Deference
The principle of judicial deference refers to the extent to which the judiciary ought to defer to
decisions made by a public authority.
Two types of deference:
Spatial Deference:
There is a “space” or category of decisions that are off the table automatically.
The main one is national security (Carlile).
Due Deference:
Also known as “weighted deference”.
Recognises that different rights have different weights and that while the decision is
for the court, it will give weight to the public body if the case requires it.
Difference in these two approaches can be seen by the approaches of two different judges, Lord
Sumption and Lady Hale, in Carlile.
Lord Sumption considered that the court’s role should be heavily circumscribed.
In deciding whether infringement was proportionate, it was right to give wide margin
of judgement to Foreign Secretary.
This was because the judgement really involved making a predictive
judgement about the likelihood that Iran would perceive this allowing of
entry as a hostile act – predictive and inherently imprecise.
Foreign Secretary deemed to have better expertise of relationship.
Where the decision was based on factors where the court did not
have the evidence, experience, and institutional legitimacy to form its
own view with confidence, its interference could only be justified in
exceptional circumstances.
This approach represents a radical form of deference which involves substituting
reasonableness review for proportionality review on the basis that the latter is
considered too intrusive in the circumstances.
As Elliott and Veruhas put it – “Deference is achieved by replacing a more
demanding question (“Is the measure proportionate?”) with a less demanding
one (“Is the measure rational?”)”.
Lady Hale’s approach represents an alternative, arguably more nuanced, approach to
deference.
By this approach, the court would continue to work through the four stages/questions
required by proportionality review but would ascribe an appropriate degree of weight
to the decision-makers views if the case required it.
On this basis, Lady Hale did not agree with Lord Sumption that the court
should merely ask whether the measure in question was rational.
This idea was summarised perfectly by Lady Hale when she said: “I have no doubt
that it is for the court to make the proportionality assessment; but I have equally no
doubt that on some parts of that assessment the court should be very slow indeed to
disagree with the assessment made by the Government.”
Which model of deference is to be preferred?
Hunt – the fundamental problem with spatial deference is that it assumes that cases can be “neatly
classified into categories according to the kind of subject matter they raise, and then a particular
standard of review applied to them.”
Take national security cases for instance, just because the case concerns one of national
security, does not mean that there isn’t the possibility of a misjudgement; it would be
dangerous to sweep judicial review completely off the table.
The principle of judicial deference refers to the extent to which the judiciary ought to defer to
decisions made by a public authority.
Two types of deference:
Spatial Deference:
There is a “space” or category of decisions that are off the table automatically.
The main one is national security (Carlile).
Due Deference:
Also known as “weighted deference”.
Recognises that different rights have different weights and that while the decision is
for the court, it will give weight to the public body if the case requires it.
Difference in these two approaches can be seen by the approaches of two different judges, Lord
Sumption and Lady Hale, in Carlile.
Lord Sumption considered that the court’s role should be heavily circumscribed.
In deciding whether infringement was proportionate, it was right to give wide margin
of judgement to Foreign Secretary.
This was because the judgement really involved making a predictive
judgement about the likelihood that Iran would perceive this allowing of
entry as a hostile act – predictive and inherently imprecise.
Foreign Secretary deemed to have better expertise of relationship.
Where the decision was based on factors where the court did not
have the evidence, experience, and institutional legitimacy to form its
own view with confidence, its interference could only be justified in
exceptional circumstances.
This approach represents a radical form of deference which involves substituting
reasonableness review for proportionality review on the basis that the latter is
considered too intrusive in the circumstances.
As Elliott and Veruhas put it – “Deference is achieved by replacing a more
demanding question (“Is the measure proportionate?”) with a less demanding
one (“Is the measure rational?”)”.
Lady Hale’s approach represents an alternative, arguably more nuanced, approach to
deference.
By this approach, the court would continue to work through the four stages/questions
required by proportionality review but would ascribe an appropriate degree of weight
to the decision-makers views if the case required it.
On this basis, Lady Hale did not agree with Lord Sumption that the court
should merely ask whether the measure in question was rational.
This idea was summarised perfectly by Lady Hale when she said: “I have no doubt
that it is for the court to make the proportionality assessment; but I have equally no
doubt that on some parts of that assessment the court should be very slow indeed to
disagree with the assessment made by the Government.”
Which model of deference is to be preferred?
Hunt – the fundamental problem with spatial deference is that it assumes that cases can be “neatly
classified into categories according to the kind of subject matter they raise, and then a particular
standard of review applied to them.”
Take national security cases for instance, just because the case concerns one of national
security, does not mean that there isn’t the possibility of a misjudgement; it would be
dangerous to sweep judicial review completely off the table.
