If there were ever a prize for “least examined ground of judicial review”, I would nominate the flexibility rule. The flexibility rule says that administrative policies must be flexible not rigid. The rule is nearly a century old. It’s part of the law of judicial review in England and Wales, Canada, Australia, New Zealand, and many other common law jurisdictions. It’s invoked in case after case. And yet the rule has received hardly any serious scrutiny. Judges rarely question it. Academics rarely write about it.
This neglect extends to the rule’s justification. Take the case of British Oxygen Co v Minister of Technology. The Board of Trade had a discretionary power to make grants for equipment purchases. To manage all the applications it received, the Board made a policy not to make grants for purchases of less than £25. British Oxygen had purchased a lot of oxygen cylinders for £20. The company didn’t quite fit under the policy, but it applied for a grant anyway. The Board refused, and the company went to court, arguing that the Board hadn’t taken into account the particulars of its case. The House of Lords ultimately sided with the Board. But it did so because it believed that the Board had ‘carefully considered’ the company’s application. Had the Board’s policy been rigid, British Oxygen would have won.
British Oxygen is a famous case. It’s probably the leading case on the flexibility rule. Yet the House of Lords never explains the rationale for the rule. So I wonder: what’s so great about flexibility? What’s so terrible about rigidity? What, if anything, is to be said for the flexibility rule? Continue reading
I’ve been working on a series of papers about mercy. My latest is a discussion of when the government acts mercifully, if indeed it ever does.
Here’s the abstract:
A pardon is an act of mercy according to the law, but is a pardon mercy in an ordinary or genuine sense? What distinguishes a pardon from a lenient judicial sentence, which is not mercy by the law’s lights? These are questions about what mercy as it is understood in law has to do with mercy as it is understood outside of law, and about who in government acts mercifully and when, if indeed anyone in government ever does. Here I propose a general analysis of mercy, then bring that analysis to bear on government action. Three features of my analysis are noteworthy. First, almost all existing analyses say that mercy is unconstrained in a normative sense, but I argue that mercy is unconstrained in the way that arbitrary power is unconstrained. Second, although it’s often assumed that mercy must be motivated by compassion, I show that mercy only requires acting with the intention to benefit the recipient. Third, my analysis says that mercy requires the giver of mercy to overcome a motivation to treat the recipient harshly. Given this analysis, few government acts are merciful, but pardon is an institutional approximation or analog of mercy.
Read the full paper here.
The paper is a draft, and comments and suggestions, no matter how small, are very welcome!
I’m pleased to say that I have an article just out in the Cambridge Law Journal: ‘The Flexibility Rule in Administrative Law’. I hope to put up a longer post summarising the article soon, but for now, here’s the abstract:
Administrative officials are permitted to have policies as to the exercise of their discretionary powers, but those policies must be flexible, not rigid. The “flexibility rule”, as I call it here, is nearly a century old. Over time, it has become part of the furniture of judicial review: often used, rarely examined. That neglect has led to confusion, on display in recent cases. In this article I try to put the flexibility rule back on a sound footing. I argue, first, that the flexibility rule requires authorities to treat policies merely as rules of thumb. Second, the primary justification for the flexibility rule is neither legislative intent (as courts have said), nor the avoidance of error (as commentators tend to assume); it is the value of participation. Third, and as a result, the flexibility rule ought to apply to policies governing the use of prerogative and other non-statutory powers, as well as to policies governing the use of statutory powers.
The published version of the paper is here. There’s a draft version here. Comments and suggestions are very welcome!
Farrah Ahmed and I have a new paper out in the Oxford Journal of Legal Studies: ‘Constitutional Statutes’.
This is our second paper on constitutional statutes. Back in 2012, in BH v Lord Advocate, the Supreme Court suggested that constitutional statutes could only be repealed expressly, not by implication. In 2015, Farrah and I published a paper in CLJ, ‘The Quasi-Entrenchment of Constitutional Statutes’ (published | draft), criticising the notion that judges can, on their own initiative, immunise statutes from implied repeal.
That first paper was mainly critical and negative. In this new paper, Farrah and I focus on the positive. We set out a definition of a constitutional statute. We also say how courts should (as opposed to shouldn’t) treat constitutional statutes. Here’s the abstract:
In recent years, British courts have treated constitutional statutes differently from ordinary statutes. This article sets outs to explain: (i) how courts have treated constitutional statutes differently from ordinary statutes; (ii) what a constitutional statute is; and (iii) why constitutional statutes should be treated differently from ordinary statutes. Courts have made it harder for ordinary statutes to repeal constitutional statutes by implication, and easier for constitutional statutes to repeal ordinary statutes by implication. A constitutional statute is a statute which regulates state institutions, and which possesses importance of a particular type that we describe. The nature of a constitutional statute largely—but not entirely—justifies the special treatment they have been given. These conclusions have wider implications, including for proposals to codify the British constitution.
Here’s a puzzle about standing. Suppose you’re a resident of, say, London. You love all things herpetological. You’re even the secretary of the local Herpetological Society (a real thing, by the way). You hear that the local council plans to build a power plant on public land – land which also happens to be one of the few remaining habitats of the endangered smooth snake (also a real thing). Incensed at the threat to the environment, and after duly trying to get the council to change its mind, you seek leave to apply for judicial review of the decision. To succeed, you’ll need to show you have “standing”. The test for standing in England and Wales is a “sufficient interest” in the matter to which the application relates. Other common law jurisdictions have similar tests.
How will a court decide whether you have a sufficient interest in the matter? Continue reading
If one is allowed to have a favourite prerogative power, the prerogative of mercy is mine. The prerogative of mercy’s only uses are to lift punishment and to lessen suffering. Who could object to that? Yet this “most amiable prerogative” is often under attack. Continue reading
The Rose Theatre was the sight of the first performances of some of Shakespeare’s plays. The remains of the theatre were unearthed in London in the late 1980s. Shortly after a group of citizens formed the Rose Theatre Trust Company to help protect what was left of the theatre. The Trust asked the Secretary of State to ‘list’ the theatre, which would have given it some protection from development and interference. The Secretary of State refused, however, and the trust applied for judicial review of the Secretary of State’s refusal. In one of the more famous cases in English administrative law, Scheimann J held that trust lacked standing to make its application Continue reading