A SIMPLE COMMON LAWYER

Vol. 20 No. 2 (February, 2010) pp.78-82

A SIMPLE COMMON LAWYER: ESSAYS IN HONOUR OF MICHAEL TAGGART, by David Dyzenhaus, Murray Hunt and Grant Huscroft (eds). Oxford and Portland, OR: Hart Publishing. 2009. 328pp. Hardcover. £45.00/$90.00. ISBN: 9781841139234.

Reviewed by Deidre Bourke, Faculty of Law, University of Auckland. Email: dbou001 [at] aucklanduni.ac.nz.

A SIMPLE COMMON LAWYER is a new text dedicated in honour of the late Mike Taggart, Alexander Turner Professor of Law at the University of Auckland and one of New Zealand’s foremost public and administrative law specialists. Loved by a generation of students, of which I count myself lucky enough to have been one, Mike won numerous awards for both his teaching and publications including the New Zealand Legal Research Foundations JF Northey Memorial Prize (best law book) twice, and Sir Alan Barker Prize (best published article). This text presents a collection of essays written by Professor Taggart’s friends and colleagues. Each chapter focuses on a different aspect of his work and takes an in-depth look at the issues raised by his research. The result is a broad collection of essays that deal with subjects as diverse as the constitutional relationship between Australia and New Zealand, to the treatment of human rights cases, and legitimacy of the rule of law.

Professor Taggart was particularly interested in examining how administrative law as a field was responding and changing as a result of internationalisation, privatisation and the growth of human rights. In an environment where the courts are increasingly moving away from their traditional role, tightly constrained by reference to the intentions of Parliament, Professor Taggart felt that transparent justifications were essential (p.102 and see Taggart 2003). He sought normative principles, attempting to map the expansion or rather reinvention of public law under these pressures. Just as Mike Taggart’s research addressed leading issues of the day and sought to identify the core values underpinning administrative law, the essays in this text tackle key questions such as: What principles can be identified in public law? How can the law be more clearly articulated? What are judges and the courts really trying to do? What should the scope of judicial review be? Where is the public/private law divide?

A Simple Common Lawyer will appeal not just to those in the legal community but to anyone wishing to understand how public law works or critically consider how it should work. If two issues stand out amongst the essays, then it is consideration of the changing public/private law divide and how this should be dealt with, and the treatment and impact of human rights cases on administrative law. In bringing together a diverse collection of authors, the text ensures that a range of perspectives and arguments are brought to bear on the topics addressed. This is especially appropriate given the controversial and political nature of the issues considered [*79] and makes for an all the more interesting and thought provoking read.

Several essays examine the public/private law divide: the impact that globalisation and new right ideologies; the role of the modern state; and the application of public function tests. In Chapter 5, Carol Harlow argues that deregulation, privatization and globalisation has led to hollowed out decentred states that nevertheless maintain significant control through mechanisms such as contract, regulation, shareholding and the hybridisation of bodies (p.80). Harlow asserts that what has emerged is a state that remains highly authoritarian but better able to disguise its ‘controlling tendencies’ (p.97). She is concerned that this ‘Hidden Paw’ of the State is far less accountable, as traditional command and control enforcement models are increasingly substituted by private law values and systems of enforced self-regulation. Specific aspects of this new more regulatory, yet controlling, state are considered. One highly topical issue discussed is the changing relationship between the state and the marketplace. Harlow draws attention to increased state intervention in private markets following of the recent ‘bail out’ packages of the banking sector in the United States, the ‘nationalisation of bad debts’ and corresponding expansion of Treasury’s powers in this area as a result. She also witnesses changing concepts of risk and security following in the wake of 9/11 and growth of a new more powerful uncontrolled ‘surveillance state’ (p.93). Harlow argues that the state remains profoundly interventionist and regulatory, and that it “often verges on despotic” (p97). She is highly critical of the ability of private law to fulfill public functions in this context.

In a later chapter, Janet McLean examines the corollary of this: the potential extension of public law norms to private bodies. McLean discusses the challenge administrative lawyers now face in attempting to determine where and how far the law should tread in this new more highly privatised environment: should public law norms be extended to private bodies? She argues that the extent to which privatsation has caused a crisis can be measured by examining the development and use of public function tests. The extension of public law norms to private bodies is controversial. McLean notes that judges struggle with the methodology in this area and that decisions are increasingly split or inconclusive, as all-or-nothing determinations regarding whether a function is public or private result in decisions that are “uncongenial to the common law way of thinking” (p.199). A recent House of Lords case, YL v BIRMINGHAM CITY COUNCIL [2007] is used to demonstrate the dilemma. In that case the majority was concerned that if a care home was found to be performing a public function, then it would be considered a public authority for all other purposes, while the dissenting judge was concerned that if the home was not performing a public function then few checks and balances would be in place even though the decision makers were making key determinations regarding the care of highly vulnerable patients. McLean goes further however than simply considering how lawyers and the courts are dealing with issues such as this to ask the bigger, perhaps more pertinent question: if [*80] public function tests essentially attempt to determine the role and nature of the state should this determination even be a matter of law – or is it one best left to politics?

The scope of the courts and the role of judiciary are issues raised in several chapters, and many of the authors hold very different views on this subject ensuring a range perspectives and arguments are canvassed in the text. Sir Anthony Mason for example defends “Australian exceptionalism,” or the narrow application of judicial review, which does not extend to merits review, is highly sceptical regarding the utility of legitimate expectations and takes a narrow view of WEDNESBURY unreasonableness. Mason explains that the position results from an emphasis in Australia on the importance placed on separation of powers, so that the role of judges is more limited, and the courts avoid trespassing on administrative decision-making. This also helps explain the country’s hesitancy to adopt a Charter of Rights in preference of adherence to majoritarian democracy. It is argued that the balance of power rests most appropriately with elected politicians rather than unelected judges. Grant Huscroft and Paul Rishworth also address this issue in their chapter ‘You Say You Want a Revolution’: Bills of Rights in the Age of Human Rights,’ where they argue that rights issues are best left to the political process where robust debate can occur and insist there is no evidence to suggest judges are any better at upholding rights (p.149). Conversely in Chapter 4 Sian Elias notes the important role courts play as an impartial arbiter between citizen and state, increasing the level of openness and accountability. Such essays deal with core issues for public law: What is the role and nature of the state? What is the relationship between law and morality? What is the correct balance to strike between the role of the judiciary and of the Executive? How are rights best protected?

Human rights cases and the impact they are having on administrative law is another controversial topic addressed in the text. Human rights cases raise interesting challenges for public law, as they have the potential to broaden significantly the law in this area. In Chapter 6, Murray Hunt notes that in countries without a formal constitution, such as New Zealand and the United Kingdom, human rights adjudication takes place mainly through administrative law and as a result the traditional rules and principles for judicial review have been extended (see pp.01-2 for a discussion of this expansion: the evolution of ‘mandatory relevant considerations,’ introduction of balancing tests, and the increased ability of courts to delve into matters of policy or revisit questions of fact). Hunt argues this broadening constitutes an identification of “real grounds” of review finally capable of ensuring that substantive principles of good administration are applied where the ‘judicially manipulable’ WEDNESDBURY standard could not (p.106). A key issue of debate is whether public law as a whole should be broadened or whether bifurication, or a division between human rights cases and the rest of administrative law is preferable so that grounds remain narrow and constrained elsewhere. Hunt’s chapter takes an interesting look at issues such as judicial activism and deference, the duty to give reasons and [*81] culture of justification, the lack of clarity in relation to proportionality tests, and relative institutional competence. The rule of law, separation of powers, and the importance of the neutrality of the courts between citizen and state all loom large in this debate.

In canvassing the various arguments for and against bifurication, Hunt examines a number of Taggart’s works defending a bifuricated public law, particularly “Reinventing Administrative Law” (Taggart 2003) where Taggart argued constitutionalism and internationalism was broadening and undermining the classic model of administrative law; and “Proportionality, Deference and Wednesbury’” (Taggart 2008) where he argued for a ‘rainbow of review’ governing discretionary decision making. While Hunt argues against bifurication, and rather for a reconceptualisation of public law to broaden and, in his opinion, strengthen the law and prevent it from becoming ‘seriously retrograded,’ he agrees a clearer concept of due deference and more methodological, structured, and transparent framework is necessary (p.120).

Mike Taggart also had a strong interest in legal history, and the text contains a number of essays of a more historical nature, including chapters on the history of modern jurisprudence of aboriginal rights and one on the killing of prisoners at Agincourt which traces protections for prisoners of war.

Though diverse in their nature, it will be evident that almost all of the essays in A SIMPLE COMMON LAWYER take the authors back to the fundamental question of values in law and the role of the courts in applying those values. Some essays do this by examining the historical development of the law, such as Martin Loughlin’s chapter, ‘Why the History of English Administrative Law is not Written,’ which considers the values underlying Dicey’s rules-based regime. Others, like David Mullan’s chapter, “‘Because I Said So!’ Is That Ever Good Enough? – Findings and Reasons in Canadian Administrative Law,’ tackle the issue more directly. Still other chapters take specific concepts and principles and consider their use and merit today. David Dyzenhaus’ essay, for example, discusses the legitimacy of the rule of law itself, arguing that the concept is a moral ideal that provides legal protections in the form of requirements for natural justice and due process. As such, he argues that the concept provides an important moral resource upon which judges can rely in deciding hard cases.

A fitting tribute to Professor Taggart, A SIMPLE COMMON LAWYER offers an insightful, engaging and diverse collection of essays any public law enthusiast will thoroughly enjoy wading into. All the essays in the book reference, draw on or critique Taggart’s work in detail, and for those left craving still more, a list of Professor Taggart’s scholarly publications is provided in the back of the text.

REFERENCES:

Taggart, Michael. 2003. “Reinventing Public Law” in N. Bamforth and P. Leyland (eds). PUBLIC LAW IN A MULTI-LAYERED CONSTITUTION. Oxford: Hart Publishing. [*82]

Taggart, Michael. 2008. “Proportionality, Deference and Wednesbury.” 2008 NEW ZEALAND LAW REVIEW 423.

CASE REFERENCES:

ASSOCIATED PROVINCIAL PICTURE HOUSES v WEDNESBURY CORPORATION [1948] 1 KB 223.

YL v BIRMINGHAM CITY COUNCIL [2007] UKHL 27.

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