Some Major Questions About Major Questions

In West Virginia v EPA, the Supreme Court of the United States, wielding the “major questions doctrine” found that the EPA did not have the statutory authority to adopt regulations implementing the Clean Power Plan, initially proposed by the Obama administration in 2015.  In this post, I describe why I think this decision was ultimately misguided, how the major questions doctrine might be recast, and why some of the dissent’s concerns are themselves misguided. In short, while I share concerns about agency opportunism, I do not think this judicial creation is the solution.

Under the Clean Air Act, the EPA has broad authority to establish regulatory “standards of performance” in relation to certain categories of pollutants. These include the adoption of the “best system of emission reduction,” taking into account various factors, that the EPA administrator “determines has been adequately demonstrated.” Under this provision, the EPA adopted a “generation-shifting” system rather than a plant-by-plant regulation system; in other words, it decided that the “best system of emission reduction” included generation-shifting. A generation-shifting approach, as I understand it—such as cap-and-trade, or investment in alternative sources—is a different sort of regulation because it purports to operate on a system-wide basis, rather than on an individual source basis. The EPA’s regulatory choice thus cut rather broadly to attack emissions across different sectors. There is much more detail in the opinions that I am leaving out for the sake of brevity.

The majority opinion (Roberts CJ) concluded that this was a “major question,” meaning there was “every reason to hesitate” before concluding that Congress meant to confer this authority on the EPA (20, see also Brown & Williamson, at 159-160). In order to draw this conclusion, Congress would need to include special authorization, or a so-called “clear statement.” In “major questions” cases, the majority tells us that “both separation of powers principles and a practical understanding of legislative intent” make it reluctant to find that the EPA’s stated authority here was buried in “vague” provisions like s.111(d) (19); here we see some concern about agency opportunism and attempts to expand statutory authority. The Court tells us that it has, as a matter of course, deployed the major questions doctrine in extraordinary cases where the agency asserts broad authority of economic and political significance (17). Put simply, as the majority frames it, the major questions doctrine is like a substantive canon of construction: the Court proceeds on its own assumption that Congress would not have wanted the EPA to have this authority, absent an explicit statement otherwise.

In dissent, Kagan J attacked the majority’s use of the major questions doctrine. Chiding the doctrine as a “get-out-of-text-free card” (28), Kagan J reasoned that the statute here was broad, but not vague (8). The breadth of the statute was by design. While this was so, Kagan J noted that the grant was also constrained: in concluding what the best system of emission reduction is, the EPA must consider “costs and non-air impacts” while making sure that the best system has been “adequately demonstrated” [7].

For Kagan J, the invocation of the major questions doctrine elided this delegation of power. She reasoned that the “doctrine,” such as it is, had only been deployed as part and parcel of ordinary statutory interpretation, determining the scope of delegated power conferred on an agency: “the text of a broad delegation, like any other statute, should be read in context, and with a modicum of common sense” [13]. Kagan J was concerned that the use of this special rule short-circuited the Court’s duty to actually determine what the statutory provisions meant, and whether the EPA’s regulation fit within the provision. Kagan J goes on to wax poetic about the importance of expertise and the administrative state (I’ve registered my opposition to these particular, age-old arguments before, and renew them to some degree below).

That said, I see a few problems with the majority’s recast of the major questions doctrine:

  • Despite the majority’s protestations otherwise, there has been a shift in the way the major questions doctrine works. Scholars, as I read them, tend to disagree about which cases mark the turning point, but I think it is fair to say that WV v EPA is the capstone. As I understood it, the doctrine was previously attached to Chevron deference. If a question was a “major question,” it was a reason to deny deference to the agency’s asserted interpretation; not a presumptive rule against ordinary agency action in certain, ill-defined “major” areas. But now the doctrine has taken on a life of its own; gone is Chevron. The lineage of this change does not suggest that it is justified.

 In Brown & Williamson, for example, the Court conducted a normal statutory analysis as prescribed under Chevron Step 1, and concluded that “Congress has clearly precluded the FDA from asserting jurisdiction to regulate tobacco products” (Brown & Williamson, 126, 132). It was only after this exhaustive analysis that the Court additionally concluded that, given Congress’ structured and deliberate scheme for tobacco regulation, the FDA could not likely have been given the authority to regulate tobacco products (Brown & Williamson, 159-160). This was not a standalone, substantive canon of construction; it was a tool of judicial common sense, an insight drawn from the application of the tools of interpretation, to determine that a statute precluded the agency’s view. Second, in Utility Air, the majority (Scalia J) questioned whether the agency’s construction could be reasonable under Chevron Step 2, given its “claim to extravagant statutory power” (Utility Air, at 20). Here, the “major questions” concern operates as a sort of defeasible outer limit that limits the range of reasonable options at Chevron Step 2. Even in King v Burwell, the Court used the major questions exceptions as a means to an end: to conclude that it should conduct an independent assessment of the statute in that case. In all of these cases, the major questions doctrine was operating more as an “add-in,” or “tie-breaker”: see, relatedly, fn 3 of the concurring opinion of Gorsuch J.

So, quite aside from the sotto voce overturning of these, weaker versions of the major questions doctrine, the consequences of moving from a deference rule (a rule changing the intensity of review, but not changing the legislature’s delegation process) to a delegation rule (a rule denying a power to delegate straightforwardly on an ill-defined set of questions at all)  is not small, and there are two. First, because the Court only offers a set of mushy guidelines for what constitutes a “major question” on which Congress will require an explicit statement, Congress may be left wondering how and when it must make itself “clear.” Second, on principle, Congress regrettably must—according to the Court’s standards—make itself clear. This was not required under Chevron. As Kagan J notes, the major questions doctrine—as deployed by the Court in WVA v EPA—basically shortcircuited this statutory analysis. Instead, rather than determining whether the statute supported the EPA’s reading, the Court was rather results-oriented: because the issue is big, even normal statutory authorization should not count, even though the EPA’s view was plausible (and certainly not vague—as Kagan J says, the issue here is breadth). It is plausible, as the majority suggests, that Congress did authorize this power in the text of its law. But this authorization was not explored, or otherwise, was inexplicably not enough.

  • Gorsuch J, in a concurring opinion, attempted to avoid this conclusion by stating that substantive canons of construction are accepted tools of interpretation. Indeed they are. But one should evaluate the lineage and triggers for these substantive presumptions, and at any rate, all should agree they should be used with caution and rooted in consistent doctrine and principle. Otherwise, they can be manipulable “get out of text free” cards. For this reason, many of the substantive canons are rooted in clear constitutional concerns: for example, some of the presumptions concerning federalism.

What is the constitutional basis of this form of the major questions doctrine?  One candidate might be the same pool of principles that grounds the non-delegation doctrine. But I think it is hard to justify this doctrine as some extension or analogue to the non-delegation doctrine (cf Cass Sunstein) in the mould of the Benzene Case. Undoubtedly, one can conceive of some important similarities—the Court has sometimes gestured to an asserted power as being too broad to justify Chevron deference. But, again, in all the cases, the problem was simply that Congress had foreclosed such extravagant regulation. Instead, the non-delegation doctrine, as a constitutional doctrine, is primarily concerned with the scope of delegated power. Courts seek an intelligible principle to determine whether the power is adequately guided. The idea is that, absent a guiding, legislative principle, an agency is exercising legislative power unconstitutionally, in a manner contrary to Article I.

While there are powerful historical arguments against the non-delegation doctrine that I am not equipped to evaluate, I take it as a given that it is alive and well, and that it—at least in some part—aims at preserving legislative power and control over administrative decision-making. Nonetheless, the new major questions doctrine deployed by the Court in WV v EPA is not, at least primarily, concerned with the breadth of delegated power per se. As Kagan J recounts, the delegation of power to the EPA in this case is, indeed, broad, but it is not beyond the pale. The EPA does have some meaningful constraints built-in to the statute, and such constraints likely save the delegation from any challenge on non-delegation grounds. The major questions doctrine, then, isn’t so concerned with the breadth of delegated power as much as the significance of the issue at hand. But issue significance does not necessarily equal broad delegated power; in other words, we can have broad delegated power in unimportant areas, which could plausibly raise non-delegation concerns, or we can have narrow delegations in important areas, which would raise major questions concerns. These doctrines are aiming at different things. As John Manning so eloquently said: “If the point of the nondelegation doctrine is to ensure that Congress makes important statutory policy, a strategy that requires the judiciary, in effect, to rewrite the terms of a duly enacted statute cannot be said to serve the interests of that doctrine.”

In whole, the result of this doctrinal shift is a complication of the basic task of the law of judicial review, and an arguable corruption of the legislation delegating the power at issue. The law of judicial review is designed to be an adjunct branch of statutory interpretation, to determine the scope of powers granted to an administrator. Whether Chevron has one or two steps, this is the core of the thing. With this new major questions doctrine, the law of judicial review is somewhat different. Less important is the text of the laws delegating power. More important is whether the court thinks the issue over which the power is delegated is “important” or “big” enough. This abstracts away from the core question on judicial review: does the agency have this asserted power to conduct this action, no matter how big the problem  may be?

II.

With these concerns in mind, I think it might be useful to consider how Canada deals with questions of this sort, because I think the doctrine aims at some of the same concerns as the major questions doctrine while avoiding some of the potential pitfalls, as I see them.

 In Canada, our going-in presumption is reasonableness review (for an apt description of why Canada gets this backwards in relation to the United States, see Leonid Sirota). This presumption can be rebutted, in which case the court reserves to itself the right to pronounce on the legal issue without any deference. One of the circumstances in which the presumption can be rebutted is in cases involving “general questions of central importance to the legal system as a whole” (see Vavilov, at para 58 et seq). This category has much in common with the gist behind the “major questions” category, but there are important differences. First, the justification for the central questions category in Canada is not concern about delegated power; rather, it is designed to protect the role of the judiciary as the most important external check on administrative power. Issues that are considered centrally important must be answered consistently by courts, because they engage the rule of law, over which the judiciary is the primary guardian. Notably, however, in defining a central question, the courts are careful not to unduly eat away at the legislature’s right to delegate power. As the Supreme Court says, “the mere fact that a dispute is ‘of wider public concern’ is not sufficient for a question to fall into this category—nor is the fact that the question, when framed in a general or abstract sense, touches on an important issue” (Vavilov, at para 61).

And so the questions recognized by the court concern the stability of the legal system, issues that transcend an administrator’s particular statutory grant of authority. These issues have typically concerned constitutional or quasi-constitutional issues. For example, in University of Calgary, the question was whether a decision of an administrator that a statute permits solicitor-client privilege to be set aside. The Court refused to defer in this case, because solicitor client privilege has a constitutional dimension, and the “question of what statutory language is sufficient to authorize administrative tribunals to infringe solicitor-client privilege is a question that has potentially wide implications on other statutes” (University of Calgary, at para 20).

Why is this doctrine preferable, at least on these points, to the major questions doctrine, as deployed in WV v EPA? For one, the Canadian version expressly forecloses the possibility that an issue’s importance factors into the analysis. Many issues can be characterized as important; this is the challenge of the law of judicial review, to channel and sometimes restrict administrative power over these important areas of public life. Second, the benefit of a rule restricting deference is that it can be justified with reference to fundamental tenets of the law of judicial review. There are good rule of law reasons, pertaining to the judicial duty to pronounce the law, to carve away deference in cases where an agency attempts to exert power in a way that may transcend its own statute, or engage quasi-constitutional norms. Legislatures should not be impliedly granted the power to, by delegation, carve away the core powers of judicial review. And so,  uniformity of the administrative justice system requires not percolation, but correct answers. This approach also answers for the problem of agency opportunism: an agency that seeks to manipulate its own powers in order to affect these broader areas of legal importance should be met with a resolute judiciary. Nonetheless, the category is pared down not to every conceivable important issue, but to core concerns of the judiciary that implicate the rule of law. With these more narrow justifications, I would venture that the Canadian law of judicial review—only on this score—may be more stable than the American.

III.

In the meantime, I do not expect nor suggest that American courts should look to Canada for guidance. Even still, I do not think that the US situation is as dire as the dissent and some commentators suggest. As Kristin Hickman notes, Congress can rectify the ruling in WV v EPA tomorrow (even if it should not have to): it can simply legislate a clear statement. To be clear, this is an additional, probably unjustified hurdle. But the ball is in Congress’ court.  And, as I have argued before, non-delegation limits on administration will not hobble administration, and may actually incentivize better deliberation and guidance.  Further, administrative government is vast, and few regulations are challenged such that this case will make a difference on a wider scale. These are the practical realities that limit this new major questions doctrine, but I admit there may be more I am simply missing or misunderstanding

Nonetheless, as far as it goes, the new major questions doctrine that matured in WV v EPA is unwelcome from my perspective. Unlike the non-delegation doctrine, it cannot easily be traced to the same constitutional concerns, and it is isn’t immediately clear to me that “clear statements” will really provoke much deliberation. The doctrine appears to be a wholly judicial creation; it complicates the law of judicial review, puts a hurdle up for Congress, and finds no real animating purpose, beyond nods to concerns already covered by the existing non-delegation doctrine. I stress, as I did above, that I too worry about “bureaucratic domination,” drift, etc. But these are concerns that are best kept in check by a legislature and by consistent and principled application of the law of judicial review. Creating an amorphous thumb on the scale, in this manner, is an ill-fit.

Nothing Doing

A brief rebuttal to responses to my last post on inappropriate criticism of the US Supreme Court’s abortion decision

My post yesterday, which took issue with what I see as disturbingly political criticism of the US Supreme Court’s decision in Dobbs v Jackson Women’s Health Organization has attracted a number of responses, and it might be worth offering a quick rebuttal to the negative ones. As with yesterday’s post, the aim is not to dunk on individuals, but to address what I see as trends.

Response #1: But there are American professors, to say nothing of the dissenting judges in Dobbs, who have criticized the decision!

Sure. And insofar as their criticism is based on constitutional argument, that’s great. But that doesn’t absolve the people who choose to criticise based on political rather than legal claims.

Response #2: Dobbs breaks the rules of stare decisis!

If most criticism of Dobbs by Canadian and other lawyers, law professors, and organizations were actually focused on its treatment of precedent, I would not have written yesterday’s post. But it just doesn’t. I have seen professors share cartoons of majority judges as Taliban.

I would also note that there is, at the very least, a danger of inconsistency when people put too much of an emphasis on arguments from precedent. To be sure, arguments about inconsistency or even hypocrisy aren’t as interesting as people sometimes think, because they don’t answer the question of when the inconsistent or hypocritical person is actually right. But from the standpoint of personal integrity the issue is worth keeping in mind. And so, how many of those Canadian readers who defend the US Supreme Court’s previous abortion decisions on this basis were as critical of the Supreme Court’s of Canada reversal of precedent on, say, assisted suicide as they are of Dobbs? How many would have been as critical if the 2016 election had gone just that little bit differently and a left-leaning US Supreme Court had reversed Citizens United v Federal Election Commission, 558 US 310 (2010)?

Speaking of electoral outcomes and judicial appointments:

Response #3: The Dobbs majority judges were appointed by politicians who wanted to secure just this result!

So they were. But so what? A judicial decision stands or falls on its legal correctness. If it is correct, it doesn’t matter why the judge who made it was appointed. Ditto if it is wrong, of course. The issue of inconsistency or double standards is really worth thinking about here. The Justices appointed by Franklin Roosevelt were meant to uphold the New Deal policies, and did so. Earl Warren was a former politician, appointed by Dwight Eisenhower for crassly political reasons, so far as I understand. Are the decisions of the New Deal and Warren courts illegitimate for that reason alone? Nobody thinks that. Some were right, and some were wrong, and to say which were which we need to make a legal argument. So it is with Dobbs.

It’s also worth pointing out that the judges who dissented in Dobbs were also appointed with their views on this issue top of mind, and that their votes not only on this point but on almost every other are more closely aligned than those of their right-leaning colleagues. Yet somehow their votes are not dismissed as hackery for that reason.

And, before Canadians get self-righteous about just how political American judicial appointments are, they should recall that appointments to the Supreme Court are no less political, if perhaps less transparently political, here. So far as I’m concerned, that’s fine. If you take a different view, that’s fine too. But if you only proclaim this view in response to a decision you particularly dislike, I won’t take you too seriously.

And this brings me to

Response #4: But Dobbs is just different because it’s too important!

And, alternatively

Response #5: All constitutional decisions about rights are political anyway!

Thanks for making my point. You think that sometimes (#4), or indeed always (#5), constitutional adjudication is a political, not a legal, endeavour. This is a plausible view, but it is inconsistent with accusing the Dobbs majority of hackery ― they merely take the different side of a contentious political issue. And you should be advocating for the abolition of judicial review, à la Jeremy Waldron, because there’s no justification for having political decisions made by a small committee of unelected lawyers. As I pointed out yesterday, Dobbs is actually a step in the right direction from that perspective. If people were to take the Waldronian position openly, I’d debate them on the merits and be content. But when they insist on having judicial review of legislation, but only provided it goes just the way they like, I am upset and alarmed.

Who’s Afraid of the Rule of Law?

Many critics of the US Supreme Court’s decision on abortion rights themselves embrace a purely political view of adjudication

Since the US Supreme Court released its decision in Dobbs v Jackson Women’s Health Organization, which overruled precedents finding a right to abortion in the US Constitution, there has been a great deal of public anguish and anger, not only in the United States but elsewhere too. In this post, I want to say something about non-American, and especially Canadian, responses. I won’t “bring receipts” ― that is, I won’t be linking to tweets, articles, etc. Partly, that’s because there are too many for any sort of representative survey. But mostly, because I will be very critical and don’t mean to target anyone in particular. The reason for writing this post is that I think I’m seeing broad and disturbing trends, not to dunk on individuals. If you think I’m describing things that aren’t there, well, I hope you’re right. But I doubt you are.

Let me note that this criticism does not mean that I am convinced Dobbs was correctly decided. I do not know enough about the original meaning of the 14th Amendment to the US Constitution to say whether it was. And to a large extent, this will be my point: one has to know the law before saying that judicial decision was wrong, let alone implying that it was political or indeed corrupt, as many have done. And the non-American critics of Dobbs (many American ones too, to be sure) don’t know enough and seemingly don’t care. I can understand ― though by no means approve of ― this when the people involved are politicians or other non-lawyers. But it distresses me when the same comments are made or shared by lawyers, professors, and bar associations.

Before I get to why that matters, a quick word on a genre of reaction to Dobbs that has, I think, been especially common in the UK. The decision, we are told, shows how bad it is to have the courts deciding matters of great social concern; or indeed it proves that judicial review of legislation is a misbegotten arrangement. Respectfully, this makes no sense. Dobbs holds that there is no constitutional right to an abortion. This means that the legality of abortion will, for the foreseeable future, be decided by democratically elected legislatures, probably at the State level, though I take it that there have been noises about Congress intervening on one or the other side of the issue. (I don’t know enough to say whether that would be constitutional, but I have my doubts). And that’s exactly what the critics of judicial review and judicial power want ― legislators rather than courts settling rights issues. Dobbs gives them, on this issue, what they say they are after. It cannot logically prove that judicial review is bad ― if anything, it shows that judicial review can be sensitive to their concerns. (This blog’s readers will know, of course, these are concerns I mostly do not share.)

But the most common type of reaction to Dobbs holds that it is a manifestly wrong decision made by partisan hacks and/or (more likely “and”) misogynists, and one that shows that the US Supreme Court isn’t a real court and that it will, wittingly or not, destroy the rule of law. I think that, putting these claims in the best possible light, to the critics it is simply inconceivable that in this day and age the constitution of an enlightened state committed to the Rule of Law would not protect a woman’s right to choose an abortion. Hence, a judicial decision holding that the US Constitution does not protect this right is egregiously wrong and either bigoted or partisan or both.

But the premise is quite obviously misguided. Take Australia, which, like Canada before 1982, has (virtually) no national protections for individual rights. If somehow a case arguing that there is an implied right to an abortion similar to the implied freedom of political communication that Australian courts have in fact inferred from the Commonwealth Constitution made its way to the High Court, and the High Court rejected the claim, would the critics of Dobbs be saying that its judges are bigots and hacks? Perhaps they would, and this is a rather scary thought ― it would mean that to avoid being tarred as a bigot and hack a judge would need to be willing to quite clearly make things up. More likely, though, they would not. The idea that an existing constitution “in a free and democratic society”, to borrow the Canadian Charter‘s language, does not protect abortion rights is not unintelligible.

Ah, but Australia is different, they might say. It actually lacks a national bill of rights, and the United States obviously don’t. That’s true so far as it goes, but you might think that the response to that is a given bill of rights may or may not protect a given right, even an important and widely recognized one. The Charter, for instance, doesn’t protect property rights. Whether a given bill of rights protects a given right is a question of law, to be authoritatively answered by the courts responsible for applying that bill of rights and, not authoritatively but importantly, by anyone with a sufficient knowledge and understanding of the constitution in question.

A judicial decision holding that a given constitution doesn’t protect a given right, such as Dobbs, can result from two causes. (1) The court may be wrong. It may be just wrong in the way that courts staffed by human beings are sometimes wrong, or it may even be captured by hacks or bigots. Or (2), it may be the case that the constitution actually fails to protect the right in question. Then the constitution may then be defective; it may stand in urgent need of amendment, and be subject to criticism until that takes place. But, for its part, the court faithfully applying this constitution would be blameless.

The critics of Dobbs are convinced that it falls into category (1). But they make no argument to exclude the alternative (2). Such an argument would need to parse the relevant provisions of the US Constitution in accordance with some plausible interpretive methodology. And not only do the Canadian and other non-American critics of Dobbs not articulate such an argument; they are ― and I say this with respect, if only because I am in the same position as they ― not qualified to do it. (That’s obviously not because you have to be American to be so qualified, but because you do need to study the relevant materials.) Without an argument for why Dobbs is wrong as a matter of US constitutional law, criticism of the US Supreme Court’s majority is at least as unfair and unjustified as any of, say, Stephen Harper’s attacks on the Supreme Court of Canada or the British government’s on the Supreme Court of the United Kingdom.

Why are we seeing such criticism? And why do I care, anyway? The answer to both question is the same: I strongly suspect that a great many people, including, most regrettably, lawyers (including those of the academic and journalistic varieties) are themselves taking an entirely political approach to law. It does not matter to them that they do not know enough US constitutional doctrine and history to articulate a plausible interpretation of the relevant provisions, or that many of them might not even know what these provisions are. At best, they think that a constitution is sufficiently interpreted by reference to purely moral considerations. At worst, that one need not bother with anything resembling interpretation and that only the rightness of the outcome matters to how we think about judicial decisions. But there is little daylight between these two views.

And this bothers me to no end, because I doubt that the people ― the lawyers ― who take such an approach to opining on the US constitution would take a different one to the constitutions of Canada or of the UK. If you think that the US Constitution is all about morality or the vibe of the thing, there is no reason why you wouldn’t think that about any other. To my mind, this, rather than the decision in Dobbs ― which may, for all I know, be quite wrong ― is tantamount to a rejection of the Rule of Law. I understand that people are upset about Dobbs. If some country commissioned me to write a constitution and to just do what I thought was right, I would include abortion rights, and property rights, and many other rights besides. But that doesn’t mean that any existing constitution protects my pet list of rights and liberties. If you cannot accept that any existing constitution might also not protect yours, you don’t believe in law. Sorry.

The Cake Bill

The flaws in the UK government’s two-faced Bill of Rights Bill

The UK government has introduced its Bill of Rights Bill: a long, if not exactly eagerly, awaited replacement for the Human Rights Act 1998, which gives effect to the European Convention on Human Rights in UK law. The Bill will limit the ability of the UK courts to enforce rights protections in the UK in various ways, some of them arguably defensible ― at least in the abstract ― and many not defensible at all. In this, I offer my initial thoughts on some of the Bill’s most salient aspects. My overarching theme will be that the government is trying to have its cake ― or rather, several different cakes ― and eat it ― or them ― too.

It may be worth briefly noting where I’m coming from on this. I think that I am more sympathetic to the concerns with judicial overreach in the implementation of the Convention and the Human Rights Act 1998 than many, perhaps most, UK public law academics. Moreover, I have no particular attachment to the Convention and especially the European Court of Human Rights, whose judgments consistently strike me as unimpressive or worse. At the same time, as readers of this blog will know, I do strongly favour protections for individual rights vigorously enforced by an independent judiciary. So if the point of human rights law reform were for the UK to go its own way and even leave the Convention so as to reject the Strasbourg Court’s mistakes, while making robust arrangements to secure rights, I would be quite happy.

But that is not at all what it is proposed. It would be an exaggeration to say that the Bill embraces the worst of both worlds ― the Convention/Strasbourg world and that of UK parliamentary sovereignty ― but it blends them in a way that strikes me as remarkably inelegant and unattractive.


For all the talk of a “British bill of rights” over the years, the Bill of Rights Bill remains closely tethered to the Convention. It (largely) eschews any definition of rights, and in clause 2 tamely incorporates by reference the substantive provisions of the Convention (which are also set out in a Schedule), just as the Human Rights Act had done. It also refers to various other definitions and provisions of the Convention. Perhaps this was the path of least resistance, but if the idea was to produce a statement of the UK’s own commitment to rights, this is a missed opportunity. Perhaps, on the contrary, the government wanted to signal that rights are simply alien to the UK’s legal system. That would be a deplorable distortion of the (admittedly complex) historical and constitutional truth. Either way, this is an example of the government trying to have it both ways: both distancing the UK legal system from that of the Convention and the Strasbourg court, but also remaining bound to it.

The main apparent exception to this refusal to articulate a distinct list of rights concerns clause 4 of the Bill, which refers to “the right to freedom of speech”. The Convention itself refers, instead, to the freedom of expression. But this distinction is mostly for show. Subclause 2 clarifies that “‘the right to freedom of speech’ means the Convention right set out in Article 10 of the Convention (freedom of expression) so far as it consists of a right to impart ideas, opinions or information by means of speech, writing or images (including in electronic form).” Again, the Bill is acting like Very Grownup child who will not stray out of mommy’s sight.

More importantly, clause 4 is mostly just for show substantively. Its first subclause says that “a court must give great weight to the importance of protecting” free speech. Put to one side the question of what this even means, and whether courts now fail to “give great weight” to the freedom of speech. This hardly matters, because subclause 3 excludes most conceivable use cases from the scope of clause 4’s application. Freedom of speech is not to be given great weight in deciding “any question [regarding] a provision of primary or subordinate legislation that creates a criminal offence”, or questions about contractual or professional duties of confidentiality, or immigration, citizenship, and national security cases. Just that! What’s left? So far as I can tell, defamation and privacy issues (and note that clause 22 of the Bill puts a thumb on the scale against pre-trial restraints on publication ― though it does not prevent them entirely). It’s not nothing, I suppose, but a provision that grandly announces the importance of an English-sounding freedom of speech (rather than the dastardly Latinate “expression”) only to clarify that it applies only to fairly narrow categories of cases is another example of the Bill’s two-facedness.

I turn now to a different aspect of the Bill, the one to which I have at least a modicum of sympathy: its interpretive provision, clause 3. The Bill does away with one of the contentious elements of the Human Rights Act, section 3 (coincidentally), which provided that “[s]o far as it is possible to do so … legislation must be read and given effect in a way which is compatible with the Convention rights”. Courts took that pretty far, holding at one point that even unnatural readings of statutory provisions were “possible”, provided they did not mess with the main thrust of the legislation at issue. Where primary legislation was concerned, such re-interpretation was the only remedy that could do an applicant some tangible good, and moreover it avoided the need to declare legislation incompatible with convention rights. But by my own lights it was inappropriate nonetheless, and I am not sorry to see it go. I wish the UK allowed the courts to disapply legislation incompatible with rights, but I don’t think that judicial re-writing is an appropriate substitute for such a remedy (see e.g. here).

I also appreciate the Bill’s gesture at textualism and perhaps even an originalism of sorts with its requirement, in clause 3(2)(a) that courts interpreting a Convention right “must have particular regard to [its] text … and in interpreting the text may have regard to the preparatory work of the Convention”. As an abstract matter, this is the right approach to interpretation. More on whether it makes sense in the context of UK human rights law presently. First, let me note that the Bill doesn’t actually embrace originalism, because it also allows the court to “have regard to the development under the common law of any right that is similar to the Convention right”. Contrast this with the Supreme Court of Canada’s rightful scepticism of jurisprudential developments post-dating the framing of the Charter in Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32 (on which see here).

Anyway, the trouble is that this provision is another show of rigour and independence that will do no one much good. To the extent that the courts will follow it and adopt readings of Convention rights that are tethered to the text and “that diverg[e] from Strasbourg jurisprudence” as contemplated by clause 3(3)(b), they simply ensure that the Strasbourg court will find that the UK has violated its Convention obligations as interpreted by Strasbourg itself. It will be a pain in the neck for claimants, and it might allow the government to rage at those unconscionable European judges ― indeed, it is hard not to wonder whether this, as much as anything else, is really the point ― but that’s about it. The UK cannot unilaterally change the way the Convention is interpreted, even if its proposed interpretive methodology is better than the one endorsed by the European Court of Human Rights, and it cannot escape its Convention obligations by proclaiming that Strasbourg jurisprudence is no part of UK law.

Other interpretive provisions aren’t even well-intentioned. Clause 3(3)(a) makes adjudication of Convention rights into a one-way-ratchet by providing that courts “may not adopt an interpretation of [a] right that expands the protection conferred by the right unless the court has no reasonable doubt that” Strasbourg would do the same. While I understand discomfort with the idea that rights can be ― seemingly ― forever expanding by judicial fiat, this is unambiguously bad, though not unambiguously much else. The Bill doesn’t explain what it means by “expand” ― notably, what is the baseline? The existing Strasbourg jurisprudence? The original meaning? The original expected applications? Just what is “the protection” that must not be expanded? Does a new factual scenario count? And, fundamentally, whatever this all means, why is that (by implication) restricting the scope of a right is permitted but expanding it is not? If rights are in some sense fixed, they must be fixed against restriction as well as expansion; indeed, this is an important argument for originalism (see e.g. here), though not the most important one.

Another largely arbitrary limitation on the way rights are to be interpreted and applied is clause 5, which prohibits interpretations of Convention rights that would impose “positive obligation[s]” on public authorities ― i.e. simply require them “to do any act”. (The prohibition is categorical for the future cases, while existing interpretations that would fall afoul of it can only be retained on some stringent conditions.) Now, here too, I have some sympathy for the underlying motivations: so far as I can tell, the Strasbourg court can be fairly cavalier with demands that authorities do this or that, and its conception of the limits of the judicial role is different from that which you will find in common law jurisdictions. The Convention itself protects primarily what are known as negative rights ― that is, “freedoms from” rather than “rights to”. But understandable motivations aren’t enough.

The lines drawn by the Bill are too rigid. While it can be a useful guideline, the distinction between positive and negative rights is not nearly as clear-cut as the Bill’s drafters seem to assume. Sometimes, this is a textual evidence. Take Article 3 of the First Protocol to the Convention, by which the UK “undertake[s] to hold free elections at reasonable intervals by secret ballot”. This is manifestly a commitment to “do acts”, lots and lots of them, and if the UK should fail to live up to it, I don’t understand how a court ― let alone a court having “particular regard to the text” can decline to order the government to get on with it. Once again, Strasbourg, here we come. But this is only the most obvious example. Even a seemingly purely “negative” right, say to be free from a random arrest by a rogue police officer, can have a positive corollary ― namely, to be promptly released if so arrested. Does the government really think a UK court should not be able to infer such a right (assuming it has not already been inferred ― sorry, I am far from being fully caught up on Convention jurisprudence) from Article 5 of the Convention? Meanwhile, the Bill doesn’t address what might actually be a more disturbing aspect of Strasbourg’s positive obligations jurisprudence: the indirect imposition of such obligations on private parties, who are thus burdened with duties the Convention quite clearly didn’t intend to impose on them.

I finally turn to the last issue I want to discuss at some length: the Bill’s attempt to force courts to defer to Parliament. Specifically, clause 7 provides that, when determining whether a statutory provision is incompatible with a Convention right and, in the course of doing so, “decid[ing] whether the effect of the provision … strikes an appropriate balance between different policy aims [or] different Convention rights, or … the Convention rights of different persons … [t]he court must regard Parliament as having decided … that the Act” does strike such a balance. The Court is, further, to “give the greatest possible weight to the principle that, in a Parliamentary democracy, decisions about how such a balance should be struck are properly made by Parliament”. One problem with this is that it is all quite vague. Indeed, perhaps all this bluster means nothing at all. A court may well stipulate that Parliament decided that its law was fine and dandy and conclude that the greatest possible weight to give to this decision is precisely zero. On its face, the clause doesn’t actually preclude that.

But of course that’s not the interpretation the government will be hoping for. So let’s try taking this clause more seriously. So taken, clause 7(2)(a), which deems Parliament to have appropriately balanced all the rights and policy considerations involved is reminiscent of the late and unlamented “presumption of expertise” in Canadian administrative law, whereby courts were required (albeit by judicial precedent, not an Act of Parliament) to pretend that administrative decision-makers were experts regardless of whether the decision-maker in question had demonstrated any expertise bearing on the issue or could be plausibly expected ever to do so. I have called this “post-truth jurisprudence“, and I regard clause 7(2)(a) as a specimen of similarly post-truth legislation. It demands that the courts accept for a fact something that will by no means always be true. Many rights issues are unanticipated ― indeed, they arise precisely because they were not thought of when the legislation was being drafted. To the extent that, as the Bill’s drafters want us to believe, Parliament does take rights seriously, it will usually redress the issues it can anticipate before enacting legislation. It is no calumny against Parliament, however, to say that it cannot foresee all the problems that can arise. If anything, the calumny is to insist that whatever problems do occur, Parliament must have intended them to.

And then, there’s the matter of the assertion in Clause 7(2)(b) that decisions about balancing rights, or rights and policies, “are properly made by Parliament” “in a parliamentary democracy”. The “parliamentary democracy” bit is either a red herring or a misnomer. There are parliamentary democracies with robust judicial review of legislation ― Germany and India come to mind. What the Bill really means, but doesn’t quite want to say, is something like “a constitution based on parliamentary sovereignty”. Indeed, clause 7(2)(b) is reminiscent of the language in the preamble of Québec’s anti-religious dress code statute, which proclaims that “in accordance with the principle of parliamentary sovereignty, it is incumbent on the Parliament of Québec to determine the principles according to which and manner in which relations between the State and religions are to be governed in Québec”, by way of foreshadowing exclusion of judicial supervision of this law’s compliance with constitutional rights. I cannot help but suspect that the UK government is deliberately less forthright than its Québec counterpart because, yet again, it is trying to have its cake and eat it too. It wants to make courts to rubber-stamp parliamentary legislation instead of passing their own judgment on its compliance with rights, but it doesn’t want to admit that it is undermining the (already weak-form, and often quite deferential!) judicial review that UK courts have been engaging in. It might even be hoping to trade on the respect the European Court of Human Rights has developed for UK courts over the years to persuade the Strasbourg judges that legislation they rubber-stamped was really alright. I doubt it will work very well.


There would be a lot more to say. Much ― really, a shocking part ― of the Bill is devoted to nipping various claims in the immigration and refugee context in the bud. Some ― though less ― also tries to stick it to prisoners. I don’t like that one bit. As the most intelligent and principled opponent of judicial review of legislation, Jeremy Waldron, has come to recognise, if anyone has a claim to the assistance of the courts in order to defend their rights, it is precisely these groups, often unpopular and politically voiceless. Instead of being granted special solicitude, they are disgracefully singled out for special burdens. That said, in various smaller ways the Bill gets in the way of other rights claimants too.

But this is already a long post, and it should be clear enough that, in its present form, the Bill is not much good. To repeat, I’m no great fan of the Human Rights Act that it is meant to replace. That law’s weaknesses are mostly baked in for as long as the UK remains party to the Convention, but perhaps some of them could have been ameliorated. Instead of trying to do that, the government came up with a set of proposals that will, if enacted, make everything worse. Quite radically worse for some people, and less radically, but just enough to be noticeable, for everyone else. And for what? Chest-thumping now, and lost cases at Strasbourg later. Even a sovereign legislature in a parliamentary democracy can only ever say that it will have its cake and eat it too; it cannot actually do it.

Boilerplate in Decision-Making

Administrative boilerplate is probably legion in government, but of course, this is an empirical question. Nonetheless, I have read enough cases to know that individuals at the foot of administrative power—many times in front-line decision-making— are at least sometimes faced with deciphering reasons that purport to have “considered all the factors.”  Confronted, as well, with a strong presumption that decision-makers considered all of the evidence in the first place (Cepeda-Gutierrez), it is theoretically hard for applicants to move beyond boilerplate.

Besides internal administrative mechanisms that could—but may not—discourage this sort of behaviour, judicial review doctrine in Canada is starting to take notice of it. Here are a few recent cases:

Gill v Canada (Citizenship and Immigration), 2021 FC 1441

In this case, a visa officer in New Delhi used almost identical language to reject Gill’s application as another visa officer used in another denial out of New Delhi. The Court said [34]: “I note, however, that the use of identical template language to express not just the relevant legal test or framework, but the reasoning applicable to an applicant’s particular case undermines to at least some degree the presumption that the officer has considered and decided each individual case on its merits.”

Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157

In this case, the Federal Court of Appeal chastised the Patented Medicine Prices Review Board for, among other things, “conclusory” analysis that purported to consider all the evidence [43]. This was important for the Court: “At best, on this point the Board obfuscated, making it impossible for a reviewing court to know whether the Board has helped itself to a power it does not lawfully have. By obfuscating, the Board has effectively put itself beyond review on this point, asking the Court to sign a blank cheque in its favour. But this Court does not sign blank cheques. Administrators cannot put themselves in a position where they are not accountable.”

Publicover v Canada (Attorney General), 2021 FC 1460

In this case, the Minister of Fisheries and Oceans denied a request for a  lobster licence transfer. In her reasons, the Minister stated that she had considered “all the relevant circumstances” [16]. The Court was troubled by this boilerplate, because it did not show that the Minister connected her analysis to the actual law and policy governing the decision [62, 66].

These cases represent a decisive shift from pre-Vavilov caselaw. Gone is Newfoundland Nurses, which permitted courts to take these boilerplate statements and “supplement” them: Nfld Nurses, at para 12. Underlying this doctrinal innovation was an unqualified presumption about administrative decision-making: “To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist” [13].

In the context of boilerplate, Nfld Nurses makes little sense. This is because boilerplate reasons do not do anything to show expertise or the use of specialized concepts or language. It is merely a “say-so” of the decision-maker. Even on the Dunsmuir standard, it was always hard to say–with a straight face– that this sort of reasoning is “justified, transparent, and intelligible.”

Second, Vavilov’s renewed focus on justification and a “reasons-first” approach will be, I think, a boon for those challenging front-line decision-making. There are necessary caveats: reasons are not always required, and in many administrative contexts (such as high-volume study permit decision-making), “extensive reasons are not required” (see Niyongabo v Canada (Citizenship and Immigration), 2021 FC 1238 at para 12). But even in these areas, courts could be more willing to subject front-line decision-making to a slightly higher bar in terms of reasoning.

Third, I think this turn of events marks a tension between the Cepeda-Gutierrez presumption of consideration and the culture of justification endorsed in Vavilov. This tension was pointed out, as I noted above, in Gill. The presumption of consideration makes sense from an efficiency standpoint: after all, legislatures delegate to decision-makers for a reason, and when they do, courts should generally not go on a line-by-line treasure hunt for error. But at the same time, these efficiency concerns should take a decidedly second place: as noted in Alexion, judicial review becomes difficult when there is only boilerplate shedding light on an ultimate decision; this is to say nothing, of course, of the dignitarian reasons why reasoned decision-making is desirable (see, for a recent analysis of these issues, Janina Boughey).

This is all for the best. Boilerplate may work well in a “top-down” culture of decision-making in which those subject to administrative power and courts are in the thrall of purported administrative expertise. No need, on this account, for a decision-maker to show their work; the “just trust us” ethic is what governs. But Vavilov has arguably changed things: gone is the presumption of expertise, and gone should also be the presumptions about reasoning. If expertise exists, it can and should be demonstrated through persuasive and responsive reasons that allow a court to determine the legal basis of a decision.

Case Not Made

Unconvincing arguments against judicial enforcement of rights under the UK’s Human Rights Act 1998

Policy Exchange has recently posted a paper by Richard Ekins and John Larkin QC on “How and Why to Amend the Human Rights Act 1998“. Lord Sumption has written the foreword, picking up on themes explored in his Reith Lectures, which I have summarised and commented on here. There is much to disagree with in the paper, as well as some interesting ideas. Time permitting I might do a short series of posts on it. For now, I want to focus on one idea raised by Lord Sumption and addressed in a rather different way in the paper. The idea in question is that the UK’s Human Rights Act 1998, and so presumably any constitutional or statutory enactment that grants judges the authority to verify whether legislation and administrative decision-making complies with a set of enumerated individual rights, results in judges making decisions that are political rather than properly judicial.

Lord Sumption writes that the Act “treats broad areas of public policy as questions of law, and not as proper matters for political debate or democratic input”. (5) One example that seems to exercise him ― and that has exercised the UK’s political leaders for years ― is that of the franchise. He denounces the European Court of Human Rights for having rejected prisoner disenfranchisement despite its approbation by legislatures on the basis that “it was a question of law and not a matter for Parliament or any other forum for democratic input”. (5) For Lord Sumption, “the suggestion that the electoral franchise is not a matter in which the representatives of the general body of citizens have any say, seems startling”. (5)

But, more broadly, Lord Sumption argues that cases involving balancing between public policy objectives and individual rights ― which is a great many under the European Convention on Human Rights and the Human Rights Act and, in theory, all of them under the Canadian Charter of Rights and Freedoms ― are not fit for judicial resolution. Since policy-making means “a choice between competing considerations, and sometimes compromise between them … [i]t is necessarily a political question.” (6) Treating such choice “as a question of legal proportionality, requiring judges rather than elected representatives to assess the relative importance of the various values engaged before deciding which should prevail” (6) is, in his view, a fatal mistake.

As I have previously argued here in response to another distinguished, if less famous, judge, this argument is misconceived. Similarly to Lord Sumption, Chief Justice Joyal of the Manitoba Court of Queen’s Bench has expressed the worry that

judicial incursion into subject areas and issues of profound political, moral and social complexity[] has the potential effect of removing these issues from the civic and political realms where ongoing and evolving debate and discussion may have taken place.

In response, I pointed out that, taken all the way, this leads one to Jeremy Waldron’s rejection of judicial review of legislation. Chief Justice Joyal did not, ostensibly, want to go all the way. Lord Sumption might ― indeed, he may well want to go beyond Professor Waldron, who specifically objects to strong-form judicial review, where courts can actually refuse to apply legislation, not so much the weak-form arrangement that the Human Rights Act 1998 put in place. But strongly argued though it is, this position is not all that compelling. As I wrote in response to Chief Justice Joyal,

The frontiers between law’s empire and that of politics are not immutable. There is no reason to believe that the position that every social issue is by default subject to politics is entitled to be treated as a baseline against which a polity’s constitutional arrangements ought to be measured, and any departure from it justified and limited. It is the position of some political cultures … But these political cultures have no automatic claim to superiority or to permanence. They are liable to be supplanted, just as they supplanted their predecessors.

Issues cannot be declared political ― or non-political, for that matter ― by stipulation. For instance, the extent of the franchise can meaningfully be addressed in the courts, as it has been under the European Convention and in Canada. It takes more than a bald assertion that this is truly a political matter, or the existence of public controversy, or the involvement of moral considerations, to show that courts should keep out of it or defer to political judgments that are, as often as not, driven by prejudice or self-interest. (As to the point about morality: courts make judgments influenced by morality when applying concepts such as reasonableness, negligence, or unconscionability. One can certainly be sceptical of the resulting jurisprudence, but it’s not plausible to claim that morality is something courts should always stay away from.)

Rather, for any given right that the designers of a constitutional order might consider, they should ask themselves whether, given their respective strengths and weaknesses, a given institution would do a better job of protecting ― better, that is, all things considered, including the downsides of allocating the task to this institution instead of a different one. Institutional considerations have to be front and centre in this analysis. Issues cannot be declared to be political or legal apart from a consideration of actual political and legal institutions that would be dealing with them. Lord Sumption only gestures at institutional factors, claiming that “judges lack the information, experience and democratic legitimacy to make … choices” involved in the proportionality analysis. Even here, the appeal to democratic legitimacy is largely question-begging. It’s not obvious that these choices need to be made democratically, as is evident from the fact that, in the absence of the Human Rights Act, many of them would be made by bureaucrats rather than Parliament.


Professor Ekins and Mr Larkin engage with the institutional issues to a greater extent. To be sure, they too assert that proportionality analysis

requires judges … to answer a series of political questions, about the legitimacy of the legislative objective, the suitability of the means adopted to that objective, and, especially, about the fairness of the balance to be struck between attaining that objective and the claimant’s interest. [33]

But they also say that these “are not questions that a court is well-placed by training or ethos to answer”. [33] They worry, too, “that courts will be drawn into political controversy, with litigation a rational means to enjoin the court to lend its authority to one’s cause”. [34] They also claim that the outcome of rights litigation often depends on the subjective and personal beliefs of the judges hearing the case (and hence on who happens to be on the relevant court and panel).

What should we make of this? To start, it’s important to note that, although Professor Eakins and Mr Larkin have very little to say about Parliament and the executive, deciding which institution should be given the role to uphold rights is necessarily a comparative exercise. It is not enough to point to the shortcomings of the courts, even if these are real enough. It is necessary to show that courts are worse than legislatures, ministers, and bureaucrats, either on a specific dimension where it is possible to compare them directly or on due to some concerns unique to them. With this in mind, I don’t think that Professor Ekins and Mr Larkin make a convincing case at all.

It is of course true that judges lack the “training” that might be helpful to answer the sort of questions that arise in the course of proportionality analysis. But what training have members of Parliament? What about Ministers? Are they trained to weigh up rights when they make policy? They are not, of course. As for ethos: for the high-minded rhetoric of the defenders of legislative articulation of rights, it is very far from obvious to me that politicians care about rights on a regular basis. They do sometimes, of course, especially if the rights of their constituents may be at issue. But their record is patchy at best, and does not suggest an ethos of weighing up rights and social needs in a rigorous fashion.

The most that Professor Ekins and Mr Larkin say on this is that, when it comes to delegated legislation, “Parliamentary scrutiny, including anticipation of political controversy, is an important discipline on ministers, even if secondary legislation is almost never rejected outright”. [48] We are, I suppose, to take this claim on faith. Meanwhile, Professor Ekins and Mr Larkin also note that there are “limits on parliamentary time” which, they say, combine with “scarcity of political capital” to “make[] it relatively difficult … for Parliament to legislate to correct judicial lawmaking” in relation to rights. [40] To their mind, this is a sign that “judicial lawmaking” needs to be curbed. But one can just as easily argue that limits on Parliament’s time and reluctance (or indeed inability) to spend political capital on decisions that will be unpopular even if right are a key reason for wanting judges to make decisions about rights, especially about the rights “discrete and insular minorities”, in the American parlance, and of especially unpopular groups such as criminal suspects and prisoners (a concern that Professor Waldron, for example, has come to acknowledge).

The concern about courts being drawn into politics is legitimate though it is all too often self-fulfilling, in the sense that it is commentators and politicians who share Professor Ekins’s and Mr Larkin’s views who generate much of the controversy. Still, it is fair to worry about the authority of the courts being undermined by their having to make decisions that are bound to be politically controversial. Then again, would the authority of the judiciary not be negatively affected by its having to blindly apply laws that disregard human rights? Besides, occasional flair-ups of criticism notwithstanding, in countries like the United States in Canada, where courts have been given the mandate to make decisions about rights long before the United Kingdom, their standing in the public opinion is much higher than that of legislatures. Indeed, there is an element of self-contradition in the arguments advanced by Professor Ekins and Mr Larkin: if the courts were really suffering from a legitimacy crisis due to all those controversial decisions the Human Rights Act foisted on them, why would Parliament need to expend scarce political capital on disagreeing with them? The authority of the courts, then, may benefit rather than suffer from their having jurisdiction over rights issues.

As for the alleged subjectivity of judicial decisions regarding rights: I think this too may be an issue. It may be more of an issue in the United Kingdom, where the Supreme Court (almost) never sits en banc, than in the United States and in Canada, whose supreme courts do (respectively always and, these days, usually). Then again, if this is acceptable in other cases, which can also divide the bench, sometimes closely, perhaps this is no more concerning where rights are involved. More importantly, though, the criticism of the courts, in the abstract, does not tell us much. In what sense is decision-making by Parliament, by ministers, or by officials not subjective? When it comes to Parliament and ministers, their inclinations and decisions will fluctuate depending on which party is in power. Precedent and legal doctrine constrain judicial decisions based on rights imperfectly. But if constraint and principle are valuable in such decision-making, then courts still do better than the other branches of government.


So neither Lord Sumption nor Professor Ekins and Mr Larkin have advanced particularly convincing arguments against having judges enforce individual rights. Rights issues are not inherently incapable of judicial enforcement, and the institutional arguments against having the judges deal with them are far from obvious. None of this fully addresses an argument along Waldronian lines, one that is purely about ineradicable disagreement and the fairness of resolving it via democratic procedures. But that argument only goes so far ― and, in particular, as Professor Waldron recognised, I think, it does not obviously apply to prevent courts from overriding decisions by the executive branch, which is what Professor Ekins and Mr Larkin want to do.

Jurisdiction and the Post-Vavilov Supreme Court: Part I

What does “jurisdiction” mean, anyways?

As I wrote in my newsletter last week, the Supreme Court has an awkward relationship with the concept of “jurisdiction.” There is no more tortuous concept in Canadian administrative law. Vavilov, apparently, was the end to the concept of jurisdiction in Canadian administrative law. Vavilov basically said two things about jurisdiction: (1) it is difficult to identify a jurisdictional question, which sheds doubt on the entire enterprise (Vavilov, at para 66); and (2) as a result, “[w]e would cease to recognize jurisdictional questions as a distinct category attracting correctness review” (Vavilov, at para 65). Taken together, it was a fair assumption that jurisdictional questions, if they existed at all, would not be recognized in the law of judicial review.

Easier said than done. The Supreme Court in two recent cases have gone back to the well and drawn from the waters of jurisdiction. In both Ward and Horrocks, the various opinions continue to draw on jurisdiction as a concept without interrogating it. Underneath this technical issue of administrative law is a broader, conceptual difference on the Court that remains post-Vavilov.

In this post I’ll address what I think “jurisdiction” means post-Vavilov. In a future post I’ll address Horrocks and what it might mean for post-Vavilov administrative law splits on the Court.

***

In Ward, under a heading titled, “Jurisdiction Over Defamation and Discrimination,” the majority discusses the “jurisdiction” of the tribunal in that case [28]. In the same paragraph, the Court chastises the Tribunal for indirectly extending its “limited direct jurisdiction.” In Horrocks, on the other hand, the whole dispute concerned the jurisdictional boundary between a labour arbitrator and a human rights tribunal.

The entire setup of these cases is based around the idea of jurisdiction. In Ward, the term was thrown around rather willy-nilly to describe the statutory authority—the grant of power—given to the Tribunal. In Horrocks, the term was used as contemplated by Vavilov, as a category attracting correctness review. But in both cases, jurisdiction looms large.

Before continuing, it’s important to note the various ways that “jurisdiction” has been used in Canadian administrative law. There are at least 3 different uses of the term:

  1. Jurisdiction as a preliminary question: this category concerns “neat and discrete points of law” that arise, for example, in a decision of a human rights commission to refer a case to a human rights tribunal (Halifax, at para 27). In Halifax, the Court overturned previous precedents and held that such questions are reviewable on a reasonableness standard (Halifax, at para 38).
  2. So-called “true questions of jurisdiction”: these questions were said to arise “where the tribunal must explicitly determine whether its statutory grant of power gives it authority to decide a particular matter” (Dunsmuir, at para 59). An example of such a question was provided in Dunsmuir: “whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of taxi plate licences” (Dunsmuir, at para 59). Note, here, that this question trades on the same idea of “jurisdiction” as the preliminary questions doctrine, but there is a difference: ostensibly, this brand of jurisidictional questions concerns an issue that goes to the merits. Vavilov did away with this concept of jurisdictional question, to the extent that such questions attract correctness review.
  3. “Jurisdictional boundaries between two or more tribunals”: this is the category of review at issue in Horrocks. Vavilov retained this category as attracting correctness review.

What is immediately clear is that “jurisdiction” is a morass.

What sense should we make of this? In my view, Vavilov left the door of “jurisdiction” open a crack. The result, as Paul Daly presciently observed the day after Vavilov was rendered, is that jurisdiction is still around—a “stake through the heart” will be the only thing to kill it. In the meantime, we must make sense of what is left of jurisdiction.  As I noted above, one option is to read Vavilov rather broadly: jurisdiction is dead, and we killed it. But this does not explain (in a satisfying way) what the Court is doing in both Ward and Horrocks. Why mention a concept that is dead?

Instead, I think “jurisdiction” (or, as I shall say, hopefully a better label) remains an important concept in Canadian administrative law. This version of jurisdiction—as used in Ward and Horrocks—is not akin to the concept of jurisdiction known to administrative law history (ie) Anisminic. It is not the “preliminary questions” doctrine put to rest in Halifax. This conception of jurisdiction is basically co-extensive with any number of formulations that describes the authority delegated to an administrative decision-maker. The Supreme Court of the United States describes this as “statutory authority,” which is a good a term as any. This is because, fundamentally, any time an administrative decision-maker acts, it is explicitly or implicitly dealing with the boundaries governing it by statute. Whether this is “jurisdiction,” or “statutory authority” does not matter much. It’s all the same thing.

Now, what is true about jurisdiction is that there are different types of legal questions. Some legal questions could be said to be “preliminary.” An example might be a legal condition precedent to the exercise of another legal power under the same statute.  But the difference that Vavilov introduces is simply about the standard of review, not about the existence or not of jurisdictional questions understood in this sense. In other words, to the extent that Halifax and Vavilov dispatched with various types of jurisdictional questions, they only did so to the extent that it matters for the standard of review. Vavilov tells us that questions of jurisdiction, as they were previously known, are hard to identify: and in that sense, they shouldn’t be treated differently than any other legal questions. So whether the question is “preliminary” or on the merits, it’s a legal question that is assimilated to the Vavilov framework.

Why does any of this matter? There is a clarity reason and a substantive reason. For clarity’s sake, the Court should probably not refer to “jurisdiction” anymore. The concept itself, as it is now used, is simply referring to a type of legal question, not a category of review. The Court should adopt some concept of “statutory authority” to describe all the types of legal questions that arise in a typical judicial review proceeding, including anything that might be considered “jurisdictional.” This has nothing to do with the standard of review: all of the questions will be presumed to be reviewed on reasonableness review. On the substantive side, and as we shall see from Horrocks, there are good reasons to take statutes—and the boundaries they set up—seriously. As Vavilov says, the discarding of jurisdiction as a category of review should not lead to  the arrogation of administrative power.

What Does City of Toronto Mean For Administrative Law?

The Supreme Court released its much-anticipated decision today in Toronto (City) v Ontario (Attorney General), 2021 SCC 34. While others will address the nuances of the case, the majority generally puts unwritten constitutional principles into a tiny, little box. It says that because “[u]nwritten principles are…part of the law of our Constitution…” [50], unwritten principles only have two practical functions: (1) they can be used in the interpretation of constitutional provisions [55]; (2) they can be used to “develop structural doctrines unstated in the written Constitution per se, but necessary to the coherence of, and flowing by implication from, its architecure” [56]. In this category, the Court uses the example of the doctrine of paramountcy, the doctrine of full faith and credit, and the remedy of suspended declarations of invalidity.

I applaud the majority opinion for clarifying the role of unwritten constitutional principles. For my part, I think the functions they have outlined for unwritten principles give those principles a meaningful role in the constitutional structure while giving priority to the text. The majority aptly underscores the worry with unwritten principles–they are so abstract and potentially endless–and negates that worry by ensuring the text as a control on the use of these principles. Even better, the majority closes the door on the rather pernicious attempt to read municipalities into s.3 of the Charter [5].

But that is not my concern for today. What does any of this have to do with administrative law?

Post-Vavilov, there was a good argument that unwritten principles–the Rule of Law specifically–could have independent force in limiting state action in some way on the standard of review–put more bluntly, that the Rule of Law could invalidate certain legislative rules governing standard of review. The Court says, for example, that “where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law” (Vavilov, at para 35). It goes on to outline categories of questions–like constitutional questions–that demand a correctness standard because of “respect for the rule of law” (Vavilov, at para 53). This raised the argument that if a legislature were to prescribe a standard of review of reasonableness on a constitutional question, such a standard would not be given effect to by a court because it transgresseses the “limits imposed by the rule of law.”

On first blush, City of Toronto tends to throw cold water on the argument. Its insistence that unwritten principles cannot invalidate legislation could mean that a court should give effect to a legislated standard of review on constitutional questions. And because there is no express constitutional provision insisting on a correctness standard on certain questions, on a strict reading of the City of Toronto majority opinion, there would be no power to invalidate that law.

This very well may be true, and yet I think there are a few ways to reconcile City of Toronto with Vavilov that leads to the same result that Vavilov seems to suggest–a court not applying (which is strictly, though perhaps not functionally, different from invalidation) a legislated standard of review of reasonableness on constitutional questions. Much of this argument hinges on s.96 of the Constitution Act, 1867.

First, it might be said that the Rule of Law as outlined in Vavilov is a necessary interpretive principle that should be used to understand s.96. That is, we cannot understand s.96–which contemplates federally-appointed superior courts–without understanding the traditional role of these courts to conduct judicial review of administrative action on a certain stringency on certain questions. In City of Toronto, the Court cites s.96-100 as an example of unwritten principles bolstering a constitutional principle, suggesting that “unwritten constitutional principles of judicial independence and the rule have law have aided in the interpretation of [ss.96-100], which have come to safeguard the core jurisdiction of the courts that fall within the scope of those provisions” [55].

I think to call any of the doctrinal innovations that have come to s.96 a result of “interpretation” stretches the term a bit far. On its face, s.96 is just an appointing provision. It may be one thing to interpret what the terms of that appointing provision are, but to construct doctrine on top of the provision–or to make it work in a constitutional structure–seems to be a different judicial function.

Secondly, and I think more persuasively, the Court notes that unwritten principles can develop structural doctrines that flow from constitutional architecture [56]. Again, the Court notes examples of this sort of doctrinal construction: full faith and credit, paramountcy, and even the legal result in the Quebec Secession Reference. As we see, some of these doctrines are quite particular to specific contexts–the Quebec Seccession Reference, for example. Others are more general. The doctrine of full faith and credit in the context of conflict of laws is a major doctrinal innovation that is not found anywhere in a specific constitutional provision. These doctrinal innovations can, in effect, change or invalidate legislation that conflict with them, though they are rooted in the text itself.

Vavilov‘s comments on standard of review best fall into this category. The standard of review framework flows from two unwritten principles themselves: legislative intent (perhaps partially reflected in the principle of “democracy”) and the Rule of Law. The Court conceives of the Rule of Law as generally the rule of courts, in that courts must retain a strong supervisory role over certain questions. It would upset the supervisory role of these courts to outlaw their ability to hold state actors to the strictest constitutional standard. This is but a logical extension of Crevier, which set the stage for an argument about the constitutionally-protected role of the superior courts.

An example and a caveat. First, the majority and dissent clash over MacMillan Bloedel. In that case, the Court arguably invalidated a legislative scheme that granted exclusion jurisdiction to a youth court. The City of Toronto majority says the holding in that case was based on the text of ss.96-101 and 129 of the Constitution Act, 1867 [50]. The dissent, on the other hand, cites para 41 of MacMillan Bloedel to suggest that the basis of the holding was the Rule of Law itself [176]. In my view, MacMillan Bloedel is a bit of both. The Court clearly bases its decision in s.96 (MacMillan Bloedel, at para 47). But it also says that the case is best understood “in a broader constitutional context, considering this jurisprudence along with the preamble to the Constitution Act, 1867, the principle of the rule of law, and the central place of superior courts in our system of governance” (MacMillan Bloedel, at para 2). To the extent these principles and s.96 were abridged, the impugned legislative provision was “read down” as “inoperative to deprive the superior court of its jurisdiction to convict the appellant of contempt in this case” (MacMillan Bloedel, at para 43). In MacMillan Bloedel, we have a constitutional text (s.96)–>supported by the Rule of Law (unwritten principle)–>a result that the core of superior court powers were protected in this case. Vavilov falls into this same category. We can see, then, that in some cases a legislative standard of review may be “read down” as a result of the standard of review doctrine spun out from the unwritten principles of legislative intent and the Rule of Law.

The caveat I wish to raise has to do with the Federal Courts. Section 96 does not speak to statutory courts, and in theory, the Federal Courts’ judicial review jurisdiction could be abolished tomorrow unlike the superior courts. All of this, then, would stop at the Federal Courts. But I do not think this is inevitable. Once a statutory court has been made under s.101 of the Constitution Act, 1867, one might make the argument that so long as such a court exists, its powers should be construed as broadly as the powers of a superior court under s.96. But I do not commit to this argument in full, except to say that it makes practical sense to me and would uphold a consistent judicial standard for administrative action across jurisdictions.

At any rate, I think City of Toronto–despite its strong language on unwritten principles–can be reconciled with Vavilov. And at the end of the day, the result may be the same: legislation that undermines an unwritten principle may not be “given effect” according to a doctrinal innovation, even if the legislation is not “invalidated” in a strict sense. This is the best way to undertstand Vavilov‘s standard of review framework.

Right Is Wrong

What an ordinary case can tell us about the problems of Canadian administrative law

Last month, I wrote here about a decision the Federal Court of Appeal (Alexion Pharmaceuticals Inc v Canada (Attorney General), 2021 FCA 157) which, although a good and faithful application of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, actually highlighted its conceptual defects. This is another post in the same vein, focusing on the choice of the standard of review in Morningstar v WSIAT, 2021 ONSC 5576 to point out (yet again) that the Vavilov approach to jurisdiction makes no sense. I then also point to a different issue that Morningstar usefully highlights with arguments for the administrative state based on access to justice. If you are tired of my fire-breathing neo-Diceyanism, you can skip to the latter discussion.

As co-blogger Mark Mancini explains in his invaluable Sunday Evening Administrative Review newsletter (subscribe!), the applicant in Morningstar tried to argue that correctness review should apply to a decision of the Workplace Safety and Insurance Appeals Tribunal to the effect that she was not entitled to bring a civil lawsuit against a former employer and should have pursued administrative remedies instead. The idea was that the jurisdictional boundary between a tribunal and the ordinary courts should be policed in much the same way as, Vavilov said, “the jurisdictional boundaries between two or more administrative bodies”, [63] ― that is, by have the court ensure the boundary is drawn correctly. But courts are not “administrative bodies” in the sense the Vavilov majority meant this phrase, and the Divisional Court makes short work of this argument. As Mark suggests, while the reasons it gives are very questionable, the conclusion is clearly correct.


But it shouldn’t be! Ms. Morningstar’s argument was, in Mark’s words, “doomed to failure” under Vavilov, but as a matter of principle it is actually exactly right. The Vavilov majority explains, sensibly, that

the rule of law cannot tolerate conflicting orders and proceedings where they result in a true operational conflict between two administrative bodies, pulling a party in two different and incompatible directions … Members of the public must know where to turn in order to resolve a dispute. … [T]he application of the correctness standard in these cases safeguards predictability, finality and certainty in the law of administrative decision making. [64]

That’s right so far as it goes. But what exactly changes if we replace the phrase “two administrative bodies” in the first sentence with “two adjudicative bodies”, so as to encompass the courts? Are the Rule of Law’s demands for predictability, finality, and certainty suddenly less stringent because a court is involved? Need members of the public not know where to turn in order to resolve a dispute? The Rule of Law applies in exactly the same way to jurisdictional conflicts between courts and tribunals as between tribunals, and should require correctness review in both situations.

It might be objected that this argument ignores the privative clause in the statute at issue in Morningstar. Section 31 of the Workplace Safety and Insurance Act, 1997 provides that the Tribunal “has exclusive jurisdiction to determine”, among other things, “whether, because of this Act, the right to commence an action is taken away”, and further that “[a] decision of the … Tribunal under this section is final and is not open to question or review in a court”. The true and tart response is: who cares? In Morningstar, the Divisional Court not only questioned and reviewed, but actually quashed the Tribunal’s decision on the question of whether, because of the Act, the applicant’s right to commence an action is taken away.

This isn’t a mistake, of course. Courts already ignore privative clauses, and rightly so. Vavilov explains why. As I pointed out here, it

embraces the Rule of Law principle … clearly and, crucially, as a constraint on the legislative power. According to the Vavilov majority,

Where a court reviews the merits of an administrative decision … the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. [23; emphasis added]

The majority goes on to specify that “[t]he starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness”, [23] but “respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions”, [53] legislative intent notwithstanding.

If a statute attempted to make anything less than correctness the standard of review for jurisdictional boundaries between two administrative tribunals, Vavilov says that it should be ignored, because the Rule of Law, with its demands of predictability, finality, and certainty, requires it. A privative clause that attempts to exclude altogether review of decisions on the jurisdictional boundary between a tribunal and the ordinary courts should similarly be ignored.

But the Vavilov majority could not bring itself to take that approach, because it would be fatal to the entire conceit of deferential review on questions of law which the Supreme Court embraced in CUPE, Local 963 v New Brunswick Liquor Corporation, [1979] 2 SCR 227, and on various forms of which it has doubled down ever since. As Justice Brown wrote in West Fraser Mills Ltd v British Columbia(Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 SCR 635, “in many cases, the distinction between matters of statutory interpretation which implicate truly jurisdictional questions and those going solely to a statutory delegate’s application of its enabling statute will be, at best, elusive”. [124] When an administrative decision-maker is resolving questions of law, notably when it is interpreting the legislation granting it its powers, it is always engaged in the drawing of the boundary between its jurisdiction and that of the courts. To admit ― as one ought to ― that the Rule of Law requires these questions to be resolved by courts would cause the entire structure of Canadian administrative law to come crashing down. And so, to preserve it, Vavilov asks the courts to pretend that things that are actually entirely alike from a Rule of Law perspective are somehow mysteriously different. It is, as I said in the post linked to at the start, an instance of post-truth jurisprudence.


Now to my other point. In a couple of ways, Morningstar reminds me of the Supreme Court’s decision in Canada (Attorney General) v TeleZone Inc, 2010 SCC 62, [2010] 3 SCR 585. The issue there was whether a litigant who sought private law damages as compensation for an allegedly unlawful act of the federal Crown had, before bringing a civil claim in a provincial superior court, to pursue an application for judicial review in the Federal Court to establish the unlawfulness. It was, in other words, a conflict between remedial regimes potentially open to alleged victims of government wrongdoing. The Federal Court of Appeal had held that such victims had to seek judicial review first; the Ontario Court of Appeal ruled that they did not. The Supreme Court agreed with the latter. It noted that following the Federal Court of Appeal’s approach “would relegate the provincial superior courts in such matters to a subordinate and contingent jurisdiction”. [4] It added too that the case was “fundamentally about access to justice. People who claim to be injured by government action should have whatever redress the legal system permits through procedures that minimize unnecessary cost and complexity.” [18]  

Morningstar, like TeleZone involves a conflict between two possible venues for redress, albeit of a private wrong rather than one resulting from government action. Employees who think they have been wronged in the course or during the breakdown of their employment relationship might seek compensation from the administrative regime supervised by the Tribunal or sue the employer in the civil courts. The substantive question in Morningstar was which of these regimes was the appropriate one on the facts. The courts should be able to resolve this conflict without deferring to the views of the venue administering one of these regimes, just as the Supreme Court did not defer to the Federal Court of Appeal in TeleZone. And, to be sure, there is a difference: the Superior Court that would be one of these conflicting jurisdictions would also be the court resolving the jurisdictional conflict. (The Divisional Court is a division of the Superior Court.) But that’s how our system is set up, and it’s not a reason for deferring to the other jurisdiction involved.

But the deeper and perhaps more important similarity between TeleZone ― and, specifically, the approach the Supreme Court rejected in TeleZone ― and Morningstar has to do with the functioning of the Workplace Safety and Insurance Act. Its section 31 directs employees and employers to apply to the Tribunal for a ruling on whether they are can go to court, before they can actually litigate their claims ― much like the Federal Court of Appeal in TeleZone said those who consider suing the Crown for damages must first go to the Federal Court and seek judicial review. Former employees might then find themselves in the Divisional Court (and perhaps further in the Court of Appeal) for a judicial review, before they can start litigating the merits of their dispute, if it is one that can be litigated in the Superior Court.

To repeat, in TeleZone, the Supreme Court held that the conflict between competing remedial regimes should be resolved in such a way as to maximize access to justice and minimize cost and complexity. Specifically, this meant that litigants should be able to avoid a pointless journey through the Federal Courts before launching their claims in the Superior Courts. The Workplace Safety and Insurance Act might as well have been designed to do the exact opposite ― maximize cost and complexity and undermine access to justice. Of course, that’s not what the legislature was trying to do. It wanted to preserve the jurisdiction of the Tribunal. The legislature might even say, “hey, it’s not our fault that the Tribunal’s decisions can be judicially reviewed ― we said they can’t”. But the legislature acts against a background of constitutional principles, which have long included the availability of judicial review. It knew that its privative clause is constitutionally meaningless. And still it went ahead and created this nonsensical arrangement, instead of simply allowing the jurisdiction of the Tribunal to be raised, perhaps by way of a motion for summary judgment, in any litigation in the Superior Court.

The creation of administrative mechanisms such as the Tribunal ― and their partial insulation from judicial review by the application of deferential standards of review ― is often said to promote access to justice. Perhaps it might do so in the abstract. If a dispute stays within the confines of an administrative tribunal, it will usually be handled more cheaply than in the courts. But, at the very least, such arguments for the expansion of the administrative state must take into account the reality that multiplying jurisdictions means multiplying conflicts both among them and, even more often, between them and the courts. And the resolution of these conflicts is neither cost-free nor something that can be simply wished away. It’s a reminder that, in public law as elsewhere in heaven and earth, there ain’t no such thing as a free lunch.


Morningstar is, in a sense, a rather uninteresting case, at least in the part that I have addressed here. A first-instance judicial review court applies a clear instruction from the Supreme Court and, despite some loose language in its reasons gets it right. But it is still revealing. In Canadian administrative law, courts that do things right, or roughly right, so far as their duty to apply precedent is concerned, are still doing things wrong if we judge them by first principles. This is not a good place for the law to be.

Does This Kat(z) Have Nine Lives?

In Katz, the Supreme Court set out the approach to judicial review of regulations. The Katz approach is (or, maybe, was) a carve-out from the general law of judicial review. As Professor Daly notes, it grants a “hyperdeferential” margin of appreciation to those that promulgate regulations. The Katz approach, based on previous cases, simply asked whether regulations are “irrelevant” “extraneous” or “completely unrelated” to the statutory scheme (Katz, at para 28), with the challenger bearing the onus.

Whether Katz has survived Vavilov is an open question. Vavilov purported to be a “comprehensive approach” to the determination of the standard of review (Vavilov, at para 17) for administrative action. On its face, that means that Vavilov‘s formula for determining the standard of review should apply to all instances of judicial review of administrative action—including judicial review of not only adjudicative acts, but “legislative” acts, as well. This would be a change, though: pre-Vavilov, there was (at least in theory) no judicial review for the “reasonableness” of legislative acts, and such decisions could not be set aside for errors other than jurisdictional ones. Specifically, Katz incorporates the old adage that judicial review does not entitle a court to review the merits of the legislative act, its “political, economic, or social…” context, or even whether it actually is rationally connected to its objective (see Katz, at para 28; Thorne’s Hardware, at 112-113).

Enter the recent decision of the Federal Court of Appeal (per Stratas JA) in Portnov. There are many issues in the case, but one concerned the propriety of Katz post-Vavilov. For the Court, Stratas JA suggests an easy answer to this question: “Thus, in conducting reasonableness review, I shall not apply Katz. I shall follow Vavilov” [28]. Stratas JA offers a number of reasons for this conclusion:

  1. The Katz approach (and its predecessors) were organized around the fundamental concept of “jurisdiction,” a “vestige” which Vavilov “eradicated” [22];
  2. Oddly, in the pre-Vavilov era, the Supreme Court sometimes simply reviewed regulations for their reasonableness under cases like Catalyst and Green [24].
  3. Vavilov is “intended to be sweeping and comprehensive” [25], and if there is a question as to whether Vavilov applies to an issue not addressed in that case, courts should ask how Vavilov’s general framework applies [25].
  4. Katz is a rule that “applies across-the-board to all regulations,” that “sits uneasily with Vavilov which adopts a contextual approach to reasonableness review” [27].

I think Portnov is right on the money.

Katz is problematic, in my view, because it (1) undermines the coherence of Vavilov’s simplicity; and (2) undermines the virtue of the contextual approach to reasonableness in Vavilov.

First, Vavilov was an attempt to finally address Binnie J’s comments in Dunsmuir, which encouraged a standard of review framework that “…get[s] the parties away from arguing about the tests and back to arguing about the substantive merits of their case” (Dunsmuir, at para 145). Part of this was the introduction of a presumption of reasonableness for most cases of judicial review. As I have written before, I have issues with this broad-based presumption (I do not buy the assumption that delegation necessarily implies deference) but it has one virtue: it may be wrong, but it is strong—it simplifies matters a great deal. That presumption, and the associated correctness exceptions, are largely principled. They are based on the core constitutional concepts of legislative sovereignty (choice to delegate) and the Rule of Law (guaranteeing judicial review of certain stringency on certain questions). A carve-out for regulations, with an ultra-deferential approach, simply complicates the conduct of judicial review for no principled reason. This is because whether an administrator is exercising adjudicative power or legislative power, it is delegated power all the same. And from the perspective of simplicity (with due regard for countervailing considerations) Vavilov‘s general principles for determining the standard of review should be determinative in all instances of judicial review of administrative action.

This is an issue of doctrine, but Stratas JA also provides good substantive reasons for not applying Katz. The contextual approach to reasonableness introduced by Vavilov, too, has its flaws: context can sometimes lead to uncertainty. But if context is adequately described by markers of unreasonableness (say, the “constraints” offered in Vavilov), the uncertainty is limited. Applying those constraints to the context of legislative instruments is perfectly justifiable. It may be, as in Catalyst or Green, that Vavilovian reasonableness is quite relaxed when dealing with certain legislative instruments. In other cases it may be more stringent. The constraints offered in Vavilov take account of the legislative context in a way that, at least to some extent, tracks the words and language used by the legislature to delegate power. With a fine-tuned approach like this, there is no need for a presumptive rule that puts a thumb on the scales for those that promulgate regulations based on any functional reasons.

Some judges of the Supreme Court have indicated an interest in preserving the coherence of Vavilov based on its general principles. In Wastech, for example, Brown and Rowe JJ filed a concurring opinion that would have applied Vavilov to the context of a commercial arbitration. They would have applied a correctness standard of review based on Vavilov’s holding on rights of appeal. These judges said this in Wastech:

[120]                     Factors that justify deference to the arbitrator, notably respect for the parties’ decision in favour of alternative dispute resolution and selection of an appropriate decision‑maker, are not relevant to this interpretive exercise. What matters are the words chosen by the legislature, and giving effect to the intention incorporated within those words. Thus, where a statute provides for an “appeal” from an arbitration award, the standards in Housen apply. To this extent, Vavilov has displaced the reasoning in Sattva and Teal Cedar.Concluding otherwise would undermine the coherence of Vavilov and the principles expressed therein.

I think this is the right approach. Vavilov’s general principles have much to say about many forms of decision-making. And, luckily for us, the fact that these principles have something to say makes judicial review much simpler for the parties and courts. No need for special rules any longer, and so I hope this Kat(z) is out of lives.

For more on this issue, see the following resources:

Paul Daly

John Mark Keyes