In Defence of Due Deference
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00757.x |
| Published date | 01 July 2009 |
| Date | 01 July 2009 |
| Author | Alison L. Young |
In Defence of Due Deference
Alison L.Young
n
The doctrine of deference permeates human rights review. It playsa role in de¢ning Convention
rights, in determining the nature of the proportionality test applied when analysing non-abso-
lute rights, as well as in deciding the stringency of its application. The role of deference has
recently been subjected to both judicial and academic criticism, some of which advocates the
demise of the doctrine. This article develops a contextual account of deference that is justi¢ed
for epistemic reasons, rather than reasons of relative authority.This conception i s able to with-
stand current criticism and is modest enough to playa role in a range of di¡erent justi¢cations and
understandings of judicial review under the Human Rights Act.The article then provides a more
detailed account of deference, taking account of the relative institutional features of the legisla-
ture, executive and judiciary,without running the ri skthat the court fails to perform its constitu-
tional function of protecting individual rights.
INTRODUCTION
Determining the extent to which courts can control the substance of actions and
decisions of the administration has always required a delicate balancing act.
Courts arerequired to control the substanceof the decision, withoutdetermining
the issue for themselves and substituting their account of the merits of the deci-
sion for that of the administration. To intrude too far poses a potential threat to
the separation of powers; courts are accused of performing the function of the
administration, as opposed to merely checking the manner in which the admin-
istration exercised its powers. But to intrude too little leaves courts open to the
accusation of being powerless, failing to perform their constitutional function.
The Human Rights Act 1998 complicated this delicate balance further when
courts are faced with decisionsof public authorities that may have breached Con-
ventionrights.Itisclear,postR(Daly)vSecretary of State for the Home Department
1
(Daly), that courts are required to de¢ne Convention rights, applying a test of
proportionality whe n de¢ning pos itive obligations placed upon the State to pro-
tect absolute rights, as well as d etermining whether restrictions placed upon non-
absolute rights are ‘necessary in a democratic society’. The test of proportional ity
requires a greater intensity of review. The court does not merely determine
whether thedecision of the public authority was‘reasonable’or ‘rational’ but must
also ‘assess the balance which the decision maker has struck’,
2
paying attention to
n
Fellow andTutor in Law, Hertford College, University of Oxford.The author would like to thank
Paul Craig,TrevorAllan, Julian Rivers, Je¡ King, Jan vanZyl Smit and the anonymous reviewers for
comments on earlier drafts,as well as Aileen Kavanagh and contributors to the ConstitutionalTheory
seminar on deference held atTrinity College, Universityof Oxford on 20 May 2008,which prompted
this article. Responsibility for errorsand opinions remains that of the author alone.
1R(Daly)vSecretary of State forthe Home Department [2001]UKHL 26; [2001]2 WLR 1622.
2ibid at [26](Lord Steyn).
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(4) 554^580
‘the relative weight accorded to interests and considerations’.
3
Whilst requiring
the courts to scrutinise decisions more carefully, the test of proportionality is also
clearly not meant to demand that courts substitute their own assessment of the
facts for that of the public authority. There has been no shift to‘merits review’.
4
The judiciary is almost required to act as a foolish angel: rushing in to protect
human rights, whilst fearing to tread on the toes of public authorities.
The tool of preference for performing this delicate balancing act has been the
doctrine of defe rence, which can be used both to de¢ne Convention r ights in a
way that grants greater autonomy to the administration, as well as modifying the
components of the tes t of proportionality and the i ntensity with which it is
applied. The greater the degree of deference courts grant to the executive or the
legislature, the weaker the scrutinyof the court.Thus,by modifying the degree of
deference, courts are able to vary theirreview of publicauthorities, tailoringtheir
scrutiny to the context of the decision they are reviewing.
However, the doctrine of deference has recently been criticised, both by the
courts and in academiccommentary. This articlewill argue that this criticism does
not call for the demise, but for the re¢nementof the doctrine of due deference. In
particular, it requires a recognition that the doctrine of due deference does not call
for courts to abandon their constitutional role of scrutinising decisions of the
executive. However, it may require courts to recognise and give weight to the
opinions of those with greater expertise or knowledge. This may include the
executive and the legislature.To defer in this manner does not require the accep-
tance of a special relationship between the judiciary, executive and thelegislature,
creatinga particular doctrine of deference. Rather, it rests on principles common
to all decision-makers. Nor does it require courts to consider features external to
the assessment of rights. Rather, deference governs the weight to be given to dif-
ferent sources of information concerning the de¢nition and application of Con-
vention rights. The aim of due deference is not to l imit rights, but to fur ther the
precise delineation of a right and its application to sp eci¢c circumstance s.
In order to defend due deference, we need ¢rst to de¢ne and re¢ne our account
of deference, before explaining how this conception of deference survives the
recent judicial criticism foundi n Huang vSecretary of State for the Home Department
5
(Huang) and the most pertinent academic criticism found in the work of Trevor
Allan.
6
DEFINING AND REFINING DEFERENCE
It is easy to sympathise with Lord Bingham’s comments in Huang as to the ten-
dency of the doctrine of deference to add an unnecessary layer of complexity to
the law, given the plethora of terminology used to describe di¡erent doctrines of
3ibid.
4ibid at [27] (LordSteyn).
5Huang vSecretaryof State for the Home Departmentand KashmirivSecretaryof State for the Home Depart-
ment [2007] UKHL 11;[2007] 2 AC167.
6 T. R. S. Allan,‘Human Rights and Judicial Review: a Critique of ‘‘Due Deference’’’ (2006) 65 CLJ
671.
Alison L. Young
555
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
(2009) 72(4) 554^580
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