INTERPRETATIVE AND DEFERENCE BASED …

1 Brian Foley 1 INTERPRETATIVE AND DEFERENCE BASED MODELS OF JUDICIAL RESTRAINT IN THE irish constitution Brian Foley, Barrister-at-Law, Candidate, Trinity College Dublin* Introduction There is a considerable disagreement over the extent to which British courts may legitimately defer to legislative or executive interpretation of the European Convention on Human Rights. This disagreement is not limited to the law-journals,1 but weaves throughout Britain s burgeoning human rights However, very few seem to believe that DEFERENCE is illegitimate per se. Rather, the disagreement centres on the extent of its practice. So, within the disagreement one can find a very important consensus most agree that, in principle, some degree of DEFERENCE is legitimate and therefore that authority over Convention interpretation can be apportioned between the legislature or executive and the courts.

2 The disagreement focuses on how it should be apportioned. Of course, one can disagree with this consensus. One can believe that the very notion of sharing constitutional labour with the legislature or executive is wrong, plain and simple. On * This article is BASED on a Chapter from a doctoral thesis submitted to Trinity College, Dublin which was funded by the irish Research Council for the Humanities and Social Sciences. Thanks are owed to my supervisor, Prof Gerry Whyte and also to Dr Adam Maculey, Genevieve Coonan, Barrister-at-Law, and Tom Daly, Executive Legal Officer to the Chief Justice for their comments on previous drafts. 1 Compare for example Hunt, Sovereignty s Blight: Why Contemporary Public Law Needs the Concept of Due DEFERENCE , in Bamforth and Leyland, eds.

3 , Public Law in a Multi-Layered constitution (Oxford: Hart, 2003), p 337 (arguing for due DEFERENCE approach as a compromise between concerns of institutional competence and democratic theory) with Jowell, Judicial DEFERENCE : Servility, Civility or Institutional Capacity [2003] Public Law 592 and Jowell, Judicial DEFERENCE and Human Rights: A Question of Competence in Craig and Rawlings, eds., Law and Administration in Europe: Essays in Honour of Carol Harlow (Oxford: Oxford University Press, 2003), p 67 (arguing that DEFERENCE is only legitimate on the basis of practical institutional constraints, but not democratic theory) or compare Chamberlain, Democracy and DEFERENCE in resource allocation cases: a riposte to Lord Hoffmann [2003] Judicial Review 12 with Hoffman, COMBAR Lecture 2001: Separation of Powers [2002] Judicial Review 137 (disagreeing over DEFERENCE and resource-allocation cases) and lastly compare Pannick, The Discretionary Area of Judgment [1998] Public Law 545 and Pannick & Lester in Human Rights Law and Practice (London.)

4 Butterworths, 1999) (supporting the notion of spatial approaches to DEFERENCE with the work of Hunt and Jowell cited in this footnote (strongly criticising the spatial approach). 2 For a sampling of nuances in the case-law see eg L v DPP [2002] 2 All ER 854 (democratic credentials of parliament as a sufficient reason to defer to its Convention interpretation), R v Benjafield [2001] 2 All ER 609, McIntosh v Lord Advocate [2001] 2 All ER 638 (indeterminacy of Convention a reason to defer), R (Alconbury Developments Ltd) v Secretary of State for the Environment and the Regions [2001] 2 WLR 1389 (law/policy distinction invoked to justify DEFERENCE ), R (Hooper) v Secretary of State for Work and Pensions [2002] EWHC 191 (Admin) ( DEFERENCE to be BASED on assessment of relative institutional competences), Donoghue v Poplar HARCA [2001] 4 All ER 604, R (SR)

5 V Nottingham Magistrates Court [2001] EWHC Admin 802 ( DEFERENCE appropriate where legislation implicates particular type of policy justifications which are spatially marked off for legislative discretion), Wilson v First County Trust [2001] 3 All ER 229, In Re An Application by Sinn F in for Judicial Review: In Re of the Political Parties, Elections and Referendums Act, 2000, Queens Bench, unreported, 10 April 2003, (Coghlin J) ( DEFERENCE only legitimate qua due DEFERENCE where positively demonstrated that legislature actually considered Convention question now before the court). INTERPRETATIVE and DEFERENCE BASED Models of Judicial Restraint In The irish constitution 2 this view, authoritative reading of the Convention is (or should be) the sole preserve of the judiciary. The debate over DEFERENCE in irish constitutional jurisprudence, however, is no-where near as advanced as in the British context.

6 In fact, it is nearly non-existent. As Margulies has noted in a related context; irish standard of review analysis is as Americans say colloquially all over the ball park . Many irish judges do not even bother to announce a standard .3 In particular, the courts rarely, if ever, offer any express discussion of DEFERENCE to the same degree that their British (or indeed Canadian4) counterparts However, irrespective of whether the courts realise it or not, the British debate over DEFERENCE poses an important question for irish constitutional law is it better to recognise that, in principle, constitutional labour can be shared between the organs of State, or is it better to concentrate constitutional responsibility entirely on the judiciary? In this short essay, I attempt to argue that a mindset which is open to the idea of DEFERENCE (whether or not you have a fully worked out theory about how deferential a court should be) can provide a better foundation to approach the general question of judicial restraint than a mindset which sees the constitution or equivalent supra-legislative norm as the sole preserve of the judiciary.

7 In this respect, the simple fact of the debate in Britain should at least teach us, here in Ireland, that DEFERENCE is not some pedantic game about differentially weighting evidence or about messing 3 Margulies, Standards of Review and State Action under the irish constitution (2002) 37 irish Jurist 23, p 30. 4 The Canadian Supreme Court has been quite express in discussing the legitimacy of DEFERENCE , in particular, since it divided on the question in RJR-MacDonald v Attorney General of Canada [1995] 3 SCR 199. Since that decision, the Supreme Court has routinely discussed the DEFERENCE question and, indeed, and often divided into quite discernible camps . For some of the more high profile cases, see eg Dunmore v Attorney General for Ontario 2001 SCCDJ 127, The Queen v Sharpe 2001 SCCDJ 42 attorney General of Canada v Harper 2004 SCCDJ 1571, Thomson Newspapers v Canada [1998] 1 SCR 877 attorney General for Ontario v M & H 1999 SCCDJ 10, Sauv v Canada [2002] 3 SCR 519, Lavoie & Hien v The Queen 2002 SCCDJ 301, Newfoundland (Treasury Board) v Newfoundland Association of Public Employees 2004 SCCDJ 3222.

8 For discussion see Newman, The Limitation of Rights: A Comparative Evolution and Ideology of the Oakes and Sparrow Tests (1999) 62 Saskatchewan L R 543 4 See eg The Queen v Sharpe 2001 SCCDJ 42, Attorney General of Canada v Harper 2004 SCCDJ 1571, Attorney General for Ontario v M & H 1999 SCCDJ 10, Sauv v Canada [2002] 3 SCR 519, Lavoie & Hien v The Queen 2002 SCCDJ 301. 5 That is not to say that irish courts never address the question of DEFERENCE . There is, for example, a reasonable amount of case-law which supports a deferential application of the Heaney v Ireland [1994] 3 IR 593 proportionality test. See eg Re Article 26 and the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360; Rock v Ireland [1997] 3 IR 474. There are also cases which support a less deferential application.

9 See eg v Crowley [2002] 2 IR 744. Indeed, in more recent times some judges have expressly referred to DEFERENCE qua a concept or the notions of variable standards of review in their decisions. See eg King v Minister for the Environment [2004] 3 IR 345, p 375; Re Article 26 and the Health ( )(Amendment) Bill, 2004 [2005] 1 IR 105, p 143, pp 182-183. Equally, the presumption of constitutionality, a staple of our constitutional jurisprudence since Pigs Marketing Board v Donnelly [1939] IR 413 is, itself, a principle of DEFERENCE . See eg Colgan v The Independent Radio and Television [2000] 2 IR 490, p 512. The difficulty however, is that courts have rarely expressly addressed questions of DEFERENCE in any prolonged and overt manner. The presumption tends to be applied in a relatively mantra-like fashion, and those cases which do seem to address issues of DEFERENCE or the standards of review tend to be the exception rather than the norm.

10 This point is discussed in more detail in Foley, Diceyan Ghosts: DEFERENCE Rights, Policy and Spatial Distinctions (2006) 28 Dublin University Law Journal (ns) 77, pp 87-92 INTERPRETATIVE and DEFERENCE BASED Models of Judicial Restraint In The irish constitution 3 around with empty legal formulae, but rather that one s position on DEFERENCE (whatever it is) reflects a vision about how power is distributed within a constitutional order, and that is something which requires serious judicial It must be noted, however, that the argument offered in this essay is quite limited. I do not propose that DEFERENCE provides a magic answer to all problems of constitutional theory such as, for example, the appropriate method of constitutional interpretation or the legitimacy of judicial recognition of enforcement of socio-economic rights.