SUBSTANTIVE REVIEW

PQ notes

Deference

Reasons for deference

Constitutional competence

R (Lord Carlile) v Secretary of State for the Home Department: The courts ought to defer if the democratic credentials of the decision-maker are superior to those of the unelected judges. “[A]lthough a recognition of the relative institutional competence of the executive and the courts in this field is a pragmatic judgment and not a constitutional limitation, it is consistent with the democratic values which are at the heart of the Convention, because it reflects an expectation that in a democracy a person charged with making assessments of this kind should be politically responsible for them.”

Institutional competence

Expertise:

R v Chief Constable of Sussex, ex parte International Trader’s Ferry: “The courts have long made it clear that, though they will readily review the way in which decisions are reached, they will respect the margin of appreciation or discretion which a chief constable has. He knows through his officers the local situation, the availability of officers and his financial resources, the other demands on the police in the area at different times”.

A v Home Secretary: Expertise-related deference does not amount to blind submission to the decision-maker’s views.

Belfast City Council v Miss Behavin’ Ltd: Expertise cannot generate deference if the relevant expertise has not been used by the decision-maker.

Re Brewster’s Application: “[T]he margin of discretion may, of course, take on a rather different hue when, as here, it becomes clear that a particular measure is sought to be defended (at least in part) on grounds that were not present to the mind of the decision-maker at the time the decision was taken”.

R (Begum) v Governors of Denbigh High School: Particular deference may be due if an expert decision-maker has particularly carefully addressed itself to relevant issues (but it does not follow that a decision can survive scrutiny (thanks to deference or otherwise) only if the decision-maker has addressed the various stages of the proportionality analysis in the way that a court would).

Complexity:

R (Lord Carlile) v Secretary of State for the Home Department: A group of parliamentarians invited an Iranian dissident to London. The Home Secretary (as she then was) had already excluded the dissident from the United Kingdom and refused to admit her for the meeting. The Home Secretary was especially concerned about the effects that admitting the dissident might have on relations with Iran. These could not, of course, be proved, but Lord Sumption nonetheless relied on them in upholding the Home Secretary’s decision.

Re Brewster’s Application: “Where a conscious, deliberate decision by a government department is taken on the distribution of finite resources, the need for restraint on the part of a reviewing court is both obvious and principled. Decisions on social and economic policy are par excellence the stuff of government. But where the question of the impact of a particular measure on social and economic matters has not been addressed by the government department responsible for a particular policy choice, the imperative for reticence on the part of a court tasked with the duty of reviewing the decision is diminished… [T]he level of scrutiny of the validity of the claims must intensify to take account of the fact that the claims are made ex post facto and the claimed immunity from review on account of the decision falling within the socio-economic sphere must be more critically examined.”

Polycentricity:

R v Cambridge Health Authority, ex parte B: A young child was grievously ill with leukaemia. Her doctors thought further treatment would be unjustified, in view of the suffering it would cause and the low likelihood of success. Her father sought the opinion of other experts, who suggested that an aggressive course of treatment, if followed, might have a 20% chance of success. But the treatment was available only in the private sector, at high cost. The health authority was unwilling to fund the treatment. Although Laws J had quashed its decision to refuse to fund at first instance, the CA allowed an appeal by the health authority.

Types of deference

Spatial/ doctrinal

Epistemic/ weight-based

R (Begum) v Governors of Denbigh High School: Example of weight being given to administrative decision-makers’ assessment of matters falling within their expertise.

Wednesbury unreasonableness

Associated Provincial Picture Houses v Wednesbury Corporation: “There may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense… [A] conclusion so unreasonable that no reasonable authority could ever have come to it.”

CCSU v Minister for the Civil Service: “By ‘irrationality’ I mean what can by now be succinctly referred to as ‘Wednesbury unreasonableness’… It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it.”

R v Chief Constable of Sussex, ex parte International Traders’ Ferry Ltd: These are not test” but “admonitory circumlocutions”.

Super-Wednesbury

R v Secretary of State for the Environment, ex parte Hammersmith and Fulham London Borough Council: “[S]ince the statute has conferred a power on the Secretary of State which involves the formulation and implementation of national economic policy …, it is not open to challenge on the grounds of irrationality short of the extremes of bad faith, improper motive or manifest absurdity. Both the constitutional propriety and the good sense of this restriction seem to me to be clear enough. The formulation and implementation of national economic policy are matters depending essentially on political judgment....

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