judicial review – Double Aspect

Sotto Voce

The Supreme Court has an inexplicable habit, especially in administrative law.

Much has been written about the Court’s uneasy—to put it mildly—relationship with precedent. Especially after Bedford/Carter, which expanded the grounds on which previous precedents can be discarded, stare decisis is less of a hard-and-fast rule and more of an option in hard cases. But official departures from stare decisis are not the only means by which courts can question precedents. Lower courts can sometimes overrule from below—arguably, this happened in the pre-Vavilov world, when the Federal Court of Appeal “tip-toed” around questionable Supreme Court cases: see Utah, at para 28.

There is another way. Recently, the Court has offered examples of “overruling” sotto voce—reaching holdings and engaging in reasoning that implicitly undermines previous cases without saying so. This habit is mildly annoying for those who try to offer clarity about the law, but it is also inconsistent with the Court’s own stated role; to clarify the law for lower courts and litigants.

This is not a new phenomenon. It was common in the pre-Vavilov world (anyone remember Association of Justice Counsel?) But recently it has picked up steam. Two examples. First, the Supreme Court’s decision in CSFTNO. This case holds that in the context of s.23 (minority language education rights), a Minister was required to consider Charter values underlying this provision, advanced by a non-rights holder. There is much to say about this, and I have already written about the theoretical and technical problems with this decision. But there is one line of reasoning that, taken seriously, kicks the conceptual legs out from two recent cases in the law of interpretation: City of Toronto and Quebec Inc. Crudely summarizing, these cases basically held that the text of Charter is the object of interpretation, setting the outer bounds on the use of constitutional principles and purposes. These unwritten principles and purposes cannot overwhelm the text or supplant it.

But the Court in CSFTNO takes a rather different tack. It says that “[t]he choice made by the framers to entrench certain rights in the text of the supreme law of Canada means that the purpose of these rights is important for Canadian society as a whole and must be reflected in the decision‑making process of the various branches of government.” This appears to reason from the purpose of the purported right in question, using that purpose to impose a duty on the government where there is no claimed right. As the Court of Appeal in CSFTNO said, this turns orthodox constitutionalism on its head. This is the sort of methodology that was supposedly put to rest in City of Toronto and Quebec Inc. True, CSFTNO was not a case of constitutional interpretation per se. But it was a case that raised the scope of Charter rights, and the relative roles of text and purpose.

Maybe this approach is justified by the peculiar nature of s.23—a collective right that can be pierced by admitting non-rights holders. But if this is the case, we should expect the Court to say so, and to explain how and why this approach sits with its previous cases.

Consider next the Supreme Court’s decision in Mason, which dealt with issues pertaining to the standard of review of administrative action and international law. The case involved the Immigration Appeal Division’s [IAD] interpretation of the Immigration and Refugee Protection Act, as it pertains to a finding of inadmissibility. It is a basic rule of administrative law that parties must put their best food forward—they must lead all of their arguments at first instance. Why? Because administrative decision-makers have been delegated power to make decisions on the merits. If litigants could bypass decision-makers and raise new arguments on judicial review, courts would be arrogating to themselves a merits-deciding function, which is not an accepted role for the courts on judicial review. This rule and its justification are longstanding, but was given particular expression by Rothstein J in Alberta Teachers.

Mason, of course, does not overrule Alberta Teachers. But it does, sotto voce, put it in an odd place in the pattern of Canadian administrative law. For a majority, Jamal J faults the IAD for failing to address certain legal constraints imposed by international law, an issue the Federal Court of Appeal did not address because the argument had not been raised before the IAD [116]. The IRPA does quite expressly contemplate the Refugee Convention being a major part of the interpretive context [117]. Perhaps, as Paul Daly opines, the IRPA’s commitment to international law is a “uniquely powerful, textually explicit commitment to implementing Canada’s international law obligations in the IRPA, which is unlikely to have similar force in any other context (save, perhaps, citizenship).” But, typically, the importance of the issue or the strength of the statutory signal would not obviate the need for a litigant to lead trump or risk losing. Is this a new exception to the general presumption in Alberta Teachers?

Abstracting away from the substantive issues themselves, the Court’s choices in CSFTNO and Mason raise difficult questions about judicial craft. We know that on a multi-member court, internal politics can drive decision-making. Nonetheless, the Court should be more alive to the fact that when it does things without saying so, and without explaining itself, its decisions read more as legislative declarations than reasoned judicial acts. In normal administrative law cases, this is bad enough. In Charter cases—like CSFTNO—it’s especially bad. The Charter was a significant grant of authority to judges. That delegation of power must have been made on the basis that judges would act judicially. When the Court leaves breadcrumbs in its decisions that could lead reasonable observers to doubt the propriety of previous cases, it raises the prospect that its caseload is a wilderness of single instances.

Deferring to Discriminators

The US Supreme Court explains why courts should not defer to officials when it comes to rights issues

Deference to administrative decision-makers who limit constitutional rights is, to put it mildly, a controversial issue in Canadian law. It is mandated by the Supreme Court’s precedents, notably Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395. It was challenged by the amicus curiae but not touched in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653. Both co-blogger Mark Mancini and I have criticized it sharply. Some comments in the opinions in the recent decision of the US Supreme Court in Students for Fair Admissions v President and Fellows of the Harvard College are worth considering in thinking about it.

The issue in the case was the constitutionality and legality of the use of racial categories as a factor ― in some cases a very important factor ― in admissions to public or publicly-funded universities. The applicants claimed that it amounted to unconstitutional and illegal discrimination. Harvard insisted that that this was necessary in order to achieve sufficient diversity in its student body. The US Supreme Court had previously held that an “educational judgment that such diversity is essential to [a university’s] educational mission is one to which we defer”. (Grutter v Bollinger, 539 U.S. 306 at 328 (2003))

The majority in Students for Fair Admissions was not sold on the idea. As Chief Justice Roberts put it, “[u]niversities may define their missions as they see fit. The Constitution defines ours.” (26) Far from deferring to universities on whether racial classification is necessary, “[c]ourts may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review”. (26) Consistently with the general trends of US constitutional law, the courts must verify compliance with the constitution for themselves.

Justice Thomas’s concurring opinion is more instructive, however. He argues that “it is error for a court to defer to the views of an alleged discriminator while assessing claims of racial discrimination”. (27) He points out that the courts

would not offer such deference in any other context. In employment discrimination lawsuits … for example, courts require only a minimal prima facie showing by a complainant before shifting the burden onto the shoulders of the alleged discriminator employer. …

This judicial skepticism is vital. History has repeatedly shown that purportedly benign discrimination may be pernicious, and discriminators may go to great lengths to hide and perpetuate their unlawful conduct”. (27-28)

I think this is very relevant to Canadians, even though the actual questions addressed in Students for Fair Admissions would be dealt with quite differently under Canadian law in light of s 15(2) of the Canadian Charter of Rights and Freedoms.

Canadian law does sometimes require courts “to defer to the views of an alleged discriminator”. One example that comes to mind is the “maths is racist” decision of Ontario’s Divisional Court, Ontario Teacher Candidates’ Council v The Queen, 2021 ONSC 7386. The claim there was that a test that aspiring teachers were required to pass discriminated against non-white candidates in some mysterious way. In deciding whether the alleged discrimination was justified, the Court accepted that it had to defer “to the legislature’s choices”. [132] Whether the Court actually deferred is, admittedly, another matter. As I wrote here, I think it did not. I also argued that the court’s whole approach was misconceived ― it wasn’t a legislative choice but an administrative policy that was under review. But that doesn’t matter for my purposes here because if the Court had followed what I think was the required method and applied Doré, it would have had to defer as well. Either way, it was or would have been deference “to the views of an alleged discriminator”.

I honestly struggle to see why that would be right. I am sure many of my readers do not think much of Students for Fair Admissions and/or of Justice Thomas’s concurrence in particular. But whatever you make of the main issue in that case, what objection is there to this specific point? When the government or one of its instrumentalities is alleged to engage in discrimination, why should its views on the matter carry more weight than those of the people who say they are its victims ― or of independent and impartial judges?

Of course the point generalizes. It’s not just about discrimination. There is no more reason for the courts to defer to alleged censors or religious bigots than to alleged discriminators. “Judicial scepticism” is necessary in the face of allegedly benign restrictions on free expression, religious liberty, and any other right, just as it is, as Justice Thomas rightly says, in the face of allegedly benign discrimination. Insofar as it says otherwise, our law of judicial review is misbegotten and in dire need of reform.

The Metastasis of Charter Vibes

The rigamarole around the notwithstanding clause this week has me thinking about the reach of the Charter, and in particular, a case that will be heard by the SCC early next year: A.B. v Northwest Territories. While there are other issues in the case, at its heart is a stark proposition: is it required for a government decision-maker to consider “Charter values” (or what I call “vibes”) even where it is accepted that a right is not engaged on the facts? One might think—as I do—that the answer to this question is “no.”

But others disagree, and with some precedent in support, and so the Supreme Court will soon hear this case. A.B. involves s.23 of the Charter, which provides the following:

Language of instruction

23. (1) Citizens of Canada

(a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or

(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,

have the right to have their children receive primary and secondary school instruction in that language in that province.

Continuity of language instruction
(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.

Application where numbers warrant
(3) The right of citizens of Canada under sections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province;

(a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and

(b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

As the NWTCA pointed out in the decision being appealed to the SCC, section 23, unlike some other constitutional rights, is rather precise: it delineates who is eligible to enjoy the constitutional right, and so its text inevitably “draws lines of eligibility” that will mean that there will be some “hard cases” that fall on either side of these lines [9]. This is a consequence of the finely-wrought s.23, which could have been phrased more broadly or generously, but isn’t.

As the NWTCA pointed out, this provision requires governments “to provide minority language education to those who have a right to it” [6] but “the government does have the discretion to allow the non-section 23 children to attend the minority language schools” [9]. In the NWT, at the time of the impugned decisions, this process was governed by a Ministerial Directive (and, of course, supplemented by ministerial residual discretion) , which provided that a “limited number” of non-section 23 children could be admitted [10].

Under this process, it was accepted that the A.B. family did not qualify under s.23 [10, 24]. And yet they argued that the Minister, in exercising her discretion and implementing the Directive, were required to consider the values underlying s.23 [28]. The chambers judge named some of the interests that would need to be considered by the Minister under the values-analysis:

…the needs of the linguistic minority and the need to foster the preservation and development of this community, in the exercise of her power over the admission of non-rights holders to minority language schools [28].

At the NWTCA, the majority of the Court rejected this contention. It held that this case did not implicate constitutional rights [59]. Rather, the essence of the claim was that the Minister should have considered values underpinning s.23 in considering whether the Minister properly exercised her discretion not to admit the non-rights holders. But as the Court stated, “[t]he obligations of the provinces and territories to observe and respect the Charter are collateral to the issues that were before the chambers judge” [59]. The point of the majority holding is simple: Charter values cannot be used to extend the protections of the Charter to those who otherwise are not eligible for the specific protections at issue. Rowbotham JA concurred, but would have required the Minister to consider s.23 [136].

In my view, the majority judgment cogently outlines a problem with Charter values—because of the lack of guidance on their scope and application, they can easily metastasize to expand the Charter in unexpected ways. This metastasis can occur in three ways. First, because Charter values are necessarily stated at a high level of abstraction, they can distort the interests protected by a purposive and textual interpretation of specific Charter rights (a concern raised by Rowe J in TWU). Second, a court can align a Charter value with a statutory objective, however broadly-stated, and in the face of a protected right, claim that an administrator can promote that Charter-sanctified statutory objective (as the majority pointed out in TWU, and as explained by Edward Cottrill here). This means that a state objective that otherwise may be directly contrary to an actually-protected right is given the imprimatur of constitutional benediction—that old chestnut. Third, Charter values can be used to “supplement” purported “deficiencies” or perceived lacunae in the Charter text. Because each Charter right delineates and narrows the interests that it protects, it is possible for a Charter value to come into play, even where an individual does not hold the benefit of the right.

A.B. presents this third situation. Like the other cases where Charter values are at play, there is arguably a distortion of the actually-existing Constitution. It would seem odd for there to be a duty on a Minister to consider the Charter where there is no one capable of claiming the right. This means that there is a normative constraint on the decision-maker to consider values (perhaps pale imitations of rights) that may not actually at issue in the case. Should this appear odd, it isn’t necessarily so to those who support Charter values. In Loyola, for example, the plurality seemed to draw an equality between rights and values, such that each are protections that can be claimed in any given case (see Loyola, at para 35). And as one author suggests, perhaps this means that even where a claimant does not have an official Charter right to claim “they ought to have had the protection of Charter values” (see here, at 79).

The key word here is “ought.” What s.23 ought to protect, in the view of one person, is evidently different than the value choices embedded in that provision. I worry, specifically, about the use of Charter values to defeat the choices made in the Charter on this contentious issue. It distorts this Charter—as opposed to some other Charter of values—to ignore the specific choices made in the text, and to judicially-administer an ever-changing constitution of values, which can be raised where the actual Charter does not apply. The creation of two Charters must be avoided, and this should mean putting an end to expansive Charter values arguments that require judicial extension of existing rights.

There are a number of counter-arguments that could be advanced: some relating to administrative law precedent, and some to the specific context of s.23. It is true that the Supreme Court has referred to an administrative duty to consider Charter values. In Baker, the Court noted that “discretion must be exercised in accordance with the boundaries imposed by the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter” (Baker, at para 56). In Doré, the Court noted that administrative decisions are “always required to consider fundamental values” (Doré, at para 35). Even in the NWTCA decision, the Court claims that it is a “truism that public decision makers should always have regard to fundamental societal values, such as liberty, dignity, and equality” [57].

Putting aside that these values may already map onto existing Charter rights, or are otherwise amorphous and contested (they should not lead inexorably to some pre-determined outcome), I do not think these precedents can be marshalled in favour of the expansive proposition that Charter values are independent constraints on administrative discretion. It is obviously true that a decision-maker is required to consider Charter rights when those rights are argued. So, post-Vavilov, courts have found that when claimants do not raise Charter arguments before a decision-maker or only briefly refer to them, there is no concomitant duty on a decision-maker to engage in a Charter analysis (see e.g. Canada (Attorney General) v Robinson, 2022 FCA 59 at para 28). It’s only a small skip to the next step: of course administrators have a duty to consider the Charter, when a right is claimed, but values in the ether should not expand the scope of the Charter to situations where it “ought” to apply.

More specifically, and for good reason, recent precedent of the SCC clamps down on these sorts of arguments: specifically City of Toronto and Quebec Inc. While clarifying that the dominant approach to Charter interpretation is purposive in nature, the Court has finally confirmed that the text remains the starting point to all Charter interpretation. Unwritten principles and values may form a part of doctrinal construction, or construing the scope of a right—but these values must be properly-scoped, and they cannot be used to distort, undershoot, or overshoot the actual rights at hand. This is common sense in many ways, but the simple conclusions from these cases have a great deal of relevance for the continued use of Charter values.

It could also be argued that the specific context of s.23 would permit non-rights holders to act on behalf of the “entire Francophone community” [60]. In this way, the fact that the right is, in part, collective might signal that the Minister should consider s.23 “values.” I think this is wrong. To permit this would be to allow non-rights holders to “piggyback” on those who enjoy the right in question [60]. The collective aspect of a right does not require its extension in this fashion.

People who defend the Charter should be interested in ensuring its scope is limited to the sorts of interests it was meant to protect. The situation we have, these days, with the review of administrative decisions implicating constitutional rights is unsustainable. Most of it distorts orthodox constitutionalism. We have Doré , which can counsel weak review in particular cases when rights are actually advanced; and when rights are not advanced, A.B. brings forward the contention that the Charter applies nonetheless. We have a Charter of Values applying strongly where it shouldn’t, and a Charter of Rights being diluted by a deferential standard of review. This seems odd.

Standing Isn’t Free

On the importance of thinking about costs, as well as benefits, of judicial review of administrative action

NB: This post has been prompted by my teaching and is first addressed to my students in Public Law 2 at Reading, but I hope that other readers, at least those interested in administrative law, will also find it of interest.

Who can challenge an administrative decision: only the persons directly affected by it or, well, just about anyone? This is the question of standing. US law resolutely sticks to the narrow view (as will be apparent, for example, from the discussion of the prospects of the challenges to President Biden’s debt-cancellation plan on this recent episode of Advisory Opinions). But Commonwealth jurisdictions have tended to take a broader view.

As Lord Hope put it in AXA General Insurance Ltd v Lord Advocate [2011] UKSC 46, [2012] 1 AC 868, (even as he disclaimed “risk[ing] a definition of what constitutes standing in the public law context”), “the interest of the person affected by or having a reasonable concern in the matter to which the application related” is enough. [63; emphasis added] This means that “[a] personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent.” [63] Or, in the more colourful words of Palmer J in Smith v Attorney-General [2017] NZHC 1647: “The requirement of standing in judicial review proceedings has been significantly relaxed in New Zealand. But it is not so relaxed that it is horizontal. It still exists.” [2] While there are differences between the UK and New Zealand approaches, this description is apt for UK law too.

But is this very considerable relaxation of the standing requirement ― when you need to say that something “still exists”, its existence, evidently, is a matter of some doubt ― a good thing? Or does the stricter, American-style, approach has something to recommend it? It is not, after all, without precedent in English law too. In R v Environment Secretary, ex p Rose Theatre Trust [1990] 1 QB 504, Schiemann J insisted that “the law does not see it as the function of the courts to be there for every individual who is interested in having the legality of an administrative action litigated”. (522) Doesn’t it, though?

The other view is exemplified in a much quoted (and sometimes implicitly referenced) statement of Sedley J in R v Somerset CC Ex p Dixon, [1998] Env LR 111 (1997):

Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs —that is to say misuses of public power; and the courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well placed to call the attention of the court to an apparent misuse of public power. (121)

The idea is that the law must see to it that public wrongs are set right, and that it matters little who commences the litigation that may lead to this beneficial result. The way I put it to students in my public law tutorials is that the people who take this view emphasise the “review” part of judicial review ― in contrast to those who stress the “judicial” part and so are wary of transforming courts into general-purpose defenders of the public interest.

But to say that an area of the law “is about wrongs” is not enough to show that it must make it possible to identify and ensure consequences for every wrong of the relevant kind that occurs. Just as the socially optimal amount of crime is not zero, so to the socially optimal amount of misuse of public power is not zero either. Some wrongs should actually go unredressed. The idea might seem counter-intuitive, but it makes good sense. The costs of a wrong, be it crime, misuse of public power, or anything else, must be set off against the costs of preventing or rectifying it. If prevention or redress consume more resources (money, time, brainpower, etc) than are lost as a result of the wrong itself, or indeed if they generate further wrongs, then they are wasteful, from the standpoint of society.

In the context of crime, this means, for example, that we wouldn’t want a police officer on every street corner. While their presence would probably deter and possibly help solve some meaningful number of crimes, it would be very costly. The cost, to be clear, is not just money, though that’s part of the story. Salaries are indeed costly, but so are the unseen opportunities lost due to all these people not doing something more productive than standing on street corners. And so, too, is the possibility that they may, if only to occupy themselves, harass or arrest people who are quite innocent.

Recognising all this does not mean that we do not care about crime and about the Rule of Law. As Lord Reed put it in AXA, “the protection of the rule of law does not require that every allegation of unlawful conduct by a public authority must be examined by a court, any more than it requires that every allegation of criminal conduct must be prosecuted”. [170] Acknowledging the costs involved simply means being realistic about the constraints that apply when our ideals come into contact with reality.

The same sort of thinking should apply in public law. While Sedley J and other advocates of expansive standing (such as Lady Hale) do not acknowledge this, some public wrongs are not worth redressing through judicial review because of the cost of doing so. Timothy Endicott’s Administrative Law textbook does make this point. Professor Endicott writes that “the test of standing is a proportionality test. … Proportionality in this case is a relation between the value of hearing a claim for judicial review and the process cost, and any process danger that may result.” (415) I think this is basically the right idea, but it worth unpacking further.

Professor Endicott’s review of the decided cases suggests that courts do, in fact, attach some importance to “the value of hearing a claim”, in that standing is the more easily granted the more serious the claim raised in a case is. And it is not exactly a surprise that courts would pay some attention to this despite sometimes embracing the justice-at-all-costs rhetoric exemplified by Sedley J’s dictum. I have argued here that something similar happens in the realm of procedural fairness. But this is only one side of the proportionality equation.

What about “process cost” and “process danger”? Professor Endicott’s survey suggests judicial interest in this may be limited, and he too has comparatively little to say about these things. I’m not even quite sure what the distinction between “costs” and “dangers” is. Carol Harlow’s article “Public Law and Popular Justice” focuses on a particular set of such concerns, perhaps dangers rather than costs: those that have to do with courts being transformed into political institutions and/or made to address polycentric problems for which they lack institutional competence.

I think these dangers are real, but there is more, too. I discussed the costs (and the benefits) of judicial review in an old post here. I won’t rehash everything I said then, but one point that bears repetition is that

all judicial review is in a real sense superfluous. Ordinary litigation is necessary in order to provide the parties with an authoritative determination of their legal position when that position is unknown or contested … But judicial review is not necessary to do this. The legal position of the party or parties involved has already been authoritatively determined … by an administrative decision-maker.

Perhaps I should have used a different word: judicial review is not so much superfluous as it is redundant, in the sense of providing an additional layer of protection to a system that could operate without it ― but at some real, and perhaps unacceptable, risk.

Be that as it may, the costs of judicial review, even those that accrue in any legal proceeding, are thus particularly significant. And some are peculiar to judicial review. Among other things, judicial review risks both unwarranted interference with the legitimate activities of government (insofar as anything the government does is legitimate) and, conversely, undue legitimation of government decisions that, while lawful and hence deserving of being upheld, are daft, immoral, or both. Ignoring these (and other) costs of judicial review does not make them go away; nor does it somehow strengthen the Rule of Law.

The other concern I have with Professor Endicott’s approach has to do with the concept of proportionality. As in human rights law, it seems to invite a comparison of things that cannot be assessed on anything like a common scale. As noted above, the costs of judicial review are not all reducible to pecuniary expenses, and its benefits are of course not pecuniary at all. How can we know that one is proportionate to the other? Professor Endicott argues that courts have not struck the right balance, allowing cases where there was no sufficient public interest in having the claims litigated to be brought forward, but with a proportionality approach, such arguments are inherently subjective.

What is more, case-by-case analysis of proportionality exacerbates what Professor Endicott laments as “[t]he irony of process”. This arises when

parties … need to be given more process than is actually due to them [because a] claimant without a sufficient interest in a matter is not entitled to be heard, but it is often necessary to hear the whole story from the claimant and the defendant in order to decide whether the claimant has a sufficient interest. (417; emphasis removed)

This, of course, only adds to the costs of judicial review: debates about standing have to be considered, on top of those of the substantive disputes.

In light of this, it is tempting to look for alternatives to proportionality in the form of clear, rigid rules. They might, of course, not be exactly right: perhaps they will allow some claims to go forward that should not, as is already the case now, Professor Endicott suggests. Or perhaps they will result in some unlawful decisions not being reviewed even though they should be. But if these rules can be applied straightforwardly and predictably, they will still be preferable to the uncertain proportionality approach, provided that they are reasonable proxies for where a case-by-case analysis would end up.

The argument for a narrower approach to standing, limiting it to those whose legal rights and obligations are directly affected by the administrative decision they seek to challenge, would have to be that this rule helps us distinguish those cases where the lawfulness of administrative action should be tested from those where doing so would be wasteful in a way that is more efficient than the proportionality approach preferred by Professor Endicott or the easy-going approach now preferred by the courts. I think this is possible: the redundant nature of judicial review is particularly salient in case where the applicant’s right and obligations are not involved, and it may be that it is also in those cases that the risks of undue interference with government, and perhaps also of undue legitimation of legally sound but morally questionable decisions arise. But this is just a tentative view for now.

What I am confident about is we must not neglect the costs of judicial review, even as we study and perhaps promote its importance and advantages. The ideals we seek to realise through the law are seldom unmitigated goods, and we do them no justice by forgetting about this. In judicial review as elsewhere, in the heavens as in on Earth, TANSTAAFL.

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 criticize 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.