****DICEY AND THE RULE OF LAW*****

The Rule of Law and the Administrative State –

- The rule of law is an ideal to which appeals are regularly made by proponents and their critics of
measures relating to the design and delivery of public programs. Like the concepts of liberty and
democracy, the rule of law has no generally agreed meaning as applied to law and
administration.
- However, the root idea – namely, that government should be subject to law – is on that, like
democracy and liberty, will not go away.
- Reference Re: Secession of Quebec
o The Supreme Court recognized the rule of law as one of the four underlying principles of
the Canadian Constitution: federalism, democracy, constitutionalism and the rule of law,
and the protection of minorities.

Dicey and the Liberal Idea of the Rule of Law:

- The most important elements of Dicey’s definition of the rule of law are that no one should be
made to suffer except for a distinct breach of the law and that government and citizens alike are
subject to the general law of the land administered in the ordinary courts.
- This definition has been employed to attack the statutory grant of broad discretion enabling
public officials to restrict individuals’ freedom of contract and property rights. The principle
objections to such powers are that they may be used to discriminate improperly against or to
favour particular individuals or groups, it is difficult to hold officials democratically accountable
for such essentially discretionary decisions, and individuals should be able to plan their lives in
accordance with known rules of general application.
- An equally important influence of Dicey’s definition of the rule of law is that it insists that, in the
common law world as opposed to the legal systems that are derived from or influenced by the
Napoleonic Code, there is no separate body of public law, administered outside the “ordinary
courts”, applicable to relations between the government and individuals. This proposition has
led to two important developments in Canadian administrative law. First, Dicey’s assertion has
provided a theoretical justification for the exercise by the superior courts of their supervisory
jurisdiction over administrative agencies on the grounds of procedural unfairness and illegality,
even when the legislature has apparently expressly excluded judicial review. In Crevier v. A.G. of
Quebec, the Supreme Court held that it is beyond the constitutional competence of provincial
legislatures to remove the superior court’s supervisory jurisdiction over administrative agencies.
That principle was extended to federal Parliament in MacMillan Bloedel Ltd v. Simpson. Second,
entrenching the superior courts as the arbiters of disputes between individuals and the
administrative institutions of the state has given a dominant role in shaping the legal framework
of public program delivery to patterns of thought about law that are associated with the
common law. For example, legal notions of procedural propriety in administrative decision
making have been much more influenced by the paradigms of litigation and the judicial process
than by the bureaucratic model or the notion of participatory democracy. Additionally, when
reviewing for legal error an agency’s interpretation of its enabling statute, the courts have
approached the task as they would if hearing an appeal from a court occupying a lower position
in the same hierarchy. Thus, while the agency may have an expertise in the policy aspects of the
program that it is administering, the interpretation of legislation to determine individuals’ rights
is the province of the judiciary.
The Functionalist Critique:
- Functionalist criticisms of the liberal version of the rule of law are three fold. First, writers began
challenging the historical accuracy of Dicey’s assertions that the rights of English people were
subject to general law, and not to official discretion, and that there was in England no special
body of public law for regulating legal relations between citizens and the state. They have
pointed out, for example, that at common law the Crown was immune from liability in tort.
Second, they have pointed out that Dicey’s disapproval of broad administrative discretion and
his support for affording to the “ordinary courts” a key position in the resolution of disputes
between the individual and the administrative state could only thwart the effective
implementation of legislatively enacted public interest programs of regulation and
redistribution. The litigation process reduces to a “question of law” or an issue of procedural
“fairness” complex policy choices that are more helpfully considered in the context of the
program that the agency is administering than in the context of general legal principles. Third, it
has been argued that the positivist legal tradition, of which Dicey’s thought is a part, has failed
to appreciate that law is inextricably intertwined with policy. Given the limitations of legislative
foresight and the inherent ambiguities of language, it is normally not possible to determine,
when contested, the meaning of a provision in an agency’s enabling legislation without also
considering the consequences that one interpretation rather than another would have for the
program that the legislation had been created by the legislature to deliver. It is argued that the
specialist agency is more likely than any reviewing court to be in a position to make an informed
assessment of the interpretation that will enable the program to be most effective.
- Thus, a functionalist approach to administrative law stresses that, as regulator and provider of
benefits, the state should be regarded as a source of good. It is the function of the law to
enable administrative agencies to carry out effectively and efficiently the tasks assigned to
them by the legislature.
- This approach has exerted a significant influence on developments in the law of judicial review
of administrative action in Canada since the early 1980s.

The Rule of Law, Democratic Values, and Fundamental Rights:

- There is no doubt that the functionalist analysis has provided an important corrective to the
view of the rule of law propounded by Dicey. However, it seems that the functionalist approach
tends to attach insufficient weight to considerations of democratic accountability and to
fundamental rights and to the positive contributions that the courts can make to realize these
goals. In fact, the courts seem to enjoy more public confidence than most other institutions of
government.
- It seems possible to rework some of the elements of the liberal version of the rule of law so as
to provide a role for the law of judicial review in advancing these values in the contemporary
administrative state, especially in the age of the Charter. First, at a time when there has been a
dilution in public confidence in the capacity of the traditional political process, it is appropriate
for administrative law, both through statutory reform and judicial review, to ensure procedural
openness and enhance accountability in public administration. Direct public participation in
decision making at the level of the agency delivering a program may go some way to
compensate for the limited oversight exercisable by the legislature. However, because of the
limitations of their institutional competence, courts should not lightly intervene if the agency
has come up with a procedure that represents a good faith attempt to balance the claims of
democratic accountability against program effectiveness and efficiency. Second, while reviewing
 courts should normally show a measure of deference to a specialist agency’s interpretation of its
enabling statute, it is appropriate to scrutinize more closely decisions that seem contrary to the
interests of the intended beneficiaries of the legislation or to that aspect of the public interest
that the legislation was enacted to protect. In this way, the courts can provide a counterweight
to the pressure that private economic interests so often are able to bring to bear on public
agencies. Third, the force of the functionalist claim is appreciated, which asserts that it is often
futile to imagine that the legislature had a “meaning” in mind when it enacted a provision in a
statute that has to be applied to a set of facts that was almost certainly not foreseen, and that
the most reliable guide to the “intention of the legislature” is an interpretation that best
furthers the purpose of the statute, a matter that the agency will often be better placed to
determine than a reviewing court. However, as is suggested by the notion of the separation of
powers, the independence of the judiciary and its experience across a wide spectrum of the
legal system make it appropriate for the courts to be prepared to intervene when satisfied that,
after making due allowance for agency expertise, linguistic ambiguity, and an approach to
statutory interpretation that emphasizes legislative purpose, the agency’s interpretation was
wrong. Fourth, since the Charter applies to governments and legislatures, agencies charged with
the implementation of a public program should be alert to the possibility that administrative
action may violate a Charter right. However, the courts have also said very clearly that the
Charter gives no mandate to the judiciary to roll back the statutory protections of the welfare
and regulatory state: infringements of Charter rights must be carefully weighed against other
competing public interests. Thus, it should not be presumed that to remain within its legal
authority an administrative agency must implement a statutory scheme for the delivery of a
public program with minimum interference to individual Charter rights.

Dicey's functional approach

Variety of definitions and meanings of the rule of law are best mingled in A.V. Dicey’s general and
influential approach to the concept. [20] According to him, the basis of the doctrine of rule of law
springs from the notion that ‘every man, whatever is his rank or condition, is subject to the ordinary law
of the realm and amenable to the jurisdiction of the ordinary courts.’ [21] He emphasised on three
aspects of the rule of law: (1) no one can be punished or made to suffer except for a breach of law
proved in an ordinary court; (2) no one is above the law and everyone is equal before the law regardless
of social, economic, or political status; and (3) the rule of law includes the results of judicial decisions
determining the rights of private persons. [22] While summing up the meanings of the ‘rule of law’ that
he proposed, Dicey observed that it means, in the first place, the absolute supremacy or predominance
‘of regular law as opposed to the influence of arbitrary power, and excludes the existence of
arbitrariness, of the prerogative, or even of wide discretionary authority on the part of the government.’
According to Dicey, government and its officials should not have any special protection of law. Neither
should they be exempted from the application of law to them. He did not like the French system where
government activities were dealt with by separate administrative courts. He considered this system to
be too partial in favour of the government. Under this concept Dicey is not arguing that all persons have
equal powers and rights. Dicey’s argument can be split into two aspects: that every one is subject to the
same law and that every one is subject to the ordinary courts of the land. [23]