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The Political Problem with the Administrative State

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The Political Problem with the Administrative State Mancini Final (Do Not Delete) 9/28/20209/28/2020 3:12 PM THE POLITICAL PROBLEM WITH THE ADMINISTRATIVE STATE * MARK P. MANCINI ABSTRACT. This paper argues that, in the administrative state, political controls (such as appointments and reappointments) are a desirable and necessary tool to subject administrative actors to accountability. The paper exhorts human rights advocates to accept some element of these controls (and the risk of abuse of these controls) in the administrative state, while focusing attention on problematic uses of delegated power: particularly, those uses of delegated power that undermine the overall statutory scheme. KEYWORDS: administrative law, political control, delegation, administrative tribunals, independence, accountability. * National Director, Runnymede Society. J.D., University of New Brunswick, LL.M., University of Chicago. 55 Mancini Final (Do Not Delete) 9/28/2020 3:12 PM 56 JOURNAL OF COMMONWEALTH LAW [Vol. 2 I. INTRODUCTION There is a tension1 in administrative law between the principles of political control2 and independence.3 On one hand, political control (power over appointments, reappointments, and other forms of control over tribunals and decision-makers) comes from the desire to subject all power, including delegated power, to the scrutiny of Parliament and therefore the people.4 1 Lorne Sossin, ‘The Uneasy Relationship between Independence and Appointments in Canadian Administrative Law’ in Grant Huscroft and Michael Taggart, eds, Inside and Outside Canadian Administrative Law: Essays in Honour of David Mullan (Toronto University Press 2006) 50. 2 See Law Reform Commission of Canada, Political Control of Independent Administrative Agencies Study Paper (1979). 3 For the purposes of this paper, I distinguish, like the Supreme Court does, between “impartiality” and “independence”. I am concerned with the latter, as explicated by the Supreme Court in the context of judicial independence. See Valente v The Queen [1985] 2 SCR 673, 685: “…[independence] connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees”. See also generally, in the context of administrative tribunals, Canadian Pacific Ltd v Matsqui Indian Band (1995) 122 DLR (4th) 129. I explore the Valente and Matsqui independence principles below. See also Law Reform Commission of Canada, Independent Administrative Agencies Working Paper 25 (1980). 4 This is the upshot of the idea of responsible government. See A.H. Birch, Representative and Responsible Government (George Allen & Unwin Ltd 1964) 96: “The principle of legal responsibility extends to all acts of the Crown within the administrative jurisdiction of the minister’s department. This is the means for allocating legal responsibility for the state’s presence over its range of influence. Derived from this is the minister’s political responsibility to try to satisfy the House of Commons as to whatever subjects may interest the House in that portfolio. The minister is the ‘constitutional mouthpiece through which departmental actions will be defended or repudiated and from whom it is to be sought’”. See also Geoffrey Marshall & Graeme C Moodie, Some Problems of the Constitution (Hutchinson & Co, 1959) Mancini Final 28 Sep 2020 (Do Not Delete) 9/28/2020 3:12 PM 2020] THE POLITICAL PROBLEM 57 In 1980, for example, the Law Reform Commission wrote that because “our constitutional traditions stress the importance of retaining administrators under the supervision of responsible Ministers,”5 administrative authorities should “be established within departmental confines unless there are very good reasons for constituting them as independent agencies.”6 This admonition represents a desire to ensure that delegated law- making does not run afoul of basic democratic protections. On the other hand, there is clearly a desire to prioritize independence, particularly of adjudicative functions.7 While independence is a notoriously slippery concept in Canadian administrative law,8 and it is somewhat unclear in the jurisprudence, 9 the Supreme Court has recognized that agencies exercising adjudicative functions should have some 5 Independent Agencies (n 2) 74. 6 Ibid. 7 For this proposition in administrative agencies generally, see H.H. Janisch, ‘Independence of Administrative Tribunals in Canada: In Praise of Structural Heretics’ (1988) 8 J Nat’l Ass’n Admin L Judges 75, 79. 8 For attempts to deal with the problem, see e.g. Lorne Sossin, ‘The Puzzle of Independence for Administrative Bodies’ (2009) 26 NJCL 1; Lorne Sossin & Charles Smith, ‘The Politics of Transparency and Independence before Administrative Boards’ (2012) 75 Sask L Rev 13; Laverne Jacobs, ‘Tribunal Independence and Impartiality: Rethinking the Theory after Bell and Ocean Port Hotel—A Call for Empirical Analysis’; Laverne Jacobs, ‘A Wavering Commitment? Administrative Independence and Collaborative Governance in Ontario’s Adjudicative Tribunals Accountability Legislation’ (2010) Windsor Yearbook of Access to Justice 285, 294. 9 Jacobs (n 8) 294: “Administrative bodies are said to be “independent” because of the absence of close control over their decision-making by the executive branch of government. “Independence,” however, does not indicate a total lack of connection to the executive or legislative branches of government. On the contrary, administrative bodies usually have a designated Minister of Cabinet who is responsible for reporting on their activities to the legislature”. Mancini Final (Do Not Delete) 9/28/2020 3:12 PM 58 JOURNAL OF COMMONWEALTH LAW [Vol. 2 independence at common law.10 This is perhaps most true in the context of human rights decision-making, where statutes protecting human rights have a “quasi-constitutional” status.11 Indeed, the human rights tribunal arose as part of an entire mission to empower administrative actors, under the propositions that agencies could expertly and efficiently deal with social issues of broad importance in a fair manner. Accordingly, independence for these and other tribunals is seen as an unalloyed good; 12 for example, Sossin & Smith suggest that appointments should be made independently from government actors;13 and Justice Abella says that “human 10 Bell Canada v Canadian Telephone Employees Association 2003 SCC 36 [31]. This discussion shows that the Tribunal, though not bound to the highest standard of independence by the unwritten constitutional principle of adjudicative independence, must act impartially and meet a relatively high standard of independence, both at common law and under s. 2(e) of the Canadian Bill of Rights. 11 Ibid. See also Canada (Human Rights Commission) v Simpsons-Sears Ltd. [1985] 2 SCR 321, 329. 12 Sarah Hamill, ‘The Alberta Liquor Control Board and the Question of Administrative Independence, 1924-1939’ (2016) 53 ALR 747, 753: “Clearly, the notion of independence had and still has some degree of cultural importance; independence is, after all, generally seen as an unqualified good”. Sossin, ‘Uneasy Relationship’ (n 1) 52: “Is there a compelling reason why someone coming before an adjudicative tribunal should enjoy fewer protections of decision-making impartiality and independence than someone coming before a court—especially since many tribunals have jurisdiction that once belonged to the courts?”; Murray Rankin, ‘Accountability of Administrative Tribunals: Does the Present Design Ensure Independence?’ in Governance of Public Institutions, Professions, Corporations, Tribunals and Courts: Ethics, Responsibility and Independence (CIAJ annual conference, La Malbaie, 2004), 2: “All administrative justice suffers if people that “the system” is stacked against them”. 13 Sossin & Smith (n 8) 51. Mancini Final 28 Sep 2020 (Do Not Delete) 9/28/2020 3:12 PM 2020] THE POLITICAL PROBLEM 59 rights” are the “heart of justice,” and a general norm of independence its “soul.” 14 But independence and political control are not equal values on a balancing scale. In fact, independence is merely a function of how much political control is exerted over particular agencies; and so political control is the dominant principle over independence. This is because (1) the administrative state is a creature of statute, limited by the terms of the enabling power; 15(2) administrative tribunals are formally, if uneasily,16 placed in the executive branch of government, “appointed and funded by the executive and…subject to executive-led procedures, practices and policies”17 and always subject to legislative override.18 The idea is that tribunals are under the control of political masters: executives exercising delegated power can control tribunals, for which control they are responsible. But the situation is not always so clear-cut. Indeed, sometimes, politicians can abridge delegated power not by infringing on 14 As cited by Nurjehan Mawani, ‘Issues of Independence, Accountability and Ethics facing Administrative Tribunals and the experiences of the Immigration and Refugee Board’ (The Council of Canadian Administrative Tribunals 1999 International Conference) 2-3. 15 See Canada (Minister of Citizenship and Immigration) v Vavilov 2019 SCC 65 [108]. For a classic statement of the “subordination” of administrative decision- makers (and by extension, executives) to law, see A.V. Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 1885) 40. 16 Sossin takes a slightly different view:
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