Oxford Journal of Legal Studies Vol 34 No 2 (2014) pp 375ndash394doi101093ojlsgqu004Published Advance Access February 17 2014

Will You Wonrsquot You Will You Join the

Deference Dancedagger

Alison L Young

1 Introduction

lsquoWill you walk a little fasterrsquo said a whiting to a snail

lsquoTherersquos a porpoise close behind us and hersquos treading on my tailrsquo

See how eagerly the lobsters and the turtles all advance

They are waiting on the shingle ndash will you come and join the dance

Will you wonrsquot you will you wonrsquot you will you join the dance

Will you wonrsquot you will you wonrsquot you wonrsquot you join the dance1

The Human Rights Act 1998 has marked a sea change in administrative law

practice and theory Section 3(1) of the Act requires courts to read and give effect

to legislation in a manner compatible with Convention rights so far as it is

possible to do so Where this is not possible courts of the level of the High Court

or above are empowered by section 4 to issue a declaration of incompatibility

Section 6 of the Act makes it unlawful for a public authority to act in a way that is

incompatible with a Convention right What is common to all of these seminal

provisions is the need to determine lsquoConvention rightsrsquo This has given rise to

considerable academic debate as to how courts should approach this issue2 It is

clear that proportionality is the current legally accepted test under the HRA 1998

at least when applying Articles 8ndash11 of the European Convention of Human

Rights (ECHR)mdashthe non-absolute rightsmdashand when determining positive

obligations imposed on the States by the other Articles of the Convention

containing absolute rights3 Moreover English law has established a four-part test

of proportionality examining legitimate aim suitability necessity and a final

balancing stage4 However there would appear to be little further consensus In

daggerA review of ADP Brady Proportionality and Deference under the UK Human Rights Act 1998 An InstitutionallySensitive Approach (CUP 2012) ndash hereafter lsquoBradyrsquo

Associate Professor Tutor in Law Hertford College University of Oxford Email AlisonYounghertfordoxacuk

1 L Carroll Alicersquos Adventures in Wonderland and Through the Looking Glass (OUP 1971) 902 See generally A Kavanagh Constitutional Review under the Human Rights Act (CUP 2007) T Hickman

Public Law after the Human Rights Act (Hart Publishing 2010)3 R v Secretary of State for the Home Department ex parte Daly [2001] UKHL 26 [2001] 2 AC 5324 Huang v Secretary of State for the Home Department [2007] UKHL 11 [2007] 2 AC 167

The Author 2014 Published by Oxford University Press All rights reserved For permissionsplease e-mail journalspermissionsoupcom

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particular there is disagreement surrounding the definition and the role of

deference in human rights adjudication and its relationship to proportionality

Given the plethora of academic articles on this topic one may be forgiven for

wondering whether there was anything left for academics to contribute to the

debate5 Alan Brady in his book Proportionality and Deference under the Human

Rights Act 1998 is aware of these difficulties Before presenting his argument he

notes that there has been lsquomuch controversyrsquo regarding the proper application

of proportionality and lsquoperhaps even more controversyrsquo surrounding defer-

ence and its role in human rights adjudication6 His aim is not to join the

lsquodeference dancersquo by adding yet another abstract analysis of the proper

conceptual meaning of deference Instead he provides an account of the inter-

relationship between proportionality and deference First he sets out an

account of how these two concepts inter-relate focusing on explaining how

different types of deference are suited to different stages of the proportionality

test He then provides a detailed account of how deference applies in three

different areasmdashimmigration decisions criminal justice and housing These

areas are chosen as they exemplify three different scenarios to which his model

applies Immigration decisions typically involve an analysis of individual

administrative decision-making eg where an applicant challenges the decision

of an immigration officer to refuse to grant her permission to remain in the

UK Challenges in the field of criminal justice however typically arise when an

individual argues that legislation harms her Convention rights Housing policy

raises more complicated issues Brady uses this area to demonstrate the

complexities of multi-level decisions involving a combination of legislation

policies and individual decisions In particular he focuses on difficulties that

may arise when legislation and general policies may comply with Convention

rights but their application to a specific individual does not

Bradyrsquos work makes a useful addition to the current literature in two ways

First his analysis of the links between deference and proportionality provides

a framework of human rights adjudication Second he explains how his

framework applies to a range of decision-makersmdashcivil servants Ministers

local authorities and Parliamentmdashas well as to a range of decisions Brady

argues that his framework has universal application having utility both for

those advocating different conceptions of deference and for those who reject

5 See for example J Jowell lsquoJudicial Deference Civility Servility or Institutional Capacityrsquo [2003] PL 601M Hunt lsquoSovereigntyrsquos Blight Why Contemporary Public Law Needs the Concept of Due Deferencersquo inN Bamforth and P Leyland (eds) Public Law in a Multi-layered Constitution (Hart Publishing 2003) TRS AllanlsquoCommon Law Reason and the Limits of Judicial Deferencersquo in D Dyzenhaus (ed) The Unity of Public Law(CUP 2004) Lord Steyn lsquoDeference a Tangled Storyrsquo [2005] PL 346 TRS Allan lsquoHuman Rights and JudicialReview a Critique of Due Deferencersquo [2006] CLJ 671 A Kavanagh lsquoDeference or Defiance The Limits of theJudicial Role in Constitutional Adjudicationrsquo in G Huscroft (ed) Expounding the Constitution Essays inConstitutional Theory (CUP 2008) J King lsquoInstitutional Approaches to Judicial Restraintrsquo (2008) 28 OJLS 409AL Young lsquoIn Defence of Due Deferencersquo (2009) 72 MLR 554 TRS Allan lsquoJudicial Deference and JudicialReview Legal Doctrine and Legal Theoryrsquo (2010) 126 LQR 96 A Kavanagh lsquoDefending Deference in Commonlaw and Constitutional Theoryrsquo (2010) 126 LQR 222

6 Brady 1

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deference as a doctrine of English law His aim is that his framework will both

aid adjudication and help to structure normative debate For him to succeed

Brady needs to ensure that his framework is neutral as between conceptions

of deference and between those who both advocate and reject a doctrine of

deference7 However it is doubtful whether Bradyrsquos framework achieves

the neutrality necessary to provide a universal framework of human rights

adjudicationmdashrather than avoiding the lsquodeference dancersquo he may appear to be

joining in proposing yet another conceptual analysis of deference This review

article will point out these difficulties before assessing whether they canmdashand

shouldmdashbe resolved

2 Mapping Deference and Proportionality

Brady adopts the four-stage test of proportionality established by Lord

Bingham in Huang v Secretary of State for the Home Department8 which Brady

expresses as follows

(i) Legitimate objectivemdashdoes the measure restricting a human right pursue

a legitimate objective

(ii) Rational connectionmdashis there a rational connection between the objective

pursued by the measure and the legitimate objective so as to ensure that

the measure in question is capable of achieving this particular objective

(iii) Minimal impairmentmdashis there another measure that is capable of

achieving the same objective but which would have a less restrictive

impact on the human rights in question

(iv) Overall balancemdashis the measure a proportionate restriction on the

human right9

Brady adopts Robert Alexyrsquos analysis of deference10 differentiating between

structural and epistemic deference Structural deference occurs where there is a

range of different answers that would satisfy the separate component questions

of the proportionality test Epistemic deference has two forms empirical and

normative Empirical epistemic deference arises where there are difficulties

obtaining evidence to satisfy the components of the proportionality test It

divides further into empirical epistemic deference and normative epistemic

deference Normative epistemic deference occurs where there are difficulties

arising from evaluating evidence These difficulties and uncertainties provide a

reason to accept the judgment of another institution of the State by reason of

its authority as opposed to its relative expertise11

7 Brady 60 and 73 where he refers to inherent flexibility of his theory to accommodate a range of views ondeference and proportionality including those like Trevor Allan who reject deference

8 Huang (n 4)9 Brady 7ndash8

10 R Alexy A Theory of Constitutional Rights (J Rivers trans first published 1985 OUP 2002)11 Brady 47ndash49

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A The ProportionalityDeference Framework

Bradyrsquos framework for human rights adjudication emerges from his assessment of

how the different forms of deference arise at each of the four stages of the

proportionality test It is best explained through the means of an example using

specific facts to explain Bradyrsquos network of relationships as well as explaining his

account of deference more clearly In the recent Supreme Court decision in Quila12

the government changed the rules regarding the ages of parties for marriage visas

Prior to the change in the rules a UK resident could obtain a residence visa for their

prospective non-UK national spouse when both parties to the marriage were 18 or

over The rules raised the age limit to 21 The aim of the rule change was to prevent

forced marriages which the government believed were more likely to occur with

regard to marriages where both parties were under the age of 21 than in marriages

where both parties were over the age of 21 The facts of the case can be used to explain

how uncertainty could have given rise to the need to exercise deference at the different

stages of the proportionality test in Quila

(i) Legitimate Aim at this stage of the proportionality test the court

examines whether the aim of reducing forced marriages is legitimate and

so therefore can justify a restriction of the Convention rights of those

wishing to marry All three types of deference may occur here

(a) Structural deference could arise if there were a range of legitimate aims

that could have justified increasing the age of the parties for a

marriage visa for example to reduce forced marriages or to reduce

the harms caused to others through marriage breakdowns in cross-

cultural marriages by requiring greater maturity in the parties to these

marriages13

(b) Empirical epistemic deference could arise if there were uncertainties

surrounding the assessment of whether forced marriages caused

sufficient harm in society to justify restricting the right to family life

found in Article 8 ECHR For example there may be a lack of

information about the harm caused by forced marriages or a

difficulty in predicting the behaviour of those aged between 18 and

21 when faced with the age increase to determine whether this policy

really would reduce forced marriages14

(c) Normative epistemic deference could arise if the court were to regard an

increase in the age of consent for the marriage visa as a selection from

competing policy choices in response to the desire to reduce forced

marriages For example the policy to increase the age of consent may

have been competing with a different policy of reducing forced

12 R (Quila) v Secretary of State for the Home Department [2011] UKSC 45 [2012] 1 AC 62113 Brady 6514 ibid 70

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marriages through a requirement of a special permission procedure

for all marriages where one of the parties was under the age of 2115

(ii) Rational connection at this stage the court examines whether the

reduction in forced marriages can rationally be achieved through raising

the age of consent Only empirical epistemic deference can occur at this

stage of the proportionality test This would arise if for example there

were uncertainties in the evidence as to the percentage of forced

marriages in different age groups or when predicting whether raising the

age limit would reduce forced marriages16

(iii) Minimal impairment at this stage the court examines whether the

restriction on the right to marry is as small as possible to achieve the

objective of restricting forced marriages Two types of deference may

occur at this stage of the proportionality test

(a) Structural deference could arise if there were more than one policy that

could achieve the same objective of reducing forced marriages with

the same impairment on the right to marry For example it may be

the case that raising the age of the parties to 21 or for example

keeping the age of the parties at 18 but requiring attendance at a

compulsory lsquomarriage preparationrsquo class for those aged between 18

and 21 would have the same ability to achieve the aim of reducing

forced marriages and the same impact on the right of those aged

between 18 and 21 to marry17

(b) Empirical epistemic deference could arise if there were uncertainties

surrounding the impact of raising the age of the parties on those aged

between 18 and 21 who wished to marry making it difficult to

determine if the policy had a minimal impact on the right to marry

For example if there were no statistical information on the proportion

of marriages in this age range that were lsquoforcedrsquo or lsquofree-choicersquo

marriages or if it were hard to predict how individuals would behave

if they knew that they would not be able to live in the United

Kingdom following their marriage18

(iv) Balancing stage here the court assesses whether the change in the law is a

proportionate restriction on the right to marry All three types of

deference may occur here although it would be very rare for structural

deference to apply at this stage of the proportionality test

(a) Structural deference would only arise at this stage if the harm caused to

free marriages and the prevention of harm caused by forced marriages

15 ibid 7216 ibid 7017 ibid 6418 ibid 69

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by raising the age of consent were equal or if there existed at least

one other policy that would give rise to the same balance between the

right to marry and the need to prevent forced marriage as raising the

age for a marriage visamdashfor example if our hypothetical alternative of

compulsory attendance at a lsquomarriage preparationrsquo class would

achieve the same balance between protecting rights and preventing

forced marriages19

(b) Empirical epistemic deference arises if there is uncertainty surrounding

the way in which the relative harms caused by forced marriages and

harms caused to free marriages can be measured against each other20

(c) Normative epistemic deference would arise if the two issues were so

finely balanced that it was felt that the decision-makerrsquos opinion

should be deferred to when making this policy choice21

B An Institutionally-sensitive Application

As discussed in the previous section Brady provides a complete account of the

ways in which deference can arise with regard to all of the stages of the

proportionality test Not all of these possibilities arise with regard to all forms

of administrative decision-making Brady explains further how the range of

possible forms of deference changes depending on the nature of the act

challenged Firstly deference applies differently depending upon the powers of

the decision-maker Structural deference and normative epistemic deference

can only arise where the act challenged is enacted by a decision-maker who can

pursue a range of different objectives or who can choose from a range of

different options Thus these forms of deference are more likely to occur when

courts are reviewing actions of the legislature or administrative bodies enacting

administrative rules or policies They are less likely to arise when assessing

individual decisions To return to Quila for example the court was examining

the decision of the Home Secretary to produce administrative rules to regulate

immigration The Home Secretary has a wide but not unlimited range of

options One limit on her options is the text of Article 8(2) ECHR which

restricts the legitimate aims that can be used to justify a restriction of the right

to private and family life The Home Secretary can decide whether to pursue

the aim of reducing forced marriages and also when making administrative

rules has a good range of possible options she can deploy to achieve her aim

The same range of options and objectives is not open to the immigration officer

employed to apply the immigration rules His job is to apply the immigration

19 ibid 65ndash6620 ibid 72ndash7321 ibid

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rules as he finds them As such there is no need for structural or normative

deference when reviewing his decision

Secondly the need for epistemic deference depends upon the scope of the

governmental action in question The narrower the scope of the governmental

action the smaller is the scope for epistemic deference The Home Secretary in

Quila for example was producing administrative rules that would apply to all

of those wishing to marry where one or more of the parties to the marriage was

under the age of 21 and one party was a non-UK resident There is greater

scope for uncertainty when assessing the impact of the rules of such a wide

group of individuals particularly when predicting the way in which individuals

will behave in response to the increase in age An individual decision given by

an immigration officer may give rise to less uncertainty It is easier to predict

whether the couple before the immigration officer will decide not to marry in

the face of the increase in age It may also be easier to obtain the relevant

information in order to determine whether the marriage in question is a forced

marriage in order to assess whether the individual decision of the immigration

officer prevented a forced marriage or restricted the Article 8 rights of the

couple to marry22

Having established how the powers of the decision-maker and the scope of

the administrative act can give rise to the possible need for deference Brady

explains further how the extent to which deference is owed varies between

types of administrative decisions Brady assumes that a common feature of

theories of deference is that there must be a reason for deference to be paid by

the judiciary to the decision-maker whose actions are being reviewed23 He

focuses in particular on the justifications for deference based on democratic

legitimacy and institutional competence Democratic legitimacy influences

structural and normative epistemic deference24 To return to Quila the

immigration rules enacted by the Home Secretary were subject to the negative

resolution proceduremdashwhere rules are laid before Parliament and are enacted

unless there is a vote objecting to the enactment of the rules There is

therefore some albeit minimal democratic input in the decision-making

process As such there could be a justification for the application of structural

and normative epistemic deference to the immigration rules Less deference

would be justified if the rules were enacted by the Home Secretary without any

democratic scrutiny over her decisions Greater deference would be justified

were the policy change to have been initiated through legislation that was

designed to control the number of forced marriages

The institutional competence of the decision-maker also influences the

degree to which epistemic deference is justified25 In Quila the Home Secretary

22 ibid 85ndash10423 ibid 10424 ibid 108ndash1325 ibid 113ndash17

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commissioned an independent study and a consultation paper to determine

whether increasing the age for marriage visas would reduce forced marriages26

The question arises as to whether the government or the court has better

expertise to analyse the opinions presented in these reports This is clearly

factually dependent If the decision were taken by a junior member in the

ministerial department who had no specialized knowledge and no accumulated

years of expertise of working in this area then less empirical epistemic

deference would be owed than if the decision were taken by those with the

requisite specialist knowledge and more years of experience

Bradyrsquos analysis of proportionality and deference has two aims Firstly he

aims to provide a better navigation tool for courts ensuring that they focus on

the most appropriate form of proportionality for the type of decision before

them as well as ensuring that deference is only applied when appropriate

according to the nature of the decision and the specific stage of the

proportionality test In his own words

If courts develop a better understanding of minimal impairment overall balancing

and the various forms of deference in their different institutional settings there is less

likelihood that institutionally perverse reasoning will be used27

Secondly his book aims to provide a framework for normative debate helping

to prevent academics from talking at cross-purposes when assessing the nature

of deference determining how deference is applied if at all in human rights

adjudication in UK law and assessing whether courts should use deference in

their judgments28 Having aimed to explain Bradyrsquos account the next sections

will assess how well his theory achieves these aims

3 Better Navigation Tool

At first glance it might appear that Bradyrsquos account is too complicated to be

used on a regular basis by the courts Rather than furnish a guide to clarify the

complex process of applying proportionality and deference it may seem that

Brady is guilty of providing a confusing network that has lsquoa tendency to

complicate and mystify what is not in principle a hard task to define however

difficult the task is in practice to performrsquo29 To criticize Bradyrsquos test in this

manner however is unfair Although the account given above may appear

complicated this is because Brady provides a complete map of the inter-

relationship between the different stages of proportionality and deference as

applied to a range of administrative decisions Most judicial applications will

26 Quila (n 12) [22]ndash[29]27 Brady 26328 ibid 26429 Huang (n 4) [14] (Lord Bingham)

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only require a portion of his framework depending on the nature of the

administrative decision and the powers of the decision-maker

The main contribution of Bradyrsquos book is to provide a good means of

steering courts through the complexities that arise in multi-level decision-

making This can be seen for example in Bradyrsquos criticism of Qazi30 Mr Qazi

originally occupied his home as a joint tenant with his first wife Under the

tenancy agreement either joint tenant could terminate the tenancy agreement

on a monthrsquos notice Following the break-up of his marriage Mr Qazirsquos first

wife moved out and gave notice under the tenancy agreement Mr Qazi

originally reapplied to remain in the house but permission was refused He

then remarried and his new wife was expecting a baby as well as having a child

from a previous relationship The council brought proceedings to evict Mr Qazi

and his new family and Mr Qazi argued that the council could not evict

without first considering his Article 8 rights and determining whether eviction

was a proportionate response in the circumstances The majority of the House

of Lords determined that the Housing Act 1985 which permitted termination

of tenancies in these circumstances satisfied Article 8 ECHR and also that

there was no need for the individual decision to evict Mr Qazi based

on an application of these rules to be remitted to the county court for

reconsideration

Brady argues that the decision of the majority in Qazi undermined the

application of proportionality in two ways First he argues that the House of

Lords reached their conclusion by applying an inappropriate stage of the

proportionality test to the legislation He argues that the majority applied the

balancing component of proportionality whereas legislation is particularly

suited to an application of the minimal impairment stage Second Brady

argues that the court failed to apply proportionality to the individual decision

made by the council to evict Mr Qazi once they had determined that the

legislative provisions under which Mr Qazi was evicted were compatible with

Convention rights This essentially enabled the council to exercise their

powers free from concerns as to Convention-compatibility Brady argues that it

would have been better for the court to have applied the balancing test of

proportionality here which is particularly suited for application to individual

decisions whilst paying particular attention to the need to pay a wide degree of

empirical epistemic deference31 Brady contrasts this approach with that taken

in Pinnock32 Here the Supreme Court was willing to apply a proportionality

test to individual eviction decisions taken by local authorities and also

scrutinized the legislation more effectively The court recognized that the

legislation would have been incompatible with Convention rights were it not to

have been able to be read so as to permit scrutiny of individual eviction

30 Harrow London Borough Council v Qazi [2003] UKHL 43 [2004] 1 AC 98331 Brady 240ndash4132 Manchester City Council v Pinnock [2010] UKSC 45 [2011] 2 AC 104

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decisions by enabling individuals to raise a potential incompatibility with

Article 8 ECHR as a defence in eviction proceedings Brady reads this as

an application of the minimal impairment standard when analysing the

legislation33

The recognition of the need to provide a different analysis of Convention-

compatibility of legislation and Convention-compatibility of individual deci-

sions applying broad legislative provisions provides a helpful tool to avoid

analytical confusion in those situations where legislation although generally

compatible with Convention rights may nevertheless harm human rights in its

specific application This is particularly true in housing law Qazi and Pinnock

are but two examples of a chain of decisions in English law aiming to ensure

compliance with Convention rights in the face of a series of decisions of the

European Court of Human Rights34 Part of the difficulty in this area of law

has been caused by the complex inter-relationship between the Convention-

compatibility of legislation and its application in individual decisions Bradyrsquos

analysis not only avoids potential confusion it may also provide a stronger

protection of human rights But the question still remains as to whether it

provides a good framework for human rights adjudication For Brady its value

rests in the utility of its application to all theories of deference differences

stemming only from the criteria used to determine deference and the degree of

deference to be applied This will be assessed in the following section

4 The Impossibility of Neutrality

Brady argues that his account of the relationship between proportionality and

deference is neutral between different accounts of human rights adjudication

This neutrality is important to ensure that he can achieve his aim of providing

lsquoa detailed account of the operation of proportionality and deference which

transcends the pitfalls in previous discussions of the fieldrsquo35 and of providing a

lsquoframework for normative debatersquo36 Brady divides current academic debate

into two lsquoschoolsrsquo due deference and non-doctrinal deference However three

difficulties arise from Bradyrsquos analysis that may cast doubt on its claimed

neutrality First Bradyrsquos account of the distinction between due deference and

non-doctrinal deference fails to reflect the true nature of the difference between

these two schools of academic thought Second Brady fails to account for how

his theory relates to competing accounts of proportionality Third Brady does

not analyse the different means through which deference can be exercised This

section will assess how far these omissions compromise Bradyrsquos aims

33 Brady 245ndash4934 For a discussion see for example A Goymour lsquoProperty and Housingrsquo in D Hoffman (ed) The Impact of

the UK Human Rights Act on Private Law (CUP 2011) 24935 Brady 3636 ibid 264

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A Due Deference and Non-Doctrinal Deference

Brady delineates between due deference and non-doctrinal accounts of

deference The difference between them on his account depends upon

whether deference is an additional doctrine or whether it is incorporated into

current legal tests For Brady due deference applies in addition to the normal

process of adjudication providing space for deference where there are good

reasons for giving deference37 A non-doctrinal account of deference on the

other hand incorporates the reasons for giving deference into the proportion-

ality test itself Therefore there is no need for an additional concept of

deference In addition Brady suggests that proponents of due deference tend

to emphasize the need to preserve the autonomy of the administration and

non-doctrinal theorists focus more predominantly on the need to protect

human rights38

The distinction between due deference and non-doctrinal deference is also

drawn by Jeff King39 and Tom Hickman40 King describes a non-doctrinal

approach as follows

there should be no doctrine articulated in advance and judges should decide upon

the appropriate degree of restraint on a case-by-case basis On this view restraint may

be needed in some cases but we should trust either judges or the existing legal

standards to meet this need as and when it arises41

Kingrsquos distinction has two elements First as with Bradyrsquos account the non-

doctrinal approach incorporates deference into the normal process of adjudi-

cation and the due deference approach adds on a theory of deference in

addition to the normal process of adjudication Second King argues that non-

doctrinal approaches apply on a case-by-case basis Due deference on the

other hand includes principles that guide how deference is applied in different

circumstances and is not totally dependent on a case-by-case approach As

will be discussed below the most important element for King rests on the

difference between theories that give an account of factors that influence

deference and those that apply deference on a case-by-case basis Hickmanrsquos

approach to the distinction focuses solely upon this element42 Bradyrsquos account

however does not give an account of this second difference between the due

deference and non-doctrinal approaches to deference

To miss this angle calls into question Bradyrsquos ability to provide a framework

that is neutral between different accounts of deference and therefore is

capable of general application as to its process regardless as to arguments as to

37 ibid 2338 ibid39 J King lsquoInstitutional Approaches to Judicial Restraintrsquo (2008) 28 OJLS 40940 Hickman (n 2) 128ndash3941 King (n 39) 41142 Hickman (n 2) 130ndash32

SUMMER 2014Will You Wonrsquot You Will You Join the Deference Dance 385

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the outcome of the application of proportionality and deference in a particular

case In particular the disagreement between King who advocates due

deference and Hickman who takes a non-doctrinal approach is based on this

second difference For King non-doctrinal approaches are problematic

precisely because they provide no prior guidance and appear to give free rein

to the courts to develop their approach However he argues that given a

history of court fallibility a lack of guidance may perpetuate mistakes and

exacerbate the tendency of courts to make errors in this area of the law King

also argues that a lack of guidance is offensive to the rule of law and fails to

respect the dignity of parties faced with decisions of the court that appear to

merely announce whether deference will be paid or not as opposed to treating

the parties fairly by setting out criteria beforehand43 Hickman however

counters that any theory of due deference can only provide generalizations that

may lose their accuracy when applied to the specific facts of the case44 and

which may be so abstract as to be essentially meaningless especially as such

accounts tend to provide no guidance as to the precise amount of weight that

should be afforded in any given circumstance45 In addition the institutional

capacity of the courts is not constant and may vary from case to case and

procedure to procedure46 As such due deference approaches may hinder as

opposed to facilitate the rule of law by creating confusion and distortion47

Although Brady misses this second difference between non-doctrinal

approaches and due deference it could be argued that he is wise to do so

As Aileen Kavanagh argues those adopting a due deference approach also

recognize that deference is a contextual issue and that its application will vary

according to the context in which it is applied48 Whether theories of deference

are applied on a case-by-case basis or through an application of more general

principles is really a matter of degree This can be illustrated by King and

Hickmanrsquos analysis of Huang v Secretary of State for the Home Department49

Hickman regards Huang as a prominent example of the courts applying a non-

doctrinal approach to deference King however argues that there is evidence

of a doctrinal framework in Huangmdashand therefore evidence of a due deference

approachmdashas Lord Bingham recognizes that deference will depend upon

lsquosubject matterrsquo and lsquoaccess to special sources of knowledgersquo50 If the same case

is both a key example of a non-doctrinal approach to deference and also

appears to apply factors relating to a due deference approach it is hard to see

this difference between the two theories as anything other than a matter of

43 King (n 39) 41144 Hickman (n 2) 137ndash3845 ibid 13846 ibid 138ndash3947 ibid 13748 A Kavanagh lsquoDefending Deference in Public Law and Constitutional Theoryrsquo [2012] LQR 222 231ndash3849 [2007] UKHL 11 [2007] 2 AC 16750 King (n 39) 411ndash12

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degree and as such it is difficult to see how this can provide for the main

distinction between the two theories without the distinction being in danger of

collapse

Bradyrsquos choice of focus on the distinction between due deference and non-

doctrinal approaches would appear to be the better choice for providing a

neutral framework of adjudication However by focusing on assessing whether

deference is a separate doctrine or can be incorporated into the normal test of

proportionality Brady may be accused of favouring non-doctrinal accounts of

deference The aim of Bradyrsquos framework is to explain the connection between

deference and proportionality essentially explaining how deference inter-relates

with and can be incorporated into the different stages of the proportionality

test However if this is the case it is hard to see how this can be neutral

between due deference and a non-doctrinal approach Non-doctrinal

approaches advocate incorporating deference into proportionality Due defer-

ence applies theories of deference in addition to the proportionality test Does

Bradyrsquos theory therefore explicitly favour a non-doctrinal approach over a

due-deference approach Further problems arise for Bradyrsquos ability to formu-

late a neutral uniform framework of the connections between proportionality

and deference when we analyse Bradyrsquos account of proportionality Despite

engaging with different conceptions of deference Brady ignores distinctions

drawn between different conceptions of proportionality

B Two Conceptions of Proportionality

Julian Rivers provides an account of two conceptions of proportionality lsquostate-

limitingrsquo and lsquooptimisingrsquo51 An optimizing conception of proportionality lsquosees

proportionality as a structured approach to balancing fundamental rights with

other rights and interests in the best possible wayrsquo52 A state-limiting

conception sees proportionality as a lsquoset of tests warranting judicial interference

to protect rightsrsquo53 Rivers argues that this distinction is not just semantic

but reflects a difference in the relationship between rights and the public

interest Those adopting a state-limiting conception of proportionality draw a

clear delineation between rights and the public interest Those adopting an

optimizing conception of proportionality do not draw such a clear line seeing

the two as inter-connected54 Brady does not engage with this distinction

between different conceptions of proportionality This is potentially problem-

atic for his theory Rivers argues that the distinction between optimizing

and state-limiting conceptions of proportionality is reflected in the test of

proportionality that is adopted by courts and in the approach of the judiciary

51 J Rivers lsquoProportionality and Variable Intensity of Reviewrsquo (2006) 65 CLJ 17452 ibid 17653 ibid54 ibid 179ndash80

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to the application of proportionality and the role of deference Ignoring this

difference therefore may challenge Bradyrsquos claim that his framework of human

rights adjudication is capable of universal application

Rivers argues that state-limiting conceptions of proportionality tend to adopt

a threefold test of proportionality examining necessity suitability and a

balancing exercisemdashoften referred to as proportionality stricto sensu55 When

applying a state-limiting conception of proportionality the role of the court is

to determine the nature of the right in contrast to the role of the executive or

legislature which is to determine public policies The court checks to ensure

that the limit placed by the right is not disproportionate and hence beyond the

powers of the administration It does so by defining the minimum or core

content of the right and ensuring that this is not transgressed by the policy

objective pursued by the State56 This approach entails a large degree of

deference in one sense as the court plays a secondary role It is not the job of

the court to second-guess or lsquocorrectrsquo the decision of the State with regard to

policy objectives57 However there is a more limited role for deference in

another sense There is no space for deference to the State when determining

the minimum or core content of a right although there may be some role for

deference when applying the necessity test as an assessment of necessity may

require an evaluation of different policy considerations58

In contrast Rivers argues that optimizing conceptions of proportionality

adopt a four-stage test assessing legitimate aim suitability minimal impair-

ment of the right and a final balancing stage59 Optimizing conceptions of

proportionality do not assume that the role of the court is to determine rights

and the role of the State is to determine policy interests Instead those

advocating optimizing conceptions of proportionality recognize that it is

difficult if not impossible to distinguish between lsquorightsrsquo and lsquopoliciesrsquo The

difficulty of drawing this distinction means that the court must assess whether

the aim pursued by a public body is sufficiently important to be treated as

having the same status as a right and thus may justify restricting a right60

This accounts for the extra stage in the proportionality test determining

whether the aim of the measure restricting a human right is pursuing a

legitimate objective Rivers also argues that optimizing conceptions of propor-

tionality do not rest on assumptions as to which elements of the proportionality

test are suited to the judiciary and which are more suited to other organs of the

State This is because the role of proportionality is not to set the requisite

55 ibid 17856 ibid 18057 This would appear to be akin to lsquominimal deferencersquo described by Aileen Kavanagh See A Kavanagh

Constitutional Review under the Human Rights Act (CUP 2009) A Kavanagh lsquoDeference or Defiancersquo (n 5) AKavanagh lsquoDefending Deferencersquo (n 48) 222

58 Rivers (n 51) 18059 ibid 18160 ibid 180ndash81

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limits on the actions of the State that harm human rights but instead to

determine how a right should be balanced against the public interest As such

there is a greater need for deference when applying all stages of the

proportionality test but deference has to be applied in a manner that is

sensitive to the important role of the courts in the protection of human

rights61

Bradyrsquos theory appears to incorporate different aspects of state-limiting and

optimizing conceptions of proportionality Brady adopts a fourfold test of

proportionality62 He also argues that the role of the lsquolegitimate aimrsquo stage of

the proportionality test is to ascertain whether the goal of the executive or the

legislature is sufficiently important to merit restricting a human right63 These

suggest that Brady adopts an optimizing conception of proportionality

However Brady argues that the judiciary acts as secondary decision-makers

when they apply the proportionality test Although courts correct the

assessments of proportionality made by the executive or the legislature

Brady regards the role of the court as applying proportionality to determine the

correct limits of the State over its powers to restrict rights64 This is more akin

to the role of the judiciary in state limiting as opposed to optimizing

conceptions of proportionality Given these crossovers is it possible to focus on

the process of applying proportionality and deference without also incorporat-

ing viewpoints as to the particular outcome or as to the value of adopting

different normative conceptions of proportionality If not then this questions

Bradyrsquos ability to provide a universal framework of proportionality and

deference capable of application regardless of onersquos views as to the outcome

of a particular decision

C Means of Exercising Deference

Courts can exercise deference in a number of ways Firstly courts may exercise

deference by giving weight to the opinion of the legislature or executive When

the court assesses whether a restriction on a right is proportionate the court

can give greater or lesser weight to the conclusions of the public body that the

restriction is proportionate The greater the weight given to the conclusions of

the public body the more deference is paid and the less likely the court will

conclude that the restriction is disproportionate Secondly deference can be

exercised by applying the proportionality test more or less stringently65 The

proportionality test has frequently been described as a test to ensure that a

sledgehammer is not used to crack a nut where a nutcracker will do This

analysis could be applied more stringently by requiring an even closer analysis

61 ibid 181ndash8262 Brady 763 ibid 43ndash4964 ibid 11ndash1365 See PP Craig Administrative Law (7th edn Sweet and Maxwell 2012) 658ndash61

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ensuring not only that sledgehammers are not used to crack a nut but also that

a nutcracker designed to crack the tougher shells of walnuts is not used to

crack the more delicate shell of a hazelnut The test could be applied less

stringently by accepting that sledgehammers may be used to crack nuts but

that it would be disproportionate to decide to crack a nut by attempting to

crush it with a steamroller Thirdly deference may be exercised by altering the

wording of the proportionality test in order to apply the test more or less

stringently For example the wording of the test could be modified such that

the test of proportionality would be met whenever a particular action or

decision is not lsquomanifestly inappropriatersquo or lsquomanifestly disproportionatersquo66

Fourthly deference can be exercised by modifying the standard of proof

required by the public body to satisfy the proportionality test The more

stringently the test is applied the greater the burden of proof and vice versa

Bradyrsquos theory ignores these differences Again it could be argued that

Bradyrsquos framework is flexible enough to enable deference to be exercised

through any of these means However these lacunas weaken the ability of

Bradyrsquos theory to be used as a framework for adjudication as well as its ability

to provide a normative evaluation of human rights decisions To see these

difficulties we can return to our analysis of Quila Whilst the majority

concluded that the age increase did restrict the right to marry Lord Brown in

dissent argued that the courts should exercise greater deference and concluded

that the immigration rule increasing the age was compatible with Convention

rights The disagreement between the judges has at least five possible

explanations (i) differences in the method of applying the proportionality

test (ii) differences in the type of deference exercised (iii) varying assessments

of the degree of deference owed (iv) differences as to how deference is to be

exercised and (v) differences in the assessment of the relative weight to be given

to the rights involved in the proportionality balance

All three judges apply a proportionality test However they focus on

different elements of the test Lord Wilson focuses more on the balancing stage

of the proportionality test67 and Lady Hale concentrates on the minimal

restriction stage of the test68 Second all recognize that the uncertainty

entailed in measuring the impact of the measure on forced and un-forced

marriages including the difficulties of predicting behaviour gives rise to a

potential for empirical epistemic deference69 However Lord Brown grants

normative as well as empirical epistemic deference to the Home Secretary70

Third Lord Brown is more deferential to the Home Secretary71 whereas both

66 This is the way in which EU law modifies the stringency of the proportionality test See for example C-33188 R (Fedesa) v Minister of Agriculture Fisheries and Food [1990] ECR Indash4023

67 R (Quila) (n 12) [48]ndash[54]68 ibid [77]69 ibid [49]ndash[50] [52]ndash[56] (Lord Wilson) [75]ndash[77] (Lady Hale) [87]ndash[94] (Lord Brown)70 ibid [91]71 ibid [87]

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Lady Hale and Lord Wilson appear less willing to give as much weight to the

conclusions of the Home Secretary They conclude that despite the need for

empirical epistemic deference the Home Secretary failed to provide enough

evidence to justify that the immigration rule was a proportionate restriction on

the right to marry72 Lord Wilson exercises deference through the standard of

proof requiring less deference and a higher standard of proof as not only was

the measure an example of a lsquosledgehammerrsquo but in addition the Home

Secretary had lsquonot attempted to identify the size of the nutrsquo73 Lord Brown

however exercises deference by giving weight74 Finally Lady Halersquos different

conclusion may be best explained as a disagreement concerning the relative

weight of the rights involved In particular Lord Brown is critical of Lady

Halersquos assessment that lsquothe right to marry is just as important as the right not

to marryrsquo75 arguing that Lady Hale lsquocannot possibly mean by this that the

postponement by up to three years of a couplersquos wish to live together as man

and wife in this country involves just as great a violation of human rights as a

forced marriagersquo76

Although Bradyrsquos framework is helpful as a means of evaluating the different

judgements in Quila by missing out some of the elements it may misunder-

stand the nature of disputes prevalent in legal decisions calling into question

its ability to provide a normative framework from which to evaluate judgments

Does it matter that Lady Hale and Lord Wilson focus on different components

of the proportionality test Is Lord Brown right to grant normative epistemic

deference as well as empirical epistemic deference As Quila involves the

assessment of a rule Brady would argue that it is possible for normative

epistemic deference to apply here if there is a range of different means of

regulating forced marriages Yet Lord Brownrsquos assessment contemplates

possible and not actual policy choices Does this mean that normative

deference should not have been exercised Are Lady Hale and Lord Wilson

mistaken in focusing on the immigration rules and failing to recognize the

ability of individuals to make representations to immigration officers that they

should be an exception to the rule as recognized by Lord Wilson

Brady could argue that his theory has managed to maintain the requisite

neutrality to provide a universal framework and that it does enable some

assessment to be made of legal decisions even if this is not complete

Advocates of either account of proportionality or either account of deference

can argue both that Bradyrsquos account favours and that it disadvantages their

accountsmdashis more needed to show that a framework of human rights

adjudication can have universal application The next section will argue that

72 ibid [58] (Lord Wilson) and [80] (Lady Hale)73 ibid [58]74 ibid [91]75 ibid [66] (Lady Hale)76 ibid [91] (Lord Brown)

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there are problems with Bradyrsquos account It will argue that Bradyrsquos search for

neutrality between due deference and non-doctrinal approaches to deference

and the assessment of whether it can apply to optimizing and state-limiting

conceptions of proportionality are red herrings The distinctions between due

deference and non-doctrinal approaches to deference and between state-

limiting and optimizing conceptions of proportionality fail to capture the real

nature of differences between theorists who advocate diverse accounts of

human rights adjudication through the use of these terms A further element is

neededmdashan analysis of the role of the court in human rights adjudication This

will be analysed in the next section

5 Deference Proportionality and Theories of Adjudication

Brady refers to a range of accounts of deference focusing in particular on the

accounts of Allan and Hickman as non-doctrinal accounts of deference and the

theory of Murray Hunt as an account of due deference All of these theories

rely on different background theories of human rights adjudication prescribing

different roles for public bodies and the courts To focus on delineating

different conceptions of deference without relating these different accounts to

their distinct theoretical underpinnings not only misses an important element

but leads to potentially misleading classifications of theorists This is particu-

larly pertinent with regard to Bradyrsquos analysis of Allan and Hickman Both

are provided as examples of those advocating a non-doctrinal approach to

deference yet they have divergent accounts of the role of public bodies and the

courts when protecting human rights

Allan does argue that there is no need for a doctrine of deference in addition

to the normal process of judicial review For courts to lsquodeferrsquo in addition would

amount to double-counting taking into account the same factors twice first to

determine the right so as to accord the proper area of discretionary judgment

to the public body and second by adding on an extra layer of deference to the

public body Hickman also advocates that deference is best understood as part

of the normal adjudicative process preferring the approach taken by Lord

Bingham in Huang However despite this similarity there are significant

differences between their two theories In particular Allan and Hickman

disagree about the factors that should be used to determine whether deference

is owed or a discretionary area of judgment should be granted to the public

body Both differentiate between internal and external features Internal

features are those connected to the nature of the right External features

refer to other factors that are not dependent on the nature of the right An

external feature relates to the relative authority or expertise of the public body

taking the original decision that is deemed to have interfered with a right For

example an assessment of internal features would recognize that the Article 8

right to marry is vague and open to different interpretations giving rise to

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deference or a discretionary area of judgment in the hands of the public body

There exists a wide as opposed to a narrow range of possible proportionate

restrictions on the right to marry External features would assess the relative

expertise of the Minster to assess whether a particular restriction on the right

to marry is proportionate or not recognizing that she has more knowledge or

more experience of regulating marriage Allan argues that only internal features

should be taken into account Hickman however concludes that deference

should be based only on external features He argues that the role of deference

is not to determine the content of a right but to determine how much weight

to give to the opinions of other institutions that a particular action does not

harm a Convention right77

Brady could argue that this difference is immaterial It merely relates to the

type of features used to determine deference or the type of deference that each

theory would accept Allan could apply Bradyrsquos framework but Allanrsquos non-

doctrinal approach to deference would only allow structural deference

Hickmanrsquos account could apply Bradyrsquos framework focusing in particular on

the two forms of epistemic deference However this masks a deeper

disagreement between Allan and Hickman The difference between their

theories is best understood in terms of their different approaches to human

rights adjudication Allan argues not only that due deference leads to double

counting but also that it is pernicious as it undermines the constitutional role

of the court78 Allan views courts as primary decision-makers When applying

the Human Rights Act 1998 it is the role of the court to determine the content

of Convention rights and to correct decisions of public bodies that fail

to comply with Convention rights Hickman however sees the court as a

secondary decision-maker The court determines whether the restriction placed

by a public body on a Convention right is proportionate or disproportionate

When applying the proportionality test courts give weight to the conclusions of

public bodies based on their relative knowledge and expertise as compared

with the court

This difference will influence the approach taken by the courts when

applying proportionality and deference a factor missing from Bradyrsquos frame-

work To return to Quila a judge influenced by the arguments of Allan will

determine the scope of Article 8 assessing whether the right to marry when

properly understood would be breached by the raising of the age of consent

If deference is due to the public body it is because the right to marry allows for

a range of interpretations Bradyrsquos framework however when read in the light

of Allanrsquos background theory of human rights adjudication would focus on

assessing whether structural deference arose because there were competing

legitimate aims or because there were other possible means of controlling

77 Hickman (n 2) 141ndash4578 TRS Allan lsquoHuman Rights and Judicial Review A Critique of Due Deferencersquo [2006] CLJ 671 and

lsquoJudicial Deference and Judicial Review Legal Doctrine and Legal Theoryrsquo [2011] LQR 96

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forced marriages that would have the same restriction on the right to marry or

where a range of possible restrictions on the right to marry were equally

balanced in terms of their ability to achieve the aim of restricting forced

marriages without unduly harming the right to marry Allanrsquos approach

however would not be couched in these terms Allan would focus more on

assessing the right before determining whether the particular law restricted the

right To apply Bradyrsquos framework seems to shift the analysis of the court

towards an evaluation of whether a restriction on a right is lawful or not in

terms of its restriction on the right to marry when compared with other

possible restrictions on the right to marry Bradyrsquos framework is far more suited

to theories of human rights adjudication that regard the courts as the

secondary and not the primary decision-maker further calling into question its

ability to apply as a universal framework of human rights adjudication

6 Conclusion

Bradyrsquos work provides a good addition to the voluminous literature on

deference It does so by taking a step back from abstract conceptual analysis

focusing instead on how deference and proportionality can be applied in

practice The difficulties discussed in this review article arise due to Bradyrsquos

focus on what would appear from the literature in this area to be a stark

difference between theories of deference but which on further examination

appears to be ephemeral or a mere matter of degree The suggested alternative

analysis draws on a clearer delineation between conceptual accounts of

proportionality and deference drawing on their connection to theories of

human rights adjudication Bradyrsquos book and this review pose a deeper

question for public law scholarship Both discussions question the utility of

focusing predominantly on abstract conceptual analysis or a detailed focus on

descriptions of judicial reasoning Whilst both are useful they can only provide

a partial picture and focusing too greatly on these accounts may give rise

to confusion When analysing deference and proportionality theorists often

appear to talk at cross-purposes It is only by taking care to identify the precise

question answered by a particular academic account or by linking their

analysis to deeper theories of human rights adjudication that confusion can be

avoided and greater clarity obtained

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