Published online by Cambridge University Press: 02 January 2018
This article explores two questions. First, in adjudicating claims under the Human Rights Act 1998 (HRA), should the court defer to the executive or legislature on the ground that the latter two institutions possess superior expertise or information-gathering powers, when such expertise or powers fail to generate persuasive first-order reasons for the court? This article argues that rationality requires courts to defer on these second-order grounds of institutional capacity in situations of judicial uncertainty. Secondly, this article examines an underexplored question in the current literature: when is it justified for courts to consider the government as possessing second-order grounds of institutional capacity that warrant deference? It is argued that rational, impartial and open adjudication in the post-HRA era requires the government to prove its claims of superior institutional capacity, and courts to openly scrutinise such claims by considering a number of factors, including, crucially, the government institution's track record of expertise and credibility.
The author would like to thank Trevor Allan, Janice Brabyn, Tony Carty, Joseph Chan, Peter Chau, Richard Cullen, Helen Fenwick, Lusina Ho, Puja Kapai, Jacqueline Law, Mingchiu Li, Leticia Tang, Scott Veitch, Po Jen Yap, the two anonymous reviewers and participants at the Society of Legal Scholars Annual Conference 2011.
1. Although there are overlapping considerations regarding these three grounds of deference, there are distinct concerns too and it is possible to discuss these grounds separately.
2. Hunt, M ‘Sovereignty's blight: why public law needs “due deference”’ in Bamforth, N and Leyland, P (eds) Public Law in a Multi-layered Constitution (Oxford: Hart, 2003) pp 353–354 Google Scholar; Young, Al ‘In defence of due deference’ (2009) 72 MLR 554 at 555 and 570CrossRefGoogle Scholar; Kavanagh, A ‘Defending deference in public law and constitutional theory’ (2010) 126 LQR 236 at 244–245.Google Scholar
3. Young, above n 3, at 574; Kavanagh, above n 3, at 243–244 and 249–250. Jowell supports in principle deference on the ground of institutional competence. Jowell, J ‘Judicial deference and human rights: a question of competence’ in Craig, P and Rawlings, R (eds) Law and Administration in Europe: Essays in Honour of Carol Harlow (Oxford: Oxford University Press, 2003) p 67 Google Scholar; Jowell J, ‘ Judicial deference: servility, civility or institutional capacity? ’ (2003) PL 592.
4. As will be explained below, Allan endorsed this point only in relation to deference on first-order grounds, but not that on second-order grounds. Allan, Trs ‘Human rights and judicial review: a critique of “due deference”’ (2006) 65 CLJ 671 at 672 and 676CrossRefGoogle Scholar; Allan, Trs ‘Judicial deference and judicial review: legal doctrine and legal theory’ (2011) 127 LQR 96 at 97, 103 and 105.Google Scholar
5. Feldman convincingly challenged presumptions about politicians' superior institutional competence in assessing terrorism-related risks. Feldman D ‘ Human rights, terrorism and risk: the roles of politicians and judges ’ (2006) PL 364 at 377–384. See also Poole T ‘ Courts and conditions of uncertainty in “times of crisis” ’ (2008) PL 234 at 244–258; Walker C ‘ The threat of terrorism and the fate of control orders ’ (2010) PL 3 at 15; below nn 96–101.
6. Kavanagh, above n 3, at 223 and 233; Young, above n 3, at 555; Hunt, above n 3.
8. As opposed to exclusionary reasons, above n 7. Perry, , above n 8, at 932. Cf Raz, J The Morality of Freedom (Oxford: Clarendon Press, 1988) ch 3Google Scholar; Soper, P The Ethics of Deference (Cambridge: Cambridge University Press, 2002) pp 38–47 CrossRefGoogle Scholar; Dyzenhaus, D ‘The politics of deference: judicial review and democracy’ in Taggart, M (ed) The Province of Administrative Law (Oxford: Hart, 1997) p 286.Google Scholar
9. Perry, above n 8, at 932; Kavanagh, above n 3, at 233.
10. The kind of situation described here should be distinguished from two other circumstances: (1) where information is hidden from the litigant but not the court, as in what happens when the closed material procedure is used; and (2) where the government conceals information under public interest immunity and does not seek to rely on such information in the trial. These two situations are not the subject of this article's concern.
11. Allan, ‘ Judicial deference and judicial review ’, above n 5, at 99–100.
12. Re E (a child)  UKHL 66.
13. Ibid, at –.
15. A v Secretary of State for the Home Department  2 AC 68 (‘Belmarsh’).
16. Ibid, at , , , ,  and .
17. Belmarsh, above n 16, at  and .
18. Hunt, above n 3, p 340; Young, above n 3, at 575; Kavanagh, A Constitutional Review under the UK Human Rights Act (Cambridge: Cambridge University Press, 2009) pp 187–189 Google Scholar; Allan, ‘Human rights and judicial review’, above n 5, at 689; Allan, ‘Judicial deference and judicial review’, above n 5, at 106; Allan Trs ‘Deference, defiance and doctrine: defining the limits of judicial review’ (2010) 60U of Toronto LJ 41 at 48.
19. Young, above n 3, at 574–575; Kavanagh, above n 3, at 243–244 and 249–250; Allan, ‘Judicial deference and judicial review’, above n 5, at 96, 97, 103 and 105; Allan, ‘Human rights and judicial review’, above n 5, at 672 and 676.
20. The cases that Hunt, above n 3, cited as displaying due deference all seemed to be illustrations of deference to expertise as first-order reason.
21. Kavanagh, above n 3, at 231, 232 and 250; Kavanagh A ‘Judicial restraint in the pursuit of justice’ (2010) 60U of Toronto LJ23 at 31–32.
23. Allan, ‘Human rights and judicial review’, above n 5, at 688–689; Allan, above n 19, at 51.
24. Allan, above n 19, at 42; Allan, ‘Judicial deference and judicial review’, above n 5, at 100, 101 and 109; Allan, ‘Human rights and judicial review’, above n 5, at 688.
25. Section 3 will explain when courts can consider such reasons as being established. My arguments also assume that the government body and the court are dealing with the same question – an issue raised in Foley, B Deference and the Presumption of Constitutionality (Dublin: Institute of Public Administration, 2008) p 278.Google Scholar
26. Judges have acknowledged that rights cases before them are finely contested. For recent judgments, see Quila v Secretary of State for the Home Department  EWCA Civ 148 at –; Regina (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs No. 2 (Guardian News and Media Ltd and others intervening)  QB 218 at ; Regina (Ghai) v Newcastle City Council (Ramgharia Gurdwara, Hitchin and others intervening)  3 WLR 737 at –.
27. King, above n 23, at 413 and 425–426; Young, above n 3, at 576.
28. Allan, ‘Judicial deference and judicial review ’, above n 5, at 102. For the distinction between indeterminacy and uncertainty, see Besson, S The Morality of Conflict (Oxford: Hart, 2005) pp 53–59.Google Scholar
29. Perry, above n 8, at 929.
30. A similar point was made in Hickman, T Public Law after the Human Rights Act (Oxford: Hart, 2010) p 142.Google Scholar
31. Kavanagh, above n 19, pp 171–172.
32. For recent cases, see Hassan Masood v Aileen Kerr & others  EWCA Civ 1347; Leicestershire County Council v W & P  EWCA Civ 710. Hodgkinson, T and James, M Expert Evidence: Law and Practice (London: Sweet & Maxwell, 3rd edn, 2010) pp 386–390 Google Scholar; Woolf, Lord, ‘Are the courts excessively deferential to the medical profession?’ (2001) 9 Medical Law Review 1 at 10–11.Google ScholarPubMed
33. Bolitho v City and Hackney Health Authority  3 WLR 1151.
34. Ibid, at .
35. Keran Louise Henderson v the Crown  EWCA Crim 1269.
36. Ibid, at .
37. Allan, ‘Judicial deference and judicial review’, above n 5, at 111.
38. Allan, ‘Human rights and judicial review’, above n 5, at 676, 683 and 689; Allan, ‘Judicial deference and judicial review’, above n 5, at 107.
39. Allan, ‘Human rights and judicial review’, above n 5, at 672, 674 and 675 (emphasis added).
40. Allan, ‘Judicial deference and judicial review’, above n 5, at 101; Allan, ‘Human rights and judicial review’, above n 5, at 688.
41. Allan, ‘Judicial deference and judicial review’, above n 5, at 100 and 109.
42. See Hickman T ‘The substance and structure of proportionality’ (2008) PL 694 at 697.
43. Young, above n 3, at 576.
44. Allan, ‘Human rights and judicial review’, above n 5, at 676.
45. Ibid, at 692–693.
46. Ibid, at 693.
47. Ibid, at 692.
48. Ibid, at 694.
49. Poole, above n 6, at 253–259.
50. Ibid, at 248–258.
51. Although most cases discussed in this article are concerned with national security (since second-order reasons are most prominently relied on by the government in this context), my arguments are intended to apply to HRA cases of all subject matters.
52. Eg whether it is a determination of facts, risk assessment or moral judgment.
53. Poole, above n 6, at 249.
54. Ibid, at 250.
55. This expression was coined by Hunt, above n 3, p 340.
56. Thus Komesar's general account of relative institutional competence, while helpful, cannot be nakedly transposed to the debate on deference under the HRA since it omits consideration of the burden of proof in rights adjudication. Komesar, Nk Imperfect Alternatives: Choosing Institutions in Law, Economics and Public Policy (Chicago, IL: University of Chicago Press, 1996).Google Scholar
57. Poole, above n 6, at 250–251.
58. See, eg, Hunt, above n 3, p 353; Kavanagh, above n 19, pp 182–190; Young, above n 3, at 565–567; King, above n 23. See also Jowell, ‘Judicial deference and human rights’, above n 4, p 80 ; Raz, J ‘Disagreement in politics’ (1998) 43 Am J Juris 25 at 45–46CrossRefGoogle Scholar; Fuller, L and Winston, K ‘The forms and limits of adjudication’ (1978) 92 Harvard Law Review 353 CrossRefGoogle Scholar; Komesar, above n 57.
59. Komesar alluded that history may be important for assessing institutional competence. Yet this factor seems to have played a small role in his theory. Komesar, above n 57, p 259.
61. The coalition government recently accused the Blair government of not adapting our defence institutions to suit new circumstances. ‘A Strong Britain in an Age of Uncertainty: the National Security Strategy’ (Foreword) and ‘Securing Britain in an Age of Uncertainty: The Strategic Defence and Security Review’ (Foreword), both presented to Parliament in October 2010, available at: http://www.official-documents.gov.uk/.
62. Transcript of the James Smart Lecture by the former Director General of the Security Service, Manningham-Buller Eliza, City of London Police Headquarters, 16 October 2003, p 4, available at: https://www.mi5.gov.uk.
63. It may be objected that the analogy with expert opinion is flawed. In situations of competing expert testimony, the judge is choosing between the evidence of two experts, whereas in public law cases the judge is choosing between the views of an expert government body and that of a non-expert litigant. In the former situation, it is justified for the judge to reject one expert view as he can choose to rely on another expert view. In contrast, in public law cases, if the judge rejects the government's expert view, he would have to rely on the litigant's non-expert view. In the latter situation, it would hardly be justified for the court to reject the government's expert view unless there are strong grounds for doing so. My reply is that the analogy is applicable in the situation under discussion in which the government and the litigant's first-order arguments are equally strong, or the court is uncertain which side's arguments are stronger. These are situations where the government is unable to demonstrate its relative expertise through first-order reasons. My argument is precisely that in these situations courts ought not automatically to assume that the public body possesses relative expertise, and may only defer if the government can prove that this is the case.
64. Poole, above n 6, at 254, argues that courts must try to gain access to as much information as possible.
66. King, above n 23, at 411–414 and 425–426.
67. Ibid, at 410.
68. Ibid, at 411.
69. Kavanagh, above n 3, at 226; Kavanagh, above n 19, pp 175, 182 and 219.
70. Kavanagh, above n 3, at 234–235; The Queen on the Application of Louis Farrakhan v Secretary of State for the Home Department  EWCA Civ 606 (‘Farrakhan ’).
71. Farrakhan, above n 71, at .
72. Kavanagh, above n 3, at 234–235 (emphasis added).
73. Kavanagh, above n 19, pp 214–215; R (Gillan) v Metropolitan Police Commissioner  2 AC 307 (‘Gillan’).
74. Gillan, above n 74, at .
75. Kavanagh, above n 19, pp 212–213 and 215–218.
76. Belmarsh, above n 16, at , ,  and .
77. Ibid, at . Poole, above n 6, at 250, criticised the court for ‘sidestepping’ risks.
78. Kavanagh, above n 19, pp 212–218.
79. See below nn 96–101.
80. This is especially so with the introduction of closed-material procedures in certain contexts, under which evidence can be revealed to the court in confidence. Above n 11.
81. I thank Jacqueline Law for raising this point.
82. Tomkins, A ‘National security and the role of the court: a changed landscape?’ (2010) 126 LQR 543 at 567.Google Scholar
83. Intelligence and Security Committee (ISC) ‘Could 7/7 have been Prevented? Review of the Intelligence on the London Terrorist Attacks on 7 July 2005’, presented to Parliament in May 2009, paras 284–285.
84. In 2009, the ISC requested statistics from 2004 onwards but the government said detailed convictions data was only available from 2007. Detailed statistics are now available at the Home Office's website: http://www.homeoffice.gov.uk/science-research/research-statistics/. Notable terrorist convictions since 2001 are summarised on the Security Service's website: https://www.mi5.gov.uk/output/terrorist-plots-in-the-uk.html.
85. ISC, above n 84, paras 289–290.
86. Poole, above n 6, at 258, analogises courts' probing of national security claims to them ‘peering through the glass darkly’.
87. Belmarsh, above n 16, at ,  and .
88. See cases in nn 91, 96 and 98; Al Rawi v Security Service  EWCA Civ 482; Af (No. 3)  UKHL 28; The Queen of the Application of Naik v Secretary of State for the Home Department  EWCA Civ 1546. See Londras De, above n 61, pp 230–279.
89. Below nn 96–101.
90. Eg Re Ab (child abuse: expert witnesses)  EWHC Fam 5, where the court refused to trust an expert witness since his credibility was criticised in previous cases.
91. AS & DD (Libya) v Secretary of State for the Home Department  EWCA Civ 289 (‘As & Dd (Libya)’) at –.
92. Above nn 83–85.
93. ‘Justice and Security Green Paper’, presented to Parliament by the Secretary of State for Justice, October 2011, available at: http://www.official-documents.gov.uk/document/cm81/8194/8194.pdf, p 4.
95. ‘The Threat to National Security’, address by the Director General of the Security Service, Jonathan Evans, at the Worshipful Company of Security Professionals, 16 September 2010, para 11, available at: https://www.mi5.gov.uk.
96. Binyam Mohamed v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 65 at .
97. As & Dd (Libya), above n 92, at .
98. Lord Alton of Liverpool v Secretary of State for the Home Department (30 November 2007). See also R (on the application of Al-Sweady) v Secretary of State for Defence  EWHC 1687 (Admin) at .
100. ‘The Butler Report: Britain's Iraq Intelligence Falls Short’, CBC News, 28 June 2004, available at: http://www.cbc.ca/news/background/Iraq/butler_report.html
101. Numerous inquiries have been held on pre-Iraq War intelligence – eg the Butler Review, 14 July 2004, available at: http://www.archive2.official-documents.co.uk/document/deps/hc/hc898/898.pdf, see esp paras 108–117; and the Chilcott Inquiry, available at: http://www.iraqinquiry.org.uk/.
102. The Chief of the Security Intelligence Service was ‘confident’ that the Butler recommendations have been implemented. ‘Britain's Secret Frontline’, address by Sir John Sawers, 28 October 2010, available at: https://www.sis.gov.uk/. We will have a better picture of whether they truly are once the Chilcott Inquiry delivers its findings.
103. This body comprises top officials from departments responsible for national security. It was established to coordinate efforts. See: http://www.cabinetoffice.gov.uk/content/national-security-council/.
104. ISC, ‘Report into the London Terrorist Attacks on 7 July 2005’, presented to Parliament in May 2006, p 32.