Deference to the Administration in Judicial Review

Judicial deference to the administration is a concept and legal practice that is present to a greater or lesser degree in every constitutional system. The analysis of the national reports reveals why, how and when the courts defer to administrative actions.

In each constitutional system, deference is employed differently as the positioning of the judiciary within the separation of powers, the role of the courts as a mechanism of checks and balances and the scope of the judicial review differ. On the top of that, within the constitutional system itself, the way deference operates is complex, multi-faceted and usually covert within the same legal order.

Deference is granted on political and technical grounds. Within this framework though, what is political depends on a number of issues such as the societal values and the political timing. More specifically, it seems that topic of controversial nature, that wide portions of the society oppose, are perceived as political and therefore the courts are keener to grant deference. But the degree of deference depends on the characteristics of the dispute, the gravity of the issue, the level of technicality and whether the dispute is human rights related. It is also a dynamic concept as it is adjusted to the necessity of the circumstances.

“Deference” is not a term which is found in the legal vocabulary of Argentinean law. However, the judicial review of administrative actions have had different stages. From denying control to having a judicial control with all the guarantees of defense in court. At present, the main issue of discussion is about determining the scope of the review.

This is the Australian report on the topic of judicial deference to administrative decision-makers, for the 2018 Congress of the International Academy of Comparative Law in Fukuoka, Japan.

Judicial deference is a topic that has its origins in North American jurisprudence. In Australia, Gageler J has identified alternative meanings for the concept: respectful regard for the judgment or opinion of another; and respectful acknowledgement of the authority of another. This paper explores deference in both respects by considering the nature of the decision and the identity of the decision-maker; privative clauses limiting judicial review; procedural fairness, fact finding about jurisdictional error and the standard of reasonableness in judicial review.

The strict separation of powers in the Australian Constitution has profound implications for the administrative law system and for judicial review in Australia. Judicial review is concerned with the legality not the merits of decisions under review. A court will intervene if it perceives there has been an error of law, but not otherwise.

The comprehensive statutory system of merits review undertaken by tribunals at both Commonwealth and State levels reinforces the distinction between legality and merits review. There is less impetus to expand judicial review where an alternative is broadly available. While the courts have eschewed the language of deference, in practice a great deal of deference is shown to administrative decision-makers, except on questions of law.

The doctrine of judicial deference to administrative decision-makers is central to Canadian administrative law. One could almost say that administrative law in Canada is the law of judicial deference. However, in order to properly understand judicial deference in Canada, it is necessary to step back and place it in context. The first point is that “deference” has always played a role in administrative law in one way or another. However, what makes deference now so important is that it has become a specific analytical doctrine through which courts interpret statutes when faced with applications for judicial review. Such a method of statutory interpretation purports to systematize judicial control. However, if such a juridification has helped solve problems on the short term, it raises new questions while at the same time illustrating the judicial origins of Canadian administrative law.

La doctrine de la déférence judiciaire envers l’administration bénéficie d’un statut central en droit administratif canadien. On pourrait presque dire que le droit administratif canadien est le droit de la déférence judiciaire. Or, pour bien comprendre le développement de cette doctrine, il faut la placer en contexte. La première constatation est qu’il a toujours existé de nombreux moyens par lesquels le juge de révision manifeste une « déférence » envers l’administration. En revanche, quand on parle aujourd’hui de la déférence judiciaire, on parle spécifiquement de la doctrine portant sur la méthode d’interprétation de la loi par le juge en cas de demande de révision judiciaire. Cette méthode d’interprétation de la loi a pour objet la recherche d’une systématisation du contrôle judiciaire. Or, si cette recherche a su résoudre certains problèmes sur le court terme, elle soulève des nouvelles questions tout en témoignant des origines judiciaires du droit administratif canadien.

Generally speaking, judicial deference is not a well-researched terminology in China. In another words, the judiciary in China had to defer to administrative organs rather than show their respects in a self-restraint way. One of the core issues in China’s judicial reforms that have been pushed forward in recent years is how to rationally arrange various governmental powers, to coordinate the relationships among the legislature, the administration and the judiciary, and to give full play to the institutional advantages of various powers. Moreover, with the gradual progress of judicial reform, it can be expected that judicial deference will inevitably become an important topic both in theory and in practice.

Administrative courts at the onset of the new century face the challenge of ever-changing legislation. Frequent amendments do solve some gaps but create even more gaps which have to be filled by the courts. In the Czech Republic relative ease of judicial review by the courts of first instance and the wide open access to the Supreme Administrative Court mean that many administrative cases are resolved in four instances—two instances of administrative proceedings and additional two instances of judicial proceedings. All these things considered, it is not surprising that neither legal scholarship nor case law defines any general concept of judicial deference (or self-restraint) to the administration. Various areas of public law contain some expressions of judicial deference (most notably the limitation of judicial review of administrative discretion and subsidiarity of judicial review). Nevertheless, both case law and scholarship are far from subsuming these concepts under the common label of “judicial deference to the administration”. This paper provides an in-depth analysis of the notion of judicial deference in the Czech Republic as well as some prospects in this field.

The article deals with the development of judicial review in Denmark focusing on the level of deference to the administration. It presents the general understanding of the concept of free discretion in Danish law and the scope of the investigation that a Danish court is expected to conduct during judicial review.

The present contribution explores the approach of the Court of Justice of European Union towards the review of discretionary decisions adopted by the European Union (EU) administration. The analysis shows that the review of the European courts on the discretionary choices of the EU administration revolves around the concept of ‘manifest error’. This term has acquired a different meaning throughout time, evolving from a very light review towards a deeper review, entailing an examination of whether the factual basis of a decision justifies the outcome of the decision itself. Furthermore, whenever the EU authorities are vested with the discretionary powers to weigh conflicting interests, the control of the European courts is exercised both through the tool of ‘manifest error’ and through the proportionality review. This review is relatively limited and will lead to a finding of unlawfulness only in cases of serious flaws.

The Finnish legal system shows only limited judicial deference to administrative discretion. Instead, more value is generally accorded to effective judicial protection and other related factors, such as adequate access to a court, guarantees of procedural fairness, the sufficiently broad scope of judicial review, effective remedies and a relatively active role for the administrative courts. In Finland, as in several other continental European jurisdictions with separate administrative courts, procedural law tends to attribute an active role to the courts. The courts exercise judicial power and play a central role in offering legal protection to individuals affected by administrative decision-making. Judicial review can constrain the exercise of executive power because of its emphasis on adherence to the law and legal principles. On the other hand, investigation of the advisability and expediency of an administrative decision falls outside the jurisdiction of the administrative courts. A further limit to judicial power is based on constitutional principles, more precisely on the separation of powers doctrine. According to that doctrine, the actual adoption of an administrative decision belongs exclusively to the sphere of executive power.

This chapter outlines the approach to deference that Hong Kong courts adopt, evaluates whether such approach is justified, and proposes an approach that should be adopted in light of Hong Kong’s unique constitutional and institutional landscape.

This article first offers a conceptual analysis of the term “judicial deference”, as distinguished from other forms of judicial restraint. On this basis, I present an overview of reliance on deference “stricto sensu” in the jurisprudence of the Supreme Court when deciding on challenges to administrative action. Using textual analysis, it is shown that very few decisions consider the doctrine as such as the basis of the rejection of an application: the reasoning processes in Israel thus do not find “deference” the only, or the main, basis for refraining to interfere. The textual search leads to a definition of three theoretical justifications to deference/restraint. The subsequent qualitative study of four fields of action is followed by an assessment of the possible future of deference, which relies on two recent judicial decisions that convey opposing possible future developments.

This paper proposes a vision of judicial review of administrative action that is in contrast with the (perhaps diminishingly important) strand of thought according to which the existence of administrative courts is a deviation from constitutional principles. It argues, first, that such courts were set up simply because existing judges did not ensure an adequate judicial protection against the State and, second, that the Constitution does not simply acknowledge the existence of administrative courts, but strengthens their powers and the protection for citizens. The paper also shows that there are still significant differences between the views of the various courts. There is not a single standard, but a variety of standards, which evolve with a different pace. Moreover, the capacity of agencies to positively adapt their conduct to the new and more demanding standards remains doubtful and certain political circles are likely to continue to encourage agencies to tolerate some degree of official misconduct. Any attempt to read these issues in a way that simply highlights some sort of linear ‘progress’ is thus unlikely to provide an adequate picture of a complex reality.

Discussion of judicial deference to the administration has focused primarily on the area of administrative discretion. Administrative discretionary actions were traditionally understood to be completely out of judicial reach and thus deemed exceptions to the fundamental principle of administration based on law. Even so, how to comprehend administrative discretion and manage to legally check its leeway has been explored in some depth. The conception of the distinction between legally controlled discretion and free discretion is one of the achievements of efforts to control comprehensive freedom of conduct on the part of administrative agencies. Now that the law has made administrative agencies liable for even their discretionary actions when they have been conducted ultra vires or abusively, the court may exercise the power to review discretionary actions with various degrees of intensity. The degree of intensity tends to depend on the nature of the action and the judiciary’s confidence in making its own judgment through the judicial process. Modes of judicial review may vary from lenient through intermediate to strict scrutiny. Recent developments have brought the frequent use of process-oriented review, which may be theoretically applicable to both restricted actions and discretionary actions. Proper reconciliation has had to be explored between actual demands of administrative discretionary judgments and the fundamental principle of the legal state in contemporary complicated settings.

In the Netherlands as elsewhere, the topic of deference to the administration is an important doctrine that continues to provoke much debate. This doctrine, which is also referred to as the limited judicial review of administrative actions, is the subject of dynamic developments. The exact role that the court should play in the review of administrative actions remains a contentious issue. The focus of this contribution is the relationship between the judiciary and the administration. How has this relationship developed and what are the expectations for the future? It is concluded that the review of administrative acts by the judiciary has been intensified in several cases in recent years. There is, however, no uniform approach. The judiciary differentiates with a greater focus on proportionality. Clear limits for the judicial review can be found where specific expertise of the administration is at stake.

While in the countries with mature democracy the tools of strengthening the competence of administration to the benefit of the individuals were created, Polish administrative courts were to hold back the administrative power, used to the detriment of the claimants. The basic role of judicial review, since its reactivation in 1980 in Poland, was to guard the individuals’ rights and freedoms by setting the boundaries of administrative interference in this sphere. Those conditions make the comparison between the administrative justice in Poland and in the grounded democracies complicated. That is mainly why in Poland, according to the authors, applying the doctrine of deference developed in the states free from the experience of the totalitarian system, is hardly possible. Another reasons why—in the authors’ opinion—the idea of deference is not suitable here are the local characteristics of judicial review together with the current tension between the constitutional powers. The article exposes a point of view according to which the deference concept is not (yet) adequate to the Polish law and political system. The authors came to the conclusion that the usage of the deference doctrine creates the risk of manipulating it to legitimize some actions of the authorities that understand democracy in a special way suitable for the dictatorship of the majority. In this context, everything can be justified by referring to the “sovereign will”, neglecting the checks and balances mechanisms well-known in the western culture.

This chapter examines the state of judicial deference in Singapore. For much of Singapore’s independent history, Singapore courts did not substantively engage with the issue of deference—until about a decade ago. While there is yet to be a general doctrine of deference in Singapore, the contours of the courts’ broad approach to deference can be discerned, which tends towards erring on the side of prudence and caution in the fair and just protection of governmental autonomy. In the last few years, rights protection has, arguably, been enhanced in judicial review. The courts have articulated a more robust approach towards curial deference and justiciability. Recent jurisprudence point to the courts seeking an even-handed approach towards the separation of powers and the fundamental purpose and objective of judicial review. Singapore’s jurisprudence points to the imperative for judicial review reflect the socio-political culture, norms and values of the community. Regardless, the bottom line in judicial review in Singapore is that “the notion of a subjective or unfettered discretion is contrary to the rule of law. All power has legal limits and the rule of law demands that the courts should be able to examine the exercise of discretionary power”.

Swedish administrative law has not devoted much attention to the concepts of discretion or deference with respect to the administration. This is explained by the historically founded competence of administrative courts conducting a full review under the so-called administrative-judicial form of appeal. Here, the administrative court has the same decision-making competence as the deciding administrative authority, and thus may alter the decision in substance. This system in practice leaves the court with a number of options, including upholding, quashing or remanding the case to the administrative authority. The courts’ reasoning behind these choices depends on the content of the appealed decision, the applicable legislation and the information available to the court in the case. It is also possible that the application of the legal framework is guided in part by implicit ideas of administrative discretion or deference to the administration. The conclusion drawn here is that legal research in this field is needed to establish principles that are more general. In contrast, the two other main forms of judicial review—municipal appeal and legal review of governmental decisions—provide a more clear-cut form of legality review. Comparative legal studies can offer insight into the theoretical and practical strengths and weaknesses of the Swedish legal system and its various forms for judicial review of administrative decisions.

This report on the U.S. law governing judicial deference to decisions by administrative officials argues that there may be a number of reasons why courts may determine as a matter of fact that aspects concerning the making of an administrative decision—including the administrator’s expertise and experience in technical or scientific matters, the administration’s consistency in similar matters, or the care with which the administration justifies its action—warrant some degree of deference to the administrative decision. But the most widely applicable and important type of judicial deference in U.S. law is required as a matter of law in order to preserve the meaningfulness of the zone of discretion which the legislature is normally understood to have delegated to administrative agencies when they are given adjudicative or rulemaking power. These doctrines of de jure judicial deference, the most celebrated of which is Chevron deference, are part of the American system of rather broad diffusion of powers of governance, a pattern that includes but is not limited to the American versions of separation of powers and federalism. Substantial judicial deference to administrative agencies is thus of particular importance to U.S. law because it is part of the system of divided powers that we have in the United States, which is in turn part of the broader pattern of a strongly market-centered (that is, not state-centered) political economy.