The Language of Administrative Law: Introduction

In late October, I will be presenting a paper at a conference organized by the Canadian Bar Association in honour of former Supreme Court of Canada Justice Louis LeBel. I have spent the last couple of weeks working on a draft and will share it with readers in a series of posts. In this post, I introduce the subject. Five subsequent posts will address mission statements, labelling, terminological exactitude, metaphor and personification. The draft can be downloaded in its entirety here.

One writer has mischievously suggested that appellate law is a “language game” played by lawyers and judges.[1] Judicial review of administrative action, which proceeds by way of pleadings based on a settled, silent record, is a form of appellate law. And it has a strong claim to be considered a “language game”. For in administrative law, lawyers strive to portray decisions as “unreasonable” or “unfair”, terms they explain by invoking the various devices I discuss in this paper: developing mission statements, labelling categories of decision, perfecting terminological exactitude, evoking spectrums of procedural protection and inventing hypothetical reasonable persons. From time to time, scholars have even relied on metaphor to explain the grand sweeps of administrative law: from a long “sleep”,[2] to “twilight”,[3] to “reformation”,[4] to doctrinal ebbs and flows.[5]

In one way, this may simply be evidence of administrative law’s existential “crisis”,[6] provoked by “a dramatic and indeed radical change in the scope of judicial review”.[7] To appreciate the fascination of administrative lawyers with language, some background is necessary. Judicial review of administrative action began to emerge as a distinct branch of the law only in the mid-20th century. Administrative law, as it is typically called, has since blossomed as a result of judicial creativity. In the early-20th century, administrative action could be reviewed only in a narrow set of cases, where officials exercising statutory authority had determined, by a judicial process, the rights of an individual.[8] Yet by the 1980s, it was safe to say that any governmental decision affecting the rights, interests, property, privileges, or liberties of any person was reviewable by the courts to ensure the legality and rationality of the decision and the fairness of the decision-making process.[9]

Since then, doctrine has developed still further. For example, factual findings of officials may be reviewed;[10] officials can be bound to promises made by them to individuals;[11] and in many situations, individuals are entitled to reasons for adverse decisions.[12] Such intrusive judicial review of official decision-making would have been unthinkable several decades ago.[13] Administrative law’s scope and depth have increased: these increasingly intrusive grounds of review are available against a wide variety of public and private actors performing governmental functions. Now, the tentacles of administrative law embrace not only officials acting under express statutory authorization but, sometimes, private bodies performing public functions.[14] However, although there has been vibrant scholarly debate about the legitimacy of developing judicially imposed controls on official action,[15] the origins and raison d’être of the administrative law revolution are obscure.

Three decades ago, Lord Diplock explained: “[T]he English law relating to judicial control of administrative action has been developed upon a case to case basis which has virtually transformed it over the last three decades”.[16] Another 30 years on, administrative lawyers continue to struggle to account for the transformation in principled terms.[17] Falling back on language may be a coping mechanism for judges, lawyers and academics deprived of clear principles around which their work can be organized.

In general, language plays a useful descriptive role in administrative law, setting out a landscape that can be comfortably viewed and usefully discussed from 20,000 feet. However, overreliance on mission statements, labels, terminological exactitude, metaphor and personification obfuscates the inevitably normative task judges have in judicial review cases: deciding and explaining whether intervention would be justifiable or not. As Cooke P. (as he then was) explained in Thames Valley Electric Power Board v. NZFP Pulp & Paper Limited:

[N]ever has it been suggested that the mere personal opinion of a Judge that a decision is unfair will justify holding it invalid. Nor is that ever likely to be suggested. The functions of exercising administrative discretion and judicially reviewing its exercise are fundamentally different. The line is not always easy to draw, but it has to be drawn.[18]

My goal here is to demonstrate the limits of language in administrative law, with a view to understanding the role of judicial review more clearly. Exposing the limits of the administrative law language game is not a frivolous endeavour:

A man may take to drink because he feels himself to be a failure, and then fail all the more completely because he drinks. It is rather the same thing that is happening to the English language. It becomes ugly and inaccurate because our thoughts are foolish, but the slovenliness of our language makes it easier for us to have foolish thoughts.[19]

My argument is not that administrative law doctrine can be made so clear as to become self-applying. Regardless of the rules or standards adopted judicial judgement will be necessary in applying them to individual cases. The point, rather, is that jurists who appreciate the limits of language in administrative law will think more clearly about doctrine and reach more accurate decisions. As one wise judge admonished: “care needs to be taken to distinguish analytical tools from conclusions which encapsulate value judgments but do not give any indication of the route to those conclusions”.[20]

In setting out my argument, I refer in particular to three sets of reasons written or co-written by Justice Louis LeBel during his tenure on the Supreme Court of Canada in my analysis of the limits of language in contemporary administrative law. His careful concurring reasons in Toronto (City) v. C.U.P.E., Local 79,[21] laid bare many of the problems with Canadian administrative law by exposing the shallowness of judicial resort to terminological exactitude to explain substantive review cases, a problem to which he returned in his seminal joint majority reasons (with Justice Bastarache) in Dunsmuir v. New Brunswick,[22] which set out the Canadian framework for substantive judicial review. Yet his opinion for the Court in Imperial Oil Ltd. v. Quebec (Minister of the Environment)[23] bears testament to his belief in the power of the metaphor of a spectrum of governmental functions to elucidate the principles of procedural fairness.

[1] A.W.B. Simpson, Reflections on the Concept of Law (Oxford University Press, Oxford, 2011), at p. 100.

[2] Robert Stevens, The English Judges (Hart Publishing, Oxford, 2005), at p. 19.

[3] H.R.W. Wade (1951), 67 LQR 103.

[4] Richard Stewart, “The Reformation of American Administrative Law” (1975), 88 Harvard Law Review 1669; Thomas Poole, “The Reformation of English Administrative Law” (2009), 68 Cambridge Law Journal 142

[5] Claire L’Heureux-Dubé, “The ‘Ebb’ and ‘Flow’ of Administrative Law on the ‘General Question of Law’”, in Michael Taggart ed., The Province of Administrative Law Determined (Hart, Oxford, 1997), p. 308.

[6] Martin Loughlin, “Procedural Fairness: A Study of the Crisis in Administrative Law Theory” (1978), 28 University of Toronto Law Journal 215.

[7] Council of Civil Service Unions v. Minister for Civil Service, [1985] A.C. 374, at p. 414, per Lord Roskill.

[8] R. v. Electricity Commissioners, ex parte London Electricity Joint Committee Co., [1924] 1 KB 171, at pp. 204-205, per Atkin L.J.; R. v. Legislative Committee of the Church Assembly, ex parte Haynes-Smith, [1928] 1 KB 411, at p. 415, per Hewart C.J.

[9] Lord Woolf of Barnes, “Droit Public – English Style”, [1995] Public Law 57

[10] E. v. Secretary of State for the Home Department, [2004] Q.B. 1044.

[11] R. v. North and East Devon Health Authority, ex parte Coughlan, [2001] Q.B. 213.

[12] Baker v.  Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

[13] Thomas Poole, “The Reformation of English Administrative Law” (2009), 68 Cambridge Law Journal 142.

[14] Dawn Oliver, Common Values and the Public-Private Divide (Butterworths, London, 1999).

[15] See generally Christopher Forsyth ed., Judicial Review and the Constitution (Hart, Oxford, 2000).

[16] Council of Civil Service Unions v. Minister for the Civil Service, [1985] A.C. 374, at p. 407.

[17] See e.g. Jack Williams, “Clarity and Ambiguity: A New Approach to the Test of Legitimacy in the Law of Legitimate Expectations” (2010), 30 Legal Studies 633.

[18] [1994] 2 N.Z.L.R. 641, at p. 653.

[19] George Orwell, “Politics and the English Language”.

[20] R. (Bibi) v. London Borough of Newham, [2001] EWCA Civ 607, at para. 18.

[21] [2003] 3 S.C.R. 77, 2003 SCC 63. Hereafter “CUPE (2003)”. I call it CUPE (2003) to distinguish it from C.U.P.E. v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227, which is generally referred to as “CUPE”. I must confess that I do not understand why one is supposed to refer to this foundational decision on deference as CUPE and not as New Brunswick Liquor. When a large institutional litigant is involved, it makes much more sense to employ the name of the smaller party as shorthand. Although I cannot claim to have researched the point minutely, it seems to me to be safe to say that the New Brunswick Liquor Corporation has not featured as often as the Canadian Union of Public Employees in important administrative law cases.

[22] 2008 SCC 9, [2008] 1 S.C.R. 190.

[23] [2003] 2 S.C.R. 624, 2003 SCC 58.

This content has been updated on August 20, 2015 at 08:00.