 Thanks, David. I'm not sure how much David and I, the other David, will overlap. My paper is fairly heavily doctrinal with some speculation in the second half, I suppose, and it's doctrinal with an Australian focus, but I do hope in saying that I'll skip over the details and hope that what I can say will resonate with similar concerns in other jurisdictions because I'm conscious that there's a lot of people here from all over the Commonwealth, not just Australia. I'm going to be looking at the, or my paper looks at what's happening to our grounds of judicial review and specifically how they are becoming more substantive. Our grounds have started to come adrift from the well-established lines of precedent. They're gradually expanding to become more substantive and I want to sketch how that's happening but I'll do that briefly. Then I want to speculate about the causes for that change, or those changes and then I want to speculate about their possible consequences. I'm not arguing for any watertight distinctions between process and substance, but substantive review in my usage covers cases where the gist of the complaint is about not having given sufficient thought to the issues or sufficient weight to the evidence. It covers cases, for example, where the gist of the complaint is about irrational fact finding and that's only an example. It also covers complaints that the decision maker wasn't paying enough attention, was failing to engage with real concerns for the person before them or be responsive to their concerns. The cases that I discuss come mostly from specialist migration tribunals, that's important I think. Their job is notoriously difficult and with the best will in the world they'll occasionally fail to connect with the substance of their appellant's cases. We used to say in Australia that Winsbury Unreasonableness was our only qualitative review ground and we used to apply it only to decisions that were lunatic. Now the High Court tells us that Winsbury's standard is no longer fixed and it needn't be set impossibly high. They said that in the Lee case last year, to which I'll return shortly. Of course we've long had backdoor routes to substantive review, but disguise always has its own drawbacks, we're now becoming more overt. The first change is the loosening up of the formulaic grounds of review. Australian common law is for some time relied on rough and ready lists or catalogs of judicial review's review grounds. Where it applies, our statutory quasi-code of judicial review repeats a good many of those common law grounds. If you look at those lists and compare them with Lord Reed's speech in Anna's minute, they're fairly recognisable. The lists give various ways in which a decision maker can, in Australia's rather quaint language, fall into jurisdictional error. However, starting with its 2010 decision in the Kirk case, the High Court's been telling us to loosen up on the catalogs. Kirk told us that the old lists are useful, but not watertight, that there is no quote, rigid taxonomy. Those come to stand for something much more than just a taxonomic disclaimer. Old grounds tend now to have less definable content. Apparently new grounds, jostle for attention, although I'm not even sure whether some of those are separate grounds in their own right, or simply manifestations of reinvigorated older grounds such as natural justice or Wensby and reasonableness. For present purposes, the principal doctrinal effect of loosening the catalogs has been to develop more possibilities for reviewing material errors of fact, at least where tribunals have made them. Until recently, complaints about factual errors were routinely reserved for the system of merits appeal tribunals. After all, their raison d'etre is to retry the facts from scratch and hopefully with a good deal more care than attended the first instance decision-making within the bureaucracy. In other words, until recently, the distinction between errors of law and fact was fundamental, albeit not always determinative. There were some chinks in the decision-making armor, but not many. Don't get me wrong though, Australia doesn't treat the distinctions between errors of law and fact as mere putty in the hands of the judges. We've got nothing approaching England's recent decision in Jones from the first tier, which took a wholly pragmatic approach to the distinction. But our courts have started listening to complaints about factual errors, even though the tribunal had received some evidence. That initially went under a heading that I can summarize as serious irrationality, which was initially explained as being no more than an analog of whence beyond reasonableness and just as demanding. Acceptance of serious irrationality as a review ground in its own right was and remains a long drawn out experience. Even now, its full potential is still not clear. There's debate within the federal court, for example, as to whether it matters that the tribunal's reasoning process was seriously irrational if the same decision could have been reached on the same evidence rationally. Improbable, but there is that debate. The High Court had an opportunity to resolve that debate only this year, less than two months ago. But the decision went off on more traditional grounds. I'll call the case FT, we initialise everything. The issue was the tribunal's acceptance of the possibility that an asylum claimant had committed serious non-political crimes back in China. The High Court reversed basically for error of law, although it didn't use those words. That was because the tribunal had placed too much emphasis on the claimant's many lies, none of which actually bore on his alleged crimes. Any criminal defence lawyer could have written its judgement. The court said that the tribunal had failed to appreciate that the act required something more than mere suspicion. My own view is that if that was an error of law, it could only have been because the tribunal's reliance on the man's lies was irrational. I've mentioned the High Court's decision in the Lee case that the bar for establishing Wensbound reasonableness is not always impossibly high. Ms Lee had wanted to transition to permanent Australian residency on the basis of her skills as a professional cook. The bureaucratic body responsible for certifying her trade skills had messed up and her case was doomed unless they gave her a certificate. She needed time to sort out their mistake, but the tribunal wasn't prepared to wait. It may well have had good reasons, but the tribunal's downfall was its failure to give any reasonable explanation for refusing an adjournment. Castigating the High Court for its formalist style used to be a popular academic pastime. In fact, I shouldn't use the past tense because it was just done in the panel that I've just come from. But the Lee case is positively anti-formalist. We already knew that there was no rigid taxonomy of the grounds of review, Kirk, and Lee exemplifies that in spades. All three judgements gave pride of place to unreasonableness, in language that makes it very difficult to predict precisely where Lee will take us. For example, the tribunal bore, it said, a statutory responsibility to afford a meaningful opportunity to present evidence, which was denied when the adjournment was refused. The requirement for a meaningful hearing goes back to a line of federal court cases that pivot from the statutory obligation to issue an invitation, that's the word, to the claimant to come along to the hearing. And of course an invitation would be pointless without substantive requirements applying to the hearing itself. Lee also talked procedural fairness and even a hint that proportionality review might have been available if only the point had been taken. In addition, Lee had some intriguing discussion of the tribunal's statutory obligations to review the department's decision and to determine and appeal all of those words from the Act. It was as if all of those words, invitation, review, determine, appeal, each one of them came loaded with an irreducible minimum of substance, a requirement of quality. Lee's definitely rocked the boat. Courts beneath the High Court are in no position to develop its proportionality hints. They wouldn't dare, don't they? But the federal court in particular has already loosened up on review for error of fact. The fact has to be extremely important, of course, but there are no longer any categorical barriers to fact review. Error is to a perfectly trivial fact can be reviewable if it was central to the tribunal's reasoning. The tribunal in one case had treated a claimant as a complete liar because it thought it had caught him out in a very silly lie. He claimed to study Persian, even though he couldn't speak a word of it. But the tribunal had overlooked his academic transcript, which showed that he'd taken a course that was called Persian, which could, of course, been about Persian rather than a Persian language course. For the federal court, it all boiled down to two things. First, the gravity of the error, not its label. Secondly, the sense that the tribunal's job was to be more attentive than it was. The dominant theme in another set of cases might be summed up as a requirement that the tribunal intellectually engage with an appellant's materials and arguments. That's no mean task in immigration matters. The High Court said in one case that a tribunal breaches procedure of fairness by failing, quote, to respond to a substantial, clearly articulated argument relying on established facts. Close quotes. That was said before the court's overt expansion to substance, which probably explains the language of procedural fairness when procedure had nothing to do with it. But the federal court is now suggesting that procedural fairness might be the appropriate ground where a tribunal has been any one of the following things. Seriously irrational, or where it's failed to engage in an active intellectual process, or where it's failed to have given proper genuine and realistic consideration, close quotes, to a crucial issue. The federal court has also characterised a tribunal's hyper-suspicious approach to an applicant's evidence as arbitrary, capricious, and a failure to complete its task of examining all of their evidence. I don't have time to pursue the detail of these cases. More importantly though, right now, one can be sure where these changes will end up. Changes they are, however, and they might well start to have some effect on how the courts conceived their role in judicial review. How, in other words, they conceived their mission. My paper talks of mission creep, but I suspect that that term is more opposite to the English courts than to those in Australia, particularly after last night's discussion with David and John. Australia's review grounds have definitely become more fluid and more substantive, but our mission statements have scarcely changed. Our courts see statutory interpretation as their principal theoretical basis, however unsatisfactory that is, so their mission statements are all about enforcing the law, albeit a law that emerges from some very constructive statutory interpretation. That is now in stark contrast to some of the English statements where common law values appear to have been elevated to rules in their own right. English courts, according to Lord Phillips in Cart, are in partnership, his word, with the executive and legislative branches. Australian courts haven't used the language of partnership and would see it as raising quite serious constitutional problems to do with the separation of the judicial power. Rather, we have interactions or relationships between the judicial and executive branches. Our interpretivist approach has profound consequences for the grounds of review, which can never be admitted to have travelled beyond the relevant act. We therefore have to focus on the grounds of review and on statutory terms such as invitation, hearing, review and determination and so on. I remember Mike Taggart being appalled at a high court judgment that said that breach of good administration was not a review ground in its own right. He took it as meaning that the courts were unconcerned by bad administration, but he was obviously wrong. However, the Australian method of coming at that concern is necessarily different and more limited. Rule of law values certainly inform our grounds and inform statutory interpretation, but they aren't review grounds in their own right. The High Court's rejection of England's ex-party Coglan case was emphatic and pre-emptive. The issue hadn't even been raised. My paper notes a comparative piece that Tom Pool wrote back in 2008, in which he took both Australia and England to task. England, because its decisions were becoming a sea of principle without rules, the situation where context was everything and judicial discretion was unconcerned. Australia, because it was a wash with rules unguided by principles. He implied that there was a happy medium somewhere in the middle between principles and rules. I take the Lee decision as the first unequivocal move to that middle ground in Australia. Lee's tribunal had a statute telling it to be fair, just, economical, informal, and quick, and to decide, quote, according to substantial justice in the merits of the case. Lee saw those largely substantive obligations as informing the tribunal's procedural duties, but, frankly, provisions like that have been around for centuries before their indirect use in Lee. Okay, I turn now to speculate on why these changes have been happening. One of my colleagues suggested that it might have been the High Court reacting into sustained criticisms of its dry formalism. Frankly, I doubt it. Nor would I place much reliance on Australia's mission statements for judicial review. England's expansive mission statements might well have had some feedback effect on its doctrine, but Australia's grand statements have hardly changed. I think that the reasons are considerably further away from the realm of high theory. First, there are the all-pervasive statutory duties to supply reasons. These have to demonstrate a factual basis for the end decision, and whether they've done that adequately or qualitative or substantive inquiry. Secondly, the judicialisation of our tribunals has gone hand in hand with the expansion of substantive review. There's a degree of cause and effect there, of course, but almost all of my cases, including the leading cases, have had to do with decisions of formal tribunals. True, they are, in many respects, significantly different from courts, but they're significantly similar, too. Decisions like Lee and FT concerned issues well within any ordinary court's expertise. Lee was about an unfair refusal to adjourn, whilst FT was about drawing too long a bow from the fact that an accused had lied on something entirely peripheral. I could have explored several other factors that might help to explain the expansion of substantive review in Australia, but for me, the really big surprise was to see with Grant Hooper's help, actually, a PhD student, that I could join up the dots between sustained legislative attempts to reduce judicial review on the one hand and the grounds of review actually expanding. In other words, highly restrictive legislation in migration appears to have backfired. I won't give you chapter and verse. The headnote version will tell the story today. Judicial review mushroomed into a growth industry in the 80s, starting in the 90s, but only in migration. The parliament expanded merits appeals to tribunals at the same time as attempting to remove some of the more substantive judicial review grounds from federal court competence. The cutbacks included whence beyond reasonableness, irrelevant considerations and procedural fairness. The cutbacks applied only to the federal court, not the high court, which produced its own set of problems that I won't bore you with, but eventually the high court's interpretive ingenuity found ways of reinstating that which parliament had thought to abolish. Parliament eventually gave up on trying to restrict specific review grounds. The whole exercise had become too slippery. It sought to rely on the private clause, but the court made quick work of that. In migration matters, but at once again only migration, jurisdictional error is now all that remains as far as federal judicial review is concerned. And for Australia, jurisdictional error is purely a conclusory term for the sorts of things that normally result in invalidity. The great paradox in all of this is not the switch in legislative tactics, but in the backfire that the previous tactics had produced. It was as if the parliament's focus on judicial review grounds had actually started the high court down its substantive road. And it was in this period that the courts started infusing the acts of procedural requirements with substantive content. Procedural requirements such as, for example, the duty to issue an invitation to attend the hearing. So my last question today is about the overall effects that these doctrinal changes might have for the actual practice of judicial review litigation. First and most obviously, any a priori notion of the merits is in retreat. We've never had a watertight definition of the merits, of course, but we generally knew that they included the facts that might be in dispute. Secondly, overreach inevitably accompanies every doctrinal expansion, especially those that are expressed so generally. The traditional antidotes used to be the remedial discretion, and we might well see a lot more of that discretion. But the courts will also have to do a lot more evaluation of the gravity of any error that's been demonstrated, and that will make their decisions even more context-specific. Thirdly, our grounds of review have certainly loosened up, but they remain as a real presence. Our statutory quasi-code, where it applies, which is not migration, retains the old list of review grounds, and the Administrative Review Council appears to have seen off an argument to reformulate or even repeal the old grounds. However, I suspect that at least in its migration jurisdiction, but only where the gist of the complaint is a serious factual error, the Federal Court is no longer interested in the old labels. Whether old or new, it's what lies behind the labels that now matters, not whether it's appropriate to be talking about unreasonableness or serious irrationality or procedural fairness, for example. Lastly, I think that the actual practice of judicial review is bound to become less predictable, particularly for Government Council. I'm not saying that that's all bad. I never understood why rationality review was off limits with regard to tribunals. One of the main reasons we have tribunals is to have a second and more careful look at the facts than it's reasonable to expect from bureaucrats. That's a tribunal's job, so why not enforce it? But it's obvious that Government Council must now be prepared to defend the quality of fact-finding, and that is evidently creating real uncertainty as to how far one might be allowed to go in challenging and defending the evidence. Thank you. Well, thank you very much for having me here. There was some minor concern about whether there'd be any overlap between our two papers, but actually I think there's an overlap between all of the papers at this conference. Quite a few people have said to me that their paper is the one outlier at this conference, and I've said to them that all of public law is about the process substance distinction, so there's no such thing as an outlier at this conference. My paper struggles at great length with the distinction between process and substance. And I think this struggle is worthwhile for a reason that I share with the first session of today, that is Jerry Mason's paper. And that is I think that if we can make sense of this distinction, we might understand why the rule of law in public law is the rule of a special kind of reason that is public reason. And I think that Jerry and I share a sense that administrative law, contrary to its reputation sometimes, has a kind of lawless void in which the despots of the state reign, contrary to that reputation, administrative law is the place where public reason is most at home, and that's something like a quote from an article by Jerry that he published some years ago. In past work though, I argued that lawyers would better be not so distracted by the public process distinction. We value process after all for substantive reasons, and we wouldn't value process for substantive reasons and we wouldn't have substantive implications when we abide by it. Hence I suggested in past work that we should focus on substance, and there's something like a quote to this effect buried in a footnote in Paul Daley's paper. However, coming back to this distinction, I thought I would make the struggle to understand it even harder by introducing a third term into the debate, and that is form. And my claim in the paper is that we need that term, that term form, in order to make sense of the distinction since process and substance are just two aspects of the form that policy has to take in becoming public law. Now the claim that what we need is a formal theory of public law will strike people as odd for several quite good reasons. First, formalism in public law is often associated with an idea of a rigid separation of powers that's widely rejected. Parliament makes law, judges find out what in fact the intention was that was in the law and then ensure that when officials implement the law they stay within the confines of that factual intent. Second form is often considered not worth inquiring into because form is more or less synonymous with process. Think of the term rules of manner and form. And third, to the extent that the idea of legal form is taken seriously in scholarship these days it's taken seriously in private law and that's because of the work done by one of my colleagues Ernie Weiner who's pioneered a theory of private law in which we have to understand the structure of private law by looking to the formal features of a private law regime. The argument is that if one looks at those formal features one will find that in private law is an imminent morality organized around the Kantian idea of the purpose of agent whose freedom to enact his own purposes has to be made consistent with the freedom of all other agents. And Ernie and others at my law school have now started to argue that that same Kantian idea underpins public law. And something like this idea I think is also the basis for Trevor Allen's very powerful version of the moral foundation of the common law constitution. Now I am interested in this idea of form but I don't think it's intuitively well suited to public law. Vulnerable as it is to the critique of people that are called democratic proceduralists who will see formalism of this sort in public law as a kind of covert libertarianism. And I was reminded in the last session by Mark Walters of a phrase also coined I think that what one ends up with is a private law conception of public law and that wouldn't be a good thing. And so I'm very sympathetic to this critique and so I wonder why I'm coming in my old age to the styrene song of torontian formalism. It can't just be something in the drinking water because Bob Shock, a former colleague managed to resist it Kent Roach, a much better public lawyer to avoid becoming a Toronto formalist. So I have to provide some kind of explanation other than the drinking water and my paper is the first attempt at this explanation. The attempt takes me back to a public law conference in Cambridge some 14 years ago and just as an aside if there were academic medals awarded for valor under fire then the person who would have got that medal at the conference was a much younger Mark Elliott who was directed at him by Paul Craig. And I was reminded of this just because my essay of a paper for that conference focused on one of Paul's essays the very influential paper called Formal and Substantive Conceptions of the Rule of Law and Analytical Framework and having worked my way now through Paul's argument a second time I think I appreciate better what he was getting at in that paper although as you'll hear I still reject parts of his argument and I appreciate it better because I think that he did valuable service in trying to explain why public lawyers have to take the idea of form seriously. Now in that paper Craig following Joseph Raaz's analysis of the Rule of Law identifies these are my terms not Paul's but I'm going to voice them on him he identifies four conceptions of form. So form is first a property of a theory of the rule of law that is independent of political theory and takes no stand on the issue whether the content of the law is good or bad. So I'll call this form as independence. Second a formal theory focuses on marks of law that have to do not with law substance but with laws validity whether the person or body who made the law was entitled to do so and I shall call this form as pedigree as it has to do with the manner in which the law came about and not with its content. The third sense I'm sorry about this proliferation of senses has to do with the clarity of the law that is propagated and it does have to do with content. The law must have a content that is care enough to guide those who are subject to it. However this third conception does not specify what the content is only that the content is determinable as a matter of fact. So I will call this form as fact. Finally there are characteristics of law that have to do not with its content nor with its pedigree but with the legal quality of the law that is produced by those who have authority to make law. For example that the law is directed at future conduct and I shall call these characteristics form as legality. I think that all of these conceptions of form are important if we're going to develop a formal theory of public law. But I think that where Paul Craig goes wrong is in his understanding of the way that those four conceptions work together. He does see to some extent the point I want to make in my paper today when he suggests right at the end of his paper that the phrase the rule of law is dependent upon what one understands by the term law he says that what ultimately divides the formalist and substantive conceptions of the rule of law is disagreement about the way in which we identify legal norms. Now he's right about that but he doesn't appreciate I think that the positivist understanding of form as fact which he takes over from Joseph Reyes distorts its understanding of the other three conceptions of form. In particular he follows Reyes in supposing that when the content of the law is against Reyes the law in the matter is unsettled but he does not present us with an argument for this claim. Perhaps he doesn't do so because he took for granted that Reyes had provided such an argument and Reyes' argument takes over an idea from Thomas Hobbes where Hobbes distinguishes between command and advice and says that when a command is issued the person issuing the commander intends that the person commanded will do he or she is commanded because the commander has said so. Whereas with advice advice is offered to the subject to evaluate for him or herself. So it's not to say so of the person who offers advice that triggers action it's the evaluative decision of the person to whom the advice was offered. And according to Reyes if we're going to make sense of this kind of distinction the content of the command or of the law has to be determinable as a matter of fact without relying on to use Reyes's term moral acumen. But one can respect the distinction between command and advice and suppose that moral acumen is required to work out the content of the command. If we take for example that Dawkins interpreted theory on that theory judges interpret the law in a way that seeks to show the law in its best moral light. Having gone through that process of interpretation it might turn out that the result is morally far from ideal even morally ill advised or worse even though we had to use moral acumen to work out the content of the law. And still when we act in accordance with the law having used moral acumen to work out its content we are acting because the law told us so to do and that leaves intact the distinction between command and advice. And indeed Hobbes himself that his distinction between command and advice was perfectly consistent with the claim that one needs moral acumen to work out the content of the law. For Hobbes thought that the content of the law has to be worked out in accordance with no less than 19 laws of nature that he sets out in Leviathan. Moreover Hobbes thought that his distinction between command and advice is consistent with the view that an authority is such as a basis for holding that legal subjects are under a prior obligation to obey the authority. Now in my view these two issues are connected in that one of the reasons that one has a prior obligation to obey legal authority is that legal authority is constituted in such a way that its exercise is conditioned by Hobbes' laws of nature. And I argue in other work that if we try if you want to understand what Hobbes had in mind by the laws of nature it's pretty well what we think of today as principles of legality. They are what we more readily think of today as principles of legality or of government according to law. Put differently, principles of legality constitute the form government takes when government is according to law. And together such principles in my view provide the basis for the construction of a formal theory of public law. And once one sees this I think one can also see that at stake in debates about what the form is of public law are rival substantive arguments in political theory. Former's independence does require that one's theory of the rule of law is not reducible to the theory that one uses to judge whether the content of the law is good or bad. But when it comes to former's fact the positive version of this can't be defended by appeal to the very idea of authority. It can only be defended by the kind of substantive argument that Hartz and Raaz's positivist predecessors Bentham and Austin provided which requires that the determination of overall utility that's made in the legislature be transmitted by the legal order to legal subjects without contamination by the judge's sense of right and wrong. I think it's in that historical context that the idea is formed that contemporary legal positivists then take over without in a way noticing the substantive arguments that go behind that idea of form. And though that idea of form and its substantive arguments in turn shapes the conception of former's pedigree. If judges and other legal officials are to avoid superimposing their moral views on the content of the law by the legislature, they should stick to tests that have to do not only with the manner in which the law was, they have to do only with the manner in which the law was promulgated but also have which also sustain a claim about what that person or set of persons as a matter of fact intended. Similarly, when it comes to former's legality, whatever principles of legality are identified their function is to help in ensuring that a factual content which has been produced is identified with the fact, the factual content that those who made the law intended the law to have. In my view Lon Fuller's account of the eight principles that together make up an inner morality of law updates for the 20th century Hobbes's account of the laws of nature. These eight principles are I think best understood as formal principles of the rule of law. But it's important to see that the formal principles require supplementation by procedural principles in order to be given effect and that they have substantive implications. So first in regard to process in Fuller's essay The Forms and Limits of Adjudication he emphasizes the importance of impartial adjudicators in a rule of law order in which the issues submitted to the adjudicators quoting from Fuller tend to be converted into a claim of right or an accusation of guilt. This conversion, Fuller goes on is affected by the institutional framework within which both the litigant and the adjudicator function. The process of reasoned argument requires a person making the argument to present it as more than a naked demand. It has to be presented as a claim of right, Fuller says as supported by a principle. That describes what we can think of as the adjudicative conversion process where the law is converted into a claim of right. But in order for that conversion process to take place the enacted law has to be convertible and that requires a prior legislative conversion process. This legislative conversion process involves the reduction of a political program to explicit terms of a statute. And that's a conversion of political policy into public legal standards and that produces what I call a kind of legal surplus value. By this I mean that the legitimacy of official action in compliance with the statute does not simply stem from its compliance with a political policy that the D-MOS is determined to be appropriate. It is also the case that this conversion process adds value because it brings into being a particular kind of public standard. One that permits the operation of the principles identified by Fuller as the principles of legality and which enables claims of right based on legal principle to be adjudicated. So now I turn having talked about why procedural principles are important for the formal principles I turn to the issue of substance and to the idea that law that conforms to the eight principles that Fuller outlined will have a moral quality to it. The moral quality of the content of the law comes about because that content can be presented as offering reasons to legal subjects in a way that makes it plausible for them to understand the law as responsive to and this is again a phrase from Fuller, responsive to their dignity as responsible agents. Even if they think that the content of the law should be very different from the content it has been determined to have the fact that the content offers them reasons of this sort constitutes a reason within their own perspective to grant the law its moral quality or better its legitimacy. So in sum I want to suggest in my paper that the formal principles are at the basis of law's claim to legitimate authority. But in order for that claim to be vindicated the legal order must have institutions organised around procedural principles. There's such principles that accord individuals the right to ask an independent official for reasons why the law applies to them in a way that addresses them as persons with dignity as responsible agents put at its most concrete to ask a judge or another impartial adjudicator but how can that be law for me? Notice that I am here proposing a version of former's content. The content of the law is the content that is produced through legislation. But this is I think is quite different from the positivist idea that content is injected into law and then transmitted from lawmaker to legal subject. And while the rule of law requires that large statutes are capable of guiding individuals prior to any judicial determination what the individuals take as the content of their guidance is always provisional in that it is subject to the second conversion process, the interpretive process that I described earlier. Indeed even prior to judicial determination the content is so subject. Since in a rule of law order the individuals should understand that the law that governs their lives in this law that has to be interpreted in accordance with their expectation that law is legal. Another way of putting this point is to say that legislators as public officials who have a lawmaking role intend more than that a particular policy be implemented. They intend that their policy be implemented through law hence legally or in accordance with the rule of law. It is for this reason that Hobbes said it would be a great insult or contumaly for a judge to suppose that the definition of the legislature is other than to comply with the laws of nature. The Orthob said the interpret of the law therefore if the words of the law do not fully authorize a reasonable sentence to supply it with the law of nature but it follows that legal subjects have a legitimate expectation when it comes to understanding the law prior to judicial interpretation that its content is reasonable in just this way. If the law does not seem understandable in this way to argue to a judge or other impartial official that the content of the law is different from what might be taken to be its literal or primary fact-care meaning if a subject cannot get a plausible answer to the question but how can that be the law for me the situation will be legally as well as morally problematic and in seeing that the legal problem arises because of defects in law's form I think we can start to understand by process and substance the law. Thank you very much. Thank you very much David and Mark very different but extremely stimulating presentations we have plenty of time for questions comments and discussion we have some moving microphones Philip Down here hello Philip Murray University of Cambridge it's a question for David Dyson House and I was just interested with your use of full as 8 as a derater and your argument that if law adheres to full as 8 as a derater then it will have some moral quality to it now I learned jurisprudence in this university and I was lectured in this lecture theatre by Nigel Simmons and he makes a very similar argument different at the same time so Nigel Simmons argues and I'm bastardising his argument a little bit that if law adheres to these 8 as a derater then it will have a moral quality to it because it manages to secure for the citizen a degree of independence from the will of others and I just wondered what you thought about that argument and how you see it fitting with your own Thank you I can bring you this microphone if you want I'm delighted to be trying to make this kind of argument in Cambridge where people have been indoctrinated by people like Nigel Simmons and Trevor Allen rather than by the sorts who I'm criticising in my paper so someone sitting in this audience once actually just a couple of months ago accused me of having a love-hate relationship with legal positivism but that's actually a love relationship I love legal positivism but I think that they don't really understand their position correctly and I think that if we disinter from the kind of analytical framework that covers the real work that's done by legal positivism if we disinter from that framework their understanding of legality we'll find that there's actually not very much difference between of legality and say fullers and I also think that for the most part legal positivists despite the fact that they try to disclaim this do think that law has the kind of moral quality to it that I claim now I say all of that because that's really the strategy of my paper is to try to bring about a kind of rapprochement between legal positivism and some of their legal positivist critics but I don't actually disagree with Nigel's argument I pretty well accept it and I do think that one of the features that law has in having this moral quality that comes about through its conformity to the eight principles is that it does bring about a condition of liberty for those who are subject to the law and I think that condition of liberty is best understood as liberty as independence so it's just that wasn't my argument in this paper so long answer to say actually I'm in full agreement with Nigel thank you I wonder whether I could oh yes there's a question at the back by the door at the top Tom Hickman UCL I've got another question for David actually and it's really a question about to what extent this is a theory or the beginnings of a theory of public law as opposed to a theory of law or statute law or judication because it seems to me that what you say is equally applicable to any application of policy that's being given effect through legislation by courts whether that's in the realm of private law or what we would call public law or any other area of law family law or anywhere else so in the last session which we both attended we heard a paper by Mark Walters where he talked about the common law's antipathy to the public private law distinction and I share that antipathy so you're right it is paper about all law but that's because I think that all law is public law and when it comes to the issue of judges so let me say something prior to that but I think that in a theory of law one should see law as many people on the continent understand it as something that can't be understood unless one understands it in relation to the state so a theory of law is always also a theory about the state and in that theory judges have a role but they might not have the kind of role that one sometimes finds in legal theory most prominently in the Hawkins theory or in Trevor Allen's theory so I'm trying to provide a theory of legislation in a way that requires us about how political policy gets converted into legal form and then to see that a second conversion process has to happen when that law is applied to particular subjects and in that application we need impartial adjudicators for various reasons but the theory doesn't start with judges I wonder whether I could ask a supplementary to that one which might bring the two of you into engagement with each other if this is going to be a theory of legislation and I take your two stage process on board why should it depend in any way as I think you suggested on trying to find the intention of the legislator as to the factual content of the norm that the legislator has promulgated I have to say whenever I see the word legislator's intent or anything like it I reach for my gun because it seems to me to be a nonsense built on a fallacy and so how that can properly be the basis of anything that will help us to understand the law is to me a challenging question now Mark's paper was in a way an approach to this from a different direction you were talking about the way in which in at least in migration cases attempts by the Australian legislature to restrict the scope of judicial review had had the paradoxical but not to me at all surprising effect of leading to an expansion of the scope of judicial review is the second stage in David's analysis is the stage of so-called interpretation or application I think you said by an impartial adjudicator is that stage in any way dependent on either normatively or in reality on some sort of notion of trying to do what the federal legislator was trying to intend I don't think it does in fact in Australia the Chief Justice has long been banging on about not using the term legislative intention but in fact the meaning of the legislation so the minister could well have intended all sorts of nasty things which the judges found a way of avoiding because the drafter didn't get it right although the minister had hoped of course that the drafter's person would I'm if I could supplement that with Tom Hickman's question I'm still puzzled David about why this is a theory about the form of public law as opposed to law generally which leads me back to a comment of Paul's that you said was right but you thought you didn't completely understand which was that it all turned on your definition of law and it seems to me that reading particularly Carol Harlow and Rick Rawlings piece and a couple of other things that they've written it seems to me that that we've reached the stage now where most of our administrative state law hasn't come from Parliament at all we've got acts that in every sense of the term are entirely skeletal they've got no flesh on them at all they set up an agency and they say we really hope you do the right thing that's about it and if you look at the substance or rather the length of the acts they tend to be how many people make a quorum what the pension entitlements of the Tribunal members might be or the agency and that sort of stuff the real administration but in terms of what that agency is meant to be doing that's where the law starts not in the Parliament at all and further down the food chain we've now got to a situation where we're being governed more by soft law subject of course to a legislative reversal but by soft law so if I gave the impression that I endorse the view that there's a fact to be determined in statutes as to the intention of the legislature I shouldn't have done what I did to give rise to that impression because I reject that view completely but I do think it's the view that's presupposed by these people I love the legal positivists even when they deny it they do think that law is a matter of transmitting factual content from lawmaker to legal subject so I think that to the extent that the idea of intention is a useful idea we have to understand intention as a matter of construction and it might be better to think of it as suggested of meaning rather than intention I think the perhaps have to add a third conversion process to my array of conversion processes because it is the case and I want to take this into account that as you say the way that the administrative state generally works these days is there's a fairly blanket authorization to administrative officials to develop the law of their regime so they have to undertake the task of converting the statute into law and then involved in that as well is what happens when impartial adjudicators including judges have to explain to a legal subject why the law that's made by the administrative state is law for them so I do think that to the extent that this idea of formal theory of public law can work it has to take into account the kind of conversion process that happens within the administrative state my question is for Mark and it's a topic we've discussed personally a number of times and you didn't get a chance to address in your talk but I think it's very interesting and that is the degree to which the overarching constitutional arrangements in Australia and in the United Kingdom can help us to understand the divergence in the administrative law of the two jurisdictions the flight to principle here and the the wedding of judicial review to legality and statutory interpretation in Australia it's a potentially wide question so feel free to narrow it as much as you like it's a heck of a wide question I've long thought that the Australian judges haven't owned up to how much they put into a statute and how much they say they're just taking as meaning of the statute and in a way it's my interpretation and I'm not sure whether this is entirely fair but my interpretation is that they don't want any part of that long drawn out ultraviraries debate that we all looked on from Australia that was occurring in England with absolute puzzlement so they've eventually settled for something that they've not called modified ultraviraries but that's what they've settled for eventually that's going to come unstuck of course because they'll come up against an exercise of executive non-statutory power and they're just going to have to confront that but I suspect what's done under the so far under the umbrella of interpretation of statutory interpretation it's not really believed it's in a sense required and my co-author Matthew Groves has argued this a number of times it's essentially required by their division between the judicial and the other powers under the Constitution and Matthew argues I think I'm not verbling you that it's part of the deal that the judges get their independence and impartiality and so forth in conditions on the basis that they adhere to an interpretivist theory does that answer it partly is there a difference I'll take the question over there was that sorry, yes thank you David Paul Daly from the University of Montreal I had a question for Mark and it was about your reference to mission statements and the distinction in Australia I think between legality and merits and Lord Justice Law last night spoke about ensuring that administrators are not out with the boundaries of the proper use of powers and I was wondering if you could expand on what a sense to be a little bit of cynicism about such general mission statements do you think they have any utility any conceptual utility or is what is needed to dig down as you did and look at particular developments in the law and try and identify the causes and effect I'm conscious that there's people from quite a few countries here and they're countries with stable regimes stable legal systems and administrative systems that work sometimes with the same words and meanings and different constitutional structures and setups I'm conscious therefore that what I find strange going back to Lord Diploc I think you know his tripartite summary you must obey the law and act reasonably unfairly or something like that I'm thinking hang on a minute he's gone two steps beyond the law and they keep doing it in England and my Australian reaction to that is what on earth are they doing but then a comparativist reaction to that is well if it's working so I think you've asked a question of me that doesn't admit of a grand answer I think that the answer depends on the country you're supposing Joe McIntyre Charles Darwin University I just want to pick up Mark on that point I think that Jason was alluding to that part of that distinction between the English approach to principles and the Australian retreat to statutory interpretation might reflect a lingering effect of Owen Dixon's formal legalism in Australia that really did seem to hold on and hold the public imagination of the judge much longer in Australia than here in England where the judges I think of Lord Reed's comments about Aladdin's cave were much quicker to acknowledge the role of policy and abandon those old formalist regimes so I wonder if some of that distinction and that approach towards using statutory interpretation might be part of that different origins and conceptions of that role of the judge in those constitutional setups I think that's right my response though in substance is that styles can be radically different but outcomes can be remarkably similar so you talked about a retreat to formalism and statutory interpretation if you look at the outcomes they're generally very similar they're generally trying to deliver and this is what judges should do individual justice as they see it according to a bunch of legal values a question from Rick down here in the middle Rick Lawling CCL following on Jason's remark I'm not sure I know what the UK constitutional framework is anymore I went to bed thinking I knew what it was but then I woke up this morning and it seemed to have changed overnight on the back of an envelope one's tempted to say on the back of a cigarette packet in the context of panic over the Scottish referendum but I'll move on quickly from that I wanted to ask Mark something actually when I teach judicial review from time to time I have Australian students and they tell me that back in Australia it's thought that all these comparisons between the Australian approach to the common law and English approach to the common law doesn't work so well these days because somebody apparently wrote an article which said that English common law was now polluted with European influences and I want to raise that issue because the papers that I've read and I listened to your paper Mark and a paper in the panel I've got to I'm chairing this afternoon tried this comparison between, try this comparison between English common law and Australian common law and make no mention at all of the fact that our common law judges are now having to operate on a day by day basis based on the context of the European Convention on Human Rights applying convention rights and in the context of EU law applying on a day by day basis general principles of European Union law which have been developed by the Court of Justice and I suppose what I'm putting an issue here is the assumptions which seem to underlie some of the comparative analysis that is going on in the conference and what extent can one now really engage in the form of analysis that we've been that we've been listening to which puts to one side the effects of these European influences on English common law I agree completely the context is the constitutional whatever that means structure the lawmaking structure is so radically different here that all sorts of adjustments have to have been made and will have knock on effect one last question yes right by your right hand Hi, my name is Matthew Lewins I'm from the University of Alberta this question is for David you mentioned a little bit about the camp of positivists that you love but what about those anti-positivists that you seem to you want to distance yourself from is there a point you share obviously quite a bit in common with them but what's the point of difference then with the libertarian sort of baggage as I suggested in my answer to Philip it is right, that's the first question I do think that the idea of liberty has to have a place in the theory of public law but I don't think that the liberty that one finds comes about through law being public and formal in the right way is the kind of liberty that is thought by libertarians to be a kind of check on public power rather it's a condition of liberty that's constituted by the law so from my reading in this area it does seem to me that quite often libertarians like Hayek have very valuable things to teach us about the rule of law but where they go wrong is in thinking there's some kind of substantive individualistic morality that somehow prevents the state from constructing the kind of public order in which I think civil liberty can be had by all those who are subject to the law so my position is still a substantive one it's still committed to liberty but the understanding of liberty is rather different from the understanding one finds in people like Hayek thank you very much I think I have to bring the session to a conclusion and in doing so Paul Dailey's point about mission statements came to mind and I began to wonder what the mission statement for the chair of a conference session was it reminded me that a former colleague in the University of Birmingham Ray Hodgin an insurance lawyer had been before he became a legal academic a teacher of English in a lead secondary modern school whenever we were talking about mission statements he used to tell us that his first day as a teacher at this school in Leeds his headmaster came in to see him and said Hodgin your job is to make sure that the boys keep warm and get their milk at break time if you achieve anything more than that it's a bonus it seems to me that my job is something like that I hope you've kept warm we've got to lunchtime there is lunch upstairs and I hope you'll agree with me that we've done rather more than simply keep warm and get you to lunchtime this has been for me a fascinating session with two papers that turned out to have more less in common or at least touching than might at first sight have appeared and I'd like you to join me in thanking Mark and David for a splendid pair of presentations and for most entertaining as well as illuminating session thank you