October 09

Administrative Law Digest

This post contains a roundup of recent developments (in and out of courts) and scholarship in the area of administrative law around the common law world. To submit content for our next update, please email us at alawblogorg@gmail.com.

Judicial Developments in Administrative Law

  1. The Canadian Supreme Court has allowed an appeal in a case involving two individuals who were charged in India for allegedly arranging an honour killing that occurred there. The Canadian Minister of Justice ordered their surrender to the Indian authorities. These orders were quashed by the Court of Appeal of British Columbia.  On appeal, the Supreme Court found that the Minister’s surrender orders should be restored.  It was reasonable for the Minister to conclude, based on India’s assurances, that there was no substantial risk of torture or mistreatment of the individuals.
  2. The Bombay High Court has set aside the Competition Commission of India (CCI)’s decision to probe three telecommunication companies for anti-competitive behaviour. Among other things, the court found that the reasons given by the CCI for the probe were vague, unclear and insufficient to initiate an inquiry under the Competition Act. The CCI had earlier ordered the probe, stating that there was prima facie evidence of the three carriers forming a cartel.
  3. The UK Supreme Court has held that the fees imposed by the Lord Chancellor in respect of proceedings in employment tribunals and employment appeal tribunals are unlawful, as the fees interfered unjustifiably with the right of access to justice at common law.

Recent Scholarship

  1. Palmer, Matthew, Constitutional Dialogue and the Rule of Law The Hong Kong Law Journal (2017) (arguing that it is important for the rule of law that the branches of government speak in different languages and have systematically different perspectives).
  2. Hayne, KM, Executive Power Public Law Review (2017) (notes that too much may be made of the “extends” clause in Section 61 of the Australian Constitution. Section 61 states that the executive power of the Commonwealth “extends to the execution and maintenance of the Constitution”. The author argues that this clause adds to, but also marks the outer boundary to, the executive power of the Commonwealth)
  3. Elliott, Mark, The Supreme Court’s Judgment in Miller: In Search of Constitutional Principle The Cambridge Law Journal (2017) (discusses the recent UK Supreme Court case, which decided that the government had no prerogative power to initiate the formal process for the UK to withdraw from the EU and declined to recognise any requirement that the devolved legislatures’ consent be obtained with regard to commencing the withdrawal process. The author argues that the majority judgment’s restrictive approach to assessing the validity of the prerogative power may be seen as progressive if it is viewed through the traditional lens of perceiving constitutional adjudication as a zero-sum game in which Westminister and Whitehall are the only participants)
  4. Dyke, Thom, Who Will Guard the Guardians? Challenging the Decision to Prosecute Judicial Review (2017) (charts the evolution of public law challenges against prosecutors).
  5. Metzger, Gillian E. and Stack, Kevin M., Internal Administrative Law Michigan Law Review (2017) (notes that administrative law has been identified as the external review of agency action, primarily by courts; they argue instead that internal norms and structures, in having a binding status in structuring agency decisions, should also be considered as law).

Current Events

  1. The US Supreme Court has cancelled oral arguments with regard to the Trump Administration’s travel ban. The court has ordered both sides to file new briefs in light of President Trump’s proclamation that created new restrictions for citizens from eight countries.
  2. Singapore has elected its first female president without a contest in its first reserved election, as she was the only candidate who was qualified to stand. The election was reserved for Malay candidates. Madam Halimah Yacob is the Republic’s second Malay president.
  3. London’s transport authority, Transport for London, has ruled that Uber is not a “fit and proper” operator and that Uber’s operating licence would therefore not be renewed. Its decision was based in part on Uber’s safety record. An online petition against this decision has been started.
  4. A Canadian judge has been suspended for wearing a Donald Trump campaign hat into court after the US election. The Ontario judicial council said that the conduct of Justice Bernd Zabel has fallen short of the impartiality and objectivity demanded of judges.
  5. New Zealand’s Chief District Court Judge has issued a reminder about the importance of judicial independence in the courtroom. She said that she is concerned that in the larger registries of the District Court, there have been circumstances where counsel have approached the registrar and have had conversations with registrars about whether or not a particular judge should hear a case.
  6. A Hong Kong-listed developer has mounted a judicial challenge against the city’s development watchdog over its rejection of a re-zoning plan. The developer had planned to re-zone an area in Discovery Bay from staff quarters into homes. The developer has accused the board of reaching its decision in a procedurally unfair manner and says that the authority “took into account an irrelevant consideration in coming to its decision”.
  7. South Africa’s tax authority has threatened to take legal action against KPMG for disavowing a report it commissioned that was used to discredit the former finance minister. The KPMG report had implied that an alleged rogue spying unit was set up under the former finance minister but withdrew its report in early September.
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