19 September 2006

Lord Cooke - some reflections: Simplicity and Fairness in Adminstrative Law

Below are my remarks for a panel address today hosted by the NZ Centre for Public Law and the Faculty of Law on Lord Cooke of Thorndon: "Lord Cooke – Some Reflections: Simplicity and Fairness in Adminstrative Law" Dean Knight Lecturer, Faculty of Law (Acting) Co-Director, New Zealand Centre for Public Law Victoria University of Wellington Lord Cooke was one of New Zealand's pre-eminent administrative law scholars and jurists, if not our finest. Sir Robin had a great passion for administrative law. His award winning PhD in Cambridge in 1954 – "Jurisdiction: An Essay in Constitutional, Administrative and Procedural Law", in which he examined and critiqued the adoption of "jurisdiction" as an organising principle in administrative law – signalled his passion and expertise in this area. Around that time he lamented the fact that "Administrative Law" was not found as a title in Halsbury's Laws of England or in the index to the Law Reports. Nowadays those oversights have been corrected. Notably, Halsbury's chapter on administrative law now contains numerous citations to Lord Cooke's contribution to administrative law jurisprudence. And the introduction to the equivalent chapter in our Laws of New Zealand honours that way in which Lord Cooke "charted the direction" for administrative law in New Zealand over the last 30 years, particularly his rejection of legal formalism in the area. Sir Robin himself estimated that around 40% of reported appellate court decisions concerned administrative law or had some administrative law element. And if one undertook that same analysis today in our New Zealand law reports, Sir Robin's name would appear at the top of many of those decisions. It is therefore no easy task to reflect on Sir Robin's contribution in this area, both in his adjudicative role and his extra-judicial writings. Professor Taggart recently said administrative law was "one of the areas – arguably the area" Sir Robin had "made his own". A recital of his significant contributions would seem like a verbatim recital of many chapters from Professor Joseph's text on constitutional and administrative law or GDS Taylor's commentary on judicial review. Sir Robin's contribution has been interwoven throughout our country's development of its unique jurisprudence in this area. And, of course, also on the international stage. One could point to many of the significance administrative law cases in which he adjudicated or in which he helped shape the development of administrative law principle, such as: • his treatment of mandatory relevant considerations in CREEDNZ; • Finnigan, the Springbok tour case, and his discussion of the justiciability of private decisions with a significant public impact; • the seminal decision on the disclosure of official information, Commissioner of Police v Ombudsman; • Tavita, Ashby and the relevance of international law to domestic administrative law; • the manifestation of the Treaty in administrative law through the NZ Maori Council series of cases; • the Casino Control Authority and the test for bias. However, rather than adopting a blow-by-blow account of Lord Cooke's contribution, I wish to focus on a few of themes which, in my view, underscored his philosophy in this area: • first, a desire for simplicity; • secondly, the pursuit of fairness; and • thirdly, his acceptance of discretion. The desire for simplicity was one of Lord Cooke’s hallmarks. In his 1980s article – “The Struggle for Simplicity in Administrative Law”, he championed “clarity and simplicity” over the “superfluous complications of principle” and use of “phrases of somewhat arcane concepts, in the nature of catchwords or half truths [or] shibboleths”. This critique was not intended to be mere window-dressing. In Bulk Gas, for example, he rejected the concept of jurisdiction and jurisdictional error in favour of the simpler "error of law" formulation. Similarly, his own formulation of the tripartite cardinal principles of administrative law – that decision-makers “must act in accordance with the law, fairly and reasonably” – represented a more straight-forward articulation than Lord Diplock's famous "illegality, irrationality, and procedural impropriety" formulation from the CCSU case. Indeed, Sir Robin commented on their similarity, although took some pleasure in noting that his initial expression of these principles in his address to the Auckland District Law Society came some 5 years before the CCSU case. In this theme, Sir Robin was also a staunch critic of the expression of so-called Wednesbury principles. He described the "irrationality" test for substantive review of decision as "tautologous and exaggerated” and advocated a simpler, and less extreme, formulation of the test of reasonableness:
“[Is] the decision in question … one which a reasonable authority could reach[?]”
In his view, such a formulation would still “give the administrator ample and rightful rein, consistently with the constitutional separation of powers”. Similarly he was a fan of the so-called "innominate" ground of review expressed by Lord Donaldson in the Guinness case: the standard being "whether something had gone wrong of a nature and degree which required the intervention of the court". Lord Donaldson's formulation mirrored his own expression of the concept of substantive fairness in the Thames Valley case, which he described as “a legitimate ground of judicial review, shading into but not identical with unreasonableness”. Sir Robin welcomed this as a "refreshing and healthy move away ... from the more formalistic constraints once orthodox" and suggested that:
[J]udges are accepting that they have a responsibility to do practical justice in administrative law as in other fields. Ample room for respect for administrative discretion remains.
And he was a strong champion of fairness. The translation of the motto found on his personal coat of arms says: "To speak in favour of fairness". His judgments expressed the need for the courts to ensure both procedural and substantive fairness when exercising their supervisory jurisdiction. I have already mentioned to his adoption of the principle of substantive fairness and the closely aligned simple expression of the reasonableness standard. To this one can add his strengthening of the principle of procedural fairness in Daganaysi, along with the genesis of the mistake of fact doctrine in the same case. He also often indicated the importance of consultation in ensuring the delivery of natural justice and procedural fairness, notably in administrative decisions relating to Maori and more generally with the populace at large. Again, Lord Cooke was not one to be tied down by legal niceties or formalistic definitions of fairness. He commended the word of Lord Justice Lawton in the Maxwell case:
"From time to time … lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise."
His scholarship and adjudication endeavoured to achieve real justice in individual cases. He was no doubt pleased to see the rejection of legal formalism by our courts continue beyond his retirement from the Court of Appeal. The desire for individual justice also came with an acceptance of discretion in administrative law. Sir Robin once noted that when he was writing his PhD he was "quite well-deposed towards discretion" – in contradistinction to famous administrative law names such as Dicey and Sir William Wade. He went on to say that almost a quarter of a century on the bench had "warmed [his] feelings to something approaching affection for it". He understood the need for both administrative and judicial discretion in this area. However, he accepted that both were subject to limits, but limits which varied according to the subject-matter and surrounding statutory context. He queried whether administrative law might be better renamed "the law of public discretions". His acceptance of the role of discretion and rejection of rigid rules imbued his adjudication and scholarship. His formulation of the grounds of review provided for appropriate discretion. He embraced the discretionary approach to remedies in judicial review, rejecting the strait-jacket presented by the previous "void" – "voidable" distinction. He championed a discretionary approach to procedural matters, such as the question of standing. Discretion was a paramount vehicle to achieving individual justice. Lord Cooke's contribution to New Zealand – and Commonwealth – administrative law was massive. It is marked particularly by its pursuit of simplicity and fairness. We have lost one of our greatest figures in administrative law. Ka hinga te totara o te wao nui a tane. But he will not be forgotten. His legacy in this area will endure.

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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