A Defence of Administrative Law Doctrine, Part I, Allan’s Critique of Due Deference

This is an extract from my paper “A Defence of Administrative Law Doctrine“

It is necessary at the outset to define what I mean by “doctrine”. What I have in mind is an account which provides a “systemic conception” of a particular area of law, setting out the relevant principles, rules and standards in a coherent fashion.[1] In the first instance, the focus of a researcher who is interested in doctrine will be on the “basic question” of what the law is rather than what the law ought to be.[2] Developing a systemic conception involves “the examination of primary materials in order to reach a conclusion about either a specific problem or a conclusion about a set of rules – a ‘doctrine’ – of general application”.[3]  Doctrine can be more or less ambitiously stated: the conclusion can take the form of the simple description of principles, the derivation of a series of principles, the organization of principles into a coherent scheme, or the development of an interpretive framework based on the immanent rationality of the principles.[4]  In all cases, the goal is to provide a systemic conception.

The target of the systemic conception may vary from the specific to the general. An author might attempt to provide an account of the law relating to “reasons” as an aspect of the duty of fairness, or “procedural fairness”, or “judicial review”, or “administrative law”, or “public law”. Whether these areas, or fields, have independent normative significance is an open question.[5] Most who aim to provide doctrinal accounts do not seek to justify their choice of target. Areas or fields of law arguably draw their salience from a consensus of the interpretive community which is the audience for any systemic conception: administrative lawyers understand what “administrative law” and “procedural fairness” are and evidently consider these concepts to be helpful in organizing their thoughts; the areas or fields do not necessarily, therefore, have any independent normative significance.

What I mean when I refer to “doctrine” in the pages that follow is a systemic conception of the general principles of judicial review of administrative action. For fear of further lengthening an already over-long introduction, I will leave my exposition of the general principles of administrative law to Part II. As I will explain in Parts I and II, the general principles of judicial review of administrative action are an appropriate foil for Professor Allan, as he directed considerable scepticism towards systemic conceptions of administrative law.

There is one last terminological point to make. I use the phrase general principles of judicial review of administrative action interchangeably with the phrase general principles of administrative law. I do this only for ease of exposition: my focus is on judge-made principles, considered in abstraction of how public administration operates, which is sometimes called the “legality” model of administrative law, in contrast to the “governance” model targeted at what actually happens on the ground in administrative decision-making environments.[6] Focusing on judge-made principles can only ever give a partial view of the reality of public administration, writ large,[7] but it gives as full a view as possible of judicial review of administrative action, a valuable object of study in its own right.[8]

When I first met Professor Allan, he had just published his “Human Rights and Judicial Review: A Critique of Due Deference” in the Cambridge Law Journal, an extended critique of the burgeoning literature on “deference” under the Human Rights Act 1998.[9]

Contributors to the literature had suggested that the courts should develop a rigorous doctrinal approach to determining the limits of judicial review of allegedly rights-infringing governmental action.

Professor Allan was sceptical. In his view, the conclusions in any cases arising under the Human Rights Act 1998 “will (or should) be determined by the substance of the issues arising, rather than any set of principles operating independently”.[10] As such, any “doctrine” of deference would invariably be empty or pernicious:

It is empty if it purports to implement a separation of powers between the courts and other branches of government; that separation is independently secured by the proper application of legal principles defining the scope of individual rights or the limits of public powers. A doctrine of deference is pernicious if, forsaking the separation of powers, correctly conceived, it permits the abdication of judicial responsibility in favour of reliance on the good faith or good sense or special expertise of public officials, whose judgments about the implications of rights in specific cases may well be wrong.[11]

Any “doctrine” of deference would be empty because constitutional principles such as the separation of powers between the political branches and the judiciary “are already embodied in traditional doctrine” such as Wednesbury unreasonableness.[12] Moreover, traditional doctrines such as proportionality and Wednesbury unreasonableness involve, in any event, “contextual analysis”, as they are “not truly distinct modes of review, but only labels for varying degrees of judicial scrutiny along a continuum”, with “more rigorous and sceptical … judicial scrutiny” applied in cases where the threat to and importance of protected rights are relatively greater.[13]

As for perniciousness, Professor Allan saw any “doctrine” of deference as “non-justiciability in pastel colours”, as it would involve “an abdication of judicial responsibility for the protection of rights” by virtue of “reliance on the expertise or experience or public visibility of the decision-maker as opposed to the apparent quality of the decision itself”.[14] In all cases, the “constitutional duty” of the courts is to “decide each case, after hearing evidence and argument, in accordance with the reasons that it finds persuasive”.[15] What matters is an assessment of the “intrinsic quality” of the decision under review.[16]

This is not to say that considerations, such as expertise, which featured heavily in the literature, are irrelevant but simply that they are rolled into the assessment the court must undertake of the “character and content of the legal questions arising in all the circumstances of the particular case”:[17] “The court must be persuaded by the reasons, however, rather than impressed by expertise or procedural competence…Faced with the claim that the individual has been unfairly treated, however, the court must itself appraise the defence presented, in the most cogent form that those responsible can muster”.[18]

Accordingly, an “independent” analysis of deference factors is neither necessary nor appropriate.[19] In the area of United Kingdom human rights law, Professor Allan’s critique was immediately influential. Without citing to Professor Allan, the House of Lords considered it inapt to speak of “deference” in relation to the “the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice”.[20]

I pushed back against Professor Allan’s position about the emptiness and perniciousness of deference doctrines in my doctoral thesis.[21]

In order to counter the charge of emptiness, I accepted that I would have to demonstrate that “a doctrine of curial deference is capable of precluding a court from reaching particular conclusions, on the assumption that the preclusion of particular conclusions demonstrates that a doctrine can have effect independently of the context of a particular case”.[22] I then argued by reference to American and Canadian jurisprudence that a doctrine of deference is not inevitably empty.[23]

To address the charge of perniciousness, I posited that there is a declared constitutional principle[24] that courts must give effect to legislative intent.[25] The obligation to vindicate the legislature’s intention gave rise to two inter-related justifications for a doctrine of deference. First, “a delegation of power” to a body other than a court “functions as a directive to courts to follow a restrained approach” to judicial review.[26]  Second, courts should take into account practical justifications for deference, such as expertise, complexity, democratic legitimacy and participation: “If reasons which explain the delegation of power can plausibly be inferred from a proper consideration of the relevant statutory provisions, then it can be argued that they influenced the legislative decision to delegate power to a body other than a court, and are thus factors that a reviewing court ought to consider”.[27] Put simply, a doctrine of deference based on legislative intent could not be pernicious.

In this paper, I go further and address not only deference but administrative law doctrine in general. For Professor Allan’s scepticism about deference extended to the general principles of administrative law: these too could be empty and/or pernicious. In the next Part, I will lay out Professor Allan’s critique of administrative law doctrine, which focuses on its inherent emptiness. Although I acknowledge that there is significant force to Professor Allan’s critique, I nonetheless argue that doctrine in administrative law is not invariably empty. In the subsequent section, I will take up the question of its potential perniciousness.

[1] Leighton McDonald, “Thinking about Doctrine in Administrative Law” in James Goudkamp, Mark Lunney and Leighton McDonald eds., Taking Law Seriously: Essays in Honour of Peter Cane (Hart, Oxford, 2021).

[2] Jason Varuhas, “Mapping Doctrinal Methods” in Paul Daly and Joe Tomlinson eds., Researching Public Law in Common Law Systems (Edward Elgar, Aldershot, forthcoming).

[3] Martin Dixon, “A doctrinal approach to property law scholarship: Who cares and why?” (2014) 3 Property Law Review 160, at p. 162.

[4] Jason Varuhas, “Mapping Doctrinal Methods” in Paul Daly and Joe Tomlinson eds., Researching Public Law in Common Law Systems (Edward Elgar, Aldershot, forthcoming).

[5] For an affirmative answer, see Jason Varuhas, “Taxonomy and Public Law” in Mark Elliott, Jason Varuhas and Shona Wilson Stark eds., The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives (Hart, Oxford, 2018).

[6] Robert Thomas, Administrative Law in Action: Immigration Administration (Hart, Oxford, 2022), at pp. 3-5.

[7] Leighton McDonald, “Thinking about Doctrine in Administrative Law” in James Goudkamp, Mark Lunney and Leighton McDonald eds., Taking Law Seriously: Essays in Honour of Peter Cane (Hart, Oxford, 2021).

[8] Paul Daly, Understanding Administrative Law in the Common Law World (Oxford University Press, Oxford, 2021), at pp. viii-ix.

[9] (2006) 65 Cambridge Law Journal 671.

[10] (2006) 65 Cambridge Law Journal 671, at p. 674.

[11] (2006) 65 Cambridge Law Journal 671, at p. 675. See also at p. 680: “there is no role for any distinct doctrine of deference to fulfil: its invocation above and beyond the ordinary constraints inherent in judicial review amounts to an abdication of the judicial role and a failure to protect legal rights. Either such a doctrine restates what is already implicit in the ordinary mechanisms of judicial review, or it dictates judicial abstinence from the functions reposed in the courts by the rule of law”.

[12] (2006) 65 Cambridge Law Journal 671, at p. 679.

[13] (2006) 65 Cambridge Law Journal 671, at p. 686.

[14] (2006) 65 Cambridge Law Journal 671, at p. 689.

[15] (2006) 65 Cambridge Law Journal 671, at p. 683.

[16] (2006) 65 Cambridge Law Journal 671, at p. 688.

[17] “Judicial Deference: Doctrine and Theory” (2011) 127 Law Quarterly Review 96, at p. 105.

[18] (2006) 65 Cambridge Law Journal 671, at p. 689.

[19] “Judicial Deference: Doctrine and Theory” (2011) 127 Law Quarterly Review 96, at p. 105.

[20] Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, at para. 16.

[21] A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge University Press, Cambridge, 2012).

[22] A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge University Press, Cambridge, 2012), at p. 27.

[23] A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge University Press, Cambridge, 2012), at pp. 30-31.

[24] A concept borrowed from Professor Allison: “a standard that is to be observed consistently as a requirement of justice or general political morality that has been authoritatively declared to establish, organise or rule governmental bodies”. The English Historical Constitution (Cambridge University Press, Cambridge, 2007), at p. 76.

[25] A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge University Press, Cambridge, 2012), at pp. 38-43.

[26] A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge University Press, Cambridge, 2012), at p. 55.

[27] A Theory of Deference in Administrative Law: Basis, Application and Scope (Cambridge University Press, Cambridge, 2012), at p. 71.

This content has been updated on September 26, 2022 at 14:04.