Prescribing Surveillance by Law
Tomorrow I am speaking at the first in a series of conferences — En 2 mots / In 2 Words — organized by my colleague Vincent Gautrais. My topic is “Prescribing Surveillance by Law”. Here is the abstract I prepared:
The common law of judicial review of administrative action has treated broad discretionary powers in an impressively robust way, refusing to permit the existence of unfettered regulatory discretion, instead imposing boundaries of acceptability on potentially abusive official conduct. But what has been a success in the area of administrative law has become a pathology in constitutional law. When charged with ensuring that government action is “prescribed by law” – that is, foreseeable and predictable – common law courts’ tendency to ensure that discretionary powers have at least some limits has caused them to permit the use of extremely broad powers. On the logic of the common lawyer, although the powers are extremely broad, they are not unfettered and must as a result be “prescribed by law”. In the area of government surveillance, however, the common law approach is inadequate – and sometimes, unfortunately smug: broad powers are often used secretly, in ways that are neither foreseeable nor predictable. To meet these inadequacies, common lawyers need to show some humility, by devising methods of ensuring predictability and foreseeability in governmental action that transcend the boundary between administrative law and constitutional law. These methods, which rely in part on the use of soft law and on imposing a robust requirement of reasonableness on official action, can properly be described as public law, as they are unique neither to administrative law or constitutional law and thus free of the pathology mentioned above.
This is an ambitious agenda for a 20 minute presentation, but let me break it down into its most important components.
It is worth first highlighting the common law’s achievement in imposing legal controls on even the most broadly worded discretionary powers. Where a statute says something like “the minister may, in his absolute discretion…”, or “if in the minister’s opinion, it is necessary to do so, she may…”, it would be easy for courts to say that the exercise of the power in question is simply a matter for the minister. But they have not said this. Rather, they have generally insisted over the last century that there is no such thing as unfettered discretion. As Rand J. put it in Roncarelli v. Duplessis, “there is always a perspective within which a statute is intended to operate”. So when powers are used for improper purposes, or based on irrelevant considerations, courts will intervene. All things being equal, the existence of ex post control by the courts should reduce the likelihood that discretionary powers, even broadly drawn ones, will be misused.
And yet, in the same passage in Roncarelli, Rand J. also observed: “no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute”. Where the language is clear, broad discretionary powers can be created. Courts can put fetters on “the minister’s absolute discretion” and similar formulations, but they cannot work miracles. Furthermore, in the era of judicially enforceable fundamental rights there is also an important ex ante perspective, that of the individual who wishes to engage in activity protected by an instrument like the Canadian Charter or the European Convention. Faced with a broad discretionary power, the individual might think twice about going to a protest march, composing a critical tweet, or even making a telephone call to a friend. Against this chilling effect, knowledge that a discretionary power is merely broad, not unfettered, provides insufficient comfort.
Both the Charter and the Convention seek, accordingly, to insulate protected rights from this chilling effect by providing that interferences with rights must be “prescribed by law”, a term that has come to mean that exercises of discretionary powers must be foreseeable and predictable (as well as having some legal basis). Indeed, the necessary foreseeability and predictability can come from internal guidelines and other ‘soft law’ instruments that seek to confine, structure and check discretionary powers. Although a law itself might give little indication as to the circumstances in which a discretionary power will be used, details about how officials are supposed to exercise the discretion may clarify, both for the officials themselves and for individuals, the circumstances in which it will be exercised.
Here, however, is where the common law’s success in imposing fetters on discretionary powers becomes problematic. In the mind of the traditional common lawyer, it is enough to say that the common law does not recognize unfettered discretion. Ex post judicial review for abuse of discretionary powers will suffice. Conceptually, any discretionary power exercised within the four corners of the statute — a potentially broad area — is of necessity “prescribed by law”. No further will a common law court go.
Where discretionary powers are very broad, as they are in the area of surveillance, more is needed, however. The “prescribed by law” function distinguishes between ex post and ex ante controls — between judicial review to ensure a decision-maker respected the fetters on her discretion and the provision of guidance that conditions how the powers will be used in the first place — and reminds us that both are necessary.
Indeed, it might be necessary to reject a sharp distinction between administrative law — concerned only with control of the exercise of discretion — and constitutional law — concerned with enforcement of individual rights — and focus instead on public law, broadly conceived, as a set of devices designed to ensure that decision-makers neither abuse their powers nor chill the exercise of protected rights. Requiring decision-makers to develop guidelines to confine, structure and check discretionary powers will serve this purpose. If they fail to do so, the exercise of discretion in question will not have been “prescribed by law”.
As I have written about the Canadian Charter:
New life can be breathed into section 1 by requiring decision-makers who have infringed Charter rights to demonstrate that they have put in place “soft law” instruments – especially publicly available guidelines – to minimize Charter violations and inform members of the public about the factors typically taken into account in the exercise of administrative powers. If they fail to do so, and cannot advance cogent reasons for the refusal to structure, confine and check their discretion, reviewing courts should stand ready to condemn their decision-making processes as lacking justification, transparency and intelligibility.
I argue in that paper for an enhanced administrative law approach, but the key really is to think about ways of controlling discretion that further the foreseeability and predictability goals of the “prescribed by law” function.
Thinking in these terms moves us beyond slogans about unfettered discretion and the distinction between ex post and ex ante controls on discretionary powers, towards a general public law, in which controls on discretion and protection for individual rights go hand in hand. As I wrote: “A scattergun approach on the part of litigants, strafing law, guidelines, and decisions is much more appropriate than attempting surgical strikes which turn out later to have been misdirected”.
This content has been updated on March 14, 2016 at 21:42.