availability of judicial review. A key difficulty, observes Hoexter, is that attempts to characterise activities as public or private in any inherent or abstract sense are generally doomed to failure, while senses of where the boundary ought to be placed are liable to shift over time. As a result, the identification of that boundary risks collapsing into an intuitive, instinctive exercise. Hoexter explores these issues through detailed examination of the South African case law in a number of relevant contexts, including the amenability to judicial review of sports regulatory bodies and public actors’ exercises of contractual power. She concludes that the approach of South African courts—like that of courts in some other parts of the common law world—is unsatisfactory, and that judicial identification of public functions too often reduces to little more than a question of ‘feel’.

Accountability is often taken for granted as a ‘core public law value’. But Ellen Rock’s chapter reveals that some deeper thought is needed as to what accountability actually means in this context and, consequently, what its functions are and whether it fulfils them. Rock identifies four functions accountability may serve: (1) to ensure transparent decision making; (2) to control the legality of exercises of public power; (3) to punish abuse of power; and (4) to provide restoration to those who suffer such abuses. Accountability currently, however, only performs the first two of those four functions in public law, th...