Title

The Dangerous Doctrine of Deference

Publication Type

Working Paper

Publication Date

1-2008

Abstract

This paper examines if, in the course of interpreting a bill of rights, there are situations in which the judiciary of a nation with a Westminster-style constitution ought to decline to make a decision in preference to a prior choice on the matter made by either the executive or legislative branch of government. Courts in a number of jurisdictions, including Canada, Singapore, the United Kingdom and the United States, currently apply doctrines that circumscribe their ability to subject administrative decisions and legislation to in-depth scrutiny for compliance with the standards established by bills of rights. In the United Kingdom, for instance, since the entry into force of the Human Rights Act 1998 this has taken the form of a doctrine of ‘deference’. Singapore courts frequently defer to Parliament’s policy choices when considering the constitutionality of legislation. It is submitted that by doing so, courts may not be fully appreciating that their role as a constitutional tribunal is substantively different from that of an administrative court. The paper considers the practical difficulties of applying deference in a principled manner, and examines justifications that have been articulated in support of judicial deference. It is contended that these conceptual foundations for deference doctrines are less stable than they seem. In this respect, the common law tradition may have done more harm than good. It is the author’s thesis that the doctrine of deference should be jettisoned altogether. Courts should fulfil their constitutional role of ensuring that governmental actions do not contravene guarantees of fundamental liberties, regardless of the nature of such actions. It is submitted that in the course of this assessment courts may, when appropriate, accept the exercise of discretion by the executive or legislature on matters that these branches have greater expertise in. However, the judiciary must continue to be responsible for ensuring the existence of facts upon which the exercise of discretion is premised, and the ultimate decision as to whether the action violates the bill of rights.

Keywords

Administrative law, constitutional law, deference, interpretation of bills of rights, non-justiciability

Discipline

Public Law and Legal Theory

Research Areas

Globalization and Policy Studies

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