April 24

Administrative Law Digest

This post contains a roundup of recent developments (in and out of courts) and recent 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. UK: The UK Supreme Court ruled that the Environmental Agency had to compensate a fisherman per Article 1 of Protocol 1 of the ECHR for the severe and disproportionate effects caused by conditions imposed on his fishing license that limited the number of fish he could catch in a year, on the basis that the Agency had given no consideration to the particular impact on his livelihood and that the measure was “closer to deprivation than mere control”.
  2. UK: The Court of Session in the Inner House of Scotland allowed an application by Scottish politicians for judicial review of Article 50, holding that the issue of whether it is legally possible to revoke the notice of withdrawal was one of great importance and was a point of substance that should be argued before the Court.
  3. India: The Supreme Court of India fixed an upper limit of Rs 50 as application fee that government authorities can charge those seeking information under the right to information act and held that an applicant need not mention the “motive” while filling out the application form.
  4. India: The Supreme Court stayed a Delhi High Court order setting aside the mandatory six-month training needed for performing ultrasonography, holding that inter alia, judicial review cannot extend to reappreciating the efficacy of a legislative policy adopted in law enacted by the competent legislature.
  5. Malaysia: The Federal Court of Malaysia held that the Election Commission’s recommendations for a redelineation exercise in parliamentary and state constituencies was not subject to judicial review because the Election Commission’s actions did not bind parties; rather, it was for the House of Representatives to decide on the matter of redelineation.
  6. Malaysia: The Federal Court of Malaysia dismissed a legal challenge against the registration of 949 voters at an allegedly unfinished army camp in Segamat, because the Election Commission had already gazetted their registration, following which the matter is non-justiciable.
  7. US: The United States Supreme Court unanimously held that the Securities and Exchange Commission’s view was not entitled to Chevron deference to uphold its interpretation of “whistleblower” for the purposes of the anti-retaliation provision in the Dodd-Frank Act because the language of the statute was not ambiguous.
  8. Hong Kong: The Court of First Instance rejected a bid for a legal challenge initiated to strip newly-elected lawmaker Vincent Cheng Wing-shun of his Kowloon West Legislative Council seat, questioning the standing of the Applicant who was not an elector entitled to vote at the by-election for the constituency and holding that there was “no proper basis” for the allegations.
  9. Hong Kong: The Court of First Instance refused to exercise discretion to allow for judicial review against a decision to ban Agnes Chow Ting from running in the Legislative Council by-election, holding that the granting of leave to apply for judicial review could have a “most deleterious effect” on the by-election.
  10. Hong Kong: The Court of First Instance allowed a claim brought forth by a torture claim applicant against the Torture Claims Appeal Board after one of its adjudicators refused to adjourn the hearing even though the claimant, who was eight-and-a-half months pregnant, was suffering from pregnancy-induced pain, holding that inter alia the failure of the adjudicator to acknowledge what the applicant had said and deal with it properly and fairly meant that there was an error of law and procedural irregularity.

Recent Scholarship

  1. Bradley, Curtis, A.; Goldsmith, Jack, L.; Presidential Control over International Law, Harvard Law Review, 131 Harv. L. Rev. 1201, (explores regulatory apparatus to guide or review the exercise of presidential control over international law, and assesses the costs and benefits of additional accountability reforms that might become appropriate.) 
  2. Gluck, Abbe, R.; Posner, Richard, A.; Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, Harvard Law Review, 131 Harv. L. Rev. 1298, (explores federal appellate judges’ approaches to statutory interpretation and views on the Chevron deference)
  3. Grammel, Shannon, M.; Macey, Joshua, C.; The Costs of Aggregating Administrative Claims, Stanford Law Review Online, 70 Stan. L. Rev. Online 123 (2018), (explores aggregation, currently used as a tool to consolidate similar claims in a single proceeding to help agencies process claims more quickly, efficiently and fairly).
  4. Walters, Daniel, The Self-Delegation False Alarm: Analyzing Auer Deference’s Effect on Agency Rules, Columbia Law Review, 2018 (forthcoming), (explores the “perverse incentives thesis”, which argues that Auer deference’s effects to the rulemaking processes of agencies has resulted in agencies’ promulgation of vague rules, the augmenting of agency power and the violation of core separation of powers norms in the process).
  5. Grammel, Shannon, M.; Chevron Meets the Categorical Approach, Stanford Law Review, 70 Stan. L. Rev. 921 (2018), (explores whether the Federal Court of Appeals should apply Chevron deference vis-à-vis the Board of Immigration Appeals’ interpretation of the Immigration and Nationality Act against the categorical approach).
  6. Bruhl, Aaron-Andrew, P.; Statutory Interpretation and the Rest of the Iceberg: Divergences between the Lower Federal Courts and the Supreme Court, Duke Law Review (forthcoming), (explores the methods of statutory interpretation used by the lower federal courts and compares those methods to the practices of the US Supreme Court)

Current Events

  1. US: The Supreme Court of the United States has declined to review a lower court opinion upending the Trump-imposed deadline of 5 March 2018 for the termination of the Deferred Action for Childhood Arrivals (“DACA”) program and declined to review a lower court opinion blocking Arizona from excluding DACA recipients from being able to obtain driver’s licenses
  2. US: President Donald Trump issued an Executive Order to block Broadcom’s takeover of Qualcomm on the basis of national security concerns, stating that there is credible evidence that Broadcom “might take action that threatens to impair the national security of the United States”.
  3. US: The Centre for Biological Diversity sued the US Department of State following its failure to release records that could show why it has not filed a report required under the Paris Accord, which it claimed violated the Freedom of Information Act and the Administrative Procedure Act.
  4. US: The Supreme Court of the United States declined to consider rolling back the wide latitude federal agencies are given to interpret their own regulations, otherwise known as the Auer deference.
  5. UK: Lanre Haastrup, the father of Isaiah Haastrup, whom the Court gave permission to withdraw life support from in January, has filed for judicial review against a ban by the King’s College hospital NHS foundation trust following allegations that he had been verbally abusive and aggressive, on the grounds that such ban was, inter alia, out of proportion.
  6. UK: CityFibre, owner and operator of fibre-optic infrastructure, filed for judicial review of the Advertising Standards Authority’s ruling, which approved the continued use of the term ‘fibre’ to describe services delivered over copper-based networks.
  7. UK: The Mayor of London and two victims of serial sex offender John Worboys has filed for judicial review against the decision of the Parole Board to release him, arguing that the Parole Board was wrong to rely on Worboys’ “honesty” as evidence that it was safe to release him.
  8. UK: The High Court declined to back the motion by the Good Law Project to force the national government to release internal reports into the issues facing the country during and after it leaves the European Union, holding that the proper route for seeking disclosure of these documents was through the Freedom of Information process.
  9. Canada: Uber will inform all Canadians whose personal data may have been compromised in a 2016 breach after Alberta’s privacy commissioner ruled it must notify impacted drivers and riders in the province, even as it plans to file for a judicial review of the ruling because it argues that the breach did not create a real risk of significant harm.
  10. Singapore: Singapore passed the Public Order and Safety (Special Powers) Act, which would allow the Minister to make an activation order to limit unauthorised communications to reduce the risk of security operations being compromised, an order which remains subject to judicial review.
  11. Hong Kong: The Court of First Instance will hear a legal challenge to disqualify pro-democracy lawmaker Au Nok-hin, newly-elected in the 2018 Legislative Council by-election. The writ claimed that Au should not be allowed to run due to his alleged support for self-determination and Hong Kong independence, and sought an injunction to prevent him from taking his oath of office.