Deference on Questions of Law
| Date | 01 September 2011 |
| Published date | 01 September 2011 |
| Author | Paul Daly |
| DOI | http://doi.org/10.1111/j.1468-2230.2011.00867.x |
Deference on Questions of Law
Paul Daly
n
Contrary to the modern English position, it may be appropriate for reviewingcourts to accord
deference to interpretations of law rendered by administrators. There is no basi s for the current
strong presumptionagainst according such deference. Iti s possiblethat the legislature intended to
delegate the resolution of manyquestions of law to administrators, rather than tocourts. More-
over,relative to administrators, courts may lack institutional competence to resolvequestions of
law. Courts must alwayspolice the boundaries of interpretation, in order to keepadmin istrators
in check and safeguard the rule of law, but the general presumption that the resolution of ques-
tions of law is a matterfor courts should be jettisoned.
INTRODUCTION
OneValeClose, MaidaVale, is,we know fromthe law reports,‘a good-sized house
with three £oors’.
1
It is also enviably located. Maida Vale tube station, on the
Bakerloo line, is a ¢ve-minute walk away. Alsowithin walking distance is Lord’s
Cricket Ground and, at a stretch, Regent’s Park. The house is located on a private
road, protected from theA5 by an electronic barrier. It is, in short, a very valuable
property. In 1976, it was occupied by Sidney Pearlman, who held a lease that had
been granted by the property’s owners, the Keepers of Harrow School. Recent
legislative changes had permitted tenants such as Mr Pearlman to purchase the
underlying freeholds on ‘very favourable terms’.
2
Understandably, Mr Pearlman
was interested in exercising this statutory right. Unfortunately for him, the right
was only exercisable in respect of properties with a rateable value of less than
d1,500; the rateable value of One Vale Close was d1,597. An t ic i pat i ng p o ssi b le
unfairness in the operation of these provisions, Parliament had further provided
fora diminution in the rateable valuewhere certain improvements had been made
by the tenant. Precisely, any ‘improvement made by the execution of works
amounting to structural alteration, extension or addition’.
3
Mr Pearlman claimed
that he had made such an improvement. Out of his own pocket, he had funded
the replacement ofthe house’s old heating systemwith a modern,gas-¢red central
heating system. Holes had to be drilled in the walls and pipes laid to connect the
new gas boiler to the radiators and towel rails located throughout the house. It was
a‘substantial a¡air’ and increased the rateable value of the house.
4
Unsurprisingly, given the value of the property, Mr Pearlman’s landlords did
not agree to the reduction in the rateable value which would have allowed him
to purchase the house, so the matter went to the county court.The court found
n
Faculty of Law,University of Ottawa.
1Pearlman vKeepers of HarrowSchool [1979]QB 56,65, per Lord Denning MR (Pearlman).
2ibid.
3Housing Act1974, sched 8, para1(2).
4Pearlman n1above,72,perGeo¡rey Lane LJ.
r2011The Author.The Modern Law Review r2011The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(5) 694^720
against Mr Pearlman: the installation of a new central heating system did not
amount to a‘structural alteration, extension or addition’. But this was not the
end of the matter. Mr Pearlman sought to have the county court’s decision
quashed and he was successful before the Court of Appeal. Geo¡rey Lane LJ dis-
sented. He took the view that the county court judge was acting within his jur-
isdiction and therefore, even if he had wrongly interpreted the statute, a
reviewingcourt could not correct him.That viewhas not held swayand, broadly
speaking, itis the approach of the majorityof the Court of Appeal that has come
to be adopted by the English courts.
All three judges on the Courtof Appeal agreedthat the countycourt judge had
committed an error of law: he had, as Lord Denning MRput it,‘misconstrued’
the words of the statute.
5
The next steptaken by the majority wasto hold that this
error provided a basis for intervention by a reviewing court. In Eveleigh LJ’s
words,‘Parliament determines what structural alteration means. If the judge pro-
ceeds to answer the question having wrongly comprehended its meaning his
decision is a nullity’.
6
The role of areviewing court was to correct this misinter-
pretation, and Eveleigh LJ duly supplied the correct interpretation of the statute:
‘In my opinionstructural means appertaining to thefabric of a building soas to be
a part of the complex whole’.
7
Mr Pearlman’s improvements fellwithin the scope
of the statute.The county court judge had got it wrong, and because he hadbeen
wrong on a question of law, a reviewing court would be entitled to correct him.
I will argue that the reasoning process applied by the majorityof the Court of
Appeal, which has now become the dominant approach to judicial review for
errorof lawi n England, was wrong.
8
In doing so, I will go almost entirely against
the grain of considered legal opinion.
9
However, none of the arguments that can
be advanced in favour of the Pearlman approach is su⁄ciently convincing to sup-
port the current legalorthodoxy. Lest I be accusedof criticism for criticism’s sake, I
will outline an alternative approach, and detail how Pearlman would have been
decided under it. Brie£ystated, I will arguethat reviewingcourts ought in cer tain
circumstances to defer to interpretations of law made by inferior bodies. The
approach I will outline is not entirely novel. Adopting it would require a change
in the law, but not a radical one. At the very least, I hope to stimulate debate
amongst jurists and judges about whether the current position is appropriate.
In England in recent years, ‘deference’ has been urged in respect of the
courts’ implementation of the HumanRights Act1998.
10
Further a¢eld, however,
5ibid,69.
6ibid,77.
7ibid,79.
8Pearlman is a slightly inappropriate example, for in the light of subsequent decisions, it may have
been wrongly decided. SeeW.Wade and C. Forsyth, AdministrativeLaw (Oxford: Oxford Univer-
sity Press,10
th
ed, 2009) 225.But I will persist with it, for it provides a colourful and well-known
example of whathas become the orthodox English approach.
9I should note thatP.Craig, AdministrativeLaw (London: Sweet and Maxwell,6
th
ed, 2008) 464^473
comes to a similar conclusion in his treatment of jurisdictional reviewa ndi ndeed thatthose parts
of my argument based on legislative intent resemble his.
10 For a general discussion, from a historical perspective, see J.W. F. Alliso n,The English His torical
Constitution: Continuity, Change and European E¡ects (Cambridge: Cambridge University Press,
2007).
Paul Daly
695
r2011The Author.The Modern Law Review r2011The Modern Law Review Limited.
(2011) 74(5) 694^720
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