#13565 - Deference Quick - Administrative Law

Deference

Laws LJ in Roth describes the UK system as at an ‘intermediate stage between parliamentary supremacy and constitutional supremacy’.

• This gives rise to a ‘tension between the maintenance of legislative sovereignty and the vindication of fundamental, constitutional rights.’

• Deference is a method of dealing with this tension – Court defer when they have the power to act, but choose not to exercise this power as extensively as they are able.

1. Meanings of deference

Various different models have been suggested, King distinguishes between:

• Non-doctrinal approaches, which claim that there is no doctrine and judges must decide upon the appropriate degree of restraint in each case.

  • Seen in Huang, where Bingham described deference as the ordinary task of weighing up the competing considerations on each side.

  • Similarly, in Quila, Wilson refused to accept the concept, saying that the Courts were merely applying ‘weight’ to different reasons.

• Formal approaches want pre-meditated categories.

  • This tends to lead to non-justiciability.

• Institutional approaches take the middle path, putting emphasis on uncertainty and judicial fallibility, accepting a case-by-case approach with limiting principles.

Deference can be accorded for institutional (epistemic) reasons, based on expertise, such as the Home Secretary in Belmarsh, for constitutional reasons, relative to the authority of the body, such as in Miss Behavin, where Belfast City Council was afforded deference because it was democratically elected.

Whatever its meaning, it clearly has an impact on cases.

• Kavanagh argues that deference is the defining feature of the distinction between a primary and secondary decision-maker.

  • If there was no deference, there could be no ‘range of answers’ or discretion afforded to the primary decision maker – if the court disagreed with the government institution, substitution would be required.

  • This would pose severe separation of powers issues.

• Seen in South Yorkshire Transport in a range of possible answers in relation to evaluative questions; in relation to rationality, emphasised in Carlisle that the court will still undergo their own assessment as to proportionality, but would afford a range of reasons to prevent them coming the primary decision maker (Bank Mellot).

2. Is there a doctrine at all?

Due to the case-by-case nature of deference, a distinction has arisen between the doctrine of deference and the reasons of deference.

• Clearly context based – Kennedy: context is the driving force; Ex p Smith: ‘variable standard of review’.

Allan described the doctrine as:

• ‘Empty’ and ‘double counting’.

  • He considers it empty in that it purports to provide normative guidance but, since it cannot give an answer before a case, any such principles become descriptive.

    • Must be context specific or it risks becoming non-justiciability.

  • Thus, be considers the suggested four principles of Laws LJ in Roth as merely descriptive, purporting to be normative.

  • It is also double-counting in that it is not necessary, because its role is already provided for in other doctrines.

    • Considers that proportionality and other tests that incorporate such considerations have deference built in, so it would therefore be meaningless to have a separate doctrine.

  • Takes a rather Dworkinian view in suggestions that the rights and context speak for itself, suggesting there is a ‘right’ answer – if there is such an answer, no reason to defer.

    • Does not appear to acknowledge the ambiguity and uncertainty of rights (King).

    • Allan responds by saying that they are conceptually certain, only becoming uncertain when weighed against policies in practice. Since they remain certain conceptually, the role of the court is unaltered.

• Pernicious.

  • Part of the perniciousness of the doctrine is caused by its emptiness – if an empty doctrine is treated as normative, it unjustifiably affords discretion, which can lead to non-justiciability.

  • Considers non-justiciability to be promoted by the doctrine, since a government institution is afforded deference by the mere fact that it is such an institution.

    • Kavanagh: agreed that not automatic in not justiciable, but automatic in that always a minimum level of deference – this is what separates a primary and secondary decision maker.

    • Not non-justiciability, since still undergoing the appropriate analysis, just applying it in relation to whether the court should intervene.

    • Substantial deference, on the other hand, must be earned.

  • The point is the flexibility of the doctrine – consider the difference between the intrusiveness of Belmarsh and Roth where more justification was needed, compaed to Poplar.

In terms of what ‘deference’ does in practice is agreed on, as its importance.

• Allan’s objection is the identification of the method as a doctrine. Instead, these very same factors are used internally in the general process of the court, rather than externally as a separate consideration.

  • He is also right that questions of substance and institutional competence cannot be separated clearly in...