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VARUHA

by Midnight

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Paul Daly: The Culture of Justification in Administrative Law

By any measure the breadth and depth of substantive judicial review of administrative action have increased remarkably in recent decades. It is interesting to ask why this has happened. In a typically interesting and trenchant contribution, my friend Jason Varuhas attributes recent changes to judicial review procedure to a substantive turn to rights review and systemic review.

As Professor Varuhas observes, courts in judicial review proceedings have become progressively more hands on:

Courts increasingly determine disputed questions of fact (albeit determination of contested primary facts still remains uncommon relative to ordinary procedure); are increasingly open to disclosure, oral evidence and expert evidence, at least in certain contexts; and there have been significant changes in the volume and type of documentary evidence considered by reviewing courts.

There are likely many reasons why these changes are occurring. But a central reason is that the practice and procedure of review are adjusting to significant changes in the substantive law of judicial review; as in any system a change in one part will have knock-on effects on other parts of the system. Two changes in the substantive law of judicial review in particular have precipitated a changed approach: a turn to rights, and a turn to systemic review. These two changes are my focus here. They are fundamental to understanding the changes that are occurring in the law and practice of evidence and fact-finding on review, and squarely illustrate the interdependence of substantive and procedural law. But I do not, of course, discount other possible drivers of change, including spill-over effects from practice in specialist tribunals, the rise of complex ‘commercial’ or ‘regulatory’ judicial reviews, and warmer judicial attitudes to review for factual error (eg E).

One can only applaud academic recognition of the dynamic relationship between the substantive law of judicial review — legality, rationality and procedural propriety — and the procedural law of judicial review. As I observed in “Updating the Procedural Law of Judicial Review of Administrative Action” (2018) 51 University of British Columbia Law Review 705, “the relationship between the procedural and the substantive in the common law tradition is dynamic and unpredictable”, such that changes to the procedural law of judicial review are likely to create pressure for reform of the substantive law of judicial review and vice versa.

However, there are reasons to doubt the significance of ‘rights’ in producing recent procedural changes.

First, one of the key developments in the procedural law of judicial review in England and Wales has been the imposition of a ‘duty of candour’ on respondents to judicial review claims. As was stated crisply in Huddleston:

This development [i.e. the remedy of judicial review and the evolution of a specialist administrative or public law court] has created a new relationship between the courts and those who derive their authority from the public law, one of partnership based on a common aim, namely the maintenance of the highest standards of public administration. … The analogy is not exact, but just as the judges of the inferior courts when challenged on the exercise of their jurisdiction traditionally explain fully what they have done and why they have done it, but are not partisan in their own defence, so should be the public authorities. It is not discreditable to get it wrong. What is discreditable is a reluctance to explain fully what has occurred and why…Certainly it is for the applicant to satisfy the court of his entitlement to judicial review and it is for the respondent to resist his application, if it considers it to be unjustified. But it is a process which falls to be conducted with all the cards face upwards on the table and the vast majority of the cards will start in the authority’s hand.

(R v. Lancashire County Council, ex parte Huddleston [1986] 2 All ER 941 at p. 945)

Note the citation. This canonical statement of the law dates to the mid-1980s, long before the introduction of the Human Rights Act 1998.

Second, when the House of Lords was asked to increase the scope of discovery in human rights cases, it did so only reluctantly. In Tweed v. Parades Commission for Northern Ireland [2006] UKHL 53, [2007] 1 AC 650, their Lordships appreciated that the proper application of a proportionality test could require additional documentary evidence in some situations, leading to “a more flexible and less prescriptive principle” for disclosure (at para. 32, per Lord Carswell). However, they nonetheless emphasized that disclosure would not be automatic (at para. 3, per Lord Bingham) and perhaps even “exceptional” (at para. 56, per Lord Brown): “[e]ven in cases involving issues of proportionality disclosure should be carefully limited to the issues which require it in the interests of justice” (at para. 32, per Lord Carswell).

Third, the growth in substantive review is not just an English affair. Similar trends can be observed in Australia, Canada, Ireland and New Zealand. This significant degree of global convergence requires a global explanation capable of accounting for very different jurisdictions, some of which (New Zealand) have, broadly speaking, no justiciable rights instruments and others of which adopted rights instruments at different times (Ireland, 1937; Canada, 1982; England and Wales, 1998).

Fourth, the only in-depth study (of which I am aware) of whether rights are a ‘driver’ of substantive review is found in Janina Boughey’s monograph, Human Rights and Judicial Review in Australia and Canada: The Newest Despotism (Hart, 2017). Her conclusion is that rights have not played the key role which is typically attributed to them: significant changes in the law of judicial review have occurred both in Australia and in Canada even though these two jurisdictions are on opposite ends of the spectrum as far as judicial enforcement of fundamental rights is concerned.

As for systemic review, I would note that the classic Canadian cases relating to the application of the reasonable apprehension of bias test to decision-making structures within administrative agencies long pre-date the more recent empirical turn in Canadian human rights law. The decisions in IWA v. Consolidated‑Bathurst Packaging Ltd. [1990] 1 SCR 282 and 2747-3174 Québec Inc. v. Quebec (Régie des permis d’alcool) [1996] 3 SCR 919 date from the 1990s. The move to create massive factual records capable of demonstrating systemic violations of rights protected by the Canadian Charter is of much more recent provenance, traceable to the 2011 Insite decision on supervised injection sites (Canada (Attorney General) v. PHS Community Services Society 2011 SCC 44, [2011] 3 SCR 134) and subsequent high-profile decisions on prostitution (Canada (Attorney General) v. Bedford 2013 SCC 72, [2013] 3 SCR 1101) and assisted suicide (Carter v. Canada (Attorney General) 2015 SCC 5, [2015] 1 SCR 331).

In a forthcoming article prepared for the 2020 Osgoode Constitutional Cases Conference, “Vavilov and the Culture of Justification in Contemporary Administrative Law”, I offer some thoughts about the recent growth in the breadth and depth of judicial review of administrative action, which may also shed light on the procedural changes observed by Professor Varuhas.

I set out in the article to explain the rise of the “culture of justification” in administrative law. I identify the culture of justification with an increased emphasis on reasoned decision-making, demonstrated expertise, responsiveness and contextualism? Recognizing that it is impossible to provide a conclusive explanation of the rise of the culture of justification, I note that it is by contrast perfectly feasible to develop a hypothesis. Broadly speaking, the hypotheses relating to the rise of the culture of justification can be placed on a spectrum running from exogenous at the one end to endogenous at the other.

Exogenous factors would treat the culture of justification in administrative law as epiphenomenal, a manifestation of broader cultural, economic, social or political forces. It could be a product of the post-Renaissance rise of rationality, which is not easily compatible with top-down assertions of authority. Similarly, the idea that governmental action having an effect on individual interests must be justified (and is unlawful if not) might be thought to be cohesive with the post-World War II emergence of human rights law. Relatedly, the underlying theory of popular democracy, which emerged in its fullest form across the Western world only in the last century, is that individuals are entitled to have a say in how they are governed, carrying with it the implication that governmental decisions adverse to individuals’ interests ought to be justified. General declines in levels of social trust, or trust in authority, might also explain increased demands for justification. And, as at least one leading judge has suggested, the decline in the perceived effectiveness of the accountability of the executive to the legislature led courts to occupy the “dead ground” vacated by political actors (R v. Secretary of State for the Home Department, ex parte Fire Brigades’ Union [1995] 2 AC 513, at p. 567, per Lord Mustill).

Not being an historian, political scientist, philosopher or sociologist, I am not as interested in exogenous factors as I am in endogenous factors. Two appear to me to be relevant: the development of context-sensitive, general principles of administrative law; and the more expansive reasons and records on which administrative decisions are nowadays based. My hypothesis is that there is a symbiotic relationship between these two factors.

The first is the development, since the 1960s and 1970s of general principles of administrative law. What we now call “administrative law” or “judicial review of administrative action” began to develop, many centuries ago, in the form of the writs of certiorari, prohibition, mandamus, quo warranto and habeas corpus. These writs were originally designed, by judges sitting in the King’s common law courts in Westminster, to control the actions of so-called “inferior” courts around the country. Today’s centralised court system was then in the earliest stages of its development; most justice was administered locally or in ecclesiastical courts. Over the centuries, the common law courts extended the scope of the prerogative writs to cover a wider and wider range of bodies, generally reasoning by analogy to justify issuing writs against decision-makers which were not, strictly speaking, “inferior” courts. While the prerogative writs were used to control the actions of an array of administrative decision-makers, there was no “administrative law” as such. As with the common law generally prior to the reforms effected by the Judicature Acts in the late nineteenth century, there were no general principles but various, discrete bodies of law relating to the individual writs: there was a “law” relating to certiorari, prohibition and so on but there was no coherent body of principles which, as a whole, could be described as “administrative law”. In the same way as there was until the end of the 19th century no “law of tort” or “law of contract” but rather “laws” of diverse writs of action, “administrative law” as a body of principles did not exist.

Academic, political and judicial efforts had combined to produce, by the end of the 20th century, a recognizable body of principles called “administrative law”, pursuant to which administrative decision-makers were required to act lawfully, rationally and procedurally fairly. Given that administrative law was no longer restrained within procedural shackles, there was no boundary to the development of these principles. Moreover, the casting off of the procedural shackles has been accompanied by the casting off of conceptual shackles: the classifications, divides and distinctions which characterized earlier eras have gradually been removed, with contextual analysis to the fore. In the case-law, references abound to the importance of context: the duty of fairness is entirely context-sensitive; as is the duty to consult; reasonableness review is heavily influenced by context, as are judicial responses to claims of non-justiciability; and in applying the law of standing, judges are exhorted to take a purposive and flexible approach to a multitude of factors.

When judicial review analysis is contextual (rather than categorical), the focus of a reviewing court will invariably be on whether the decision as a whole meets the relevant standard of reasonableness or fairness, which depends on a holistic assessment of the decision. No avenues of analysis or lines of inquiry are categorically blocked off. With context to the fore, the primary question for the judge becomes whether the decision is justifiable, in terms of reasonableness or fairness. The ultimate question, to be assessed holistically, will be whether a given “exercise of delegated public power can be ‘justified to citizens in terms of rationality and fairness’” (Canada (Citizenship and Immigration) v. Vavilov 2019 SCC 65, at para. 14, citing the Rt. Hon. B. McLachlin, “The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law” (1998) 12 Canadian Journal of Administrative Law & Practice 171, at p. 174). That the judge’s determination is contextual does not mean it is a purely subjective assessment of whether the decision should stand or fall. A judge conducting a judicial review is hemmed in by a variety of objective considerations: institutional constraints, constitutional constraints and prior jurisprudence applying the concepts of reasonableness and fairness to other administrative decisions. Nonetheless, I suggest, the development of a culture of justification is much easier where the law of judicial review of administrative action is context-sensitive and does not depend on categorical analysis. Accordingly, my hypothesis is that the decoupling of administrative law from the prerogative writs and the rise of contextual analysis facilitated the rise of a culture of justification.

Second, and very much relatedly, the reasons and records of administrative decisions reviewed by judges are now much more extensive than in previous eras. In Anisminic, the claimant was given a one-page letter stating – not explaining – the Foreign Compensation Commission’s conclusion (David Feldman, “Anisminic v. Foreign Compensation Commission [1968]: In Perspective” in Maurice Sunkin and Satvinder Juss eds., Landmark Cases in Public Law (Hart, 2017)). Modern records are voluminous; modern reasons extensive. Administrative proceedings are, increasingly, subject to the open-court principle; access to information legislation imposes high standards of transparency on administrative decision-makers; there are many statutory obligations to give reasons for decisions; considerations of fairness between individual and institutional litigants drive the publication on decision-makers’ websites of scores of decisions; and technological advances facilitate the production of reasons even in respect of large numbers of applications “by employing information technology, using decision templates, drop-down menus and other software” ( R (Agyarko) v. Secretary of State for the Home Department [2017] 1 WLR 823, at para. 71, per Lord Reed). And while courts are not permissive when it comes to what may be put in the record placed before the reviewing courts, they are certainly much less fastidious than they were in previous eras.

The upshot is that a judge conducting a judicial review hearing will have a large volume of material on her desk, reasons running potentially into the hundreds of pages, supported quite possibly by an even more extensive record. It is only natural for courts reviewing reasoned decisions to focus on the internal coherence of the reasons given, interrogating whether they do indeed justify the decision given. A judicial review judge is likely to consider that she has the capacity to test whether the decision-maker’s conclusions follow from their premises: there is no special expertise required to assess whether a decision is logical and rational, or whether it is justifiable in view of the relevant legal and factual constraints. Where there were no reasons to scrutinize, as in previous eras, it was much more difficult for judges to conclude that an administrative decision should be quashed.

I would push the point further still. Where reasons were never given for administrative decisions, the flaws in those decisions or in public administration generally were concealed from the judicial eye. Once reasons came to be given more or less as a matter of course, public administration was on display, warts and all. As soon as judges became aware of shortcomings in public administration (or even of the potential for shortcomings), was it not inevitable that they would develop more exacting standards of reasonableness and fairness to hold administrative decision-makers to account? It is not, I hypothesize, more exacting standards of judicial review which have caused more expansive reason-giving and record-generation; it is expansive reason-giving and record generation which have caused more exacting standards of reasonableness and fairness (see also Michael Taggart, “Deference, Proportionality, Wednesbury” [2008] New Zealand Law Review 423, at pp. 463-464).

In summary, my hypothesis for the rise of the culture of justification rests on two inter-related factors which are largely internal to administrative law: the development of context-sensitive general principles of judicial review of administrative action; and the expansion of reasons for administrative decisions and the accompanying records for judicial review. Professor Varuhas concludes his excellent post by commenting: “the more intensely courts scrutinise the substance of administrative action, then the more evidence will come before courts, and the more evidence before courts then the more courts shall be drawn into the substance of administrative action – so on and so forth”. I agree with him about the dynamic relationship between procedure and substance, but suggest that causality might well run in the opposite direction.

Paul Daly is an Associate Professor in the Faculty of Law (Common Law Section), University of Ottawa, where he holds the University Research Chair in Administrative Law & Governance. He maintains the widely-read blog, Administrative Law Matters.

(Suggested citation: P. Daly, ‘The Culture of Justification in Administrative Law’, U.K. Const. L. Blog (6th July 2020) (available at https://ukconstitutionallaw.org/))

Paul Daly: The Culture of Justification in Administrative Law published first on https://immigrationlawyerto.weebly.com/

[stabiblijakaze]

Hrišćanska Biblija

Ideja o hrišćanskim spisima kao Novom zavetu proistekla je iz hrišćanskih učenja koja u Isusu vide posrednika u novom savezu sa Bogom. Hrišćanski Novi zavet sadrži 27 spisa. Ti spisi se mogu podeliti na 4 vrste religijskih tekstova:

četiri jevanđelja,

jedna rana crkvena povest,

dvadeset i jedna poslanica,

jedna apokalipsa

Biblija, ili Sveto pismo, kod Hrišćana označava zbirku svetih spisa koji se dele na knjige Starog zaveta i Novog zaveta.

Pravoslavna crkva uvrstila je u Stari zavet 39 knjiga. Prema kanonu Rimokatoličke crkve, Stari zavet sadrži 50 knjiga, jer obuhvata, pored 39 protokanonskih, i jedanaest devterokanonskih knjiga (protestanti ih nazivaju apokrifnim):

▪Druga knjiga Jezdrina

▪Treća knjiga Jezdrina

▪Knjiga o Toviji

▪Knjiga o Juditi

▪Premudrosti Solomonove

▪Premudrosti Isusa sina Sirahova

▪Poslanica Jeremijina

▪Knjiga proroka Varuha

▪Prva knjiga Makavejska

▪Druga knjiga Makavejska

▪Treća knjiga Makavejska

Na kraju grčke Biblije, obično se štampa i Četvrta knjiga Makavejska, ali ne kao kanomska knjiga već kao drevna poučna.

Četiri proširenja:

▪Molitva Manasije cara judejskog (na kraju Druge knjige dnevnika)

▪prošireno 6 glava u Knjizi o Jestiri

▪151. Psalam (na kraju Psaltira)

▪Proširena 3. glava, dodata 13. I 14. glava u Knjizi proroka Danila

Sveti Atanasije Veliki u 39. uskršnjoj poslanici (Pidalion, str. 768-770), deli starozavetne knjige u dve grupe: kanonske, 22 knjige po jevrejskim slovima azbuke, ali u stvarnosti 39, i anaginoskomene, dakle korisne i dobre za čitanje, njih deset. Kanonske starozavetne knjige su: Postanje, Izlazak, Levitska, Brojevi, Ponovljeni Zakon, Isusa Navina, Sudije, Ruta, 1. i 2. Knjiga Samuilova, 1. i 2. Knjiga o carevima, 1. i 2. Knjiga Dnevnika, Jezdra, Jestira, Jov, Psalmi, Priče Solomonove, Propovednik, Pesma nad pesmama, Isaija, Jeremija, Jezekilj, Danilo, Plač Jeremijin, Osija, Joil, Amos, Avdije, Jona, Mihej, Naum, Avakum, Sofonije, Agej, Zaharija i Malahija.

Knjige "anaginoskomene" - dobre za čitanje (nazvane u XVI veku na Zapadu devterokanonskim, zato što je njihovo unošenje u kanon Zapadne crkve, pored "protokanonskih knjiga", bilo stavljeno na diskusiju), uključene su u biblijski kanon od najstarijih vremena (kanon Svetog Atanasija Velikog), i to su sledeće; Judita, Tovija, 3. Jezdrina (Jezdra u Septuaginti), Varuh, Poslanica Jeremijina, Premudrosti Solomonove, Premudrosti Sirahove, 1, 2, i 3. Makavejska.

Biblija na rumunskom jeziku, izdanje 1968. godine, uključila je i neke nekanonske odeljke (Pesmu trojice mladića, Istoriju Suzane, Istoriju aždaje i Bela, Molitvu Manasijevu).

U prvim vekovima kružile su mnoge knjige - bilo apokrifne, bilo autentične, veoma cenjene od hrišćana - koje Crkva na kraju nije unela u novozavetni kanon. Otkrivenje Jovanovo je prihvaćeno u kanon sa izvesnim izbegavanjem. Osamdeset peti Apostolski kanon ne pominje Otkrivenje, ali zauzvrat preporučuje dve Poslanice Korinćanima od Klimenta Rimskog i Učenje Dvanaestorice Apostola (odbačeno na Šestom vaseljenskom saboru, kanon 2, na osnovu toga što su ga koristili neki jeretici); to isto čini i Laodikijski sabor (60. kanon) i Sveti Kirilo Jerusalimski. Prihvata ga Sveti Atanasije Veliki, koji spominje i Jermin Pastir (kao i Sveti Maksim Ispovednik), a takođe i Kartaginski sabor (kanon 30), koji u isto vreme preporučuje Žitija Svetih (kanon 54) i, na kraju, Dionisije Areopagit. Pod uticajem katihetskih škola u Siriji i Palestini, Otkrivenje se nije upotrebljavalo u liturgijskoj praksi, mada ga je ipak na kraju aleksandrijska škola stavila u kanon.

Rimokatolička crkva je tek 1546. godine, na protivreformatorskom saboru u Trentu, uključila u kanon svih 27 knjiga Novog zaveta. Tom prilikom je Jeronimov latinski prevod Biblije, poznatiji kao Vulgata prihvaćen kao zvanična, autoritativna verzija katoličkog Svetog pisma.

Biblija je (naročito) počela da se širi svetom u 16. veku posle Hrista, i danas je, u celini ili delimično, prevedena na preko hiljadu pet stotina jezika. Biblija je izazvala divljenje, manje ili veće, relativno priznanje ili prihvatanje pripadnika drugih religijskih tradicija, ali, uopšte uzev, ona je, kao i drugi sveti spisi, sveta po svom sopstvenom tradicionalnom karakteru jedino za pripadnike odgovarajuće vere.

[peterjancic]

Vzhodnonemška nevarnost Roka Čeferina

Delo se za laž o denarju iz Patrije za SDS ni korektno opravičilo niti, ko je to zahtevalo sodišče. A zato oblast še ne sme odpraviti svobode tiska, uvesti cenzure, premier pa pozivati, kje se ne sme oglaševati

Rok Čeferin bo ta teden v DZ najbrž izvoljen za ustavnega sodnika. Koalicijske stranke združujejo dovolj poslancev, nekoliko pa je to celo v interesu desne opozicije, čeprav Čeferin ni najboljša izbira za varuha svoboščin ljudi pred zlorabami oblasti. Še v predstavitvi pri predsedniku Borutu Pahorjuje predvsem branil pravico vlade, da omejuje temeljne pravice in svoboščine ljudi: svobodo govora,…

[piratskastranka]

Direkcija za infrastrukturo je zaprosila varuha konkurence naj preveri, ali so bila ravnanja obeh ponudnikov pri javnem naročilu izdelave makete drugega tira za izdelavo makete skladna s predpisi. http://bit.ly/2GtBq5F

[slovenijablog02]

"Tiralično" zbiranje podatkov letalskih potnikov

Zbiranje podatkov, ki jih "potniki iz tretjih držav ob rezervaciji leta v Slovenijo in v nasprotni smeri posredujejo letalskemu prevozniku", je, ker so zakonsko dostopni policiji, sporno za informacijsko pooblaščenko in urad varuha človekovih pravic (zahteva ustavno presojo), ki "opozarjata na pretirano poseganje v pravico do zasebnosti".

e/Delo

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Muruhaa Pazhani Pathivaazh Baala Kumaaraa Aavinan Kudivaazh Azhahiya Vela Senthil Maamalai Yurum Sengalva Raayaa Samaraa Purivaazh Shanmuha Tharase Kaarar Kuzhalaal Kalaimahal Nandraay Yennaa Irukka Yaan Unai Paada Yenai Thodarnthu Irukkum Yenthai Muruhanai Padinen Aadinen Paravasa Maaha Aadinen Naadinen Aavinan Poothiyey Nesamudan Yaan Netriyil Aniya Paasa Vinaihal Patrathu Neengi Unpatham Perave Unnarulaaha Anbudan Rakshi Annamum Sonnamum Metha Methaaha Velaayu Thanaar Sithi Petradiyen Sirappudan Vazhga Vaazhga Vaazhga Mayilon Vaazhga Vaazhga Vaazhga Vadivel Vaazhga Vaazhga Vaazhga Malai Guru Vaazhga Vaazhga Vaazhga Malai Kura Mahaludan Vaazhga Vaazhga Vaarana Thuvasam Vaazhga Vaazhga Yen Varumaihal Neenga Yethanai Kuraihal Yethanai Pizhaihal Yethanai Adiyen Ye thanai Seiyinum Petravan Neeguru Poruppathu Unkadan Petraval Kuramahal Petravalaame Pillai Yendranbaay Piriya Malithu Mainthan Yenmeethu Unmanam Mahizhntharuli Thanjam Yendradiyaar Thazhaithida Arulsey Kanthar Sashti Kavasam Virumbiya Baalan Theva Raayan Paharn Thathai Kaalaiyil Maalaiyil Karuthudan Naalum Aasaa Rathudan Angam Thulakki Nesamudan Oru Ninaivathu Vaahi Kanthar Sashti Kavasam Ithanai Sindhai Kalangaathu Thiyaani Pavarhal Orunaal Muppathaa Ruru Kondu Othiyeh Jebithu Uhanthu Neeraniya Ashta Thikkullor Adangalum Vasamaay Thisai Mannar Yenmar Seyalathu (Sernthangu) Arulvar Maatrala Rellaam Vanthu Vananguvar Navakol Mahizhnthu Nanmai Alithidum Navamatha Nenavum Nallezhil Peruvar Enthanaalum Eerettaay Vaazhvar Kantharkai Velaam Kavasa Thadiyai Vazhiyaay Kaana Meiyaay Vilangum Vizhiyaal Kaana Verundidum Peigal Pollathavarai Podi Podi Yaakkum Nallor Ninaivil Nadanam Puriyum Sarva Sathuru Sankaa Rathadi Arintha Yenathullaam Ashta Letchmihalil Veera Letchmikku Virun Thunavaaha Soora Bathmaavaith Thunithagai Yathanaal Iruba Thezhvarkku Uvan Thamuthalitha Gurubaran Pazhani Kundrinil Irukkum Chinna Kuzhanthai Sevadi Potri Yenai Thadu Thaatkola Yendrana Thullum Meviya Vadivurum Velava Potri Thevargal Senaa Pathiye Potri Kuramahal Manamahizh Kove Potri Thiramihu Thivya Thehaa Potri Idumbaa Yuthane Idumbaa Potri Kadambaa Potri Kanthaa Potri Vetchi Punaiyum Veleh Potri Uyargiri Kanaha Sabaikor Arase Mayilnada Miduvoy Malaradi Saranam Saranam Saranam Saravanabava Om Saranam Saranam Shanmuhaa Saranam Saranam Saranam Shanmuhaa Saranam http://ift.tt/2tfjtCZ

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20170519 LJ, VLASTA NUSSDORFER VARUHINJA CLOVEKOVIH PRAVIC, VIDEO PLATISE

Ljubljana,19.5.2017 - Varuhinja človekovih pravic Vlasta Nussdorfer je ob predaji Letnega poročila Milanu Brglezu, predsedniku Državnega zbora in Borutu Pahorju, predsedniku RS, imela tiskovno konferenco na kateri je predstavila glavne poudarke Letnega poročila Varuha človekovih pravic RS za leto 2016. Omenila je tudi starejše državljane. Zato sem jo prosil naj pove na katerem področju so bile največkrat kršene človekove pravice pri starejših državljanih in kaj morajo storiti starejši, da bi bilo tega manj.

[edisonashley]

Roger Masterman and Se-shauna Wheatle: Miller/Cherry and Constitutional Principle

In an essay published in Elliott, Varuhas and Wilson Stark (eds), The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives, we examined Lord Neuberger’s use of constitutional principle-based reasoning in R (Evans) v Attorney General. In that decision, Lord Neuberger – with whom Lords Kerr and Reed were in agreement – employed the pan-jurisdictional ([51]) values attaching to the concept of the rule of law in order to find that s.53(2) of the Freedom of Information Act 2000 did not permit the Attorney General to exercise the so-called ‘Ministerial veto’ power in circumstances where disclosure had previously been ordered by a judge.

Rule of law-based reasoning was central to Lord Neuberger’s judgment in Evans, to the effective exclusion of parliamentary sovereignty, and to the complete exclusion of separation of powers. In consequence, we wrote:

Though Evans was in one sense very clearly about the interrelationship between Parliament, executive and courts, the virtual absence of explicit discussion of separation of power is illustrative of a decision that – while principle-based in its reliance on the rule of law – is otherwise lacking in its detailed consideration of a (perhaps the) key concept through which constitutional organisation and division can be articulated (p.145).

As Simon Lee has observed – and in stark contrast to the decision in Evans – conceptual analysis of the rule of law is conspicuous through its absence from the Supreme Court’s reasoning in Miller/Cherry. Principle-based reasoning nonetheless provides the foundation for the Court’s judgment, and, as such, Evans stands as an intriguing counterpart – or foil – to the Supreme Court’s more recent decision in Miller/Cherry.

Separation of powers

The Neuberger position in Evans, we suggested, ‘reinforces a trend in British constitutionalism … for a prioritisation of the relationship between the individual and the state’ while being ‘more tepid in addressing the relationship[s] between organs of state (p.140).’ Miller/Cherry, by contrast, explicitly addresses the relations between courts, Parliament and executive. While we noted that Evans paid – aside from in the dissenting judgment of Lord Wilson ([171]) – scant regard to separation of powers, Miller/Cherry addresses more directly this central organisational concept of constitutional law.

First, the Supreme Court in Miller/Cherry conceptualises the judicial function using the language of ‘checks and balances’, regarding the supervisory role over the power of prorogation as a means of ‘ensuring that the Government does not use the power… unlawfully’ ([34]). This specific element of the separation of powers is laid out against the backdrop of a broader point – and one that must have normative purchase, even within the so-called political constitution – relating to the role of the court as arbiter of the law:

It is [the courts’] particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits ([40]).

This particular turn of phrase is reminiscent of Lord Hoffmann’s speech in the ProLife Alliance case – where it was argued that decisions as to the constitutional locus and limits of a particular power were ‘question[s] of law and must therefore be decided by the courts’ ([75]) – and is notable for the Supreme Court’s positioning of this power in relation to ‘each branch of government’ (emphasis added). Determination of the ‘existence’ and ‘legal limits’ of prerogative powers are similarly classified as ‘questions of law’ which ‘[u]nder the separation of powers, it is the function of the courts to determine’ ([36]).

But for the assertive demarcation of the judicial function that is apparent in the above, it is important also to emphasise that the conception of separation of powers advanced by the Supreme Court is not straightforwardly so court-focused. In other words, the Miller/Cherry decision does not advance a conception of power allocation (or of constitutional accountability) that – as at least one prominent critic ([17]) has effectively suggested – simply seeks to extend the reach of judicial power, ‘radically destabilising’ the political realm in the process ([12]). Instead, Miller/Cherry demonstrates a keen awareness of the position and function of the court as a component of a system. First, it illustrates that the constitution’s parallel systems of accountability may influence the intensity of judicial intervention:

The principle of Parliamentary accountability has been invoked time and again throughout the development of our constitutional and administrative law, as a justification for judicial restraint as part of a constitutional separation of powers ([47]).

Second, and more importantly, the Miller/Cherry decision seeks to position the court – and its function – within the constitutional network completed by the executive and legislature. One of the things we suggested was lacking in Evans was an effort by Lord Neuberger to relate his rule of law-driven reasoning to the constitutional framework within which that largely judicially-articulated concept resounded; we described this as a failure to complete the ‘constitutional circle’ (p.144-146). Miller/Cherry is a departure from Lord Neuberger’s approach in Evans for the reason that it explicitly frames the judicial role as operating in parallel to political processes of accountability, simultaneously emphasising the – in this context at least – definitive role of the court as interpreter of law, as well as the limitations of that role in the context of what we might (unsatisfactorily) term questions of political judgment.

Parliamentary sovereignty

While explicit consideration of parliamentary sovereignty was lacking from Lord Neuberger’s judgment in Evans, case-law on parliamentary sovereignty might otherwise be argued to reflect a series of general trends:

(i) the ‘judicially-passive’, recognising Parliament’s constitutionally unfettered ability to enact legislation (for instance, Ellen Street Estates [1934] 1 KB 590, 597; Cheney v Conn [1968] 1 All ER 779, 782);

(ii) the ‘rights-recognising’, allowing (limited) protection to individual rights (via (a) the common law (for example, Witham [1988] QB 575; Simms; UNISON) and (b) the HRA (Ghaidan v Godin-Mendoza); and

(iii) the ‘institutional’, concerning the broader parameters of Parliament’s legislative powers (including, Factortame (No.2); Jackson; Miller).

The cumulative effect of those category (ii) and (iii) cases has been to incrementally map the extent to which primary legislation might interfere with constitutional principles and/or individual rights, as well as interactions between the legislative powers of Parliament and the other institutions of government. In differing ways, each relates to the quantification of Parliament’s sovereign power in accordance with standards which (though often legislatively-derived) are constitutionally expressed by the courts.  

Miller/Cherry is of a slightly different order. As we have outlined above, it stands alongside those decisions that chart the contours of institutional relationships within the constitution. But its conception of sovereignty significantly differs from those decisions which might be seen to quantify the boundaries of primary legislative power. Miller/Cherry is notable because it is facilitative of parliamentary sovereignty; rather than concerning the boundaries of Parliament’s legislative powers, it addresses the conditions under which those powers are exercised. In a sense, it contains echoes of those (in)famous instances in which judges have suggested judicial obedience to statute might not survive an Act designed to significantly abuse or curtail the franchise (for instance, Moohan v Lord Advocate, [35]). Miller/Cherry employs many of the same motivations evident in hypothesising judicial responses to the legislatively ‘unthinkable’ ([1995] PL 57) – namely, the preservation of the parliamentary/democratic process – not in response to an Act of Parliament, but as a rejoinder to an act of the executive carried out under the prerogative.

The structure of structural principles

The Supreme Court’s concern for parliamentary process extends to its substance, and envisages Parliament’s sovereignty as co-existing with the ‘constitutional principle’ of ‘Parliamentary accountability’ ([46]). As such, the Court views parliamentary sovereignty as persisting only in so far as it is underpinned by the principle of parliamentary accountability. For the Court it follows that the latter principle may be frustrated – and the sovereignty of parliament therefore undermined – by way of an ‘unlimited’ power of prorogation ([44]). As to what would amount to an ‘unlawful’ prorogation, the Court says the following:

… a decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as a body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course ([50]) (emphasis added).

This passage and the thrust of the judgment can be seen as a further triumph of the culture of justification and the demand for reasoned judgement in public decision-making. Moreover, the Court provides the outline of a bifurcated process for determining whether there has been breach of a constitutional principle; in this case, that requires first assessing whether prorogation has violated the sovereignty principle and then assessing whether there is reasonable justification for the violation. Both the bifurcated process and the reasonable justification standard are hallmarks of adjudication under written constitutions. In particular, the requirement of ‘reasonable justification’ for interference with a constitutional principle approximates the common requirement under modern codified constitutions that rights can only be subject to such limitations as are justified in a democratic society and the proportionality test that is often activated to determine whether limitations are justified. Miller/Cherry in this sense represents a further step in the UK’s march towards modern constitutionalism, represented by both the reassertion of embedded common law doctrine and the adoption of external constitutional elements.

Yet, while the UKSC judgment in UNISON was cited as authority for the reasonable justification standard, UNISON addressed the extent to which the fundamental constitutional right of access to courts – rather than a structural principle – could be contravened by statutory powers. Further, the requirement for justification in UNISON could be partly explained, not only as a sensible interpretation and adoption of precedent on common law rights, but also, on the basis that a similar standard would be applied under Article 6 of the ECHR. The transferability of the UNISON structure to the constitutional principles of parliamentary supremacy and accountability can perhaps be justified on two bases. First is a belief in the core similarities between structural norms and rights, which is that they both operate as principles – that is, they can be fulfilled to varying degrees and do not apply in all or nothing fashion. As such, both constitutional principles and constitutional rights accommodate a balancing exercise to ensure simultaneous respect for competing imperatives within the state. Second, by stating that prorogation would be lawful if reasonable justification is presented, the Court exercises a form of deference to the government. The judges thereby provided space to the government to provide reasons for its interference with parliament’s constitutional duties.

The Court’s outline of the limits on the power of prorogation also highlights the difficulty of reasoning by principle, of finding the specific from the general. Few would deny the centrality of political accountability to the constitution; few would also deny that the democratic credentials of the legislature (and its legislative products) supplement the concept of sovereignty. The frustration of parliamentary sovereignty and accountability provides a general standard, but – in leaving a number of significant questions begging – provides only a partial guide to future governmental (and judicial) activity.

Conclusion

It may be that the core significance of Miller/Cherry is located in its reaffirmation that prerogative power no longer inhabits the ‘dead ground’ of the constitution ([1995] 2 AC 513, 567 (Lord Mustill)). It may be that its findings in relation to the circumstances in which prorogation will be unlawful are confined to the (lamentable) circumstances prompting the litigation. But neither consideration should diminish the significance of the Court’s embrace of principle-based reasoning. Moreover, while we may quibble about which principle – particularly the rule of law or parliamentary sovereignty – is dominant, the Court seems to indicate that these principles hold each other in balance and that their effect depends on the factual context of the case. Thus, the robust articulations of the rule of law found in Evans (and Privacy International) have not usurped the constitutional place of parliamentary sovereignty; Parliament’s constitutional role was the central concern of the 11-strong Miller/Cherry bench. Abstract debates about the supremacy of parliament versus the rule of law are therefore less meaningful – and less predictive. More instructive is the Court’s emerging approach of applying constitutional principles through a structured analysis consistent with the recognition of competing constitutional imperatives.

Roger Masterman and Se-shauna Wheatle, Durham Law School

(Suggested citation: R. Masterman and S. Wheatle, ‘Miller/Cherry and Constitutional Principle’, U.K. Const. L. Blog (14th Oct. 2019) (available at https://ukconstitutionallaw.org/))

Roger Masterman and Se-shauna Wheatle: Miller/Cherry and Constitutional Principle published first on https://immigrationlawyerto.weebly.com/

[edisonashley]

Weekly round-up of events

This week’s event announcement is below.

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Call for Papers: The Fourth Biennial Public Law Conference University of Ottawa Law School, Common Law Section, 17-19 June 2020

The Public Law Conference series is the pre-eminent regular forum for the discussion of public law matters in the common law world. The first three conferences in the Public Law series were held in Cambridge in 2014 and 2016, and Melbourne in 2018. From 17 to 19 June 2020, the University of Ottawa Law School will host the Fourth Biennial Public Law Conference, co-organised by the University of Ottawa, University of Melbourne and University of Cambridge.

The 2020 conference, convened by Peter Oliver (Ottawa), Michael Pal (Ottawa), Jason N E Varuhas (Melbourne), and Shona Wilson Stark (Cambridge), will feature approximately 80 speakers from across the common law world, and bring together over 250 delegates to discuss the most important issues in public law today. The convenors have confirmed the participation of a number of leading judges, scholars and office-holders from common law jurisdictions. The full list of confirmed speakers can be found on the conference website.

The theme of the conference is “Public Law: Rights, Duties and Powers”. The theme is intended to invite engagement with a range of topics related to the conceptual building blocks of public law systems, with a focus on rights, duties and powers. Among the questions that fall within the theme are ones concerning rights-based theories of public law, and critiques of such theories; the role of different public institutions in recognising, interpreting and implementing rights; theories of public law based in duties, such as fiduciary duties, and critiques of such theories; the nature and legal regulation of different types of public law duties, including the duties owed by the state to Indigenous peoples, individuals, and to the community as a whole; distribution of powers between central and subnational jurisdictions, and within single jurisdictions; the nature and legal regulation of public powers including statutory, prerogative, de facto, and contractual powers; and new modes of public power including use of soft law and new technologies. The conference will address these topics from the perspective of common law and also mixed systems. A fuller description of the conference theme can be found here.

The call for papers is now open, and the conference website gives details about how to submit an abstract. The call for papers will close on 2 September 2019. The convenors invite contributions by those at all career stages. The 2020 conference, like the preceding conferences, will include dedicated panel sessions for doctoral students and a fee-waiver programme for doctoral candidates participating in those panels; and the third Richard Hart Prize will be awarded to the best paper by an early career scholar.

An edited collection has been published from each of the three previous Public Law Conferences by Hart Publishing, the principal sponsor of the Public Law series. These include, the collections derived from the first two Conferences in the series, held in Cambridge, Public Law Adjudication in Common Law Systems (Hart 2016), and The Unity of Public Law? (Hart 2018). The collection arising from the 2018 Conference held in Melbourne is forthcoming later this year: The Frontiers of Public Law (Hart, forthcoming 2019). Similarly, it is intended that an edited collection will be published by Hart Publishing of a small selection of the papers given at the 2020 conference.

Weekly round-up of events published first on https://immigrationlawyerto.weebly.com/

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Odličja sv. Jožefa

Ob današnjem prazniku sv. Jožefa, varuha vesoljne Cerkve in glavnega zavetnika novomeške škofije, so med somaševanjem škofa Glavana v novomeški stolnici podelili najvišje škofijsko priznanje "Odličje sv. Jožefa", ki ga dodelijo tistim, "ki se posebej odlikujejo po zglednem krščanskem življenju in svojem prispevku za krajevno Cerkev".

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