1. Theoretical Perspectives on Public Law and Administration
GS/Law 6761
Fall 2007
Instructor: Ian Greene

2. Preliminary Matters Introductions
Origin of this course: Justice John Evans
Evaluation
Presentations

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 year
Majored in political science
Wanted to be a lawyer BUT got a scholarship for an MA at U of T
MA in Political Science at University of Toronto: loved political science study of courts

5. Post MA
Traveled around the world for 2 years: New Zealand, Australia, Indonesia, Singapore, Malaysia, Thailand, Burma, India, Nepal, Pakistan, Afghanistan, Iran, Turkey, Europe
Accepted to law school, but decided to do a Ph.D. first. Studied the causes of unreasonable delay in courts
Theory: we didn’t understand the proper relationship between judicial independence and ministerial accountability
What 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 years
Assistant to a cabinet minister 1 year
Middle manager in Alberta Social Services 3 years
First teaching job: College of the Rockies in Columbia Valley, BC

7. My family

8. York University Years
Research on judicial behaviour & ethical politics
The 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 Program
Co-Coordinator of part-time LLM in Administrative La
Master of McLaughlin College
You’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 Economics
Introduction to the Study of the Law of the Constitution – 1885
Refined 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) Sovereignty
Distinct from U.S. system of separation of powers
The 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 rights
Judicial independence
Parliamentary 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 Settlement
Superior 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 government
Dicey 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 Wang
Alan Cairns – one of Canada’s best-known political scientists
Born in Ontario
B.A. in 1953 and M.A. degree 1957 from U of Toronto
Member of the Department of Political Science at University of British Columbia from and served as head of the department from 1973 to 1980.

16. Evans, Janisch, Mullan & Risk
Administrative Law text, Introduction
Raj Sharma

17. Martin Loughlin Public Law and Political Theory Guy Brownlee
Prof. of Public Law, London School of Economics

18. Alberta provincial lawsuit settled
Ian Greene
Assured Income for the Severely Handicapped Administrator in Southern Alberta,
Rule of law issue

19. John Locke The Second Treatise on Civil Government [1690]
Judy Verbeeten

20. John Stuart Mill ( )
On Liberty [1859] (worked for Br East India Co until 1858)
Trudy McCormick

21. Peter Hogg
Constitutional Law of Canada
Alia Ahmed

22. Hutchinson & Monahan
“Democracy & the Rule of Law”
Hillary Cameron

23. Greene, Baar, McCormick, Szablowski, Thomas
Final Appeal (1998)

24. Ipperwash Inquiry
Leanne Briscoe

25. Stephen Brooks Karey Lunau
Professor, U of Windsor; B.A., M.A. (Windsor), Ph.D. (Carleton)

26. Harry Arthurs
“Without the Law: Administrative Justice and Legal Pluralism in 19th Century England”
Ian Greene