4 My own background Grew up in a small Alberta town (population 1000) Attended the U of Alberta (Edmonton), and did a student exchange to Bishop’s University (Sherbrooke, Quebec) during 2nd yearMajored in political scienceWanted to be a lawyer BUT got a scholarship for an MA at U of TMA in Political Science at University of Toronto: loved political science study of courts
5 Post MATraveled around the world for 2 years: New Zealand, Australia, Indonesia, Singapore, Malaysia, Thailand, Burma, India, Nepal, Pakistan, Afghanistan, Iran, Turkey, EuropeAccepted to law school, but decided to do a Ph.D. first. Studied the causes of unreasonable delay in courtsTheory: we didn’t understand the proper relationship between judicial independence and ministerial accountabilityWhat I found: friction, misunderstanding, and “passing the buck” amongst judges, lawyers, crown attorneys and court administrators is the major cause of unreasonable delay
6 British Columbia & Alberta Worked for Alberta gov’t for 4 yearsAssistant to a cabinet minister 1 yearMiddle manager in Alberta Social Services 3 yearsFirst teaching job: College of the Rockies in Columbia Valley, BC
8 York University YearsResearch on judicial behaviour & ethical politicsThe Courts (2007)A Question of Ethics (2006)Honest Politics (1998)Final Appeal (1998)Judges & Judging (1991)The Charter of Rights (1988)
9 Teaching For next 4 years will teach mostly graduate courses Director of Master of Public Policy, Administration & Law ProgramCo-Coordinator of part-time LLM in Administrative LaMaster of McLaughlin CollegeYou’re invited to College events – eg. Joe Clark speaking on Thursday, November 15, 5 p.m., 014 McLaughlin
10 A.V. Dicey Albert Venn Dicey - British jurist (1835-1922) Oxford graduate & later professor & Oxford & London School of EconomicsIntroduction to the Study of the Law of the Constitution – 1885Refined idea of “unwritten constitution”Constitutional conventions (generally recognized as mandatory practices – monarch should dismiss a government that clearly breaches a convention)Responsible government: cabinet responsible to legislature, cabinet solidarity, ministerial accountability
11 Basic principles of British constitution: Parliamentary (legislative) SovereigntyDistinct from U.S. system of separation of powersThe rule of law (law applies equally to everyone unless exceptions written into the law)No need for a British bill of rights: judges who apply the rule of law properly safeguard human rights far better than having to apply a rigid bill of rightsJudicial independenceParliamentary supremacy means that the legislature determines the jurisdiction & organization of courts, but once appointed, judges are independent as protected by the Act of Settlement, 1701
12 Act of SettlementSuperior court judges appointed “during good behaviour” (security of tenure), and their salaries are “established” by Parliament (not the cabinet) (In Canada, Valente (1985): -security of tenure (judges can’t be removed except as recommended by an inquiry that conducts a fair hearing) -salaries must be set by legislature and high enough to discourage bribery -judges control those aspects of court administration that directly affect adjudication
13 Parliamentary Supremacy vs. Separation of Powers U.S. constitution of 1787 recognizes “separation of powers,” not legislative supremacy. Why?Fathers of U.S. constitution read Montesquieu (~1750) who argued that the British protected their liberty through a separation of powers. But British government was evolving toward parliamentary supremacy and responsible governmentDicey argued that separation of powers meant judicial supremacy. British unwritten constitution infinitely superior.
14 British system vs. French Common law system ensures that all courts and administrative tribunals are supervised by superior court judges, who ensure liberty through properly applying the rule of law.The French and other civil law jurisdictions have separate administrative law courts. This can lead to abuse of power.Common law system is infinitely superior to civil law systems, and the British common law system is infinitely superior to the American common law system
15 Alan Cairns“The past and future of the Canadian administrative state.”Yong WangAlan Cairns – one of Canada’s best-known political scientistsBorn in OntarioB.A. in 1953 and M.A. degree 1957 from U of TorontoMember of the Department of Political Science at University of British Columbia from and served as head of the department from 1973 to 1980.