Cora Chan – Weight and Balance: Understanding Daly’s Framework of Common Law Administrative Law

In Understanding Administrative Law in the Common Law World (OUP, 2021), Paul Daly sets out to offer a framework for rationalising, justifying, and guiding the development of, administrative law in numerous liberal common law jurisdictions. The framework is structured around four values that Daly argues underpin a modern liberal democracy (p. 256): 1) protecting “individual interests which are important because they contribute to individual self-realisation”; 2) promoting “effective and efficient public administration”; 3) “respecting the roles of elected representatives”; and 4) maintaining “decisional autonomy” for administrators and the courts (pp. 14-16). These values are broadly defined. They cover “decisional accuracy” (which Daly considers under, inter alia, the third value; e.g. pp. 17, 92) and appear to cover at least some institutional considerations (e.g. Daly considers the constraints on judicial resources under the second value, pp. 189-190. It is unclear, however, which institutional considerations are covered and which are not. See e.g. the discussion on pp. 169, 191). He argues that contemporary administrative law should be understood as a result of the complementarity of, and balancing amongst, the four values, that such complementarity and balance justify administrative law, and that the courts should continue to develop administrative law by reasoning in terms of these values.

Daly’s project is ambitious, all the more so given the variegated character of administrative law. The book is impressive in its breadth. It covers core features of the judicial review of administrative actions – ranging from the procedural, institutional and substantive principles of such review to the scope of review and remedies – and engages incisively with the case law of Australia, Canada, England and Wales, Ireland and New Zealand. The persuasiveness of Daly’s framework is due in no small part to his thorough grasp of case law, with the four values around which it is structured derived from an interpretative study of cases (pp. 14, 22-23). What will be of particularly lasting value is his pluralist approach, which he distinguishes from “monist” theories that trace administrative law to a single “meta-principle” such as the abuse of power or jurisdiction (pp. 1, 13, 235). For a discussion of monist theories, see Joanna Bell, The Anatomy of Administrative Law (Hart, 2020), ch 7. Some such theories, insofar as they are able to rationalise the main areas of administrative law, suffer from the pitfall that the “master” principle (p. 1) they settle on is vacuous. What Daly has managed to do is to elucidate the multiple values at play in the courts’ reasoning in judicial review, thereby enriching understanding of administrative law. Furthermore, given the influence that the administrative law in the jurisdictions he covers has exerted on the rest of the common law world, his framework is applicable not just to those jurisdictions, but also to other common law regions. The book brings a rare order and clarity to a disparate field without sacrificing its nuances and diversity. In what follows, I offer four comments that I think will help readers to better appreciate the utility and limits of Daly’s framework.

The “value” of decisional autonomy

My first comment relates to the fourth value, which Daly phrases as the protection of decisional autonomy. Unlike the three other values, however, protecting the decisional autonomy of the courts or government is not in itself a value. Rather, it is a means by which to achieve other values. Maintaining decisional autonomy can enable individual institutions to focus on “what they do best” (as Daly acknowledges on pp. 19, 262), and hence lead to more efficient governance. It can also, as a result of the dispersal of power, better protect liberty. The question is whether the values achieved by maintaining decisional autonomy are completely reducible to the three other values in Daly’s schema such that this fourth value is made redundant. Perhaps a more plausible candidate for the fourth value would be “checks and balances”, a concept that figures prominently in Daly’s analysis of the fourth value (see e.g. p. 18). I do not have an answer to the question of whether checks and balances constitutes a value in and of itself or whether it is reducible to the three other values, but it is at least on its face a more plausible candidate for a value than is the protection of decisional autonomy.

Weighing the four values

My second comment focuses on the relative weight of the four values. The balance amongst the values hinges on the impact of the administrative decision in question upon those values, as well as on the relative weight of the values.1 For example, requiring the immigration authorities to grant a hearing before they refuse a resident entry may have a considerable impact on efficient governance, but the weight of the consideration of efficient governance may be light compared to that of protecting residents’ interests. Both impact and weight vary with the context, and as Alison Young argues in this symposium, both involve contested normative judgments. Due to constraints of space, I focus on the issue of weight in this commentary. Daly is aware that the four values may not have the same traction in every case, that some values may outweigh others at times (pp. 21, 43, 92, 236) and that in certain instances “individual interests can be understood to have been paramount” (p. 114). However, the issue of how weights should be assigned does not feature in his analysis; all we know is that he believes that the courts must assign each value a non-negligible weight (“giving each [value] as much effect as possible… without emptying the others of substance altogether” (p. 64)).

Highlighting that the contested issue of the relative weight of the values plays a crucial role in determining the balance amongst them reveals that in order to show that administrative law is justified and to meaningfully guide judges, Daly’s framework has to be supplemented by at least a theory of weights, i.e. a theory of how weights should be assigned. The “recipe provided by the four values” alone cannot “justify the balance judges have struck between” them (p. 26, emphasis in original). His endorsement of case law is an endorsement not just of the values that may underlie those court decisions but also of the weights attached to those values, although he does not always fully explain why the weights attached to particular values are justified. (He does, however, explain why he thinks the weights attached are unjustified on at least one of the few occasions in which he disagrees with the court; see his discussion of Coughlan at pp. 241-242).

A theory of weights would help to account for divergences in the law across contexts and jurisdictions, as well as the evolution of the law over time. Furthermore, the idea of weight is needed to distinguish the framework as one of judicial reasoning as opposed to, say, legislative or executive reasoning. The four values, as broadly defined by Daly, can arguably rationalise not only judicial reasoning but also legislative and executive reasoning on law and policymaking. For example, the political branches of the government can also be said to be balancing the values of protecting self-realisation, good governance, electoral legitimacy and decisional autonomy in policymaking.2 The difference between their reasoning and that of the courts may lie, inter alia, in the relative weight that they attach to those values by virtue of their constitutional roles. For example, the courts can be expected to attach greater weight to the protection of individual self-realisation by virtue of their role in protecting individual rights. Even if the courts cannot completely ignore the value of efficient governance – which may be of primary importance to the executive – that value may be of subsidiary importance to the courts, when compared to the value of protecting individual interests. The values themselves illuminate what connects the law across time, space and institutions, but a theory of weights is needed to rationalise any divergences therefrom.

Intra-value balancing

A third comment follows from the foregoing discussion. As it stands, Daly’s value of protecting individual self-realisation covers the interests of both the applicants in judicial review and third parties. This formulation is unproblematic insofar as the normative interests that the court needs to protect are concerned, but for analytical clarity it may be desirable to treat the protection of the two sets of interests as separate values. In judicial review, the courts often have to balance the interests of the applicant against those of third parties. If the interests of both are lumped together as a single value, then the courts will often have to engage in intra-value balancing, an exercise that may become even more complicated when a consideration of weight enters the scene: the institutional role of the court may call for it to attach different weights to the value of protecting the applicant’s interests and that of protecting third parties’ interests. To better provide guidance for the development of administrative law, it may therefore be desirable to treat protection of the two sets of interests as separate values, or to at least foreground the distinction between the two.

Non-political values?

Finally, my fourth comment concerns Daly’s argument that the four values are “not political; they do not represent judges’ personal preferences as to how the law ought to evolve” (p. 261, emphasis in original). This remark needs to be unpacked. Given the legal source of the values (i.e. Daly derives them from case law, and the values are uncontrovertibly values in a liberal democracy), a court decision to apply them can indeed be said not to be based on personal preferences as to how the law ought to develop. However, the application of these values is often controversial. As Young argues, judgments on what the values encompass and the respective weights of the values can be contested. Of course, that does not mean that judges necessarily make such judgments based on their personal preferences, but the judgments are political in the sense that they are judgments on which reasonable minds may differ.

Conclusion

Daly’s analysis reveals the dynamism, pragmatism and versatility of administrative law in responding to the imperatives of increasingly complex societies, while anchoring it in the values of a liberal democracy. In his hands, administrative law across the liberal common law world is a tapestry woven by the same set of values. What I find particularly valuable from the perspective of a researcher in Hong Kong is that the book enables me to see the affinity of the city’s common law administrative law with that in liberal democratic jurisdictions – not just in doctrine, but in the underlying values as well. Such affinity reveals the relative immunity of Hong Kong’s administrative law to the fraught political and constitutional developments in the region in recent years, and hence the potential of this area of law to preserve the liberal status of Hong Kong’s legal order, a common law legal order that operates within a socialist authoritarian regime. The book is elegantly written and makes an intricate field accessible. It succeeds in delivering its primary goal to provide a framework for understanding administrative law that people can “quickly and easily grasp” (p. 1). I highly recommend it to all students, researchers and practitioners in public law, administrators, legislators, judges, and, more generally, anyone who wishes to better comprehend common law reasoning.


Cora Chan is an Associate Professor of Law at the University of Hong Kong.

Notes

1. See e.g. Robert Alexy, “On Balancing and Subsumption: A Structural Comparison” (2003) 16(4) Ratio Juris 433, 436-439; Robert Alexy, A Theory of Constitutional Rights (OUP, 2002) 405-414. For an excellent application of Alexy’s weighted balancing test, see Danny Gittings, Separation of Powers in Hong Kong: A Rationale-based Approach Towards the Allocation of Governmental Functions (PhD thesis submitted to University of Hong Kong in January 2022).

2. How well it can rationalise the latter depends, inter alia, on the extent to which the four values cover institutional and policy considerations, an issue that, as noted above, is unclear.

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