Deference Quick Notes

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,...

Buy the full version of these notes or essay plans and more in our Administrative Law Notes.