Theoretical Perspectives on Public Law and Administration

1. Theoretical Perspectives on Public Law and Administration GS/Law 6761 Fall 2007 Instructor: Ian Greene

2. Preliminary Matters • Introductions • Origin of this course: Justice John Evans • Evaluation • Presentations

4. My own background • Grew up in a small Alberta town (population 1000) • Attended the U of Alberta (Edmonton), and did a student exchange to Bishop’s University (Sherbrooke, Quebec) during 2nd year • Majored in political science • Wanted to be a lawyer BUT got a scholarship for an MA at U of T • MA in Political Science at University of Toronto: loved political science study of courts

5. Post MA • Traveled around the world for 2 years: New Zealand, Australia, Indonesia, Singapore, Malaysia, Thailand, Burma, India, Nepal, Pakistan, Afghanistan, Iran, Turkey, Europe • Accepted to law school, but decided to do a Ph.D. first. Studied the causes of unreasonable delay in courts • Theory: we didn’t understand the proper relationship between judicial independence and ministerial accountability • What I found: friction, misunderstanding, and “passing the buck” amongst judges, lawyers, crown attorneys and court administrators is the major cause of unreasonable delay

6. British Columbia & Alberta • Worked for Alberta gov’t for 4 years • Assistant to a cabinet minister 1 year • Middle manager in Alberta Social Services 3 years • First teaching job: College of the Rockies in Columbia Valley, BC

7. My family

8. York University Years • Research on judicial behaviour & ethical politics • The Courts (2007) • A Question of Ethics (2006) • Honest Politics (1998) • Final Appeal (1998) • Judges & Judging (1991) • The Charter of Rights (1988)

9. Teaching • For next 4 years will teach mostly graduate courses • Director of Master of Public Policy, Administration & Law Program • Co-Coordinator of part-time LLM in Administrative La • Master of McLaughlin College • You’re invited to College events – eg. Joe Clark speaking on Thursday, November 15, 5 p.m., 014 McLaughlin

10. A.V. Dicey • Albert Venn Dicey - British jurist (1835-1922) • Oxford graduate & later professor & Oxford & London School of Economics • Introduction to the Study of the Law of the Constitution – 1885 • Refined idea of “unwritten constitution” • Constitutional conventions (generally recognized as mandatory practices – monarch should dismiss a government that clearly breaches a convention) • Responsible government: cabinet responsible to legislature, cabinet solidarity, ministerial accountability

11. Basic principles of British constitution: • Parliamentary (legislative) Sovereignty • Distinct from U.S. system of separation of powers • The rule of law (law applies equally to everyone unless exceptions written into the law) • No need for a British bill of rights: judges who apply the rule of law properly safeguard human rights far better than having to apply a rigid bill of rights • Judicial independence • Parliamentary supremacy means that the legislature determines the jurisdiction & organization of courts, but once appointed, judges are independent as protected by the Act of Settlement, 1701

12. Act of Settlement Superior court judges appointed “during good behaviour” (security of tenure), and their salaries are “established” by Parliament (not the cabinet) (In Canada, Valente (1985): -security of tenure (judges can’t be removed except as recommended by an inquiry that conducts a fair hearing) -salaries must be set by legislature and high enough to discourage bribery -judges control those aspects of court administration that directly affect adjudication

13. Parliamentary Supremacy vs. Separation of Powers • U.S. constitution of 1787 recognizes “separation of powers,” not legislative supremacy. Why? • Fathers of U.S. constitution read Montesquieu (~1750) who argued that the British protected their liberty through a separation of powers. But British government was evolving toward parliamentary supremacy and responsible government • Dicey argued that separation of powers meant judicial supremacy. British unwritten constitution infinitely superior.

14. British system vs. French • Common law system ensures that all courts and administrative tribunals are supervised by superior court judges, who ensure liberty through properly applying the rule of law. • The French and other civil law jurisdictions have separate administrative law courts. This can lead to abuse of power. • Common law system is infinitely superior to civil law systems, and the British common law system is infinitely superior to the American common law system

15. Alan Cairns • “The past and future of the Canadian administrative state.” • Yong Wang • Alan Cairns – one of Canada’s best-known political scientists • Born in Ontario • B.A. in 1953 and M.A. degree 1957 from U of Toronto • Member of the Department of Political Science at University of British Columbia from 1960 -- 1995 and served as head of the department from 1973 to 1980.

16. Evans, Janisch, Mullan & Risk • Administrative Law text, Introduction • Raj Sharma

17. Martin Loughlin • Public Law and Political Theory • Guy Brownlee • Prof. of Public Law, London School of Economics

18. Alberta provincial lawsuit settled • Ian Greene • Assured Income for the Severely Handicapped Administrator in Southern Alberta, 1983-85 • Rule of law issue

19. John Locke • The Second Treatise on Civil Government [1690] • Judy Verbeeten

20. John Stuart Mill (1806-1873) • On Liberty [1859] (worked for Br East India Co until 1858) • Trudy McCormick

21. Peter Hogg • Constitutional Law of Canada • Alia Ahmed

22. Hutchinson & Monahan • “Democracy & the Rule of Law” • Hillary Cameron

23. Greene, Baar, McCormick, Szablowski, Thomas • Final Appeal (1998)

24. Ipperwash Inquiry • Leanne Briscoe

25. Stephen Brooks • Karey Lunau Professor, U of Windsor; B.A., M.A. (Windsor), Ph.D. (Carleton)

26. Harry Arthurs • “Without the Law: Administrative Justice and Legal Pluralism in 19th Century England” • Ian Greene