Deference To The Administration In Judicial Review: Comparative Perspectives 303031538X, 9783030315382, 9783030315399

Table of contents :
Preface......Page 6
Preface......Page 8
Acknowledgements......Page 10
Contents......Page 12
Editors and Contributors......Page 14
Deference to the Administration in Judicial Review: Comparative Perspectives......Page 15
1 Introduction......Page 16
2 The Role of the Courts: Setting the Scene for Discussion......Page 17
3 Defining the Concept of ``Deference´´......Page 19
4.1 Deference rationae personae or rationae materiae......Page 21
4.2 Deference and the Separation of Powers......Page 22
4.3 Political Issues and Deference to the Political Branches of the Government......Page 23
4.4 Deference to the Executive......Page 24
4.6 Technical Deference......Page 25
4.7 How Deference Is Manifested......Page 26
5 Deference and the Rule of Law......Page 27
6 Concluding Remarks......Page 29
Annex: Questionnaire on ``Deferene to the Administration in Judicial Review´´......Page 30
Introduction: Concept and Definition......Page 31
Proposed Structure......Page 32
Questions Concerning Judicial Deference......Page 33
Articles......Page 34
1.1 Brief Introduction to the Argentinean Legal System......Page 36
1.2 Judicial Control of Acts of the Administration......Page 38
1.2.1 First Stage: Restricted Review......Page 39
1.2.2 Second Stage: Broad Review......Page 40
1.3 Judicial Review of Administrative Actions......Page 41
1.4 Control of Decisions Made by Regulatory Bodies......Page 42
2.2 Should It Matter What Type of Agency Action Is Being Reviewed?......Page 43
2.3 What Standard/Approach/Grounds Should Courts Adopt When Reviewing an Administrative Decision? How Are These Grounds/Standa.........Page 45
2.4 In Relation to the Above, Reporters Are Invited to, if Applicable: (a) Probe the Treatment of Fact Finding, Especially Tha.........Page 46
2.5 Why in This Jurisdiction, the Courts Tend to Be Active and More Engaging (Judicial Activism), While in Others the Courts P.........Page 47
References......Page 49
Deference to the Administration in Judicial Review in Australia......Page 51
1.2 The Federal Legal and Political System......Page 52
1.3 The Australian Constitution and the Separation of Powers......Page 54
2.1 Introduction......Page 56
2.2 Judicial Review Under the Commonwealth Constitution: Section 75(v)......Page 57
2.3 Statutory Judicial Review......Page 58
2.4 Statutory Merits Review......Page 60
3 Introduction to Judicial Deference in Australia......Page 63
4.1 Justiciability and Political Questions......Page 65
4.2 Decisions by Cabinet......Page 68
4.3 Actions of the Governor and Governor-General......Page 69
4.5 Prisoners and Prosecutions......Page 71
4.6 Specialist Expertise......Page 73
4.7 Government Policy......Page 74
5 Privative Clauses and Deference......Page 80
6 Deference to the Process: Procedural Fairness and Jurisdictional Error......Page 84
7 Fact Finding and Jurisdictional Error......Page 86
8.1 Wednesbury Unreasonableness......Page 88
8.2 Irrationality and Illogicality......Page 91
9 Conclusion......Page 93
References......Page 95
Comparer la déférence judiciaire : regards canadiens vers l´extérieur......Page 100
1 Introduction......Page 101
2.1 Immunité de la Couronne......Page 102
2.2 Justiciabilité du litige......Page 104
2.3 Révision judiciaire et appel......Page 106
3 LA DÉFÉRENCE JUDICIAIRE : UNE ŒUVRE SYSYPHÉENNE......Page 107
3.1 Compétence « préliminaire »......Page 108
3.2 Normes de contrôle......Page 110
3.3 Valeurs de la Charte......Page 112
4 Conclusion......Page 114
Références......Page 115
1.1.1 Separation of Powers in China and a Weak Judiciary......Page 116
1.1.2 Recent Reforms About Administrative Litigation......Page 117
1.2 China´s Courts´ System and the Administrative Division......Page 119
1.3.1 Letter-and-Visit Complaint and Administrative Litigation......Page 120
1.3.2 Administrative Reconsideration and Administrative Litigation......Page 121
1.4 Literature on Judicial Deference in Chinese Scholarship......Page 122
2.1.1 The Scope of Judicial Review......Page 123
2.1.2 The Principles of Judicial Review......Page 126
2.2.1 Deference in the Review of the Factual Issues......Page 127
2.2.2 Deference in the Review of Legal Issues......Page 130
2.2.3 The Review of the Administrative Action Within the Discretion......Page 133
2.3 The Remedies of Judicial Review......Page 135
2.4.1 What Influenced the Deference of the Courts?......Page 136
3.1 The Features of Chinese-Style Judicial Deference......Page 138
3.2 The Future of Judicial Deference in China......Page 139
References......Page 140
1 Introduction......Page 143
2 Judicial Review and Deference to the Administration: Institutional Settings......Page 144
3.2 The Decline of Judicial Deference to the Administrative Interpretation of Law?......Page 149
3.3 Administrative Discretion: The Bastion of Judicial Deference?......Page 151
3.4 Judicial Deference and Administrative Penal Law......Page 153
3.5 The Treatment of Fact Finding Based on Science and Technology......Page 156
3.6 The Use of Proportionality Review......Page 157
3.7 Zone Planning and Self-Administration......Page 158
3.8 Deference and Courts´ Interim Measures......Page 160
3.9 Cassation Principle......Page 161
3.10 Period of Prescription (Statutes of Limitation) and the Protection of Good Faith......Page 162
4 Conclusions......Page 163
References......Page 164
1 The Development of Judicial Review in Denmark......Page 166
2 The General Approach to Judicial Review......Page 167
3 The Principle of Manifestly Wrong Decision Making (in Danish ``Åbenbar Urimelighed´´)......Page 168
4 An Interpretation of the Words and Meaning of the Section of the Act Defines the Scope of the Investigation......Page 169
4.2 Areas Where the Courts Conduct a Limited Review or no Review at All......Page 170
Laws......Page 171
Other Court Cases......Page 172
1.1 The Judicial Architecture of the European Union......Page 173
1.3 The Concept of `Discretion´ in the EU Legal System......Page 175
2.1 The Early Case Law and the `Light-Touch´ Approach......Page 176
2.2 The Tetra Laval Case and the Path Towards a More Intensive Review......Page 177
2.3.1 Public Health and the Environment......Page 180
2.3.2 Fundamental Rights......Page 181
3.1 Manifest Error......Page 182
3.2 Proportionality Review......Page 183
4 Conclusions......Page 185
References......Page 186
1.1.1 The Legal System and the Role of the Executive......Page 188
1.1.2 Sources of Law......Page 189
1.1.3 The Judiciary......Page 190
2.1.1 Fair Trial in Administrative Cases......Page 191
2.1.2 Equality of the Parties: Equality of Arms......Page 192
2.2.1 The Dual Role of the Administrative Courts vis-à-vis the Executive......Page 193
2.2.2 A Characterisation of the Concept of ``Deference´´ or ``Judicial Deference´´......Page 194
3.1 The Scope of Deference......Page 196
3.1.2 Powers of the Court......Page 197
3.2.3 Administrative Governance Outside Judicial Review......Page 198
4.1 Standard Grounds of Judicial Review......Page 199
4.3 Constitutional Grounds for Review......Page 200
4.4 The Effectiveness of Judicial Review......Page 201
5.1 The Role of Information and the Investigation Principle......Page 202
5.3 Proportionality and Other Legal Principles......Page 203
7.1 Policy Issues......Page 204
7.3 Constitutional Review......Page 205
8 Concluding Remarks......Page 206
References......Page 207
A Principled Approach to Judicial Deference for Hong Kong......Page 209
1 The Constitutional and Political Context of Hong Kong......Page 211
2 Deference: Definition, Underlying Factors and Means of Exhibition......Page 213
3 Current Approach: Doctrine and Practice......Page 214
3.1 General Principles Where Rights Are Involved......Page 215
3.2 Equality and the Socioeconomic Context......Page 217
3.3 Immigration Decisions......Page 219
3.4 ``Political´´ Judgments......Page 220
3.5 National Security Assessments......Page 221
3.6 Moral Judgments......Page 222
4 Critiques and Suggestions for a General Approach......Page 223
5 Application of Suggested Approach to Hong Kong......Page 228
5.1 Standard of Review......Page 229
5.2 Giving Weight to the Government´s Views: Constitutional and Institutional Competence......Page 230
6 Conclusion......Page 232
References......Page 234
1 Introduction......Page 236
2.1 ``Deference´´ and ``Restraint´´......Page 238
2.2 ``Deference´´ in Hebrew......Page 241
3.1 History and Political Structure......Page 242
3.2.1 General......Page 245
Constitutional-Type Legislation......Page 246
Primary Legislation......Page 247
Secondary Legislation......Page 248
3.3 Judicial Review of Administrative Action......Page 249
3.4 A Tale of Judicial Expansion......Page 252
4.1.1 Introduction and Methodology......Page 254
4.1.2 ``Deference´´: Explicit References......Page 255
4.1.3 Extraction of Three Theoretical Rationales for Deference/Restraint......Page 258
5.1 Introduction......Page 260
5.2 Restraint in the Review of Secondary Legislation......Page 261
5.3 Human Rights......Page 262
5.4 Public Ethics: Appointments, Removal and the Criminal Process......Page 264
5.5 Government Policy......Page 266
6.1 Deri (2016)......Page 268
6.2 Seligman (2018)......Page 270
7 Conclusion......Page 271
References......Page 273
1 An Intriguing Case......Page 275
2 A Constitutional Overview: An Asystematic Administrative Justice?......Page 277
3.1 The Age of Blind Deference (1865-1890)......Page 279
3.2 Deference by Other Names (1890-1999)......Page 280
3.3 A Diminishing Deference (1999-2018)......Page 281
4.1 Deference: Anti-terrorism Measures and Antitrust......Page 282
4.2 Toward a Full Jurisdiction Standard......Page 284
4.3 Standards and Evidence......Page 287
5.1 Judicial Review by Ordinary Courts......Page 289
5.2 The Liability of Civil Servants......Page 291
6.1 Inadequacies of Judicial Review from the Viewpoint of the ECHR......Page 293
6.2 Political Reactions to (Perceived) Judicial Activism......Page 294
7 Conclusion......Page 295
Journal Articles and Book Chapters......Page 296
Deference to the Administration in Judicial Review in Japan......Page 298
1.1 The General Legal Framework of Administrative Activities......Page 299
1.2 Judicial Review Over the Administration in General......Page 302
2.1 A Historical Overview......Page 303
2.2 The Functional Approach......Page 305
2.3 The Contemporary Baseline of Discussion......Page 307
3 Modes of Judicial Review Over Administrative Actions......Page 308
4 Standards the Court May Adopt When It Reviews Administrative Actions......Page 312
4.3.1 Contravention of the Equality Principle......Page 313
5 Review of the Administrative Decision-Making Process......Page 314
6.1 Education......Page 316
6.2 Matters Related to Public Officials......Page 317
6.3 Areas of Immigration Control and Diplomacy......Page 318
6.4 Area of Treatment of Inmates and Detainees......Page 319
6.5 Areas Where Reference to Specialist Knowledge and Skills Is Especially Required......Page 320
6.6 Administrative Inaction: The Failure to Exert Administrative Discretionary Power......Page 322
6.7 Administrative Legislation......Page 323
7 Conclusion......Page 324
References......Page 326
1 Introduction......Page 329
2 The Dutch Context: The System of Legal Protection Against the Government......Page 331
3 The Development of the Doctrine on the Basis of the Supreme Court Judgment in Doetinchem......Page 334
4 Intermezzo: The European Court of Human Rights Demands Judicial Legal Protection Against Government Decisions in Benthem......Page 335
5 The General Administrative Law Act As the Green Light for Further Development of the Doctrine with Harmonising Effect on Var.........Page 336
6.1 Moving Towards Differentiation and a Focus on Proportionality......Page 338
6.2 But with Limits, Due to the Necessary Expertise......Page 341
References......Page 343
1 Introduction......Page 347
2 The Constitutional Context......Page 349
3 The New Zealand ``System´´ of Judicial Review......Page 351
4 The Difficulty of Deference: Justification for Judicial Review in New Zealand......Page 352
5 Statutory Deference......Page 354
6 Deference and the Traditional Heads of Review......Page 355
7 Variable Intensity Review and Reasonableness......Page 357
8 Providing Structure to Deference in NZ: Taggart´s Rainbow......Page 360
9 Conclusion......Page 362
References......Page 363
1 Introduction: A Historical Review......Page 365
2 Concept and Its Adoption......Page 370
2.2 Recent Development of Administrative Justice......Page 371
2.3 Constitutional Ground......Page 373
2.4 In the Context of the European Union......Page 374
3 The Practice of Judicial Review and the Power of the Courts......Page 375
3.2 Deference and the Balance of Powers......Page 376
4 Conclusion......Page 378
References......Page 379
1 Introduction......Page 380
2 Overview of Deference and the Green-Light Approach to Judicial Review......Page 384
3 Justiciability......Page 387
4 Judicial Scrutiny and Varying Intensities of Review......Page 394
5 Judicial Deference on Interpretations of Law: A New Standard of Review?......Page 397
6 Conclusion......Page 401
References......Page 404
1 Introduction......Page 406
2 Background......Page 407
3 Administrative-Judicial Appeal......Page 410
4 Municipal Appeal......Page 412
5 Legal Review of Governmental Decisions......Page 413
6 Conclusion......Page 414
References......Page 415
Judicial Deference to the Administration in the United States......Page 417
1.1 Structure of the U.S. Legal and Administrative System......Page 418
1.2 Introduction to the Concepts of Deference and Discretion......Page 420
1.3 De Jure Deference in the APA Standards for Judicial Review......Page 421
1.4 The Concept of Discretion......Page 423
1.5 The Connection Between de Jure Deference and de Jure Discretion......Page 424
2.1.1 ``Substantial Evidence´´: A Standard of Medium Deference for Fact-Finding in Formal Processes......Page 425
2.1.2 ``Arbitrary and Capricious´´ Review: The Most Generally Applicable Standard of Medium Deference......Page 427
2.1.3 The Specially Deferential Standard for Review of Agency Rejections of Petitions to Engage in Rulemaking......Page 429
2.2.1 Chevron Deference......Page 430
2.2.2 The Meaning of Chevron......Page 432
2.2.4 The Triumph and Genius of Chevron......Page 433
2.2.5 The Search for Chevron Step Zero......Page 435
2.2.7 Auer or Seminole Rock Deference: Deference to an Agency´s Interpretation of Its Own Regulations......Page 437
2.3 De Facto Deference and Skidmore Deference......Page 438
2.4 The Puzzle of Military, Security, and Foreign Affairs Issues......Page 440
2.5 The Puzzle of Science and Technology......Page 441
3 Summary and Comparative Remarks......Page 443
References......Page 444

Citation preview

Ius Comparatum – Global Studies in Comparative Law

Guobin Zhu Editor

Deference to the Administration in Judicial Review Comparative Perspectives

Ius Comparatum – Global Studies in Comparative Law Volume 39

Series Editors Katharina Boele-Woelki, Bucerius Law School, Hamburg, Germany Diego P. Fernández Arroyo, Institut d’Études Politiques de Paris (Sciences Po), Paris, France Founding Series Editors Jürgen Basedow, Max Planck Institute for Comparative and International Private Law, Hamburg, Germany George A. Bermann, Columbia University, New York, USA Editorial Board Joost Blom, University of British Columbia, Vancouver, Canada Vivian Curran, University of Pittsburgh, USA Giuseppe Franco Ferrari, Università Bocconi, Milan, Italy Makane Moïse Mbengue, Université de Genève, Switzerland Marilda Rosado de Sá Ribeiro, Universidade do Estado do Rio de Janeiro, Brazil Ulrich Sieber, Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany Dan Wei, University of Macau, China

As globalization proceeds, the significance of the comparative approach in legal scholarship increases. The IACL / AIDC with almost 800 members is the major universal organization promoting comparative research in law and organizing congresses with hundreds of participants in all parts of the world. The results of those congresses should be disseminated and be available for legal scholars in a single book series which would make both the Academy and its contribution to comparative law more visible. The series aims to publish the scholarship emerging from the congresses of IACL / AIDC, including: 1. of the General Congresses of Comparative Law, which take place every 4 years (Brisbane 2002; Utrecht 2006, Washington 2010, Vienna 2014, Fukuoka 2018 etc.) and which generate (a) one volume of General Reports edited by the local organizers of the Congress; (b) up to 30 volumes of selected thematic reports dealing with the topics of the single sections of the congress and containing the General Report as well as the National Reports of that section; these volumes would be edited by the General Reporters of the respective sections; 2. the volumes containing selected contributions to the smaller (2-3 days) thematic congresses which take place between the International Congresses (Mexico 2008; Taipei 2012; Montevideo 2016 etc.); these congresses have a general theme such as “Codification” or “The Enforcement of Law” and will be edited by the local organizers of the respective Congress. All publications may contain contributions in English and French, the official languages of the Academy. More information about this series at http://www.springer.com/series/11943

Académie Internationale de Droit Comparé International Academy of Comparative Law

Guobin Zhu Editor

Deference to the Administration in Judicial Review Comparative Perspectives

Editor Guobin Zhu School of Law City University of Hong Kong Kowloon Tong, Hong Kong

ISSN 2214-6881 ISSN 2214-689X (electronic) Ius Comparatum – Global Studies in Comparative Law ISBN 978-3-030-31538-2 ISBN 978-3-030-31539-9 (eBook) https://doi.org/10.1007/978-3-030-31539-9 © Springer Nature Switzerland AG 2019 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

The concept of deference is important in national legal systems, and this book is of considerable value in exploring the nature of the concept, and its application, in 17 different legal systems. This is more especially so, given the heterogeneity of the legal regimes covered in the book. The coverage includes common law and civilian legal systems, and the book is geographically diverse, embracing not only legal systems in Europe and the USA but also some from Latin America and Asia. This all adds to the richness of the collection, and its intellectual value, which is further augmented by an insightful introduction by the editor, Guobin Zhu. It is readily apparent from a number of the chapters in the book that it is necessary to disaggregate the concept of deference from the word itself. Concept and the language must be distinguished. The rationale for this varies as between legal systems. It may be that a particular legal system does not accept any deference whatsoever in dealings between courts and administration. This is possible in theory, but unlikely in reality. The more likely scenario is that the national legal order does acknowledge the substantive underpinnings of deference, to some degree at least, but there is judicial unease with use of the word “deference” itself. This is the reason for the point made at the outset of this paragraph, as to the importance of distinguishing between the concept of deference, in the sense of what it tells us about the relationship between courts and administration in judicial review, from use of the word. The preceding point is reinforced when we reflect on the role played by the concept of deference. It is intimately connected with the standards used by courts when judicially reviewing action by administrative bodies. These choices are open to courts in all legal systems. A standard of review embodies the legal test that the courts apply when reviewing allegations that an administrative agency committed a certain type of error. It is axiomatic that the standard can vary; this being reflective of judicial assumptions that different tests for review are suited to different types of error. Thus, it is common in many legal systems, most especially civil law regimes, that courts substitute judgment for errors of law, the reverse side of this coin being that no v

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deference is accorded to the administration in the determination of such issues. This is, however, not the only legal option. Courts in some legal systems adopt a test for review for error of law that is framed in terms of reasonableness, whereby, in some circumstances, an agency conclusion as to the legal meaning that a term should bear will be upheld if it is reasonable, even if it is not the precise meaning that would be chosen by the reviewing court. Insofar as a legal system adopts a standard of review for legal error that is not framed in terms of substitution of judgment, it is thereby according some measure of deference to the agency’s view as to the legal meaning of the statutory term. The preceding relationship between standards of review and deference is further in evidence when we consider other kinds of agency error, such as mistake of fact or misuse of discretion. There is a range of possible tests for review of such errors. It is, nonetheless, common for legal systems to accord more leeway to the agency over such matters than in relation to issues of law. Thus, in relation to issues of fact, reviewing courts are less inclined to substitute judgment because the agency will often be skilled in relation to fact-finding and may well have heard witnesses and the like, which is normally not open to the reviewing court. In relation to issues of discretion, there are legitimacy considerations in play. The legislature has given the discretionary determination to the agency, and it is not for the reviewing court to substitute its view as to how the discretion should be exercised, merely because it would have reached a different conclusion if it had been the primary decision-maker. The concept of deference in these instances operates through the standards of judicial review and reflects the courts’ considered opinion as to the degree of oversight that is warranted for a particular type of error. Oxford, UK July 2019

Paul Craig

Preface

As General Reporter Guobin Zhu has mentioned, I originally proposed to the Academy of Comparative Law that the topics for the quadrennial congress of comparative law include an issue concerning a comparative study of judicial deference to the administration. I initially proposed this topic in 2008 for the Washington, D.C. Congress held in 2010. Because the topic was not accepted for the 2010 Congress, I renewed my proposal for both the 2014 Vienna Congress and the 2018 Congress in Fukuoka, Japan, for which the topic was finally selected. My perseverance in proposing the topic was based on my intuition that the topic is an important subject that we have to understand if we are to move comparative administrative law from its relative infancy into a more mature phase that would be characterized by more insightful understanding of the significance of both the major similarities and differences in different countries’ administrative law. I did not know, however, enough about judicial review in other countries to have a good sense of what the chief similarities and differences would prove to be when I was proposing the topic. There simply was no good source providing detailed information about judicial review and judicial deference in a wide variety of countries. Nevertheless, I was fairly certain, as my own national report contained herein mentions, that differences in legal rules and practices relating to judicial deference would prove to be highly interesting and important. They could, I thought, be expected to reflect differences among nations with respect to political economy, a subject to which I have dedicated a large part of my own scholarship dealing with a number of different fields of law. Even if political economy did not prove to provide a fruitful analytic frame, I was confident that the topic would reveal important insights about the different ways in which national systems of governance are structured, especially with respect to the issues of the delegation of powers to administrative agencies and the respective roles of the courts and the legislature in policing the administration’s faithfulness to the limits of that delegation. But for lack of detailed knowledge about specific similarities and differences—the indispensable prerequisite for comparative analysis—I was unsure how to develop the appropriate analytic frames for understanding those differences and similarities. vii

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So when I proposed the topic, it was too soon to be constructing conceptual frameworks and theories to help understand the differences and similarities. We needed, I thought, to start with careful description of the basic differences and similarities themselves. This collection of national and general reports thus takes an important step forward by accomplishing the hard work of compiling a detailed and accurate picture of judicial review and judicial deference in a good number of jurisdictions encompassing the major legal traditions of the world for which judicial review of administrative action is relevant. Professor Zhu provided excellent leadership as the General Reporter for this topic. His questionnaire, to which all national reports responded, is a model for this kind of undertaking. It covered the whole topic in generous fashion. It provided guidance by calling the reporters’ attention to a checklist of key issues but left the reporters ample freedom to shape their individual reports to address what they each saw as the most important issues. It reminded us to discuss not only the formal sources of law and academic analysis but also the landmark cases, whether they constitute a formal source of law, as they do in common law jurisdictions, or merely a judicial practice that gives shape to the law, as tends to be the case in other jurisdictions. The result is a collection of national reports that give a real sense of the chief ways in which legal systems differ or are the same with respect to the issue of judicial deference to administrators and an excellent survey of the major attempts in the legal literature to date to justify and/or understand the specific approaches of individual countries. This volume thus provides an important foundation for further work in this area. One direction for further work concerns expanding the data base of countries. Although this volume includes reports from a fair representation of the world’s legal systems—some 17 systems in all—many jurisdictions are still missing. General reporters are always subject to one caprice that inevitably affects this kind of international cooperative study, namely which countries nominate national reporters and which ones complete their reports and submit them. But there is a broad enough sampling of the world’s legal systems in this volume to enable scholars to proceed in the other direction that I originally wanted to go in, the project of analyzing the differences and similarities to construct broader understandings of the comparison of judicial deference. Some of the literature discussed in the national reports and Professor Zhu’s masterful summary as General Reporter have already started us on that task, but I believe that there is more work to do. My prediction is that this collection and its general report will prove to be of enormous value for that project as a data base for testing theory and a storehouse of stimulating ideas. Iowa City, IA, USA July 2019

John C. Reitz

Acknowledgements

The origin of this book is connected with the International Academy of Comparative Law (the Academy, or IACL), and particularly, originated from the 20th General Congress of the Academy, held on 22–28 July 2018 in Fukuoka City, Japan. I was fortunate enough to be chosen by the Academy to serve in the role of the General Reporter/Rapporteur General for the Panel of “Deference to the Administration in Judicial Review - La Pratique de la Déférence dans le Cadre du Contrôle Juridictionnel de l’Action Administrative.” I, first of all, must thank the Organizing Committee of the Congress and precisely Professor Diego P. Fernández Arroyo, Secretary-General of the Academy, and also Co-Director of Global Governance Studies, Sciences Po Law School, for having invited me and granted me their trust and for giving me the precious opportunity to present the General Report to the Congress. The official invitation was issued in March 2016. Since then, I have been working closely with the national associations/societies of comparative law and/or the identified country reporters, and the Secretariat of the Academy as well. During the past 2 years, I have had a great chance to work directly with reporters of about 20 countries, all of whom are the leading and widely recognized comparativists in administrative law nationwide or worldwide. Almost all country reporters have become the contributors of this book. In one sense, this is their collective work, and I have only served as the coordinator and editor. As editor, I own them a great debt; certainly, without their contribution the making of this book would not be possible. They are (by country sequence): Pedro Aberastury (Argentina), Fleur Kingham (Australia), Nicolas Lambert (Canada), Qinwei Gao (China), Zdenek Kühn & Josef Staša (Czech Republic), Bent Ole Gram Mortensen & Frederik Waage (Denmark), Mariolina Eliantonio (European Union), Olli Mäenpää (Finland), Cora Chan (Hong Kong), Margit Cohn (Israel), Giacinto della Cananea (Italy), Norikazu Kawagishi (Japan), Tom Barkhuysen & Michiel L. van Emmerik (The Netherlands), John Hopkins (New Zealand), Zbigniew Kmieciak & Joanna Wegner-Kowalska (Poland), Eugene TAN Kheng Boon (Singapore), Henrik Wenander (Sweden), and John C. Reitz (The United States). I wish to pay special tribute to these experts with whom I have had ix

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frequent discussions in the process of writing my General Report and editing the manuscript, and they are Fleur Kingham, Cora Chan, Margit Cohn, John Hopkins, and John C. Reitz. My sincere thanks then should go to two prominent scholars and also internationally recognized administrative law experts who have kindly accepted to write each a preface for this book. They are Professor Paul Craig, Professor of English Law, St John’s College, Oxford University, and Professor John C. Reitz, Edward. L. Carmody Professor of Law, Director of SJD and LLM Programs and Visiting Scholars, University of Iowa College of Law. I am sure that the reader can easily Google their impressive curriculum vitae with a long list of publications and might have read some, if not all, of their academic works in the field of public law in general and (comparative) administrative law in particular. Their prefaces have endorsed this edited theme-based work and added extra value to it. I want to express my special thanks to Dr. Antonios Kouroutakis, Assistant Professor of Law at IE School of Law, Spain, and a young and promising comparativist of public law. After I have collected all country reports, Antonios assisted me in analyzing these reports and in drafting the General Report. It has always been a pleasure working with Antonios on this occasion and under other research projects. I have also been assisted by Ms Kris Yuen, my Assistant, in liaising with the contributors, and during the whole period of preparation of the Questionnaire, drafting, editing, and publishing. Her daily assistance is much appreciated. She deserves a great “thank you.” Last but not the least, as people often conclude this way, I am grateful to Dr. Anja Trautmann, Editor Law, Springer, for her professional guidance and immense patience. Gratitude also goes to her colleagues Anitha Chellamuthu and Kay Stoll for realizing the publication. Hong Kong July 2019

Guobin Zhu

Contents

Deference to the Administration in Judicial Review: Comparative Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Guobin Zhu

1

Deference to the Administration in Judicial Review in Argentina . . . . . . Pedro Aberastury

23

Deference to the Administration in Judicial Review in Australia . . . . . . Fleur Kingham

39

Comparer la déférence judiciaire : regards canadiens vers l’extérieur . . . Nicolas Lambert

89

Deference to the Administration in Judicial Review in China . . . . . . . . . 105 Qinwei Gao Deference to the Administration in Judicial Review in the Czech Republic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Zdenek Kühn and Josef Staša Deference to the Administration in Judicial Review in Denmark . . . . . . 157 Bent Ole Gram Mortensen and Frederik Waage Deference to the Administration in Judicial Review: The European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165 Mariolina Eliantonio Deference to the Administration in Judicial Review in Finland . . . . . . . . 181 Olli Mäenpää A Principled Approach to Judicial Deference for Hong Kong . . . . . . . . . 203 Cora Chan Judicial Deference to the Administration in Israel . . . . . . . . . . . . . . . . . 231 Margit Cohn xi

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Contents

Judicial Review of Administrative Action in Italy: Beyond Deference? . . . 271 Giacinto della Cananea Deference to the Administration in Judicial Review in Japan . . . . . . . . . 295 Norikazu Kawagishi Deference to the Administration in Judicial Review: The Case of the Netherlands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327 Tom Barkhuysen and Michiel L. van Emmerik The “Dreadful Truth” and Transparent Fictions: Deference in New Zealand Administrative Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 345 W. John Hopkins Deference to the Public Administration in Judicial Review: A Polish Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363 Zbigniew Kmieciak and Joanna Wegner ‘The Notion of a Subjective or Unfettered Discretion is Contrary to the Rule of Law’: Judicial Review of Administrative Action in Singapore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 379 Eugene K. B. Tan Full Judicial Review or Administrative Discretion? A Swedish Perspective on Deference to the Administration . . . . . . . . . . . . . . . . . . . 405 Henrik Wenander Judicial Deference to the Administration in the United States . . . . . . . . . 417 John C. Reitz

Editors and Contributors

Guobin Zhu PhD and Habilitation (France), is a Professor of Law at School of Law of City University of Hong Kong, Director of Human Rights Law and Policy Forum, School of Law of City University of Hong Kong; he also serves as Director, City University of Hong Kong Press. He is currently a Guest/Adjunct Professor/Research Fellow at Shandong University, Sichuan University, Central China University, Wuhan University Law School, Qingdao University Law School, and Zhejiang University Law School. He is a Titular Member of International Academy of Comparative Law, a Council Member of Chinese Association of Constitutional Law and Chinese Judicial Studies Association, and a Member of International Association of Constitutional Law, etc. His areas of research interest include Chinese and Comparative Constitutional Law, Hong Kong Basic Law, Chinese Human Rights Law, Chinese and Hong Kong Legal System, and Chinese Public Administration. He has published a large number of books, book chapters, and articles in English, French, and Chinese in the above fields, and his recent works have been published in Stanford Journal of International Law, International Journal of Constitutional Law, Human Rights Quarterly, Colombia Journal of Asian Law, Suffolk University Law Review, International Review of Administrative Sciences, China: An International Journal Chinese Journal of Law, and Hong Kong Law Journal.

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Deference to the Administration in Judicial Review: Comparative Perspectives Guobin Zhu

Abstract 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.

I want to express my special gratitude to Dr. Antonios Kouroutakis, IE University Law School, Spain, for his research assistance in the course of drafting this general introduction. Antonios has been a good friend and an efficient and reliable collaborator, and we have jointly produced other research papers recently published in Stanford Journal of International Law and Hong Kong Law Journal. My great thanks shall go to Judge Fleur Kingham, President of Land Court of Queensland, Australia, who is also the national reporter for this cluster group, for her insightful comment on the draft as far as the case of Australia is concerned. And in the meanwhile, I should thank other national reporters for their suggestions. G. Zhu (*) School of Law, City University of Hong Kong, Kowloon Tong, Hong Kong e-mail: [email protected] © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_1

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Résumé La déférence judiciaire envers l’administration est un concept et une pratique juridique plus ou moins présents dans tous systèmes constitutionnels. L’analyse des rapports nationaux révèle pourquoi, comment et quand les tribunaux s’en remettent aux actions administratives. Dans chaque système constitutionnel, la déférence est utilisée différemment, car le positionnement du pouvoir judiciaire au sein de la séparation des pouvoirs, le rôle des tribunaux en tant que mécanisme de freins et de contrepoids et la portée de la révision judiciaire diffèrent. En plus de cela, dans le système constitutionnel lui-même, la façon dont la déférence fonctionne est complexe, multiforme et généralement cachée dans le même ordre juridique. La déférence est accordée pour des raisons politiques et techniques. Dans ce cadre, cependant, ce qui est politique dépend d’un certain nombre de questions telles que les valeurs sociétales et le calendrier politique. Plus précisément, il semble que ce sujet de nature controversée, auquel s’opposent de larges parties de la société, est perçu comme politique et, par conséquent, les tribunaux sont plus enclins à accorder la déférence. Mais le degré de déférence dépend des caractéristiques du différend, de la gravité de la question, du niveau de technicité et de la question de savoir si le différend est lié aux droits de l’homme. C’est aussi un concept dynamique car il est adapté à la nécessité des circonstances.

1 Introduction There are numerous discussions on the topic “Deference to the Administration in Judicial Review”. “Deference”, a concept which originated in North American judicial practice, nowadays has gradually come into consideration and even been accepted by other jurisdictions. As deference can have various connotations under different circumstances, be associated with different legal doctrines and theories, and different practices of the court or even sound differently in different legal systems and jurisdictions, a number of questions are to be addressed for a more complete and thorough analysis of it. The central question is when, why, and how much should reviewing courts defer to administrative agency? Nevertheless, more questions are relevant here. For instance, should it matter what type of agency action is being reviewed? In addition, what standard/approach/grounds should courts adopt when reviewing an administrative decision? How are these grounds/standards such as reasonableness, or proportionality, applied in the courtroom? The present report has the following structure: First, it addresses the role of the courts in different constitutional systems and their interaction with the other branches of the government. This part here leads to the second topic which is the discussion on the concept of deference, its scope and how it emerged and how it was further developed. In relation to the above, the third part analyses the divergent aspects of deferential judicial review, and it examines thematically the concept of deference. In particular, it examines deference via the lenses of the separation of

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powers, by taking into account the institutional role of the executive and of the courts, and the political and the technical nature of some disputes, while it concludes on how deference is manifested. Finally, the last part is devoted to the examination of deference from the perspective of the rule of law.

2 The Role of the Courts: Setting the Scene for Discussion Undoubtedly, courts hold a unique position in every constitutional order. Regardless the form of the separation of powers or the weighting of the balance of powers between the legislative and the executive branches of the government, courts by default are the link between democracy and the rule of law. Both the legislative and the executive branches filter and are, institutionally speaking, the majoritarian expression of the society. In these institutions, the holders of the office are the representatives of the society channeling the views of the majority in the policy and law making. On the other hand, courts have a distinct institutional role. They do not express the views of the majority, on the contrary, they are a counter majoritarian institution. Judges are not elected by the people, in fact judges are expected to be politically insulated, thus such institution has limited democratic legitimacy. At the same time, depending on the constitutional configurations, courts are positioned as the guardian of legality, human rights and in general of the rule of law via the mechanism of constitutional and judicial review. While courts lack democratic legitimacy, with the exception of criminal cases and the trial by jury, they are vested with a different kind of institutional legitimacy. Such legitimacy is based on the culture of justification.1 Hamilton in the well cited Federalist Paper 78, has described the judiciary as “beyond comparison the weakest of the three departments of power”2 and has emphatically pointed out that “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them”.3 However, this view, in the post Marbury vs Madison era, was criticized given the critical power of the courts to strike down laws based on constitutional review.4 Interestingly, courts have also developed a counter force, a practice of deference to the political braches of the government, the executive and the legislative.5 Such practice, which has a critical impact on the relationship between the courts and the executive and legislature is a silent feature in the constitutional order, and this

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See Dyzenhaus (1998), p. 11. Hamilton (2001). 3 Ibid. 4 Bickel (1998). 5 About the role of deference as the “counter-Marbury” of the administrative state see Sunstein (1990), pp. 2071, 2074–2075. 2

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general report seeks to address this issue. In particular this report will focus on the practice of judicial deference to the administration, hence deferential practice for instance between higher and lower courts6 or between the courts and parliament will not be examined.7 Although, the administration is part of the executive, undoubtedly, in the modern era has acquired autonomy. Vile has accurately remarked that “[n]ow the label ‘executive’ is even less appropriate, because it is the administrative machine, influenced but not controlled by the political leadership, which carries the laws into effect.”8 This process is termed “agencification” and characterizes the creation of new agencies, their expansion and the autonomy of the bureaucracy.9 The supervisory role over the administration by the executive stricto sensu and the legislature, the so called political branches of the government, has proven to be inefficient and this has led Vile to speak about the emergence of a fourth power, the administration, among the three traditional powers and the need for new checks toward to that power.10 Within this context, the courts were entrusted with the paramount task to check the administration and review the administrative actions. Hence, the judicial deference to the administration is a key issue with many legal implications. Accordingly, the general reporter and national reporters were assigned to address this topic entitled “Deference to the Administration in Judicial Review”. Methodologically, national reporters were invited to elaborate and examine this topic in their jurisdiction based on a questionnaire in the form of guidelines that was circulated and is included as an Annex to this Report. Within this context our national experts submitted their answers to one main question: how deference to the administration in judicial review or deference like practices are manifested, under which justification, and in which areas of laws.11 The range of the constitutional orders in comparison

6 For instance, a well known deferential practice between higher and lower courts is when higher courts reply on the fact findings of the lower courts. 7 For instance the deferential practice of the courts regarding the interna corporis of the law making process. 8 Vile (1998), p. 400. 9 Egeberg and Trondal (2009), p. 673. 10 Vile (1998), p. 401. 11 The guidelines sent to reporters are included in the Annex. In total, reports from the following (17) countries were received: Pedro Aberastury Associate Professor of Administrative Law; Fleur Kingham President, Land Court of Queensland, Australia; Qinwei Gao, Professor, Central University of Finance and Economics, China; Giacinto della Cananea, Professor of Administrative law and EU Administrative Law, University of Rome “Tor Vergata”, Italy; Zdenek Kühn, Associate Professor of Jurisprudence, Charles University Law School and Judge at the Supreme Administrative Court of the Czech Republic; Josef Staša, Lecturer of Administrative law, Charles University Law School, Czech Republic; Mariolina Eliantonio, Associate Professor in European Administrative Law Maastricht University, Netherlands; Olli Maenpaa Professor University of Helsinki, Finland; Cora Chan, Associate Professor HKU, Hong Kong; Margit Cohn, Henry J. and Fannie Harkavy Chair in Comparative Law, Faculty of Law, the Hebrew University of Jerusalem, Israel Norikazu Kawagishi, Professor Department of Political Science, Waseda University, Japan; Tom

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was based on the availability of scholars with the appropriate interest and expertise. Subsequently, the reporters have used both qualitative and quantitative analysis in order to examine the concept and the practice of deference. In particular, their qualitative analysis was based on the assessment of several key decisions. Having said that, the general reservation applies. While the current chapter is based on these national reports and some additional sources and aims to bring together the findings and conclusions running through the national reports, the conclusion of the general report remains distinct from the individual views of the national reporters.

3 Defining the Concept of “Deference” “Deference” is a concept, which originated in North American judicial practice and is widely associated with the Chevron case but interestingly it long predates this case.12 In 2008, the seminal case of the Supreme Court of Canada, Dunsmuir v New Brunswick, defined the term deference as follows: Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference ‘is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers’ . . . Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers.13

“The Deference to the Administration in Judicial Review” is an expression of judicial self-restrain and it is opposed to the concept of judicial activism. However,

Barkhuysen Professor of Constitutional and Administrative law at Leiden University, the Netherlands and partner at Stibbe, Netherlands; Michiel l. Van Emmerik Associate Professor of Constitutional and Administrative law at Leiden University and deputy judge at the District Court MiddenNederland, Netherlands; Zbigniew Kmieciak, Professor, Faculty of Law and Administration, University of Lodz, Justice of the Supreme Administrative Court, Poland; Joanna WegnerKowalska, PhD Faculty of Law and Administration, University of Lodz, Poland; Eugene K B Tan, Associate Professor of Law, School of Law, Singapore Management University; Henrik Wenander, Associate Professor of Public Law, Faculty of Law, Lund University, Sweden; Aytac Ozelci, Chair of Administrative Law Department, Istanbul Kultur University, Turkey; Elif Altinok Caliskan; Assistant Professor, Administrative Law Department, Istanbul Kultur University, Turkey; Sakine Nilufer Bilgin, Administrative Law Department, Istanbul Kultur University, Turkey; John C. Reitz, Edward L. Carmody Professor of Law and International Studies, University of Iowa College of Law; Bent Ole Gram Mortensen, Professor, Department of Law, University of Southern Denmark; Frederik Waage, Associate Professor, Department of Law, University of Southern Denmark. 12 See Bamzai (2017), p. 908. 13 Dunsmuir v New Brunswick 2008 SCC 9, [2008] 1 SCR 190.

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although self-restrain and deference overlap, they are not coterminous. Self-restrain is the term of art from the perspective of the court, while deference is the manifestation of the self-restrain. On the other hand, the term judicial activism, which is opposed to judicial deference has no fixed definition. The reporter from Argentina identifies activism when the court has delivered a decision touching broader issues and at the same time intervening in state policies. In theory, Kmiec has recognizes five perspectives of ‘judicial activism’: “(1) invalidation of the arguably constitutional actions of other branches, (2) failure to adhere to precedent, (3) judicial ‘legislation,’ (4) departures from accepted interpretive methodology, and (5) result-oriented judging.”14 Given the relatively recent and rapid immigration of the concept of judicial deference in numerous constitutional orders, it is acknowledged by a number of reporters, for instance from Israel, China and Argentina, that equivalent term of art does not exist in their native language respectively, but only a descriptive term or a number of terms with similar legal effect. For instance, the reporter for China points out four terms that are used instead of judicial deference. In particular, judicial selfrestraint with caution, judicial respect and deference, judicial self-restraint and judicial passivism. First of all, it is here noteworthy to clarify and draw a distinction between the term deference and the term “jurisdiction”, as it is accurately pointed out by the reporter from Hong Kong. In order for the courts to show deference, jurisdiction is a prerequisite, while when courts lack jurisdiction no latitude is granted to the government on any matter, since the courts do not simply have the authority to intervene. Deference therefore, is exercised only within the scope of court’s jurisdiction. In practice, when the jurisdiction of a court is expressly limited by a law, constitutional or primary, then the court simply lacks jurisdiction. Having said that, what was a great challenge for this report, was to reconcile the divergent jurisdictional differences between various constitutional systems. About the quality of judicial review, some courts apply proportionality15 for judicial review such as the Netherlands, others like Singapore apply the reasonableness test,16 and others like Hong Kong apply both. Needless to say that proportionality test itself is considered as stricter level of review compared to the reasonableness test.17 Furthermore, about the scope of the judicial review a number of differences emerge. Courts in Hong Kong do not have the power to intervene in foreign affairs and defense, but they have the power to strike down socio-economic policies. Israeli 14

Kmiec (2004), pp. 1441, 1444. Proportionality test includes a review based on three steps: (1) whether the right limitation pursues the legitimate aim; (2) whether it is rationally connected to the aim; and (3) whether it is no more than necessary for achieving the aim. See Jackson and Tushnet (2017). 16 Reasonableness test, also known as Wednesbury unreasonableness is a less strict test according to which the courts ask whether the action of the administration was merely reasonable. See Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223. For further details, see Craig (2016). 17 De Burca (1997), p. 561. 15

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courts have broad authority to intervene and evaluate decisions on appointment of elected and non-elected public officials both on formal and substantive grounds, for instance the removal due to criminal investigations. Another example is the EU courts’ review scope, which is limited to the legality and does not extend to the merits of the decisions taken by the European administrative authorities. What is more challenging about deference is the fact that as a legal concept, it has no recognized status based on an explicit legal provision. Deference is a silent feature of each constitutional system, present in the actual judicial practice, as the reporter from Finland remarks. Deference is a legal concept developed by judge made law. Interestingly, the analysis of the national reports has shown another important aspect of deference. In some constitutional orders, such concept is well established in the sense that the courts have systematically formulated and analysed this concept, for instance in Hong Kong and USA, while in other constitutional orders, like Sweden, Poland and New Zealand this concept is not formulated by seminal courts’ decisions. In addition, as deference depends on the judge made law, such concept is volatile, not stable. Courts may change their stance towards the executive depending on the circumstances. For instance, the reporter from Czech Republic stated that the courts do not have a solid position on whether to accept the reasonable interpretation of the law by the executive branch. Further, the national reporter for Italy has shown the historical development of the deferential practice towards the administration in Italy during the twentieth century. In addition, it is worth mentioning a remark from the reporter from Israel. The Israeli national reporter stated that courts might often start with an activist position and then change to deference, and provided the example on the review of decisions on the appointment of elected and non-elected public officials. Finally, the analysis of the national reports have shown that deference is treated as the exception to the rule of rigorous judicial review, while in some legal order like Sweden, judicial deference is limited in practice. However, this is not the case in China as the national reporter clarifies that courts have in general a deferential stance, as a rule, towards the administration.

4 Deferential Judicial Review in Operation 4.1

Deference rationae personae or rationae materiae

In practice, the deferential stance of the courts is explained by two main reasons: rationae personae or rationae materiae. In other words, deference is granted based on the institutional characteristics of the institutions, both the courts and the

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executive (rationae personae) or deference is granted due to the nature of the issue (rationae materiae).18 However, these two grounds rationae personae or rationae materiae are not mutually exclusive as deference may be granted on both grounds simultaneously; due to respectful acknowledgment of the authority of another institution, for instance the executive, and at the same time due to the respectful regard for its opinion on a specific matter or are of law.

4.2

Deference and the Separation of Powers

To begin with, deference is inseparably related with institutional and separation of powers concerns, either from the perspective of the court or from the perspective of the administration given their fundamental characteristics. At first glance, deference might be seen as an incompatible practice to the separation of powers principle. When courts exercise deference, this might be seen as a departure from the institutional role allocated to the courts, to uphold the law, and review the acts of the other branches of the government. However, the exact opposite may be argued; when the courts implement deference, they uphold the separation of powers.19 In particular, if there is an allocation of an authority based on the separation of powers principles, an “institutional mandate” as the reporter from Hong Kong describes it, the courts shall defer. Thus, the constitution or a legal provision may specifically preclude the court’s involvement in a specific matter.20 To exemplify this, the reporter for the US states that in areas such as military, security, or foreign affairs law, the courts defer in light of the broad powers of the President to protect national security and conduct foreign policy recognized by the US Constitution. In addition, where the law grants discretion to the administration on a particular matter, the intensity of the judicial review is lower. For instance in Italy, on public appointments, such as the choice of the public accounts’ prosecutor, only extreme procedural impropriety or unfairness and blatant unreasonableness could lead the courts to intervene in the “high degree of discretion” area and annul the measures contested by individuals. Generally speaking, the justification is that the judiciary shall not substitute in the decision making process the original authority based on separation of powers, as the reporter for Australia stressed and identified as that the prevailing stance of the Australian courts on deference. 18

Allan (2011), p. 96. Chan (2011), pp. 7, 9. 20 A prime example is the Bill of Rights 1689 in the UK that precludes the courts’ review of the interna corporis. see English Bill of Rights 1689, An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown, art 9 “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. 19

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Political Issues and Deference to the Political Branches of the Government

Undoubtedly, the courts have less political legitimacy as the judiciary does not have in its DNA the element of representation,21 and judges lack the electoral connection with the people. On the other hand, the executive and the legislature have more direct connection with the people and the society. This gives to the latter institutions an advantage and a clearer insight on the so-called political issues. Having said that, some topics by default are more political in nature and require political solutions, and not a mere legal solution provided by the courts. By default, some decisions issued by specific bodies, holding a central position in the political system, such as the cabinet might be seen as political. Within this context, decisions delivered by the Ministerial Cabinet of Australia receive deference by the courts, and acts of government in Italy fall outside the scope of judicial review. However, that which issues are political, and which issues are legal, is not always very clear. Undoubtedly, some topics have both legal and political implications. Then it is up to the courts to decide on whether to treat them as political and thus defer, or to treat them as legal and thus review them rigorously. In practice, courts tend to perceive as more political the issues that are highly controversial for the society. The analysis of the national reports has shown that there is no uniform approach on which topics are political deserving deference. Based on the limited political legitimacy of the courts, and the political nature of some topics, the reporters have identified a number of issues that are political in nature and thus the courts shall defer. These topics were: anti-terrorism, such as the expulsion of suspect terrorists (Italy), the allocation of public resources (Hong Kong), governance and broad public policy issues (Hong Kong, Australia and Singapore). A more specific example of political issue was given by the reporter of Australia, which was the acquisition of new territories. It is interesting to note that some legal orders may approach a topic as political while others may threat the exact same topic as too technical requiring the expertise of the executive. Having said that, immigration was recognised as an area with deferential treatment as it is considered a political issue in Israel and Hong Kong, while in the US, this topic is treated with deference because of its technical nature (see below about technical deference). In Australia, immigration cases have presented a particular point of conflict between the judiciary and executive because of the increasing attempts though legislation to restrain the scope of judicial review of administrative decisions in this field. An interesting disparity among the examined legal orders was found in the field of human rights. While in some jurisdictions, human rights related disputes are not subject to deferential treatment for instance in Israel, in other legal orders topics like political rights (Hong Kong), minority rights, such as gay rights (Hong Kong and

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With the exception of the trial by jury.

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Singapore) due to the fact that they are considered controversial issues, the courts defer the decision making to the administration. As a matter of principle, deference to the administration on political sensitive issues shall depend on the political connection between the executive and the actual administration. Thus, deference shall vary depending on the level and degree of political connection between administration and the executive. For instance, the reporter from Sweden explains the limited application of deference in Sweden due to the lack of political connection between the administration and the executive. The lack of political connection and dependency between the executive and the administration makes the decisions of the administration merely legal and thus subject to rigorous judicial review.

4.4

Deference to the Executive

The term executive includes the executive stristo sensu, and on the other hand, the administration including the agencies. Given the different separation of powers configurations in different constitutional systems, first, the scope of the executive powers differs, and second the connection between the executive and the administration varies. For instance, in some constitutional systems, delegated legislation is very broad such as in Israel, while in others it is more limited such as in the US. To exemplify this, in some systems delegation of powers is directly addressed to the administration, for instance to particular agencies, while in other legal orders, the delegation might be addressed first to the executive and then the executive with sub delegation transfers law making powers to the administration. The administration then issues the so called tertiary legislation. The landmark case on the judicial deference to the administration is the decision of the US Supreme Court Chevron v NRDC.22 The court with a seminal decision determined whether to grant deference to an agency’s interpretation of a statute and has formulated the so-called “Chevron deference”, a test according to which if the agency’s interpretation on a statute that it administers is based on a permissible and reasonable construction, then such interpretation shall be accepted as long as Congress has not explicitly positioned to the precise issue at question.23 But, the Chevron deference interferes with one of the main tasks of the judiciary, the interpretation of the laws. As Hamilton had pointed out “[t]he interpretation of the laws is the proper and peculiar province of the courts.”24 Based on this separation of powers concern, in a number of legal orders, such as Australia, New Zealand and

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Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). 24 Hamilton (2001). 23

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Hong Kong, the Chevron deference is not applicable, as the interpretation of the laws falls within the courts’ competence. In constitutional systems with a closer relationship between the administration and the political branches of the government, the degree of deference depends on the degree of supervision. Israel is a good example. The national reporter explains that for secondary legislation (also known as delegated legislation) the courts of Israel are keener to defer if there is legislative involvement in the law making process. On the other hand, the reporters from Denmark stress that the courts are keener to defer if it is obvious from the text of the law that the legislative branch has delegated a wide margin of discretion to the administration. Finally, the reporter from US identifies another reason for deference to the administration. Based on the presumption that state officials perform their tasks in good manner and with good faith that allows the courts to empathize with the administration and position themselves closer to the state officials than the private entities that challenge them. A case that exemplifies that is the deference shown to the administration when interim measures are reviewed. Such deference is shown in Czech Republic, as the national reporter stated.

4.5

Deference Due to the Nature of the Courts

Unequivocally, deference varies given the understanding about the constitutional role of the courts and the legal expectations about its institutional role. As the reporter for China clarifies, only an institutional separation of powers is recognized by the Constitution of China, making deference the norm rather than the exception. On the other hand, in Australia where a separation of power system operates and the judiciary is entrusted with the authority to define what is the law, courts defer mainly on non-jurisdictional issues such as factual and policy questions. Having said that, the reporter from Israel has articulated an alternative aspect of deference based on the court’s separation of powers concerns, the strategic deference. The courts may be strategic and apply rigorous review only for the truly necessary cases, while they might prefer to defer for the rest cases, in order to avoid criticism. As it was mentioned in the introduction, the legitimacy of the courts is based on public trust. However, public trust is not an unlimited source. The courts, especially in critical times shall weight the opposing interests and the various circumstances before delivering their review against or in favor of administrative decisions.

4.6

Technical Deference

It is widely acknowledged by the vast majority of the national reports that deference is granted also to governmental authorities and agencies that possess special

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institutional competence, such as expertise and knowledge-gathering powers. Such deference is also termed technical deference.25 Given the “technical” advantage of the administration, this body is better armored to formulate, define, modify and apply policies. To put it differently, for a number of policies that require technical expertise, the judiciary has limited institutional capacity to gather, process and evaluate relevant data in order to make firm decisions. Thus in the vast majority of the constitutional orders that were examined by the national reporters, courts show a “thematic” deference on disputes related for instance to environment, health and safety because they are of technical nature, and because they pose great risks for the society. As a result, disputes on such topics require solutions from experts, while the legal expertise of the courts is of secondary value. Accordingly, the reporter for the Netherlands accurately points out that with the ‘growing professionalization within government, it is becoming more and more difficult for the judiciary to keep abreast of these developments. To begin with, technical deference is granted by the courts of Israel if the subject matter requires expertise. In the US, such deference is granted if the administration’s decision involves complex science and technology like disputes related to the nuclear science.26 In addition, a common area that technical deference is granted to the administration is national security (Singapore, USA, and Italy. Also, it is assumed for Hong Kong). Furthermore, the examination of the national reports has revealed more specific areas that are treated with deference due to their technical nature. These areas are: competition law violations, agriculture, and environment in the EU; disciplinary measures against students and public officials, diplomatic matters, and treatment of inmates and detainees in Japan; economic measures such as sanctions in Italy. In addition, immigration which was an area mentioned above of political nature, in the US and Japan is treated with deference as it is recognized as an area that requires expertise. However, as the reporters from Denmark point out, the judges also may consider themselves experts in the interpretation of the law, thus they do not defer to the administration on matters of legal interpretation.

4.7

How Deference Is Manifested

How deference is manifested was an issue with a plethora of approaches from the courts at the national legal orders under examination. First, courts may relax the standard of review. For instance, in the past the EU courts would implement the “manifest error of appraisal” standard which means that

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Chan (2013), p. 598. Under circumstances of complex science expertise it is argued that court’s review is even thicker and thus it is called “super deference”. See Jacobs (2016), pp. 49, 53. 26

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the review is carried out with limited review on the factual support of the conclusions reached by the EU administration. Second, courts may lower the cogency of the evidence required from the administration to meet the general standards. For instance, in Hong Kong courts with a very systematic approach have adjusted the proportionality test. A forth step is added in the proportionality test in Hong Kong as the courts ask in addition “whether a reasonable balance has been struck between the societal benefits of the encroachment and the harm to individual right”. A third way for deference is traced regarding the burden of proof. Courts may adjust or even reverse the burden of proof, requiring for instance the litigant to show that the measure violates the legal standards. For instance, as the national reporter from Italy mentions, for antitrust violations, the antitrust authority despite the fact it has the burden of proof with regard to the existence of an illicit agreement, this obligation is satisfied if the authority provides “serious, precise and univocal clues”. In practice, courts exhibit deference through various ways. On the one hand, countries like New Zealand, Italy and Czech Republic have a case by case approach where the intensity and the degree of deference varies. On the other hand, countries like US, Singapore and Hong Kong have a systematic application of deference clarified by judge made law. Furthermore, the degree of deference varies within the same legal order. Thus, some topics are more deferential, other topics are less deferential. To exemplify that, in Hong Kong the allocation of public resources falls with the scope of judicial deference, and the allocation of scarce resources will attract even more deference. In Singapore, two levels of deference exist: absolute deference and deference. On the one hand, there is no scrutiny at all for issues regarding parliamentary business (the so-called interna corporis), foreign affairs, national security, public safety, peace, and good order. In practice, the courts simply examine whether a dispute is related to the aforementioned areas. If the response is in the affirmative then they do not examine the merit of the case. On the other hand, only for cases regarding technical or political nature, they lower the intensity of the review. In Australia, one of the concerns expressed by the judiciary regarding deference is the difficulty in identifying the intensity and degree of deference shown to the administrative decision-maker.

5 Deference and the Rule of Law Deference to the administration has some important implications to the fundamental concept of the rule of law. Judicial review is one of the paramount mechanisms of the enforcement of the law over executive action or inaction, and therefore, the

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compatibility of a deferential approach on judicial review with high standards of the rule of law, formal or substantial, is questioned.27 That said, the courts are the guardians of the law and hence deferential practice, which might allow administrative injustice of error in the legal system imply the watering down of the legal force of the law. Criticizing the Chevron deference, Chief justice Robert has said28: Chevron is a powerful weapon in an agency’s regulatory arsenal. Congressional delegations to agencies are often ambiguous—expressing “a mood rather than a message.” [. . .] By design or default, Congress often fails to speak to “the precise question” before an agency. In the absence of such an answer, an agency’s interpretation has the full force and effect of law, unless it “exceeds the bounds of the permissible.” [. . .] It would be a bit much to describe the result as “the very definition of tyranny,” but the danger posed by the growing power of the administrative state cannot be dismissed.

Indeed broad deference might lead to unchecked powers and unequal application of the law, and to absurd results. In line with this criticism, the courts in Australia do not apply the Chevron deference. Among the justifications offered, the reporter from Australia clarifies that there is the danger that the administration would be one of the several competing reasonable interpretations of a statute to fit the described result. Interestingly the national reporters despite the fact they do not directly correlate deference with the rule of law, they discuss the interaction between deference and aspects of the rule of law. In particular, a number of contributors (Hong Kong, Israel, Australia) have stressed that the deferential approach of the courts depends on the involvement of human rights law in the dispute. In particular, the courts when they adjudicate cases within the scope of the political and technical deference, they take into account if the challenge is in rights or in non-rights context. In addition, some types of disputes are not subject matter to deference at all, and they receive vigilant judicial scrutiny. For instance, in Hong Kong, if a dispute is related to certain human rights, such as the right to life, the right not to be tortured, the right not to be held in slavery, the freedom of expression and opinion, the freedom of religion, the right to a fair trial and the presumption of innocence, then deference is not granted. However, the control of the administrative action is not exclusively subject to judicial review. Legislative oversight, equally, has an important role to play in the control of the administrative activity. Suffice to mention here that in the late medieval England, the paramount safeguard of executive and administrative actions was the parliamentary scrutiny. With that in mind, administrative activity that survives the deferential judicial review is subject to parliamentary oversight, an application of parliamentary supremacy.

27 Judicial deference is considered a controversial topic. See Kavanagh (2010), p. 222. For the concept Rule of law, there is no single definition and different authors have highlighted different aspects. For the purpose of this report, rule of law is perceived with a broad interpretation and as an essentially contested concept. See Waldron (2002), p. 137. 28 City of Arlington v. FCC, 133 S. Ct. 1863, 1870 (2013) at 1879.

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On the other hand, the legislative oversight might be more appropriate especially on controversial or sensitive for the public opinion subject matters. This way the extensive juridification of the constitutional order is avoided. In addition, it could be argued that deference is a very effective mechanism to fuse in the separation of powers system with the appropriate flexibility. The rigid apposition of the institutions in the separation of powers is not always desirable as legal norms might require adjustment under different circumstances. At the same time, it is significant to mention that a number of national reporters, especially for countries members states of the Council of Europe (The Netherlands, Finland, Italy, Czech Republic), stressed the implication of the European Convention on Human Rights (ECHR) and the jurisprudence of the European Court of Human Rights (ECtHR). It seems that the ECtHR’s jurisprudence and the interpretation of the provision of the article 6 on fair trial has imposed external safeguards limiting the reach of the deferential practice. For instance, in Czech Republic, while Czechoslovak Supreme Administrative Court in the first half of the twentieth century insisted that it had no power to deal with the lawfulness of the amount of the penalty imposed by the administrative agencies. But the jurisprudence of the ECtHR found such practice incompatible with the article 6 of the ECHR, thus limiting the judicial deference on administrative penalties. In addition the reporter from the Netherlands clarifies that the courts cannot defer to the administration on matters of fact that are relevant to the dispute since this practice would be incompatible with article 6 of the ECHR.29 Finally, the reporter from Finland states that the courts, based again on the same article, they have to take an active approach as regards summoning witnesses who can shed light on the crucial facts for the resolution of the dispute. All told, this holistic approach explains the compatibility of deferential judicial review with the rule of law and places deference among the crucial silent features of any constitutional order.

6 Concluding Remarks The analysis of the national reports on judicial deference to the administration has revealed the multifaceted nature of this concept and its role and function in the constitutional framework of powers. Although as a term, it might not have an equivalent term of art in a number of languages, as a practice is recorded to a greater or to lesser degree in every legal order. It is an integral part of the constitutional system, which brings flexibility in the arteriosclerotic separation of powers system, balances the lack of political legitimacy of the courts as well as the lack of expertise when it is at stake.

29 See, for example, European Court of Human Rights 23 June 1981, NJ 1982/602 (Le Compte, Van Leuven & De Meyere v Belgium), par. 51.

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Interestingly, 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. But within the constitutional system itself, the way deference operates is complex, multi-faceted and usually covert within the same legal order. Unequivocally, common ground among the constitutional systems under examination were the causes for deference. Deference is granted on political and technical grounds. Within this framework though, what is political depends on a number of issues such as societal values, morals and political timing and agenda. More specifically, it seems that controversial nature of the topic, that the fact wide portions of the society oppose, are perceived as political and therefore the courts are keener to grant deference. Also, the examination of the national reports on deference comes to confirm the assumption that deference is a volatile and at the same time dynamic concept. In particular, 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 dynamic also as it is adjusted to the necessity of the circumstances. However, some issues have been left open for further research. There are not enough evidence in order to argue whether the placement of the judiciary in the separation of powers system directly influences the extent of judicial deference, and second, whether there is a correlation between the scope of the jurisdiction and the degree of deference.

Annex: Questionnaire on “Deferene to the Administration in Judicial Review” This Questionnaire is prepared by Professor Guobin Zhu, City University of Hong Kong, email: [email protected], and it will serve as a guide for the writing of national reports to be presented 2018 Congress of International Academy of Comparative Law (IACL/ AIDC).

It is my honor to be assigned as the general rapporteur. I am not the initial proposer of this interesting and important topic, and therefore my comprehension of it might slightly differ from the originator’s. As general rapporteur, I will do my best to comply with the original intent, to work out a plan/questionnaire that best suits the situation of most national reporters’, and to meet the expectations of the IACL and national reporters. I am delighted that we have been given this precious opportunity to work together on such an important project. A side note: this topic was first proposed by Professor John Reitz, Edward L. Carmody Professor of Law, University of Iowa College of Law. We corresponded in the process of preparing this questionnaire. I am grateful for his valuable advice and constructive suggestions.

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Introduction: Concept and Definition The topic “Deference to the Administration in Judicial Review” has been identified and accepted as one of the general topics for plenary discussion by the IACL. A literature review shows that there are numerous discussions on this topic and related topics in major common law jurisdictions, and in particular in the US, Canada, and Australia.30 “Deference”, a concept which originated in North American judicial practice, has gradually come into consideration and/or been accepted by other jurisdictions. In the seminal case of Dunsmuir v New Brunswick, the term deference was defined as follows31: Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference ‘is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers’ . . . Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers.

Alan Freckelton, a Canadian scholar, also wrote32: Deference is an approach to judicial review taken by the courts, and effectively acts as a form of reconciliation between the rule of law and Parliamentary supremacy. That is, deference to administrative decision-makers balances the courts’ constitutional requirement to review the decisions of administrative decision-makers to ensure that they are both constitutionally valid and within the decision-maker’s power to make, and the power of the Parliament to allocate certain decision-making powers to persons authorised by or bodies created by statute.

The concept of deference can have various connotations under different circumstances, and sound differently in different legal systems and jurisdictions; by legal system, I mean basically common law, civil law, and mixed system. There may/should be different legal doctrines and theories, and different practices of the court.

30 See, for example: Deference and Due Process, 129 HARV. L. REV. 1890 (2016); Administrative Procedure and Judicial Restraint, Harvard Law Review Forum May, 2016 129 Harv. L. Rev. F. 338; Transatlantic Perspective on Judicial Deference in Administrative Law, Columbia Journal of European Law Spring, 2016 22 Colum. J. Eur. L. 275; Judicial Deference and Regulatory Preemption by Federal Agencies, Tulane Law Review May, 2010 84 Tul. L. Rev. 1233; Mullan (2004), p. 59; Bree (2015), p. 791; Frank and Falzon (2016), p. 135; Allan (2010), p. 41; Helen and Gavin (2011), p. 863; The Honourable Michel Bastarache (2009), p. 227; Warchuk (2016), p. 87; Cameron (2009), p. 102; Lawrence (2015), p. 35; Guy (2000–2001), p. 133; Cora (2010), p. 1. 31 [2008] 1 SCR 190 at paragraph 47. 32 http://www.austlii.edu.au/au/journals/AIAdminLawF/2013/13.pdf.

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Objectives of the Project The first and primary objective is to produce a thorough national report on judicial deference to administrative decision makers of the country concerned. The second objective is to enable a deep, structured, and comparative discussion of the topic at the 2018 congress based on all the national reports and discussants’ on-the-spot observations. Lastly, as we have been given to understand, there will be a special volume on the topic to be included in “lus comparatum – Global studies in comparative law” to be published by Springer. So a well-formulated and structured report in the form of an academic paper would greatly facilitate the preparation of this volume. In connection with this, I would like to advise national reporters to follow from day one of your report writing the Springer manuscript guidelines regarding citations and referencing (see: https://www.springer.com/gp/authors-editors/book-authors-editors/book-manu script-guidelines). The report can be written in English and/or French.

Proposed Structure Since all national reporters are also experienced writers and experts, I only need to give an indication as to the structure of the report, while leaving the adoption of methodology in the hands of the reporters for them to decide; this largely depends on legal systems, legal training, and practical writing needs. It can be a normative investigation, a doctrinal discussion, a case study, or most likely, a mixture of these. The report should first include an introduction to the background of your jurisdiction and the salient features of the national system of judicial review. A definition of the concept “deference” or “judicial deference” here is also appropriate. Should there be no equivalent concept in your language and legal system, national reporters can feel free to adopt the one scholars of their jurisdictions use to describe the deference-like law and practice. Then follows the main body of the report, focusing on the law, judicial review system, seminal/leading/landmark national cases establishing judicial deference, standard/grounds of review in deferential cases adopted by the national courts, and appropriate doctrines of administrative law developed to accommodate it. [A reporter specialized in the EU is welcome to discuss judicial deference situations in EU courts.] In the conclusion, a general observation of the national system concerned is a must. The reporter can further sum up some salient features or good practice of the national system, experiences that deserve attention of others, and difficulties national courts has been faced with. A brief comparison between the national system and other systems within your expertise are also welcome.

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Main Questions/Issues Introduction to National System In some major common law jurisdictions such as the United States, it can be observed that, of all the areas in administrative law, one of the more fertile for published scholarship and judicial opinions is the notion of deference,33 while in civil law/continental law jurisdictions, the notional development of deference has been conditioned by the existing administrative court/tribunal system and the dynamics of executive-judicial branches. Even among the same civil law family, situations vary from one another; some jurisdictions maintain an independent administrative court system, and some others don’t have such an independent court but have an administrative chamber within the general court. All national reports should first include an introduction to the national legal (and political) system, and address the particularities which affect the making and operation of judicial deference. This will pave the way for our further understanding and reflection of the topic and for comparison. In addition, the topic of judicial deference can be examined through the lens of constitutionalism and the separation of powers.

Questions Concerning Judicial Deference In the context of deference, more questions are to be addressed: (i) When, why, and how much should reviewing courts defer to administrative agency decisions? (ii) Should it matter what type of agency action is being reviewed? (iii) What standard/approach/grounds should courts adopt when reviewing an administrative decision? How are these grounds/standards such as reasonableness, or proportionality, applied in the courtroom? (iv) In relation to the above, reporters are invited to, if applicable: (a) probe the treatment of fact finding, especially that based on science and technology; (b) probe the interpretation of words that could be seen as delegations of policymaking power to the administrative officials, especially vague or general expressions that lack a precise meaning, and (c) probe the use of proportionality review which could be an important topic about deference, even in countries who do not think that their courts generally defer to administrators; (v) Why in this jurisdiction, the courts tend to be active and more engaging (judicial activism), while in others the courts prefer to adopt deferential approach (judicial restraint)? Any political consideration? (vi) In relation to the above, where are the limits of judicial review?

33

http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article¼1071&context¼naalj.

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(vii) Can we identify a given national system as “model” that can be applied beyond jurisdiction, and on what basis? I understand that the report from a given country may not be able to cover every single issue of the above, however national reporters are invited to address most of them. They are also reminded to highlight not only normative provisions, but also landmark cases that establish deferential practice.

Comparison and Lessons to Learn To the extent that is possible, national reporters are welcome to make comparisons between her/his national system and the system/s s/he is familiar with. However this part is not a must. National reporters can sum up good practice and some lessons from the national systems for others’ reference.

References Books Bickel AM (1998) The least dangerous branch: the Supreme Court at the bar of politics. Yale University Press Craig P (2016) Administrative law, 8th edn. Sweet and Maxwell Hamilton A (2001) Federalist No. 78. In: Carey GW, McClellan J (eds) The federalist. Liberty Fund Jackson VC, Tushnet M (2017) Proportionality, new frontiers, new challenges. Cambridge University Press Vile MJC (1998) Constitutionalism and the separation of powers, 2nd edn. Liberty Fund

Articles Allan TRS (2010) Deference, defiance, and doctrine: defining the limits of judicial review. Univ Toronto Law J 60:41 Allan TRS (2011) Judicial deference and judicial review: legal doctrine and legal theory. Law Q Rev 127:96 Bamzai A (2017) The origins of judicial deference to executive interpretation. Yale Law J 126:908 Bree H (2015) Judicial review of administrative interpretations: lessons for New Zealand from the United States? N Z Univ Law Rev 26:791 Cameron S (2009) Non-justiciability in Australian private international law: a lack of ‘judicial restraint’? Melb J Int Law 10:102 Chan C (2011) Deference and the separation of powers: an assessment of the court’s constitutional and institutional competences. Hong Kong Law J 41:7, 9 Chan C (2013) Deference, expertise and information-gathering powers. Leg Stud 33:598

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Cora C (2010) Judicial deference at work: some reflections on Chan Kin Sum and Kong Yun Ming. Hong Kong Law J 40:1 De Burca G (1997) Proportionality and Wednesbury unreasonableness: the influence of European legal concepts on UK law. Eur Public Law 3:561 Dyzenhaus D (1998) Law as justification: Etienne Mureinik’s conception of legal culture. S Afr J Hum Rights 14:11 Egeberg M, Trondal J (2009) Political leadership and bureaucratic autonomy: effects of agencification. Governance 22:673 Frank AV, Falzon QC (2016) Statutory interpretation, deference and the ambiguous concept of “ambiguity” on judicial review. Can J Adm Law Pract 29:135 Guy D (2000–2001) The paradox of judicial deference. Natl J Const Law 12:133 Helen F, Gavin P (2011) Covert derogations and judicial deference: redefining liberty and due process rights in counterterrorism law and beyond. McGill Law J 56:863 Jacobs S (2016) Energy deference. Harv Environ Law Rev 40:49, 53 Kavanagh A (2010) Defending deference in public law and constitutional theory. Law Q Rev 126:222 Kmiec K (2004) The origin and current meanings of “judicial activism”. Calif Law Rev 92:1441, 1444 Lawrence D (2015) Resource allocation and judicial deference on charter review: the price of rights protection according to the McLachlin court. Univ Toronto Fac Law Rev 73:35 Mullan DJ (2004) Establishing the standard of review: the struggle for complexity? Can J Adm Law Pract 17:59 Sunstein C (1990) Law and administration after Chevron. Columbia Law Rev 90:2071, 2074–2075 The Honourable Michel Bastarache (2009) Modernizing judicial review. Can J Adm Law Pract 22:227 Waldron J (2002) Is the rule of law an essentially contested concept (in Florida)? Law Philos 21:137 Warchuk PA (2016) The role of administrative reasons in judicial review: adequacy & reasonableness. Can J Adm Law Pract 29:87

Guobin Zhu PhD and Habilitation (France), is a Professor of Law at School of Law of City University of Hong Kong, Director of Human Rights Law and Policy Forum, School of Law of City University of Hong Kong; he also serves as Director, City University of Hong Kong Press. He is currently Guest/Adjunct Professor/Research Fellow at Shandong University, Sichuan University, Central China University, Wuhan University Law School, Qingdao University Law School, and Zhejiang University Law School. He is a Titular Member of International Academy of Comparative Law, a Council Member of Chinese Association of Constitutional Law and Chinese Judicial Studies Association, and a Member of International Association of Constitutional Law, etc. His areas of research interest include: Chinese and Comparative Constitutional Law, Hong Kong Basic Law, Chines Human Rights Law, Chinese and Hong Kong Legal System, and Chinese Public Administration. He has published a large number of books, book chapters and articles in English, French and Chinese in above fields, and his recent works have been published in Stanford Journal of International Law, International Journal of Constitutional Law, Human Rights Quarterly, Colombia Journal of Asian Law, Suffolk University Law Review, International Review of Administrative Sciences, China: An International Journal Chinese Journal of Law, and Hong Kong Law Journal.

Deference to the Administration in Judicial Review in Argentina Pedro Aberastury

Abstract “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.

1 Judicial Review in Argentinean Law 1.1

Brief Introduction to the Argentinean Legal System

“Deference” is not a term which is found in the legal vocabulary of Argentinean law. However, the concept which is referred to in the common law by using this term, regarding the judicial control of the Administration’s activity, especially in the activity developed by regulatory bodies (agencies), constitutes a current issue in Argentinean Administrative Law and has resulted in varied case law doctrine. Argentina is a codified country, that is to say, it has a civil law system, so it is necessary to check what the legal limits of the Administration are because it can only act within the field of competence law confers to it. We must point out, briefly, that the Argentine Republic, as from the moment the Constitution of 1853 came into force,1 which has governed us until these days with its subsequent reforms, being the last one in 1994, was created as a federal State, where the provinces have autonomy for all those matters which were not delegated to

1

It can be consulted in http://servicios.infoleg.gob.ar/infolegInternet/anexos/0-4999/804/norma. htm. Accessed 12 Oct 2018. P. Aberastury (*) University of Buenos Aires, Buenos Aires, Argentina e-mail: [email protected] © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_2

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the Federal Government, adopting the model depicted in the Constitution of the United States of America of 1787. Nevertheless, unlike the Constitution of the United States of America, the framers of the Constitution provided: (a) that substantial codes were only enacted by the Federal Congress and the Provinces reserved their application through their own judges and through the enactment of their procedural codes (Section 76 Sub Section 12 Argentinean National Constitution); (b) to expressly prohibit the Executive Power from exercising judicial functions (Section 109 National Constitution: In no case the President of the Nation shall exercise judicial functions, assume jurisdiction over pending cases, or reopen those already adjudged.), granting this function only to an impartial and independent court, being the National Supreme Court of Justice the higher court, whose performance is conditional upon the existence of a case and where, expressly, the State submitted to its decisions, being able to intervene in all those issues where the Nation is a party; (c) In addition to this, constitutional control is diffuse, as there is not a Constitutional Tribunal in our system, which means that any judge, either federal or provincial, can hold that a rule or a law is unconstitutional not only one enacted by the Federal Congress but also by any Provincial Congress but the Supreme Court of Justice of Nation keeps the final control of such decision through the extraordinary review (section 14 of Law 48).2 The Federal Constitution provides that the Provinces keep all the power not delegated to the Federal State but it was set forth that each Province enacted its own constitution, as long as the republican representative system continued to be in force as well as the declarations, rights and guarantees of the National Constitution, ensuring access to justice. According to this, each province can enact its own administrative rules, typical of public law, and organize access to local justice. Therefore, administrative law turns into local public law, so the control of the provincial executive power’s activity is exercised by its own courts. Consequently, the Argentinean State’s judicial organization is made up of federal courts and provincial courts. The latter courts have to apply the rules and provisions of substantive codes—civil and commercial, criminal and labor codes, etc.—, in accordance with their own procedural rules.

2 This legal text can be consulted in: http://servicios.infoleg.gob.ar/infolegInternet/anexos/115000119999/116296/texact.htm. Accessed 12 Oct 2018.

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Judicial Control of Acts of the Administration

Continental law’s influence on administrative law was very deep so that it had a bad reception of comparative law regarding the judicial control of the Administration’s activity; this would not have happened if a model which was more similar to the constitutional model which is in force such as the American system rather than the prevailing one, e.g. in French law where the Council of State’s decisions are not reviewed in court. In this way, the possibility of creating administrative courts dependent on the Administration, being necessary to make it clear that we refer by using this term to statutory entities (that is to say, bodies created by Act) some other times but administrative actions which arise by the Executive Power, whose members are appointed by the Executive Power and its assets are part of its budget, that is to say, although they are called “courts” they are not part of the Judiciary Power. Within this category, there are also regulatory bodies for public services as they are entities that regulate and control everything related to their compliance, being able to impose sanctions to the companies that are part of the service.3 There have been the following discussions: (a) if the judgments of administrative courts are final, that is to say, that they cannot be reviewed by the Judiciary Power—doctrine originating from French administrative law—; (b) if judicial review is extensive or restricted and, in the latter case, if the restriction consists of controlling only the formal legitimacy of the decision or if it includes control of factual issues; (c) on what type of cases can an administrative court intervene. These issues resulted in numerous doctrinal discussions and case law varied, especially when it had to do with determining the State’s performance legitimacy on the basis of the exercise of discretionary powers.4 For the purposes of the present report, and to give a current and schematic outlook to Argentinean law in this area, through case law, different periods where different positions prevailed can be appreciated. We will make a brief overview of these periods, with a comment of the main sentences that were passed, in order to be able to stop at the current situation of Argentina on this subject.

Such as: National Gas Regulation Entity (Law N
24,076), National Energy Regulatory Entity (Law N
24,065), Nuclear Regulatory Authority (Law N
24,804), National Communications Entity—ENACOM—Decree 267/15, National Entity of Water Infrastructure for Sanitation (Law N
24,583), among others. (These legal texts can be consulted in: http://www.infoleg.gob.ar/.) 4 Aberastury (2006), p. 45; Cassagne (2004), p. 51; Mairal (1984), p. 492; Tawil (1993), p. 146. 3

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First Stage: Restricted Review

In Argentina, the issue of review of administrative activity can be viewed on the basis of the laws by which the National Executive Power could impose sanctions— generally fines—, mainly in the exercise of the so-called police power, directly or through administrative bodies, dependent on Ministries such as everything concerning healthiness, morality, etc. When determining if the sanction was applicable, it was considered that a quasi-jurisdictional activity had been exercised. In addition to this, it was added that, the decision about the amount of the fine was a discretionary power of the administration; it was generally considered that this amount could not be discussed in court since it was not an issue that could be reviewed by a judge. On the other hand, as they were concentrated within an organ dependent on the Executive Power and increased powers were granted, they were created as decentralized agencies within the Executive Power, and they were then called “administrative tribunals”. Their members were appointed by the Executive Power, directly and without the constitutional procedure stated to appoint judges, granting them a “jurisdictional” function to solve certain cases, where the administration intervened not only as instructors but also applying the sanction, hence, the ones that decided and requested the imposition of a sanction were dependent on the Executive Power. The control on the part of the Judiciary Power, stated in the constitution, made it sure in a formal way as it was allowed, against the act performed by a governmental authority, to file a federal extraordinary appeal to the National Supreme Court of Justice,5 an exceptional remedy and where the Supreme Court did not issue a pronouncement on the substance of the matter under discussion but on the interpretation of the federal and/or constitutional rules involved. That is to say, the review only controlled formal aspects, not exerting control over the facts, according to what was held by the National Supreme Court of Justice in the Lopez de Reyes6 case, which provided for a control over the law but not over the facts, for the purpose of achieving the harmonization of the prohibition stated in section 109 of the Argentinean Constitution with the activity of an administrative tribunal created by law but whose members were appointed by the Executive Power.

5 The rulings from the Argentine Supreme Court of Justice of Nation are mentioned as Fallos (rulings) where the first number refers to the volume and the second to the page. They can be consulted in: http://www.csjn.gov.ar/. 6 Lopez de Reyes v/ National Institute of Social Welfare, Fallos (rulings): 244:548 (Judgement of 9 September 1959).

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Second Stage: Broad Review

This confusion, regarding the non-final scope of the administrative decision and the lack of review in relation to facts, of rulings issued by administrative tribunals was only clarified in 1960, in the leading case Fernandez Arias v Poggio,7 where it was set forth that an administrative tribunal could not pass resolutions that had the scope of final or definitive ones, understanding by this the lack of substantial review on the part of an impartial and independent court, that is to say, that it had to be a full judicial review, through the possibility of filing an action, offer and produce evidence and arrive at a grounded decision where all the merits of the proposed background were considered to come to a decision. This precedent has produced a leap forward in Argentinean Administrative Law and ensured the full review of all the activity of the Administration by judicial courts. Therefore, the emerging doctrine from Fernandez Arias was that the decision of a controversy, by an administrative tribunal dependent on the Administration, was constitutionally admissible only in as much as it was recognized to litigants the right to bring an action before judges of original jurisdiction, at least before one instance, with full debate and evidence and that a sentence was passed appreciating all the relevant arguments for the decision. So, it was denied to administrative tribunals or to the organs of the administration the power to issue final decisions and which cannot be revised, regarding facts and the law at issue, except for the cases in which, existing a legal option, the interested parties have chosen administrative proceedings, depriving voluntarily of the judicial proceedings. The existence of administrative tribunals had been incorporated by case-law of the National Supreme Court of Justice, accepting their existence against the prohibition stated in section 109 of the National Constitution, due to the influence of the French doctrine as in this one, according to its constitutional system, such as the case of Italy and of Colombia, allowed a dual jurisdiction of judgment, something that it is not prescribed in our country.8 Thus, as from this ruling, it was considered that the decision of a dispute by a tribunal from the Administration was constitutionally admissible as long as: (a) the right to bring a judicial action before the judges of original jurisdiction was recognized to litigants, at least before an instance; (b) denial to administrative tribunals of the power to pass final resolution regarding the facts and law at issue, except for the assumptions in which, existing a legal option, the interested party had chosen the administrative proceedings, depriving themselves voluntarily of the judicial proceedings; (c) extraordinary remedy, procedural remedy to the National Supreme Court of Justice, does not satisfy the conditions previously mentioned.

7 8

Fallos (rulings): 237: 636. Coviello (2005), p. 429.

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Judicial Review of Administrative Actions

In 1900 Act 39529 was enacted, which enables the Judiciary Power to intervene in civil actions against the Nation previous claim in administrative level and rejection is proved, either in an express or implied way, only in the course of time. This law did not include the challenge to administrative acts so that redress was open without being necessary to challenge them. In 1972 there is a transcendental amendment to federal administrative procedural law, through the enactment of the Law on Administrative Procedures N
19,54910; because it allows the Judicial review of administrative acts according to established formal proceedings, which predetermines the previous exhaustion of administrative proceedings in the case of a recursive procedure and access to justice through a limitation period—90 business days—to initiate legal proceedings. Adverse actions remained in case damage was provoked by an administrative fact. Judicial review of administrative actions is possible through a regular process before judicial courts so that it is not about determining if there is access to justice, as in previous stages, but it is about determining the scope of the review or, in other words, what the limit of the review the judge can carry out will be, not only of the legislator’s decision but also of the decision made by the Administration, when applying the law. Traditionally, against the exercise of the discretionary power on the part of the administration, the review was carried out very restrictively. Together with this, taking into account that the rights stated in the National Constitution are not absolute, they are exercised “in accordance with the laws that regulate their exercise” (section 14 of the National Constitution), it was accepted that regulation restricted them according to the reception of a broad concept of Police Power. Indeed, the National Supreme Court of Justice, in accordance with the leading case Cine Callao,11 recognized to the State to be able to intervene in the defense and promotion of the community’s economic interests, through legislation, with the purpose of protecting the general interest, by imposing burdens to its inhabitants which do not constitute charges or rates, and the Judiciary Power is not able to intervene in the effectiveness or convenience criterion of the legal rule enacted, it can only evaluate the reasonableness of the rule in proportion to the means and purpose that its exercise involves. It must be made clear, at this point that, although the judge carries out a broad and full intervention, his decision cannot lead to the fact that he himself modifies the decision but he will only be able to state that it is illegitimate because, otherwise, the doctrine of separation of powers will be affected.

9

http://www.infoleg.gob.ar/?page_id¼112. Accessed 12 Oct 2018. http://www.infoleg.gob.ar/?page_id¼112. Accessed 12 Oct 2018. 11 Fallos (rulings): 247:121. 10

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Control of Decisions Made by Regulatory Bodies

After privatization of public services, during the last decade of the twentieth century, different regulatory bodies were created to control essential services, which had been privatized. These bodies resembled US governmental agencies. The Supreme Court’s ruling in the case Angel Estrada12 set the doctrine, not only to ratify the continuity of the doctrine established in the mentioned precedent Fernandez Arias, expressly applicable to the decisions arising from regulatory bodies, but also it was established that jurisdiction of regulatory bodies to intervene in disputes between companies that provided a public service, mainly it was about imposing sanctions for infringing regulations, they could not include conflict resolutions among individuals where ordinary law was applied (in the case of the Civil Code). The mentioned sentence dealt with the scope of section 72 of Act N
24,065,13 on the jurisdiction of the regulatory agency of electrical energy, to settle disputes regarding rights on assets, which arise between individuals, on the grounds of supply since it was not considered according to the Argentinean legal system grant such jurisdictional powers to organs from the Administration as this implied dismissing the guarantee set forth in section 18, which guarantees the defense by trial of persons and rights, interpreted together with section 109 of our National Constitution, which states that in no case the President of the Nation or the Executive Power shall exercise judicial functions, not even when it is a specialized organ. Therefore, a regulatory body cannot intervene, in an absolute manner, in the decision of issues which refer to conflicts between public services companies and individuals, in which ordinary law has to be applied in its resolution; in this case it was a compensation for damages for not having supplied the service due to flaws in domestic distribution of energy. Instead, what was admitted was that the regulatory body intervened in conflict resolutions between the different companies which take part in the whole distribution process, that is to say, regarding service operation. But this intervention and the resolution that is issued, will be subject to a broad judicial control. The weighing of the scope of the decision, schematically outlined in the present report, has been a question that has transcended and that, currently, it is still in debate especially in those areas where the Administration weighs behavior. Thus, after this brief overview, I will move on to answer the suggested questionnaire.

Angel Estrada and Co. S.A. v/ Resolution N
71/96—Sec. Energy and Ports. Fallos (rulings): 328:651 (Judgment of 5 April 2005). 13 It can be consulted in http://servicios.infoleg.gob.ar/infolegInternet/verNorma.do?id¼464. Accessed 12 Oct 2018. 12

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2 Questions Concerning Judicial Deference After making an analysis of the different aspects that can have the scope of judicial review, both in the control of an Act and of an administrative action, I will try to make it clear the multiple aspects that can be dealt with and that I have tried to summarize in a few lines of reasoning which do not cover the proposition as a whole. In order to make an analysis of the application of the concept “deference” in Argentinean law, we will move on to deal in more detail with the different contents according to the suggested questionnaire as follows:

2.1

When, Why, and How Much Should Reviewing Courts Defer to Administrative Agency Decisions?

We can point out without any doubts that, in Argentinean administrative law, the control of any decision from the Administration by judicial courts of acts originating from the Executive Power, administrative tribunals or regulatory bodies (agencies) is totally accepted, despite the fact that it is about specialized organs that can deal with technical questions more competently than a judge and auxiliaries. In the case of agencies, judicial review can be carried out as long as the agency issues an administrative act (general—regulation—or individual, e.g. a sanction) by the one who feels aggrieved. As long as the decision that causes offence has been issued, judicial control can be carried out.

2.2

Should It Matter What Type of Agency Action Is Being Reviewed?

For Argentinean law, and according to what has already been explained, there is no action that cannot be controlled by justice. In fact, this question has to be proposed in a different way: Can an agency intervene in any issue related to, directly or indirectly, with the service which it controls? In the case Litoral Gas S.A. v ENARGAS14 from 16/04/1998, the National Supreme Court of Justice expressed that: 6
) Because of the scope of grievances, it is convenient to remember the Court’s doctrine regarding the exercise of judicial powers by administrative organs (cases: 247:646; 253:485; 301:1103), in order to give additional protection to public interest by making the most of the

14

Fallos (rulings): 321:776.

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administrative experience in the judicial decision which finally is made. Such bodies or entities’ performance has always been 2.2 subject to constitutional limitations that come from section 109 of our National Constitution and the guarantee enshrined in section 18 of our Fundamental Law, such as the demand of leaving expeditious judicial control proceedings which is truly enough (Rulings: 247:646; 310:2159; 311:334) and the limitation which is derived from the specific matter that the law submitted to previous administrative debate. . . .

Indeed, it is not accepted that an agency can intervene in all types of issues, so it is necessary to determine in what kind of issues it can intervene. In the case Angel Estrada,15 from 05/04/2005, the National Supreme Court of Justice said that “the attribution to settle disputes on rights of assets that arouse between individuals because of the supply of electrical energy has to be understood with the scope derived from case law Rulings: 247:646 and, the latest from Rulings: 321:776. According to them, the granting of jurisdictional powers to administrative agencies disregards what it is set forth in sections 18, which guarantees the defense by trial of persons and rights, and section 109 of our National Constitution, based on the text of section of the Constitution of Chile from 1833 (see Jorge Tristan Bosch: “Judicial courts or Administrative Tribunals to pass judgment on the Public Administration?”. Víctor Zavalia Editor, 1951; pages 55 a 64, and 160) prohibits the Executive Power from exercising judicial functions in all cases”. In this way, the doctrine from the case Fernandez Arias, from 1960 was followed but with the explanation that any dispute could not be validly deferred to the knowledge of administrative bodies, because of the only fact that there would be a further sufficient judicial control, since the violation of the prohibition stated in section 109 of the National Constitution would be evident. In addition to this, it came to the conclusion that “Admitting that the Congress could delegate judicial powers without material limitation of any kind to administrative agencies would be as unthinkable as allowing the legislator to delegate the substance of his own legislative functions, which it is expressly prohibited in section 76 of the National Constitution, with express reservations”. Therefore, we can conclude that agencies can only intervene to settle disputes in the regulation of services between the companies that take part in them as well as in the application of fines and/or setting fares or in the regulatory activity that is aimed at companies or individuals. In accordance with this, the regulatory activity as well as the rest of actions are subject to judicial review and there is no legal limit to the scope of this review.

15

Fallos (rulings): 328:651.

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What Standard/Approach/Grounds Should Courts Adopt When Reviewing an Administrative Decision? How Are These Grounds/Standards Such as Reasonableness, or Proportionality, Applied in the Courtroom?

It has to be made clear that, in Argentina, judicial review of this type of proceedings is not oral but through written procedure. The judge, in the first place, carries out a formal revision. Special attention is given to the administrative procedure that has been followed to come to this decision. That procedure is established in each statute that created each agency as well as in the applicable rules of administrative procedure, in this case the National Law on Administrative Procedures N
19,549 above mentioned. Generally speaking, review is carried out through an action that is called “appeal procedure” before the Federal Court of Appeals on Contentious-Administrative proceedings with competence in the place, which intervenes as a single instance court but its decision can be reviewed by the Supreme Court of Justice of Nation. It is governed by the principle of comprehensiveness of argument and evidence. This process is filed with the same agency as a counterpart, which has to defend the act at issue. Regarding the decision, after analyzing the procedure and the act at issue to check if it complies with the law, when the substance of the matter under discussion is analyzed, a proportionality test is undertaken, between the norm proposition and the means used to comply with it and if this has been carried out by complying with standards of reasonableness. In other words, the analysis is made according to the criteria of proportionality and reasonableness where judicial self-limitation comes into play. I can conclude with two assertions: a. legal rules cannot allow a limited control to agencies’ performance. b. the limit to the control of judicial review is set by judicial self-restraint.

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33

In Relation to the Above, Reporters Are Invited to, if Applicable: (a) Probe the Treatment of Fact Finding, Especially That Based on Science and Technology; (b) Probe the Interpretation of Words That Could Be Seen as Delegations of Policymaking Power to the Administrative Officials, Especially Vague or General Expressions That Lack a Precise Meaning, and (c) Probe the Use of Proportionality Review Which Could Be an Important Topic About Deference, Even in Countries Who Do Not Think That Their Courts Generally Defer to Administrators

We have not found cases where the agency’s decision is based on science and technology so, the judge has not been able to support his decision on them and, in this way, not reviewing what has been decided but he can make use of these studies to confirm the agency’s performance. When the legislator uses words or concepts which are not particularly precise, that is the situation where problems are found. In an old case Inchauspe, from 1944, where the State’s intervention in trade by exercising its Police Power was examined, the Supreme Court of Justice outlined the concept of proportionality stating that “the analysis of efficiency of the means used to reach the objectives which the legislator has set is non revisable except for the reasonableness of the chosen means, that is to say, solve whether they are proportionate or not to those objectives and, consequently, if the subsequent restriction to aggrieved individual rights is admissible or not.16 Furthermore, in Argentinean Musicians’ Union,17 from 1960, the Court stated that reasonableness has to be recognized, regarding police power, as measures taken by the public authority have to be proportionally adequate to the objectives aimed at by the legislator and this adjustment exists when the restrictive state act does not appear to be patently and arbitrarily disproportionate. The issue, then, has to be studied from the part of the legislator that regulates and restrains recognized individual rights, expressly or implicitly, by the Constitution, on the basis of the promotion of the general welfare and/or concepts such as emergency or public order. These terms have not been the subject of an in-depth judicial control except for the application to the case which has led to notorious injustice. Judicial control of reasonableness, where the act at issue is contrasted to the rights

16

Pedro Inchauspe Brothers v/ National Meat Board. National Meat Board v/ Baurin, Juan J. National Meat Board v/ Corbett Brothers. Fallos (rulings): 199: 483 (Judgment of 1 January 1944). 17 Fallos (rulings): 248:800 (Judgment of 28/12/1960).

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constitutionally involved, does not have a control of the factual part so that it concludes with a self-restraint. On the basis of what has been said so far, proportionality does not refer to a convenience test or getting the legislator’s criterion right within the scope of his powers but regarding the reasonableness of the means chosen according to his aims, to determine the admissibility of the restriction to the aggrieved individual rights. It differs from the German principle of proportionality, which is more complete, as it comprises the mandates of: (a) adequacy, (b) demand or necessity, and (c) proportionality in its strict sense, which in turn branch out sector ally in the obligation to consider release clauses for exceptional circumstances. The concept of reasonableness explained by our Supreme Court of Justice is in no way opposed to the principle of proportionality in German Law. The difference lies in the way of explaining such concept: according to case law from the Supreme Court of Justice, judicial control is carried out in an abstract way and with permissive contents, which is consistent with two aspects: (1) we take the notion of reasonableness which comes from common law, as far as reasonableness is related to arbitrariness but without concrete terms which allow to predict conduct beyond the fact that it is not fair, (2) this notion is more convenient when excess of governmental actions has to be examined so that not to intervene when those acts have to be justified, selfrestraining the review. As we have stated, traditionally, precedents have been kept constant regarding the fact of not analyzing the effectiveness of the means provided by the legislator to reach the objectives he has set but, what the Court will always acknowledge is that it is the Court the one that will decide about the reasonableness of the rule at stake, understood as proportion between means and end and, if that relationship is not complied, it will be considered that its application is arbitrary.18

2.5

Why in This Jurisdiction, the Courts Tend to Be Active and More Engaging (Judicial Activism), While in Others the Courts Prefer to Adopt Deferential Approach (Judicial Restraint)? Any Political Consideration?

We can find judges with more or less activism, defining it as the assumption where the judge starts to review and even substitute powers which, ordinarily, are in the Administration’s or legislator’s sphere. To make an analysis of this activity that is found with greater presence these days would exceed the scope of the present study. Confronted with a sentence, which we call “typical”, which is when a court solves a case stating the law for the instant case, there are other sentences where the Courts 18 The Court has defined arbitrariness as the evidence that what was resolved is unsustainable and constitutes a means to frustrate a right, consid.9
. See Fallos (rulings): 194:220.

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instructor urge the legislator or the Executive Power to make any decision or that set standards of compliance passing over what it was stated by the legislator. As an example of several subjects in which the sentences passed by the National Supreme Court of Justice have been directed to the other powers the State, so that they can take measures regarding specific aspects of the case at issue, we can mention: (a) the Vizzoti19 case, from 14/09/2004 in which the constitutionality of a limit or cap stated by law regarding severance payments was discussed. The Court found this limit unconstitutional, and established discretionally what the correct basis to apply in order to graduate compensation had to be. (b) Verbitsky,20 from 03/05/2005, regarding a collective habeas corpus where it was attempted to solve the problem of overcrowding and the poor attention to people deprived of their liberty in police stations and prisons of the Province of Buenos Aires, when making a decision over the action, the Court warned that criminal procedural laws of that province seemed not to be constitutional, in the sense that they clashed with the rules stated in the Federal Constitution and with those of international treaties, some of them with constitutional status according to section 75 subsection 22 of the mentioned Constitution so that they “urged” the authorities of this province to enact new laws in accordance with the above mentioned higher rules. (c) The Badaro21 case, from 26/11/2007, the Court understood that the pension adjustment system stated by the State did not respect the principle of mobility established by section 14 bis of the National Constitution but instead of determining this for the specific case, entrusted the Executive and Legislative Powers, who are the ones in charge of enacting the relevant regulations, to do so—on the whole—in reasonable time. (d) Finally, in F.A.L v/self-enforcing measure22 from 13/03/2012, with regard to an issue in which non-criminalized abortion was discussed, the Court, taking into account that for reasons of completion time of a pregnancy, it would never come to decide about the fact that the rule at issue was constitutional or unconstitutional since its statement turned abstract, passed sentence on future cases when it stated that: In light of section 19 in fine of the National Constitution the letter of section 86, subsection 2
of the Criminal Code has to be interpreted and to conclude that the person who is under the conditions described there cannot be or must not be obliged to request a judicial authorization to terminate her pregnancy, since the law does not command this, neither can she or must be deprived of the right she is entitled to interrupt her pregnancy because that, far from being prohibited, it is permitted and it is not punishable, so it is our duty to warn health professionals about the impossibility of avoiding their professional duties before the factual situation that was contemplated in the referred rule and remind the different

19

Fallos (rulings): 327:3677. Fallos (rulings) 328:1146. 21 Fallos: (rulings) 330:4866. 22 Fallos (rulings): 335:197. 20

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P. Aberastury operators from the different judiciary powers of the country that what the legislator provided is that, if the circumstances which allow a pregnancy termination concur, it is the pregnant woman who requests the practice, together with the health professional, who has to decide to carry it out and not a judge because of a doctor’s request.

In all these examples, the Court has passed sentence beyond the instant case, intervening in State policies. The reasons why judges intervene more in-depth in some cases and in others they self-restrain, on the whole, are not due to political reasons or governmental reasons but it is about accompanying society’s claims which are not heard by the Legislative or Executive Powers, so the Supreme Court as the remaining “State Power”, considers that it must intervene, saving in this way the omissions or the lack of adequacy of the considered aspects. In Argentina, we have tried to find a solution to judicial control of the Administration but there are new situations every day, which have to be analyzed according to our constitutional principles, so that, in case of excess, it is possible to go back to legality

3 Conclusion “Deference” is not a term which is found in the legal vocabulary of Argentinean law but we can point out that the control of any decision from the Administration by judicial courts regarding resolutions originated in the Executive Power, administrative tribunals or regulatory bodies (agencies) is totally accepted. The existence of administrative tribunals was accepted against the prohibition stated in section 109 of the National Constitution that does not allow the exercise of judicial functions to the Executive Power. One of the arguments is the fact that specialized organs can deal with technical questions more competently than a judge. Also, the exercise of judicial powers by administrative organs in order to give additional protection to public interest by making the most of the administrative experience in the judicial decision which is finally made. In this way, the principle established in the case Fernandez Arias, from 1960, is followed but together with the explanation that any dispute could not be validly deferred to the knowledge of administrative bodies. For Argentinean law there is no action that cannot be controlled by justice.

References Aberastury P (2006) La Justicia Administrativa. Lexis Nexis, Buenos Aires Bosch JT (1951) Tribunales Judiciales o Tribunales Administrativos para juzgar a la administración pública. Victor P. De Zavalia, Buenos Aires

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Cassagne JC (2004) El acceso a la Justicia Administrativa. Revista Jurídica de Buenos Aires. Lexis Nexis 2004:51–77 Coviello Pedro JJ (2005) ¿Qué es la jurisdicción primaria? Su aplicación a nuestro ordenamiento jurídico (a propósito de su invocación en el caso “Angel Estrada”). Revista El Derecho 2005:429–454 Mairal HA (1984) Control Judicial de la Administración Pública. Abeledo Perrot, Buenos Aires Tawil G (1993) Administración y Justicia. De Palma, Buenos Aires

Pedro Aberastury holds a PhD in Law, specialized in Administrative Law from School of Law at University of Buenos Aires (U.B.A.), Lecturer in undergraduate course of Law and LLM in Administrative Law and Public Administration as well as Master of the Judiciary from School of Law (U.B.A.). He was a Chair Professor of Administrative Law and Dean of the Graduate School of Law at Belgrano University (2007–2008). He worked as Researcher at Universidad Federal Fluminense (UFF)—Niteroi, Brazil, shared research with the University of Administrative Sciences, Speyer, Germany, and the University of Erfurt, Germany. He was appointed as Professor of the Program “State of Law: Administrative Law and Administrative Justice in Latin America”, approved by the DAAD-German Academic Exchange Service. He is a Member of the Administrative Law Institute of the National Academy of Law and former President of the Argentine Association of Comparative Law. Major journal and book chapters are published in: La Justicia Administrativa [Administrative Justice], Ejecución de sentencias contra el Estado [Enforcement of sentences against the State]. He also edited the following books: Ley de la Justicia Administrativa Alemana [The Law of the German Administrative Justice], Tendencias Actuales del Procedimiento Administrativo [Current Trends in Administrative Procedure].

Deference to the Administration in Judicial Review in Australia Fleur Kingham

Abstract 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.

F. Kingham (*) Land Court of Queensland, Brisbane, QLD, Australia e-mail: [email protected] © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_3

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1 Introduction 1.1

Purpose and Scope of the Paper: Judicial Deference

The purpose of this paper is to provide a comprehensive Australian report on the topic of judicial deference to administrative decision-makers. This will contribute to a comparative discussion of the topic at 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 considers deference in both respects. This report provides an overview of the Australian legal and political system and the administrative law system. The constitutional context for judicial review has an important bearing on the shape of the administrative law system as well as the limits of judicial review. That is examined, before turning to topics that demonstrate how and to what extent deference is shown in theory and in practice in Australia. Those topics include 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.

1.2

The Federal Legal and Political System

The Commonwealth of Australia was formed by six British colonies, after the United Kingdom passed an Act which approved the colonies (now States) forming a federation and prescribed its Constitution. By 31 July 1900, the six colonies had voted by referenda to join the federation. On 1 January 1901, the Commonwealth of Australia Constitution Act 1900 (UK) was proclaimed and the Constitution came into force. The Commonwealth of Australia is a constitutional monarchy,1 with a written Constitution2 which establishes three arms of government: the legislature, the executive and the judiciary. The Parliament, which exercises legislative power, is comprised of the Queen (through her representative, the Governor-General), a

1 A referendum to establish a republic was held on 6 November 1999. It failed to secure the required “double majority” of electors: a majority of Australian voters in a majority of States. Australian Constitution s 128. The referendum results are available at: http://www.aec.gov.au/Elections/ referendums/1999_Referendum_Reports_Statistics/. 2 The Commonwealth of Australia Constitution Act 1900 (UK) allowed the six Australian colonies to govern in their own right as part of the Commonwealth of Australia. By 31 July 1900 the voters of all 6 colonies had voted to join the Commonwealth of Australia.

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Senate and a House of Representatives.3 Executive power is vested in the sovereign of the United Kingdom, currently Queen Elizabeth II.4 The Queen’s executive power is exercisable by the Governor-General5 who is advised by a Federal Executive Council comprised of Ministers of State who are appointed by the GovernorGeneral.6 Judicial power is vested in the High Court of Australia and other courts created by the Parliament.7 In practice, the Queen’s executive power is exercised by the Governor-General pursuant to constitutional conventions, including the following. The GovernorGeneral is chosen by the Prime Minister of the day. The Governor-General acts on the advice of the leader of the majority party in the House of Representatives in appointing the Prime Minister and the other Ministers of State. The GovernorGeneral acts on the advice of his or her Ministers.8 The States each have their own Constitution which establishes the same three arms of government: a legislature, executive and judiciary. The Constitution of the Commonwealth recognizes the validity of the Constitution of each State of the Commonwealth, the powers of their Parliaments and, subject to two qualifications, the force of their laws.9 The Constitutions of each of the States confers a plenary power on their Parliaments to make laws for the peace, welfare and good government of the State.10 In contrast, the legislative power of the Commonwealth Parliament is limited to making laws for the peace, welfare and good government of the Commonwealth with respect to matters specified in the Constitution.11 On some very limited matters specified in the Constitution, the Commonwealth Parliament’s power is exclusive and the States may not make laws about those matters.12 The Constitution confers 39 heads of power on the Commonwealth Parliament which are not exclusive.13 The Parliaments of the Commonwealth and any State can pass laws on those matters and they can co-exist so long as they are not inconsistent. To the

3

Australian Constitution s 1. Commonwealth of Australia Constitution Act s 2; Australian Constitution s 61. 5 Australian Constitution ss 2 and 61. 6 Australian Constitution ss 62 and 64. 7 Australian Constitution s 71. 8 Controversially, in 1975 the Governor-General relied on so-called Reserve Powers to dismiss the Whitlam Government. Section 64 of the Constitution provides the Ministers hold office during the pleasure of the Governor-General. 9 Australian Constitution ss 106, 107, 108 and 118. 10 Constitution Act 1867 (Qld) s 2; Constitution Act 1902 (NSW) s 5; Constitution Act 1889 (WA) s 2; Constitution Act 1934 (SA) s 2(1)(b); Constitution Act 1934 (Tas) cl 1; Constitution Act 1975 (Vic) s 74A. The UK parliament retained the power to legislate for the States and Territories until the passage of the Australia Act 1986 (UK) and the Australia Act 1986 (Cth). 11 Australian Constitution ss 51 and 52. The UK Parliament’s power to legislate with effect for the Commonwealth mostly ended with the Statute of Westminster 1931 (UK), adopted and given retrospective effect to 1939 by the Statute of Westminster Adoption Act 1942 (Cth). 12 Australian Constitution s 52. 13 Australian Constitution s 51. 4

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extent that a State law is inconsistent with a valid Commonwealth law, the law of the Commonwealth prevails and the law of the State is invalid.14 As well as the States, there are 10 Territories within Australia’s borders which fall outside the borders of the States.15 The two mainland Territories (the Australian Capital Territory and the Northern Territory) have limited self-government as provided for by the relevant Commonwealth Act. There are another eight off-shore Territories which are administered by the Commonwealth, usually through an appointed Administrator. The Judicature is connected in a way the legislatures are not. The High Court of Australia is the ultimate court of appeal.16 In 1986, the right of appeal to the Judicial Committee of the Privy Council (UK) was removed and the High Court is now the exclusive court of appeal from any State Supreme Court.17 As well as the High Court, there are Federal courts: the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia. In 1987, the Commonwealth and State Parliaments established a national scheme of cross-vesting jurisdictions between the Commonwealth and State court systems.18 In 1999,19 the High Court determined the Constitution did not permit Federal courts to be invested with State jurisdiction. Nevertheless, if a Federal court has jurisdiction for a matter, it can also exercise an “accrued jurisdiction” to hear all legal issues arising from a single set of facts.20

1.3

The Australian Constitution and the Separation of Powers

Australia’s constitutional heritage is derived from both English and US conceptions of government and the source of power. In England, historically, the common law observed a distinction, not a complete separation, between the three arms of government. As between the legislature and the judiciary, Parliamentary sovereignty constrains judicial review. Blackstone argued judicial supervision of legislation, even if unreasonable, would set judicial power above the legislature, which would be subversive to all government.21 The scope of judicial review of executive action

14

Australian Constitution s 109. Australian Constitution s 122. 16 Australian Constitution s 73. 17 The right to appeal from a State court to the Queen-in-Council (or Privy Council) was removed by the passage of the Australia Act 1986 (UK) and the Australia Act 1986 (Cth). 18 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and cognate State and Territory legislation. 19 Re Wakim; Ex parte McNally (1999) 198 CLR 511. 20 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; Fencott v Muller (1983) 152 CLR 570; and Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261. 21 Blackstone (1765–1769), p. 91. 15

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was restrained by the role of the monarch and the executive functions which arose from regal office. The monarch was conceived of as the fountain of justice and conservator of the peace of the kingdom.22 As the monarch was conceptually the source of judicial power the notion that the monarch could be subject to the jurisdiction of the courts was legally absurd.23 Against that English heritage, the debates leading to federation and the adoption of the Australia’s Constitution were influenced by the United States Constitution which sourced sovereignty in the popular will of the people.24 In 1803, in the case of Marbury v Madison, Marshall CJ delivering the opinion of the Supreme Court of the United States, declared “it is emphatically the province and duty of the judicial department to say what the law is”.25 By the end of WWI the High Court recognized the fundamental principle of the separation of powers.26 In 1951, Fullagar J described the principle of Marbury to be “axiomatic” in Australian law.27 The Constitutional Tradition and the Role of the Judiciary [39] Within the limits of its jurisdiction where regularly invoked, the function of the judicial branch of government is to declare and enforce the law that limits its own power and the power of other branches of government through the application of judicial process and through the grant, where appropriate, of judicial remedies. [40] That constitutional precept has roots which go back to the foundation of the constitutional tradition of which the establishment of courts administering the common law formed part. By the time of the framing of the Australian Constitution, the precept had come to be associated in the context of a written Constitution with the decision of the Supreme Court of the United States in Marbury v Madison. The precept has since come to be associated in the particular context of the Australian Constitution with the decision of this Court in Australian Communist Party v The Commonwealth. There Dixon J referred to the Australian Constitution as ‘an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed’, adding that ‘[a]mong these I think that it may fairly be said that the rule of law forms an assumption’. There also Fullagar J observed that ‘in our system the principle of Marbury v Madison is accepted as axiomatic, modified in varying degree in various cases (but never excluded) by the respect which the judicial organ must accord to opinions of the legislative and executive organs’.28 (references omitted)

22

Blackstone (1765–1769), pp. 239, 234–235, 257. Maitland (1919), pp. 311–313, 320. 24 Nelson (1972), pp. 1170–1172. 25 5 US (1 Cranch) 137. 26 New South Wales v Commonwealth (Wheat case) (1915) 20 CLR 54, 88. 27 Australian Communist Party v Commonwealth (1951) 83 CLR 1, [18]. 28 Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection (2017) 91 ALJR 890, [39]-[40]. 23

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2 The System of Administrative Law in Australia 2.1

Introduction

The foundation of Australian law is the common law of the United Kingdom received in Australia at federation. The common law of Australia operates within the Federal system established by the Constitution. The Constitution is “binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State”.29 The Australian Constitution established “one system of jurisprudence” comprised of the Constitution, the Federal, State and Territorial laws, and the common law in Australia.30 There is a debate about the source of authority for judicial review. Some argue it is statute law that provides authority to provide the principles of administrative law. Others argue it is the duty of the courts to declare and enforce the law which includes the common law principles of judicial review as well as statute law. Little may turn on the argument and neither can be viewed in isolation.31 Administrative law is constituted by both common law and statute law at all levels of government. It is also an inextricable aspect of constitutional law at the Commonwealth level because the Constitution prescribed a judicial review function for the High Court. Arguably, the Marbury principle is now a general principle about the rule of law and its administration, applied through both constitutional and administrative law.32 The principle has been described as a political, as well as a legal, principle with implications for the way in which judges exercise their authority.33 As a legal principle, dogmatically expressed, it leaves little scope for judicial deference to the administration, at least in determining what the law is. The political dimension of the principle, however, explains the deference shown by the courts, particularly in relation to matters of fact finding and policy. The strict separation of powers in the Australian Constitution has determined the structure of the administrative law system in Australia. Commonwealth judicial power is vested only in the courts and cannot be given to a non-judicial body or combined with a non-judicial power. Attempts to confer judicial functions on commonwealth administrative tribunals have been found to be unconstitutional. In 1956, the High Court applied the principle of separation of powers to find that the Commonwealth Court of Conciliation and Arbitration could not impose a fine on a union that breached its order. The power to do so was unconstitutional because it

29

Australian Constitution cl 5. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 529. 31 Mason (2000a), p. 332. 32 Gleeson and Yezerski (2013), p. 328. 33 The Hon Justice Murray Gleeson AC (2004), 6; R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 276. 30

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had also been conferred with non-judicial functions, including making industrial awards and reviewing administrative decisions on their merits.34 More recently, the High Court decided a Commonwealth tribunal established to investigate complaints about discrimination was not able to make an enforceable determination because that was an unconstitutional exercise of judicial power by a non-judicial body.35 As a result, there is a strict demarcation of functions between courts and administrative tribunals at the Commonwealth level. The Commonwealth tribunals are conferred with exclusively administrative functions. The same does not apply to States and Territories where there are a number of tribunals conferred with both administrative and civil functions, with powers to make binding adjudications between private parties, to enforce their own decisions, and to grant “judicial” remedies such as injunctions and to award costs.36

2.2

Judicial Review Under the Commonwealth Constitution: Section 75(v)

The High Court has had, from federation, an explicit and constitutionally entrenched power to adjudicate on the validity of executive action. Section 75(v) of the Commonwealth Constitution states: . . .in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. . .

The High Court has vigorously guarded that function and carefully considered constraints on its power. Constraints that are inconsistent with or restrict the Court’s capacity to perform that function are unconstitutional. The High Court has characterized judicial review as a fundamental aspect of the rule of law37: Judicial review is neither more nor less than the enforcement of the rule of law over executive action; it is the means by which executive action is prevented from exceeding the powers and functions assigned to the executive by law and the interests of the individual are protected accordingly.

34

R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ case) (1956) 94 CLR 254. Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245. 36 Queensland Civil Administrative Tribunal Act 2009; Australian Capital Territory Civil and Administrative Tribunal Act 2008; New South Wales Civil Administrative Tribunal Act 2013; Northern Territory Civil Administrative Tribunal 2014; South Australian Civil and Administrative Tribunal Act 2013; Victorian Civil and Administrative Tribunal Act 1998; State Administrative Tribunal Act 2004 (WA). 37 Church of Scientology v Woodward (1982) 154 CLR 25, 70. 35

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The High Court has confirmed its power to compel performance of a public duty by mandamus38 and to grant an injunction to restrain an exercise of power that is in breach of a constraint imposed by Parliament on the manner, or extent of, exercise of that power.39 An officer of the Commonwealth includes a judges or member of a court or tribunal of limited jurisdiction (an inferior court).40 If Parliament establishes a quasi-judicial body with limited authority, so that excess of that authority means invalidity, it cannot deprive the High Court of the authority to restrain the invalid action of the court or body by prohibition.41 Constitutional Jurisdiction to Review Executive Decision-Making Within the limits of its legislative capacity, which are themselves set by the Constitution, Parliament may enact the law to which officers of the Commonwealth must conform. If the law imposes a duty, mandamus may issue to compel performance of that duty. If the law confers power or jurisdiction, prohibition may issue to prevent excess of power or jurisdiction. An injunction may issue to restrain unlawful behaviour. Parliament may create, and define, the duty, or the power, or the jurisdiction, and determine the content of the law to be obeyed. But it cannot deprive this Court of its constitutional jurisdiction to enforce the law so enacted.42

2.3

Statutory Judicial Review

The common law conferred supervisory jurisdiction on the courts. At federation, each of the supreme courts of the States had jurisdiction that included the type of jurisdiction conferred on the English Court of Queen’s Bench.43 That included the supervisory power to issue prerogative writs: certiorari, prohibition and mandamus. The prerogative writs provided the mechanism for determining and enforcing the limits on the exercise of State executive and judicial power.44 The common law has been supplemented by significant statutory reform since the 1970s. Between 1975 and 1982, the Commonwealth established a statutory scheme

38

R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415, 427. Church of Scientology v Woodward (1982) 154 CLR 25, 56–57. 40 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (1910) 11 CLR 1, 22–33. 41 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, 616. 42 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, [5]. 43 Australian Courts Act 1828 (Imp) (9 Geo 4 c 83), s 3, which conferred jurisdiction on the Supreme Court of New South Wales and the Supreme Court of Van Diemen’s Land; Supreme Court Act 1890 (Vic) s 18; Supreme Court Act 1867 (Qld) ss 21 and 34; Act No 31 of 1855-56 (SA) s 7; Supreme Court Act 1880 (WA) s 5, picking up Supreme Court Ordinance 1861 (WA) s 4. 44 Kirk v Industrial Court (NSW) (2010) 239 CLR 531, [98]. 39

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of review of administrative decisions which conferred judicial review jurisdiction on the Federal Court and established an Administrative Appeals Tribunal (AAT) to conduct merits review of administrative decisions on application by an affected person. The States and Territories followed later with similar reforms. The bifurcation of the administrative law function represents a fundamental distinction between a review of the legality of a decision and a review of its merits. The Federal Court’s judicial review jurisdiction is conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Judiciary Act 1903 (Cth).45 Each of the States and the two mainland Territories have passed legislation enabling their courts to undertake judicial review of administrative decisions.46 Those Acts identify the decisions that may be reviewed and the grounds of review. Although the grounds of review are derived from the common law, the statutory expression can lead to arguments that the ground is more expansive or restrictive than provided for by the common law. When administrative decisions are made, the decision-maker must follow the correct legal process. If this is not achieved, the decision may be open to legal challenge. The distinction between review for legality and merits review is fundamental to administrative law in Australia. The Legality/Merit Distinction and the Reason for It The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. . . If it be right to say that the court’s jurisdiction in judicial review goes no further than declaring and enforcing the law prescribing the limits and governing the exercise of power, the next question immediately arises: what is the law? And that question, of course, must be answered by the court itself. In giving its answer, the court needs to remember that the judicature is but one of the three coordinate branches of government and that the authority of the judicature is not derived from a superior capacity to balance the interests of the community against the interests of an individual. The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered. Moreover, if the courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of

45

Judiciary Act 1903 (Cth) s 39B(1). The High Court may also remit a matter commenced in the original jurisdiction of the High Court to the Federal Court or a Court of a State or a Territory; Judiciary Act 1903 (Cth) s 44. 46 New South Wales Administrative Decisions Review Act 1997 (NSW); Administrative Decisions (Judicial Review) Act 1989 (ACT); Judicial Review Act 1991 (Qld); Administrative Law Act 1978 (Vic).

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F. Kingham litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful, or the simply litigious.47

The criteria used to define unlawful activity include concepts such as procedural fairness or natural justice, error of law, unauthorized purpose, irrelevant consideration, and inflexible application of policy. Although most of the attention in administrative law is focused on these criteria, the criteria are relatively narrow in their focus and fail to embrace whether a decision is correct or preferable on the facts— this is the focus of merits review.

2.4

Statutory Merits Review

Dissatisfaction about the restrictions on the nature and scope of judicial review provided the impetus for statutory reform. Merits review of administrative decisions was introduced by the Commonwealth and, over time, the States and Territories followed that lead. The reforms established both the system of merits review and the institutions to conduct the reviews. This has resulted in a well populated and mature Australian tribunal sector. The Administrative Appeals Tribunal Act 1975 (Cth) established the AAT to hear disputes between people and government entities about administrative action by government. The AAT was described as “a bold innovation by the Federal Government for which there [was] no precedent elsewhere in the common law world”. The AAT was the first of its kind.48 Reforms at State level were less comprehensive and each had a multiplicity of specialist tribunals established over many years to review particular types of decisions. In recent decades, reforms at the State level have consolidated the tribunals into ‘super tribunals’ with broad civil as well as administrative jurisdiction.49 As merits review is entirely a creation of statute law, the scope of review is a matter of statutory interpretation. The High Court has cautioned that the word “review” has no settled, pre-determined meaning and it takes its meaning from the context in which it appears.50 The most comprehensive type of merits review is by way of rehearing de novo. The tribunal rehears the matter afresh, is not confined to the evidence or other material before the original decision-maker, and may consider new submissions

47

R v Quin (1990) 170 CLR 1, 35–37. Hall (1981), p. 76. 49 Queensland Civil Administrative Tribunal Act 2009 (Qld); Australian Capital Territory Civil and Administrative Tribunal Act 2008 (ACT); New South Wales Civil Administrative Tribunal Act 2013 (NSW); Northern Territory Civil Administrative Tribunal 2014 (NT); South Australian Civil and Administrative Tribunal Act 2013 (SA); Victorian Civil and Administrative Tribunal Act 1998 (Vic); State Administrative Tribunal Act 2004 (WA). 50 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 261. 48

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and arguments. A power to exercise all the powers of the original decision-maker is an indication that the merits review is a rehearing de novo.51 An appeal to the AAT is a rehearing de novo. The AAT may overturn the decision appealed from regardless of error. The function of the AAT is to find the “correct or preferable decision” on the material before the Tribunal.52 Some merits review statutes use the phrase “correct and preferable decision” but it has been interpreted to mean the same thing. The Tribunal must reach a decision which is legally and factually correct; but if more than one decision is lawfully open, the Tribunal must reach the preferable decision.53 The ability for the Tribunal to substitute its opinion of what is correct or preferable for that of the decision-maker is a central difference between judicial and merits review. This is a review of the “actual decision” not the reasons for it.54 It is not necessary for there to be an error in the original decision for the Tribunal to reach a different conclusion. Even in the absence of a factual error, it is possible for the Tribunal to conclude that another decision is the correct or/and preferable decision.55 There are many examples of more limited merits review. One model is to limit the review to a consideration of whether the original decision was “fair and reasonable”.56 Another example, called a limited merits review regime, allows a tribunal to set aside a decision only if a stated ground of review is established and the tribunal is satisfied the original decision was not a “materially preferable decision” under the objectives of legislation.57 Yet another model involves a recommendation, rather than a review, such as hearing an objection to the grant of a mining lease which results in a non-binding recommendation to the Minister who will issue the tenure.58 Merits Review and the Correct or Preferable Decision Kiefel J in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, [140]: The term ‘merits review’ does not appear in the AAT Act, although it is often used to explain that the function of the Tribunal extends beyond a review for legal error, to a consideration of the facts and circumstances relevant to the decision. The object of the review undertaken by the Tribunal has been said to be to determine what is the ‘correct or preferable decision’. ‘Preferable’ is apt to refer to a decision which involves discretionary considerations. A ‘correct’ decision, in the context of review, might be taken to be one rightly made, in the proper sense. It is, inevitably, a decision by the original decision-maker with which the

51 Re Greenham and Minister for the Capital Territory (1979) 2 ALD 137; Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60. 52 Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409, 419. 53 Creyke (1998), pp. 13–14; Queensland Building Services Authority v Meredith [2010] QCAGTA 50, [5]; Woodward v Minister for Fisheries [2000] NSWADT 143, [47]. 54 Shi v Migration Agents Registration Authority (2008) 248 ALR 390, [141]. 55 Kehl v Board of Professional Engineers [2010] QCATA 58. 56 Superannuation (Resolution of Complaints) Act 1993 (Cth) s 37. 57 The National Energy Law and National Gas Law provide this regime for decisions by the Australian Energy Regulator about distribution and pricing determinations. 58 Mineral Resources Act 1989 (Qld) s 269.

50

F. Kingham Tribunal agrees. Smithers J, in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd , said that it is for the Tribunal to determine whether the decision is acceptable, when tested against the requirements of good government. This is because the Tribunal, in essence, is an instrument of government administration. The reasons of the members of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs confirm what is apparent from s 43(1), that the Tribunal reaches its conclusion, as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed. To the contrary of the argument put by the respondent on this appeal, that the Tribunal’s exercise of power is dependent upon the existence of error in the original decision, Smithers J denied that the Tribunal was limited to something of a supervisory role. As his Honour said, the Tribunal is authorised and required to review the actual decision, not the reasons for it. In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunal’s general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review. (footnotes omitted)

A tribunal undertaking merits review only has the power to review a decision if there is legislation that gives it that power. For this reason, the range of government administrative activity reviewable by tribunals is narrower than those reviewable by undertaking judicial review. However, the comprehensive merits review system at both Federal and State level in Australia covers most decisions by administrative agencies. Although the powers of a tribunal are determined by its statute, in general terms an administrative tribunal: • Is obliged to act judicially, that is to say, with judicial fairness and detachment; • Is subject to the constraints applying to the administrative decision-maker whose decision is under review; • Must take into account relevant considerations and not take into account irrelevant ones; • Must treat government policy as a relevant factor but, unless specifically required to by law, need not make its determination in accordance with government policy; • Must decide what the “correct or preferable” decision is, not merely decide if it conforms to government policy.59

59

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589–90.

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3 Introduction to Judicial Deference in Australia In a paper published in 2015, Gageler J identified two alternative meanings for deference: respectful regard for the judgment or opinion of another; and respectful acknowledgement of the authority of another. He argues the first form of deference has often been shown in administrative law in Australia, but showing the second form of deference seems to be more problematic.60 In the United States, the Chevron principle provides significant scope for judicial deference to administrative interpretation of statutory requirements.61 If a statute resolves an issue, the court and an administrative decision-maker must give effect to it. However, if a statute is silent or ambiguous with respect to a precise question in issue, the question for the Court is whether the administrator or agency’s answer to that question is based on a “permissible construction of the statute”.62 Bayne63 suggested American jurisprudence influenced the High Court’s approach to administrative decision-making. He argued the following statement by Dixon J in R v Hickman; ex parte Fox64 was influenced by the seminal decision of the US Supreme Court in NRLB v Hearst: Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.

Gageler J considers the Hickman doctrine allowed courts to recognize that the jurisdiction of an administrative body might extend, within the bounds of reasonableness, to that body forming and giving effect to its own opinion on a statutory question (whether of fact or law).65 However, after the seminal decision of the High Court in Corporation of the City of Enfield v Development Assessment Commission there seems little scope for applying it, at least openly. Although it did not explicitly reject the Chevron doctrine, the High Court declined to adopt it.66 The Chevron doctrine, specifically, and judicial deference more generally, has been said to run counter to two fundamental principles of judicial review in Australia67: 60

Gageler (2015), pp. 151–156. Chevron USA Inc v Natural Resources Defense Counsel, Inc (1984) 467 US 837. 62 Chevron USA Inc v Natural Resources Defense Counsel, Inc (1984) 467 US 837, 843. 63 E.g. Bayne (1991), pp. 38–39. 64 R v Hickman; ex parte Fox (1945) 70 CLR 598, 615. 65 Gageler (2015), p. 155. 66 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, [40]. 67 Sackville (2000), pp. 315–330. 61

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F. Kingham The first is that courts exercising powers of judicial review must not intrude into the ‘merits’ of administrative decision-making or of executive policy making. The second is that it is for the courts and not the executive to interpret and apply the law including the statutes governing the power of the executive.

Sir Anthony Mason says applying the Chevron doctrine might be regarded as an abdication of the judicial responsibility to declare and enforce the law.68 Wariness about executive decision-making is evident in the resistance to the concept of judicial deference. That is evident in this statement by Dixon J in the Communist Party case69: History, and not only ancient history shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power. Forms of government may need protection from dangers likely to arise from within the institutions to be protected. . . [T]he power to legislate for the protection of an existing form of government ought not to be based on a conception. . .adequate only to assist those holding power to resist or suppress obstruction or opposition or attempts to displace them or the form of government they defend.

Further, in Enfield the High Court warned that the Chevron doctrine could encourage decision-makers to choose one of several competing reasonable interpretations of a statute to fit the desired result and70: . . .might be tempted to mould the facts and to express findings about them so as to establish jurisdiction and thus to insulate that finding from judicial examination.

Caution about the limits of deference is also a feature of judicial commentary. The following response by Kirby J during argument in Enfield is illustrative71: I mean, is there a Richter scale of deference that you have absolute deference, profound deference, lots of deference, no deference at all, contempt? I mean, what does it mean ‘deference’; what does it mean for a legal purpose? It is a very nebulous word that can cover a whole multitude of attitudes.

That caution is at odds with his Honour’s judgment in Australian Broadcasting Commission Staff Association v Bonner, when he stated there were sometimes good policy reasons for deference to an administrator’s interpretation of ambiguous statutory language. He identified the superior and detailed managerial skills of administrators who will usually be more in touch with legitimate and lawful policy considerations that are not able to be dealt with in proceedings before the courts, and the undesirability of courts becoming involved in the detail of administrative decisions.72

68

Mason (2000a), p. 339. Australian Communist Party v Commonwealth (1951) 83 CLR 1, 187–188. 70 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, [42]. 71 Corporation of the City of Enfield v Development Assessment Commission A37/1988 (11 August 1999). 72 Australian Broadcasting Commission Staff Association v Bonner (1984) 2 FCR 561, 576. 69

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In practice, the distinction between judicial and merits review does afford substantial deference to the original decision-maker on non-legal matters. Sackville observed there is a paradox for Australian courts—they defer to decision-makers on (non-jurisdictional) factual and policy questions, even to the point of potentially upholding obviously erroneous decisions, yet pay no attention to an agency’s interpretation of the legislation it administers, even if the agency is peculiarly well placed to analyze the issues.73 Aronson and Dyer observe the intensity of judicial review of administrative decisions varies depending where the ground of review sits in the continuum between questions of fact and government policy, at one extreme, and questions of law, at the other. Whatever label was placed on the review, they argue that judges feel few inhibitions in intervening where they perceive a legal error. Aronson and Dyer identify what they describe as covert and overt forms of deference.74 Covert deference is most easily achieved behind the application of the flexible distinction between an error of law (subject to review) and an error of fact, value, or policy (not subject to review). Overt deference includes discretionary judicial self-restraint; deference to specialist tribunals and deference in response to privative clauses.

4 The Identity of the Decision-Maker and the Nature of the Decision 4.1

Justiciability and Political Questions

When discussing the High Court (then referred to as the Supreme Court), the participants in the Constitutional Debates discussed what decisions it would review.75 Isaac Alfred Isaacs, later Isaacs J of the High Court, said the court should not resolve political questions and the disputes referred to it should be76: . . .matters of law, and matters of law only, and keeping zealously and earnestly from its determination of questions of politics.

The Constitution does not delineate between political and legal questions and where that line may fall is determined by reference to the Constitution, not some extrinsic doctrine of non-justiciability.77

73

Sackville (2000), p. 323. Aronson and Dyer (2000). 75 Official Record of the Debates of the Australasian Federal Convention, Adelaide, 20 April 1897, 953; 958–9; Official Record of the Melbourne Convention Debates, 31 January 1898, 311–2, 315, 318. 76 Official Record of the Melbourne Convention Debates, 24 February 1898, 2047–2052. 77 McGinty v Western Australia (1996) 186 CLR 140, 232. 74

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Constitutional provisions may appear to vest particular decisions in the political branches, thereby denying power to the court. This separation of powers basis for justiciability requires close attention to the constitutional provisions to ensure there is not an unconstitutional intrusion by courts into the sphere of executives or legislatures.78 There seems no debate about judicial review of the legality of the exercise of statutory powers. However, the scope for review of prerogative powers is more difficult. One type of prerogative power said to be beyond review is the acquisition of territory. In New South Wales v Commonwealth (Seas and Submerged Lands Case) Gibbs J said79: The acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state. . . the same principle applies where the Crown, in the course of its relations with other nations, asserts sovereignty over an area of sea, or sovereign rights over the continental shelf, either pursuant to international treaty or even by unilateral action. The prerogatives of the Crown to acquire new territory or extend its sovereignty or jurisdiction are, in my opinion, available to the Crown in right of the Commonwealth. An extension of sovereignty over an area of the sea not already part of the Commonwealth (and therefore not part of any State), or the acquisition of new sovereign rights over the continental shelf, might be effected by executive act, but might validly be authorized, ratified or given recognition by legislation.

In Mabo v Queensland (No 2) it was accepted that there could be no contest between the executive and judicial branches of government as to whether a territory was or was not within Australia.80 Another example arises in relation to the defence power. In the majority decision in Communist Party Case the High Court limited its application to actual “hot” war. In those circumstances, an administrator could decide the action was for defence purposes and that decision (about that constitutional fact) would not be subject to review.81 However it did not apply to the Communist Party Dissolution Act 1950 (Cth) because Australia was not in a real “hot” war, even though its troops were fighting in Korea.82 There was a difference in opinion between the judges. There was some disagreement about how well established the exception was. Further, Kitto J, did not concede it existed. Professor Winterton argues it should not be assumed that the so-called exception is established beyond doubt.83

78

Western Australia v Commonwealth (1975) 134 CLR 201, 294. New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337, 388. 80 Mabo v Queensland (No 2) (1992) 175 CLR 1, 31–32. 81 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 258 (Fullagar J); although Kitto J did not concede this exception at pp. 281–282 the exception is derived from two previous decisions of the High Court: Lloyd v Wallach (1915) 20 CLR 299 and Ex parte Walsh [1942] ALR 359. 82 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 176, 202, 207–8, 227, 268. 83 Winterton (2003), pp. 128–129. 79

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The Communist Party Case The Communist Party Dissolution Act (Cth) commenced on 20 October 1950 and was immediately challenged by the Communist Party and others. Its political context was the anti-communist hysteria post WWII and into the Korean War. The Act banned the Communist Party and affiliated bodies and restricted the civil liberties of persons declared to be dangerous or potentially dangerous communists. The challenge was taken to the High Court, which accepted the government had the legislative power to protect itself from subversion. However, by a 6 to 1 majority decision, the High Court declared the law was unconstitutional. The Act authorized the government to declare that an association or individual was subversive, without first establishing the factual basis for the declaration. That factual basis is a “constitutional fact”, which the majority decided was subject to judicial review. The constitutional fact had to be established for the legislation to be valid. The critical question was who decides whether the legislature has exercised or exceeded the limited power conferred on it by the Constitution. The High Court was unequivocal: that decision rests with the judiciary and, ultimately, the High Court. Fullagar J said “a stream cannot rise higher than its source”84,85: The validity of a law or of an administrative act done under a law cannot be made to depend on the opinion of the law-maker, or the person who is to do the act, that the law or the consequence of the act is within the constitutional power upon which the law depends for its validity. A power to make laws with respect to lighthouses does not authorize the making of a law with respect to anything which is, in the opinion of the law-maker, a lighthouse.

Chief Justice Latham dissented. He raised both non-justiciability and deference. He considered the defence and anti-subversion powers were essentially different in character from most, if not all, of the other legislative powers and, perhaps, the most important of all.86 The wartime courts did not review the government’s decision that Japan and Germany were then our enemies and it could not review the government’s decision that communism was the enemy of the government.87 Professor Winterton argues that if the case were decided now, the Act would be considered to be an invalid attempt to exercise the judicial power of the Commonwealth and to confer it on the executive government.88 The political nature of a decision may affect the nature of the review rather than determine whether the matter is justiciable. In Gerhady v Brown the High Court had to consider whether protection of a certain individual or group was necessary.89 That was a pre-condition to adopting a special measure for that individual or group. The

84

Australian Communist Party v Commonwealth (1951) 83 CLR 1, 258. Australian Communist Party v Commonwealth (1951) 83 CLR 1, 258. 86 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 141. 87 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 51–52, 154, 163, 172. 88 Winterton (2003), p. 135. 89 Gerhady v Brown (1985) 159 CLR 70. 85

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Court considered that question was “necessarily committed to another branch of government”90 and that the court was “ill-equipped to answer the question”.91 The Queensland Court of Appeal applied the same reasoning when considering legislation restricting alcohol in aboriginal communities. It said, the Court does not sit on appeal from the political judgment of the legislature as to the appropriate content of a special measure, for the purposes of the Racial Discrimination Act (Qld). The Court could only decline to give effect to it if “the political judgment is one that a reasonable legislature could not have made”.92 Similarly, in Richardson v Forestry Commission Mason CJ and Brennan J considered Parliament’s decision to establish an inquiry and a regime of interim protection of an area which could be proposed for World Heritage listing involved a “calculus of factors, including factors which are cultural, economic and political”. For that reason, they concluded it was enough that the “legislative judgment could reasonably be made or that there is a reasonable basis for making it”.93 Since his retirement from the High Court, Sir Anthony Mason has affirmed this approach. The political nature of the decision may result in “a lower level of judicial scrutiny applicable to acts of other branches of government which fall within the realm of ‘political questions’”.94 That begs the question of how to determine the intensity of the review. Before his appointment to the High Court, Stephen Gageler proposed a measure based on political accountability. He considers political accountability should be the primary mechanism by which the Constitution achieves its purpose and that judicial review should respond to the degree of accountability of the institutional decision-maker. Where an institution’s political accountability is inherently strong there should be open judicial deference; and where it is weak or endangered, there should be judicial vigilance.95 Against that background, decisions by particular decision-makers will be considered.

4.2

Decisions by Cabinet

In Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd, a decision by Cabinet to include a national park on the UNESCO World Heritage List was

90

Gerhady v Brown (1985) 159 CLR 70, 139. Gerhady v Brown (1985) 159 CLR 70, 138. 92 Aurukun Shire Council & Anor v EO Office of Liquor Gaming and Racing in the Department of Treasury [2010] QCA 37, [211]. 93 Richardson v Forestry Commission (1988) 164 CLR 261 at 296. 94 Mason (2000b), p. 795. 95 Gageler (2009), p. 152. 91

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challenged by a company with mining and exploration rights within the park.96 A number of judges expressed their reservations about Cabinet, as opposed to the Governor-General, a Minister, or Executive Council, ever being susceptible to judicial review. In any case, the Court concluded the subject matter was intractably political and non-justiciable97: [T]he whole subject matter of the decision involved complex policy questions relating to the environment, the rights of Aboriginals, mining and the impact on Australia’s economic position of allowing or not allowing mining as well as matters affecting private interests such as those of [Peko-Wallsend]. It appears to me that the subject matter of the decision in conjunction with its relationship to the terms of the [UNESCO] Convention placed the decision beyond review.

The nature of the decision was also an important consideration in South Australia v O’Shea. Mason CJ recognized Cabinet may be involved in two types of decisions: political policy decisions not open to judicial review; and decisions more closely related to justice to the individual than with political, social, and economic concerns.98 In a speech referring to this judgment, he said99: I thought that although Cabinet is primarily a political institution concerned with political, economic and social concerns, it might be called upon to decide questions more closely concerned with justice to the individual when a duty to act fairly could arise.

4.3

Actions of the Governor and Governor-General

Although the High Court expressed doubts about reviewing decisions of Cabinet, decisions by Governors and the Governor-General, the Crown’s representatives, have been held to be justiciable. In R v Toohey; ex parte The Northern Land Council100 indigenous landowners challenged a decision of the Northern Territory Government (through the Administrator) to include a large area of land outside Darwin within the City of Darwin, for town planning purposes. The effect of this was the land could not be subject to a land rights claim by traditional owners. Until Toohey, it was widely accepted that a court could not review action taken by the Governor-General or a Governor of a State exercising a power conferred on them by law to act if “satisfied” of certain matters.101 In a 5 to 1 majority, the Court ruled

96

Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218. Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218, 224–225. 98 South Australia v O’Shea (1987) 163 CLR 378, 387. 99 Administrative Review Council. 2011. Proposed Considerations in Developing a Guide to the Scope of Judicial Review. https://www.arc.ag.gov.au/Documents/jrpart5.htm. Accessed October 2017. 100 R v Toohey; ex parte The Northern Land Council (1981) 151 CLR 170. 101 Hogg (1969), pp. 215–222. 97

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decisions made by the Administrator of the Northern Territory, acting on the advice of the Executive Council, were reviewable for bona fides even if they properly conformed to the power invested in the government. Although the Administrator was “the Crown”, the Court could consider whether his decision lacked good faith. Stephen J said this involved “no intrusion by the courts into the sphere either of the legislature or of the executive. It ensures that, just as the legislatures of constitutionally limited competence must remain within the limits of their power, so too must the executive, the exercise by it of power granted to it by the legislature being confined to the purposes for which it was granted.”102 The sole dissenting judge, Murphy J, said it was inconsistent with the separation of powers for the judicial branch to enquire into the good faith of those to whom the Parliament had delegated legislative functions.103 As well as reviewing their decisions, a Governor’s decision-making process may be reviewed. In FAI Insurances Ltd v Winneke104 a Minister of the Victorian Government recommended that the Governor decide not to renew the licence of a company which conducted an insurance business. The company had not been given a full opportunity to put its case for renewal before the decision was made. In a 6 to 1 decision, the High Court decided judicial review of the Governor’s decision was available for excess of power, including improper purpose. Gibbs CJ said105: The fact that the Governor in Council is the authority which grants the approval provides no ground for excluding the rules of natural justice. In exercising the power given by s. 72 the Governor does not act personally or as a representative of the Crown exercising any of its prerogatives. He acts on the advice of his Ministers, and it is to be expected that such advice will be based upon the recommendation of the Minister in charge of the Department concerned. It would be to confuse form with substance to hold that the rules of natural justice are excluded simply because the power is technically confided in the Governor in Council. I can see no reason in principle why the rules of natural justice should not apply to an exercise of power by the Governor in Council, who is of course not above the law.

Again, Murphy J dissented on the basis that certain governmental functions were committed to the executive branch to be determined in an executive way, not a judicial or quasi-judicial way, and the standards applied were political and enforceable only by the political process.106 In R v Quinn the High Court considered the exercise of the power to appoint magistrates in New South Wales.107 Mr Quinn held an appointment on a court that would be abolished with the commencement of the newly established Magistrates Court of NSW. Unlike nearly all his former colleagues, Mr Quinn was not offered an

102

R v Toohey; ex parte The Northern Land Council (1981) 151 CLR 170 at 215. R v Toohey; ex parte The Northern Land Council (1981) 151 CLR 170, 228–229. 104 FAI Insurances Ltd v Winneke (1981–82) 151 CLR 342. 105 FAI Insurances Ltd v Winneke (1981–82) 151 CLR 342, 349. 106 FAI Insurances Ltd v Winneke (1981–82) 151 CLR 342, 373–374. 107 R v Quinn; Ex parte Consolidated Food Corporation; (1977) 138 CLR 1. 103

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appointment on the new Court. He sought an order requiring his proposed appointment to be considered on its own merits not in competition with other applicants. The Decision by the Governor and the Steps Taken by the Minister Leading to the Decision In his reasons, Brennan J drew a distinction between the Governor’s decision and the steps leading up to that decision108: The power. . . is conferred on the Governor, and it is a novelty for a court to review judicially a Minister’s advice to the Governor as to the Governor’s exercise of a statutory power. At common law judicial review does not consist in assessing the legal effect of the steps taken preliminary to the exercise of a power but in a determination of the legality of the exercise or purported exercise of the power. The preliminary steps may be relevant to the legality of the exercise of the power but they are not themselves the subject of review. Where a power is conferred on the Governor, no act of the Minister amounts to an exercise, or a non-exercise, of the power. A court may examine — not review — what a Minister has done or failed to do if, but only if, the validity of the exercise of a power by the Governor depends on the Minister’s reasons or on the procedure adopted by the Minister in deciding upon that advice. The court may be required to make that examination in order to determine whether a condition governing the exercise of the power has been satisfied. Except in such a case, it would be a major intrusion by the court into the workings of the Executive Government to review judicially the advice given to the Governor by a Minister.

4.4

Exercise of the Privileges and Powers of the Parliament

The High Court has also considered the role of the courts in examining the exercise of powers by Parliamentary institutions, for example whether a Speaker or Parliamentary committee has the power to punish a member of Parliament for contempt. The Court will examine whether the power or privilege exercised exists at law. However, it will not examine the circumstances in which a power or privilege was exercised. To do the latter would stray beyond legal questions into the merits of the decision.109

4.5

Prisoners and Prosecutions

It is accepted that a decision to commence or continue a prosecution is not justiciable. One rationale is that the public perception of integrity of the judicial process and its independence and impartiality would be compromised if the courts were to decide

108

Attorney General v Quinn (1990) 170 CLR 1, 26. R v Richards; ex parte Fitzpatrick & Browne (1955) 92 CLR 157; Egan v Willis (1998) 73 ALJR 75.

109

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who is to be prosecuted and for what.110 Such decisions are seen as the preserve of the executive.111 The allocation of responsibility for public law enforcement arises from the separation of powers.112 There is a history of deference to decisions made by prison administrators about the management of prisons and prisoners. A “hands off” approach is founded not only in the separation of powers but also reflects a policy belief that prisons would be unworkable if courts intervened in the day to day management of prisons. In Flynn v King, a prisoner sought to challenge a provision of a prison regulation concerning remission of sentence. Dixon J justified non-intervention by the Court because113: if prisoners could resort to legal remedies to enforce gaol regulations responsibility for the discipline and control of prisoners in gaol would be in some measure transferred to the courts administering justice.

This approach put prisoners outside the protection of the law. Edney argues the approach became progressively untenable over time because of its “disturbing implication that there existed an important area of social concern beyond the jurisdiction of the law”.114 Developments in statutory review rights have eroded the “hands off” approach. However, Edney argues there is still “hands off” by stealth by the deference afforded to the judgment and “expertise” of correctional administrators. Although some deference might be expected because of the complexity of the prison environment and the social order within which the administrators operate, Edney is concerned deference may impermissibly narrow the protection of prisoners. Reference to the need for correctional administrators to maintain “good order”115 and “security”116 within the prison is explicit deference to the expertise of correctional administrators. McEvoy v Lobban is an illustration of that approach. An aboriginal prisoner sought to review a decision to segregate him in the prison. The reason giving for doing so was that the prison administrator had received information that the prisoner may be involved in a riot targeting non-indigenous prisoners. The Full Court of Queensland declined to intervene because it was satisfied the administrator had acted in good faith on information received and in a way the administrator considered

110

Maxwell v The Queen (1996) 184 CLR 501, 534. Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566, 579–580. 112 Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247. 113 Flynn v King (1949) 79 CLR 1, 8. 114 Edney (2001), pp. 91–133. 115 Stewart v Lewis (1993) 70 A Crim R 83 at 91; Binse v Williams (1998) 1 VR 381, 393. 116 Gray, Hunter & Speedy v Director-General of Queensland Corrective Services Commission (1990) 45 A Crim R 364, 370; Walker v R (1992) 60 A Crim R 463, 466. 111

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necessary in the circumstances.117 Edney suggests this sets a low evidential bar for deference. McEvoy v Lobban preceded statutory judicial review in Queensland. More recently, the courts have drawn a distinction between a legal right conferred on a prisoner by legislation and a privilege. Decisions about the latter are non-justiciable.118 In many cases the prison legislation itself will define a matter, for example access to a rehabilitation program, as a privilege. Nevertheless, a “hands off” approach is still evident in the case law. In Palmer v The Chief Executive, Qld Corrective Services & Ors, the Court of Appeal considered a decision to restrict the amount of legal documents the prisoner, who was prosecuting a case for damages for personal injuries, could keep in his cell at any time.119 The Court decided the decision was not justiciable but, even if it was, it would have remitted the matter to the trial judge to consider whether it was appropriate for the proceedings to continue. That related to the power under the Judicial Review Act 1991 (Qld) to stay or dismiss an application for relief if the court considers it inappropriate “for proceedings in relation to the application . . . to be continued” or “to grant the application”.120 In obiter remarks, Chesterman JA expressed a deferential approach121: these sorts of decisions, which concern the day to day running of a corrective services facility and impact on the safety of prisoners and staff, and concern the general management and efficiency of the centre as a whole, would unnecessarily and inappropriately interfere with the functions of the chief executive.

4.6

Specialist Expertise

In Enfield, while failing to endorse the Chevron principle, the High Court did identify circumstances in which deference may be shown to the expertise of the decision-maker. It said a court reviewing a decision of an administrative tribunal should attach great weight to the opinion of the Tribunal.122 Deference or Weight? In Enfield Gaudron J endorsed this statement of principle from Minister for Immigration & Multicultural Affairs v Eshetu123:

117

McEvoy v Lobban (1989) 48 A Crim R 412, 412–413. Palmer v The Chief Executive, Qld Corrective Services & Ors [2010] QCA 316, [30]. 119 Palmer v The Chief Executive, Qld Corrective Services & Ors [2010] QCA 316. 120 Judicial Review Act 1991 (Qld) s 48(1)(a). 121 Palmer v The Chief Executive, Qld Corrective Services & Ors [2010] QCA 316, [38]. 122 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, [45]. 123 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, 655. 118

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F. Kingham whilst it is for [a court] to determine independently for itself whether in a particular case a specialist tribunal has or lacks jurisdiction, weight is to be given, on questions of fact and usage, to the tribunal’s decision, the weight to vary with the circumstances. The circumstances will include such matters as the field in which the tribunal operates, the criteria for appointment of its members, the materials on which it acts in the exercise of its functions and the extent to which its decisions are supported by disclosed processes of reasoning.

Gageler J would call that reasoning deference in the first of the two meanings he identified: respectful regard for the judgment or opinion of another.124 Gaudron J also acknowledged the possibility of a court declining to make a different finding to a primary decision-maker, particularly one with expertise in the area concerned, if the evidence was substantially the same before the decisionmaker and the Court and minds might reasonably differ as to the proper finding.125 Kirby J explicitly recognized expertise in Minister for Immigration and Ethnic Affairs v Wu Shan Liang,126 observing that the Minister’s delegates were not untrained laymen and had obvious expertise for the performance of their functions and legal advice available to them. Similarly, “restraint” is called for where the subject matter of the decision involves a significant element of governmental policy or allocative determinations, making it more remote from ordinary judicial experience.127

4.7

Government Policy

The political, social, and economic dimensions of many administrative decisions explain the reluctance of both courts and tribunals to review government policy. Courts recognize the advantage that the administration has in formulating, altering and applying policy. This is a significant restraint. Policy pronouncement of government underlies most administrative decisions. Sometimes this is expressed as an issue of justiciability. In Precision Data Holdings Pty Ltd v Wills the High Court said that a determination does not involve an exercise of judicial power if the ultimate decision may be determined by considerations of policy.128 Where limitations on constitutional power may not translate into judicially manageable standards, as a matter of practice, the limit will not be justiciable.129 However, just because a standard is difficult to ascertain or apply does

124

Gageler (2015), pp. 151–156. Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, [60]. 126 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 250. 127 Re Minister for Immigration & Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30, [150]. 128 Precision Data Holdings Pty Ltd v Wills (1991) 173 CLR 167, 189. 129 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. 125

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not mean there is a lack of judicially manageable standards.130 The more a matter tends towards matters of policy (political), the more likely it is to be considered non-justiciable. Zines suggests the policy/judicial power antimony may stem from a concern that the determination of policy factors is contentious and controversial and may expose judges to criticism in an area where they have no special claim to expertise.131 Sir Anthony Mason argues the desire to maintain public confidence in the administration of justice may be a decisive factor in deciding the limits of judicial review.132 The most extensive consideration of the role of government policy in administrative decision-making was undertaken by Brennan J, then President of the AAT, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2).133 He noted justice in the individual case requires the Tribunal to make a decision on the circumstances of that case giving weight to relevant factors. However, inconsistency can bring the process into disrepute suggesting an arbitrariness which is incompatible with commonly accepted notions of justice. He identified policy as one of the most useful aids in achieving consistency and enhancing the sense of fairness and continuity of the administrative process. Testing a decision against a policy can assure its integrity. He said the Tribunal is entitled to treat non-binding policy as a relevant factor but cannot abdicate its function to determine the correct or preferable decision by merely deciding whether the decision conforms to relevant government policy. On appeal, Bowen CJ and Deane J said the Tribunal will have to determine what role policy plays in the context of the particular proceeding and “in the light of the need for compromise, in the interests of good government, between, on the one hand, the desirability of consistency in the treatment of citizens under the law, and, on the other hand, the ideal of justice in the individual case”.134 In some situations policy decisions may have a particular importance for certain individuals and this may overwhelm the general reluctance to review policy135: Despite the courts’ general reluctance to review policy, particularly at an abstract level, there are cases where the critical question is whether the established policy should be applied to an individual in particular circumstances or what weight should be given to policy, along with other relevant factors. Judicial review may be available in some of these cases. In some instances where the critical question relates to the application of policy, it is possible not to apply the policy without prejudicing the objects which the policy is designed to achieve.

130

Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) 126 FCR 354, 370; Al-Kateb v Godwin (2004) 219 CLR 562, 575; Thomas v Mowbray (2007) 233 CLR 307, 345, 352. 131 Zines (1997), p. 198. 132 Mason (2000a), p. 337. 133 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. 134 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 590–591 per Bowen CJ and Deane J. 135 Mason (1994), p. 10.

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In FAI v Winneke136 it was held that the decision of the government, including the Governor acting on the advice of Ministers, concerning a particular company, was reviewable where it dealt with matters that might be subject to a legitimate expectation. Such an expectation would arise from the nature of the decision: it might also arise from the existence of a regular practice which the affected person might reasonably expect to continue.137 In practice, it would be extremely difficult for the courts and tribunals to isolate and to ignore policy elements whilst otherwise reviewing decisions.138 Where the decision-maker has misconstrued the policy, the decision may be set aside. In a case where an executive decision-maker has specified criteria in a policy statement which is consistent with the statute and is not unreasonable, a decision ignoring the criteria will be, prima facie, bad.139 Similarly, a decision which fails in a particular case to recognize that policy criteria are satisfied may be considered unreasonable.140 Where there is no existing policy, it is largely for the decision-maker to determine which matters he or she considers material.141 Where the decision is a “one off decision, greater restraint should be exercised, but there seems no basis, beyond that, to seek to limit judicial review”.142 The lawfulness of a policy is an important consideration. It must be consistent with the statute. It must allow the Minister to take into account relevant considerations and not require the Minister to take into account irrelevant ones. It must not serve a purpose which is foreign to the purpose for which the discretionary power was created. Further, it cannot so truncate discretion as to preclude consideration of the merits of the individual case. Where government is administrating schemes within statutory limits set by Parliament, the courts will enquire whether government is doing properly what it has authority to do.143 In Australian Fisheries Management v PW Adams Pty Ltd144 the AAT applied a formula fixed by the agency’s policy to calculate an operator’s fishing quota. The policy was made to support an objective of the Fisheries Management Act 1991 (Cth) to allow fishers to have reasonable business aspirations while conserving resources. The Full Federal Court decided boat size, capacity and resources put 136

(1981) 151 CLR 342. Council of Civil Service Unions v Minister of Civil Service [1985] AC 374; Kioa v West (1985) 159 CLR 550. 138 Wilcox (1989), p. 71. 139 Administrative Review Council. 2003. The Scope of Judicial Review Discussion Paper. Part V – Proposed Considerations in Developing a Guide to the Scope of Judicial Review: 69–126. 140 Administrative Review Council. 2003. The Scope of Judicial Review Discussion Paper. Part V – Proposed Considerations in Developing a Guide to the Scope of Judicial Review: 69–126. 141 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, 375. 142 Administrative Review Council. 2003. The Scope of Judicial Review Discussion Paper. Part V – Proposed Considerations in Developing a Guide to the Scope of Judicial Review: 95. 143 Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218, 280 (Sheppard J), 302 (Wilcox J). 144 Australian Fisheries Management v PW Adams Pty Ltd (1995) 39 ALD 481. 137

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into the industry needed to be accounted for when allocating quotas. The policy failed to do so and was considered to be in conflict with the objective of the Act. There are real limits, though, to review of policy decisions which involve resource allocations based on uncertain science. In Arnold v Minister Administering Water Management Act 2000145 the Minister made a water sharing plan and regulations (together, “the plan”) pursuant to the Water Management Act 2000 (NSW), which reduced by 68 per cent the total long-term groundwater extraction entitlements from a particular source on the lower Murray River. Farmers affected by the reductions challenged the lawfulness of the plan. One of the issues involved the hydrogeological model on which the plan was based. The farmers argued it was so flawed that its use made the plan manifestly unreasonable or irrational. That was rejected by the judge reviewing the decision and, then, by the Court of Appeal which held that the Minister took into account flaws in the model. The Court of Appeal noted the difference of opinion between the experts who gave evidence before the primary judge. It accepted there were flaws in the hydrogeological model, particularly because some of the parameters it used were physically unrealistic. However, the real contest was whether the model was of no probative value and so flawed that no reasonable decision-maker in the Minister’s position could rely on it. The Minister relied on the opinions of several experts to determine the long-term extraction limit. The opposing expert accepted the sustainable yield values proposed by the model could be adopted as interim measures in an adaptive management process. Further, the plan had a number of measures built into it to mitigate any inaccuracy in the estimate of sustainable yield or recharge. In those circumstances, the Minister’s reliance on the model in making his decision was not manifestly unreasonable or irrational or illogical.146 Special leave to appeal to the High Court was refused. Further, courts will not necessarily defer to a policy which applies a different interpretation of a regulatory requirement than one earlier adopted by the Court. For example, in a case which involved requirements for a skilled-graduate visa, the applicant had to have undertaken studies which were “closely related” to the nominated skilled occupation for the visa. The Federal Court interpreted the phrase in the course of a proceedings about a decision on a visa. Subsequently, the Minister promulgated a policy which gave the phrase a different meaning. The Federal Court decided it would only depart from its earlier interpretation of the phrase if it was clearly wrong. The Court, therefore, did not apply the meaning fixed by policy.147 Deference to government policy is strong in merits review, even though the requirement to make the preferable decision gives more scope to ignore government policy. Recently, some tribunals have been given a stronger indication of the need to defer to government policy. In New South Wales, the NSW Civil and Administrative Tribunal must apply government policy in force at the time of the decision except to

145

Arnold v Minister Administering Water Management Act 2000 [2014] NSWCA 386. Arnold v Minister Administering Water Management Act 2000 [2014] NSWCA 386, [88]-[118]. 147 Prasad v Minister for Immigration and Citizenship (2012) 128 ALD 113. 146

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the extent that it is contrary to law or produces an unjust decision in the circumstances of the case. That is a mandatory requirement.148 In Western Australia, the State Administrative Tribunal must have regard to policy. Further, in a number of States and Territories, a Minister may certify whether there was a publicly available policy that related to the decision at the time it was made.149 Even without such a statutory indication of the desirability of deference, some authors argue tribunals such as the AAT should apply a “presumption in favour of relevant government policies (assuming that the ‘policy’ does not conflict with ‘hard law’ such as statute or regulation)”.150 A statutory discretion conferred in general terms must be exercised in accordance with reason and justice, not according to private opinion.151 As Brennan J observed, government policy provides an important basis for consistent decision-making. It enables those who might be affected by a discretion some insight into how their case might be viewed. Transparency about the way a regulatory discretion is exercised should assist in avoiding public suspicion that discretion is not exercised fairly or equitably.152 In considering whether to depart from government policies, courts and tribunals have observed a distinction between “high and low policy”. That distinction was identified by Brennan J, as he then was, in Re Becker and Minister for Immigration & Ethnic Affairs.153 He drew a distinction between policies made at a political level and those made at a departmental level. High policy is ministerial policy. It is subject to “ministerial responsibility” and is scrutinized by Parliament. Low policy comes from “soft law” issued by the department. This distinction fits neatly with Gageler J’s theory of judicial review, with political accountability guiding the intensity of the review on the continuum between deference and vigilance.154 There has been criticism of the suggestion that low policy lacks legitimacy because it lacks political accountability.155 The distinction is not universally accepted. Ministerial responsibility is not the only accountability channel that operates for administrative policies, as there are also parliamentary powers of

148

Cianfranco v Director General, Premier’s Department [2006] NSWADTAP 137, [26]. Victorian Civil and Administrative Tribunal Act 1998 s 57; State Administrative Tribunal Act 2004 (WA) s 28; Administrative Decisions Review Act 1997 (NSW) s 64; Northern Territory Civil and Administrative Tribunal Act 2014 s 48. 150 Asimow and Lubbers (2011), p. 69. 151 Re Becker and Minister for Immigration & Ethnic Affairs (1977) 15 ALR 696, 700. 152 Re Chief Commissioner of State Revenue and Pacific General Securities Ltd and Finmore Holdings Pty Ltd (No 2) [2005] NSWADTAP 54, [59]. 153 Re Becker and Minister for Immigration & Ethnic Affairs (1977) 15 ALR 696. 154 It was also the basis on which both the the Kerr and Ellicott Committees recommended that policy decisions of government ministers (high policy) be excluded from judicial review: Commonwealth Administrative Review Committee. 1971. Parliamentary Paper No 144/1971, [265]; R. J. Ellicott et al. 1973. Parliamentary Paper No 56/1973, [2.7]. 155 Edgar (2009), p. 144. 149

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review. Committee powers have been regarded as an effective form of political accountability, whereas ministerial responsibility is often seen as relatively ineffective. Further, Edgar argues that Minsters are as much accountable for departmental policies as they are for ministerial policies and that there is nothing inherently inferior about low level policies. They can be developed from interpretations of legislation, judicial review case law and merit review decisions. An example is a matrix of disciplinary penalties prepared by the Queensland Police Service to guide internal disciplinary decisions. The matrix used a number of criteria to indicate the nature of the penalty would be applied. On review, that policy was accepted, because it did not prelude decision-makers from considering each case on its individual merits.156 An example of the distinction in practice is afforded by the following cases. In a fisheries case, Re Aston,157 a Ministerial policy was applied. The policy had been determined at Federal-State Ministerial level after consultation with industry representatives and was given great weight. The Tribunal considered justice and fairness to others required the applicants to be treated the same as other applicants, unless there were special circumstances. In some social security decisions, though, departmental guidelines have been treated “warily” or not applied.158 In Re MT, the Tribunal had to consider whether the applicants were entitled to a special benefit. Applying departmental policy, they were not. The Tribunal reviewed the policy and found it to be fundamentally flawed. In the other social security case, Re Lumsden, the Tribunal ignored rather than reviewed the policy. In merits review, the individual circumstances of the applicant can assume greater significance than in judicial review. For example, where the policy results in a harsh outcome it may not be applied, even if it is lawfully made and otherwise sound.159 In some specialist tribunals, case law has identified factors to consider in determining whether a non-statutory policy should be applied. For example, in the land use context, the former Victorian Planning Appeals Board identified five factors to consider160: • • • • •

156

Whether it is based on sound planning principles Whether it is public Whether it has been formulated after public discussion How long it has been in operation Whether it has been continuously applied.

Compton v Deputy Commissioner Ian Stewart [2010] QCAT 384, [26]. Re Aston and Department of Primary Industries (1985) 8 ALD 666. 158 Re Lumsden and Secretary, Department of Social Security (1986) 10 ALN N225; Re MT and Secretary, Department of Social Security (1986) 4 AAR 295. 159 Ericson v Queensland Building Services Authority [2012] QCAT 13. 160 Australian Aluminium Shop Fitters and Glazing Contractors Pty Ltd v City of Fitzroy (1982) 1 PABR 47. 157

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Other factors identified in similar jurisdictions include: • Whether the policy is outdated or has been overtaken by a planning scheme161 • Whether the policy is designed to defeat a project known to be under consideration by a developer for a particular site; and • The compatibility of the policy with the objectives and provisions of relevant planning instruments and other policies of the relevant agency.162 There is ongoing debate about what role, if any, reviewing courts and tribunals should have in developing policy to guide administrative decision-making. One argument in favour of them doing so is the high level of skills or experience of tribunal members because of their qualifications for appointment or experience in reviewing decisions of a certain type. Guidance on interpretation questions and procedural issues may be appropriate. However, there are risks in providing guidance, particularly where subjective evaluations are involved.163

5 Privative Clauses and Deference Since the earliest days of federation, the Commonwealth Parliament sought to make certain decisions immune from review by the courts and the High Court has closely considered the constitutionality of such laws. Freckelton identified distinct phases in the High Court’s approach to privative clauses.164 He called the first phase from federation to Hickman, after the High Court decision of that name. An early example of a privative clause is s 31 of the Conciliation and Arbitration Act 1904 (Cth) which provided: No award of the Court shall be challenged, appealed against, reviewed, quashed or called into question or be subject to prohibition or mandamus in any other Court on any account whatever.

In the Tramways Case the High Court unanimously declared its constitutional power to review executive action could not be taken away by an ordinary act of Parliament.165 That bright line was blurred by the 1945 High Court decision, R v Hickman; Ex parte Fox and Clinton.166

161

Stella v Whittlesea City Council [2005] VCAT 1825. This was also nominated by Brennan J as a specific example of when policy may not be applied in Drake (No 2): Re Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634, 636. 162 Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254. 163 For a useful discussion of this topic, see Pearson (2010). 164 Freckelton (2013), p. 47. 165 R v Commonwealth Court of Conciliation & Arbitration; Ex parte Tramways (No 1) (Tramways case (No 1)) (1914) 18 CLR 54, 59, 68, 81, 83, 86. 166 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.

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In Hickman the privative clause was in almost identical terms to the clause considered in the Tramways Case. Consistent with the earlier decision, the High Court unanimously decided prohibition under s 75(v) was available, despite that provision. However, the obiter observations of Dixon J seemed to leave open a basis for reconciling a limit on the power of the decision-maker at the same time as providing that the decision operates free of any restriction. The Hickman Principle Dixon J said: But where the legislature confers authority subject to limitations, and at the same time enacts such a clause as is contained in reg 17, it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity.167

This led to elaborate and convoluted jurisprudence about privative clauses. Depending on how they were interpreted, they may have been upheld or found to be unconstitutional. Nevertheless, even during the period that the so-called Hickman principle was considered to be authoritative, the High Court never concluded a decision made by an officer who had exceeded their powers should stand because of a privative clause.168 The second phase of the High Court’s approach to privative clauses emerged in the vigorous tussle between the legislature and the judiciary in relation to migration law. Freckelton called this phase “the jurisdictional error qualification and the evisceration of Hickman”. In 2001, the Migration Act 1958 (Cth) was amended to include a definition of “privative clause decisions” (nearly all decisions of an administrative character made under the Act)169 and provided these were final and conclusive and protected from judicial review. In S157/2002 v The Commonwealth the High Court concluded the privative clause was not constitutionally invalid because it interpreted the words “decision under this Act” as used in the privative clause to mean a decision which did not involve jurisdictional error.170 If a decision was affected by jurisdictional error it is only a putative decision and, therefore, not a privative clause decision. Kerr J, formerly the President of the AAT, argues the High Court upheld the validity of the section only on the basis that it does not and cannot mean what it says.171

167

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, 616. Kerr (2005), p. 205. 169 Migration Act 1958 ss 474(2)-474(5). 170 S157/2002 v The Commonwealth (2003) 211 CLR 476, [9], [76], [104], [105], [162]. 171 Kerr (2005), p. 211. 168

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Do Privative Clauses Mean What They Say? Unlike the Tramways Case, the judgment in S157/2002 did not declare the privative clause invalid, but deprived it of its literal effect. A privative clause will be invalid if it is read literally, so as to deny to a court exercising jurisdiction under or derived from s 75(v) the ability to enforce the legal limits of the decision-making power which Parliament has conferred on the officer.172 However, a privative clause will be valid if it is read to expand the decision-making power conferred on the officer,173 or if it is read to affect what the officer may do within the limits of that power.174 Whether the same approach would be taken to a privative clause in State legislation is a live issue given the lack of an equivalent constitutional protection to s 75(v) in the State Constitutions. In any case, Kerr J argues the common law may recognize that the rule of law prevents State supreme courts from giving effect to a privative clause which directs them to treat as valid, purported, and otherwise void, administrative decisions.175 A recent refinement on the jurisprudence on privative clauses arises from clauses which purport to regulate the procedure of the Court when exercising its constitutional jurisdiction. The High Court has decided such a clause will be invalid176: . . .if and to the extent that it has the legal or practical operation of denying to. . . (the court). . . the ability to enforce the limits which Parliament has expressly or impliedly set on the decision-making power which Parliament has conferred on the officer.

Whether a law has that effect is a matter of substance, and therefore of degree. The Court will examine not just the legal operation of the law but also its practical impact on the court’s ability177: . . .through the application of judicial process, to discern and declare whether or not the conditions of and constraints on the lawful exercise of the power conferred on an officer have been observed in a particular case.

An example of a practical impact which transgressed that constitutional limitation was where a blanket and inflexible time limit was imposed for making an application for relief about a migration decision under s 75(v). The basis of invalidity was explained to be that, in failing to “allow for the range of vitiating circumstances which may affect administrative decision-making”, the section would have had the practical effect of depriving the High Court of its jurisdiction to enforce those

172

Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection (2017) 91 ALJR 890, [13]-[14]. 173 See, for example, Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168, 194. 174 See, for example, S157/2002 v The Commonwealth (2003) 211 CLR 476 [87]. 175 Kerr (2005), p. 214. 176 Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection (2017) 91 ALJR 890, [46]. 177 Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection (2017) 91 ALJR 890, [48].

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provisions of the Migration Act 1958 (Cth) which defined the decision-making power to make a migration decision.178 Another example of regulation of procedure arises from restrictions on the evidence available to the reviewing court. The High Court accepted that Parliament can constrain what evidence is admissible. The fact this handicaps a party does not mean the Court cannot exercise its jurisdiction.179 The fundamental principle is that admissible evidence can be withheld “only if, and to the extent, that the public interest renders it necessary”.180 It is the duty of the court to balance the competing public interests, not the privilege of the executive.181 An example of the Court determining Parliament got the balance wrong is Graham v Minister for Immigration. This case involved one aspect of a suite of legislative measures intended to crack down on the criminal activities of outlaw motorcycle gangs. The Minister is entitled to cancel the visa of a person who failed the character test. That test includes their membership of, or association with, a group that has been or is involved in criminal conduct. The Minister is entitled to act on information provided by a relevant investigative or law enforcement agency, which can certify the information must remain confidential (s 503A of the Migration Act 1958 (Cth)). That prevented a reviewing tribunal or court from accessing the information. An analogy with the public interest immunity was not helpful as, in those cases, the Court had access to the information, even if the public and parties did not. Section 503A prevented the court having access to material that was relevant to determining whether the power had been exercised lawfully. The majority found this was inconsistent with the Marbury principle and s 75(v) which secures a basic element of the rule of law. It amounted to a substantial curtailment of the capacity of the court to exercise its constitutional jurisdiction. To that extent, it was invalid.182 Examples of acceptable regulation of procedure on judicial review are clauses which: • Alter the onus of proof or standard of proof183; and • Modify, or abrogate, common law principles such as those governing the discretionary exclusion of evidence and affect the availability of privileges, such as legal professional privilege.184

178

Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651, [55]. Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532, [24] quoting Church of Scientology v Woodward (1982) 154 CLR 25, 61. 180 Sankey v Whitlam (1978) 142 CLR 1, 41. 181 Sankey v Whitlam (1978) 142 CLR 1, 38–39, 58–59, 95–96. 182 Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection (2017) 91 ALJR 890, [29]-[53]. 183 Nicholas v The Queen (1998) 193 CLR 173, [24], [123], [152]-[154]. 184 Nicholas v The Queen (1998) 193 CLR 173, 188–191 [23]-[26], [52]-[55], [232]-[238]. 179

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The existence of privative clauses may encourage deference by a court when reviewing a decision of an administrative tribunal. When on the High Court, Deane J recognized the legislative policy manifest in privative clauses, that specialist tribunals and decision-makers should be afforded deference arising from their specialization, the extent of their powers and the need to promptly determine disputes with less delay and expense than the courts.185 A similar sentiment was expressed by Kirby P, when President of the NSW Court of Appeal. He said a requirement to resort to the industrial appeals system prior to judicial review gives a proper place to a specialist tribunal with a ready knowledge of developments of jurisprudence under scrutiny and a superior armory of remedies.186

6 Deference to the Process: Procedural Fairness and Jurisdictional Error The scope of judicial review is defined in terms of the extent of power and legality of its exercise, not in terms of the protection of individual interests.187 That does not mean that judicial review does not operate to protect the rights and interests of the individual. The common law duty of procedural fairness insists on procedural due process to ensure fairness to a person who may be affected adversely by a decision. To that extent, procedural fairness is an aspect of the legality of decision-making.188 A breach of the rules of natural justice by an administrative tribunal constitutes jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it.189 This basal principle has been tested in the highly contested jurisdiction of migration law involving decisions made by the Refugee Review Tribunal and the Migration Tribunal. In a series of cases, the Commonwealth has challenged the court’s ability to review the legality of such decisions by recourse to procedural fairness. The Courts have taken a strict approach to either subordinate policy or amendments to legislation which sought to limit its ability to do so. Its tool has been statutory interpretation, the assumption being that the legislature would not intend to overthrow fundamental principles without expressing its intention with irresistible clearness.190 In S157/2002 v Commonwealth of Australia191 the High Court confirmed that a failure of procedural fairness is a jurisdictional error. Since that case, the High Court 185

Public Service Association (SA) v Federated Clerks’ Union (SA) (1991) 173 CLR 132, 148–149. Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501, 511. 187 Attorney-General (NSW) v Quinn (1990) 170 CLR 1, 36. 188 Mason (2000a), p. 332. 189 Craig v South Australia (1995) 184 CLR 163, 179. 190 Saaed v Minister for Immigration & Citizenship (2010) 241 CLR 252, [15], [58]. 191 S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. 186

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has decided that apprehended bias amounts to jurisdictional error, even in the absence of actual bias192 and that a refusal to permit an adjournment can amount to jurisdictional error.193 In another case, the High Court found an applicant did not get a fair hearing when there was a lengthy delay between hearing and the Tribunal’s decision. The decision turned on assessments of credit, based substantially on the tribunal’s observations of witnesses some four years before the decision was made. In that case, the applicant was denied a fair process which amounted to a denial of procedural fairness and a jurisdictional error.194 However, if not express, the requirement to afford procedural fairness will not necessarily be implied for all administrative decision-makers. For example, in S10/ 2011 v Minister for Immigration and Citizenship the High Court considered a “dispensing provision” under the Migration Act 1958 (Cth) which allowed the Minister to accept as valid a non-compliant application for a visa. The power was personal to the Minister, non-compellable and a final discretionary power under the Act. The High Court considered that combination of features meant the power was of such a nature that procedural fairness did not apply.195 An important aspect of procedural fairness involves consistency with international obligations. In Teoh’s case,196 the High Court had to consider the position of a Malaysian man facing deportation. He had lived many years in Australia and was the father of a number of children who were Australian citizens. The issue was whether the decision-maker should have taken into account the best interests of the children. Australia was a signatory to but had not implemented an international convention on the rights of the child which would have required that. The High Court decided there was a “legitimate expectation” that Australian officials would observe the undertakings it had made, even though the convention had not become part of domestic law. Subsequent decisions restricted the potential scope of the principle of legitimate expectation. It is now settled that legitimate expectation is an aspect of the principles of procedural fairness.197 That ensures the focus of judicial review is on the process of decision-making, not on the merits of the particular decision assessed against an international convention.

192

Minister for Immigration and Citizenship v SZJSS [2010] HCA 48. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 367. 194 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470. 195 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 290 ALR 616, 667–668. See also South Australia v O’Shea (1987) 163 CLR 378. 196 Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273. 197 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 290 ALR 616, [64]. 193

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7 Fact Finding and Jurisdictional Error The strict separation of powers means errors within jurisdiction are not amenable to judicial review. It also prevents merits review by the Courts. It allows, though, for judicial review where there has been a constructive failure to exercise jurisdiction because of jurisdictional error. If an administrative tribunal “falls into an error of law which causes it to identify a wrong issue, to ask itself the wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers”.198 Jurisdictional Error and Judicial Deference Once it is appreciated that it is the rule of law that requires the courts to grant whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise, it follows that there is very limited scope for the notion of “judicial deference” with respect to findings of an administrative body of jurisdictional facts.199

The term “jurisdictional fact” is used to identify a criterion that enlivens the power of the decision-maker to exercise a discretion.200 If the exercise of power is contingent on the actual existence of a state of facts, then the reviewing court can decide whether those facts exist or not.201 The question whether or not a particular factual issue is jurisdictional is a matter of statutory construction which requires both “objectivity” and “essentiality”. That is, the fact must exist (objectivity) and the absence or presence of the fact will invalidate action under the statute (essentiality).202 An example of a jurisdictional fact in the environmental and land use context is provided by the case of Australian Heritage Commission v Mt Isa Mines Ltd.203 Mt Isa Mines Ltd challenged the decision of the Australian Heritage Commission to register the land of and waters surrounding the Sir Edward Pellew Group of islands on the register of the national estate. The issue was whether the decision that the area met the definition of the national estate was a jurisdictional fact that was subject to review. The High Court found that it was not. Importantly, it observed the detailed mechanisms for public consultation and consideration by the Commission on that question. The Court found that, properly

198

Craig v South Australia (1995) 184 CLR 163, 179. Enfield City Corp v Development Assessment Commission (2000) 199 CLR 135, [59] (footnotes omitted). 200 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR, [28]. 201 Australian Heritage Commission v Mount Isa Mines Ltd (1995) 39 ALD 262, 270. 202 Timbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) 102 LGERA 52, [37]. 203 Australian Heritage Commission v Mt Isa Mines Ltd (1997) 187 CLR 297. 199

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construed, the determination of whether a place should be recorded is not subject to review if the Commission otherwise conducts itself according to law.204 Sometimes the power is conditioned upon the decision-maker having a particular state of satisfaction which turns upon matters of opinion, taste, or upon factual matters upon which reasonable minds could reasonably differ. Jurisdictional Fact and the Decision-Maker’s Opinion Courts are reluctant to intervene in the determination of a “jurisdictional fact” turning on the decision-maker’s satisfaction about circumstances205: Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.

The factual correctness of the opinion is not reviewable in the sense that the court cannot substitute the opinion it would have formed for the opinion of the administrative decision-maker.206 Depending on the statutory formulation, the courts may examine the foundation for the finding of jurisdictional fact. Where the fact, including a suspicion or belief, must be found “on reasonable grounds” there must be facts sufficient to induce that state of mind in a reasonable person207: . . .Therefore it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist.

However, it may be very difficult to show that the authority’s decision about that could not reasonably have been reached.208 In Minister for Immigration & Multicultural Affairs v Eshetu209 Gummow J declined to endorse a Wednesbury standard of unreasonableness to the finding of a jurisdictional “fact”. He considered the question is whether the findings or inferences of fact were supported by some probative material or logical grounds. If not, the court would intervene.

204

Australian Heritage Commission v Mt Isa Mines Ltd (1997) 187 CLR 297, 306. Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 627, quoting, with approval, the remarks of Lord Brightman in Puhlhofer v Hillingdon London Borough Council [1986] AC 484, 518. 206 Foley v Padley (1984) 154 CLR 349, 352–353, 370, 375. 207 George v Rockett (1990) 170 CLR 104, 112. 208 Buck v Bavone (1976) 135 CLR 110, 118–119. 209 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 LR 611, 654. 205

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8 Non-jurisdictional Fact Finding: What Test Applies? The same approach does not apply to non-jurisdictional facts. In Australian Broadcasting Tribunal v Bond210 Mason CJ said a finding of fact, including an inference drawn from primary facts, is not reviewable as it is no more than a step along the way to an ultimate determination. Non-jurisdictional Facts Are Not Subject to Review To expose all findings of fact. . .to judicial review would expose the steps in administrative decision-making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government.211

In the same case, Mason CJ said that whether there is any evidence for a particular fact is a question of law. Likewise whether a particular inference can be drawn from facts found or agreed is a question of law. However, want of logic is not synonymous with error of law. If there is some basis for the inference, even as a result of illogical reasoning, there is no scope for judicial review.212 There are a number of tests applied to non-jurisdictional facts. The limits of those tests are evolving through case law and determine the scope of deference in practice.

8.1

Wednesbury Unreasonableness

An undisputed ground of review in Australia for reasonableness of a decision is Wednesbury unreasonableness. The principle, derived from Associated Provincial Picture Houses v Wednesbury Corporation,213 renders void a decision that is so unreasonable that no reasonable authority could ever have come to it. In R v Quin Brennan J discussed whether “Wednesbury unreasonableness”214 opened the gate to judicial review of the merits of a decision or action taken within power. He did not think so215: Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power. . . Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is

210

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 340–341. 212 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355–356. 213 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. 214 The nomenclature comes from Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. 215 R v Quin (1990) 170 CLR 1, 36–37. 211

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extremely confined. As Professor Wade explains (Administrative Law, 6th ed. (1988), p. 407) in a passage cited with approval in Reg. v. Boundary Commission; Ex parte Foot: The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended.

The Wednesbury test does allow a decision that is ‘manifestly unreasonable’ to be set aside.216 Guidance in determining whether there is manifest unreasonableness can be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion.217 Freckelton argues this is deference by another name and that Australian courts provide a high degree of deference on findings of fact and matters of policy.218 There has been some reluctance by courts in Australia to find decisions void for Wednesbury unreasonableness.219 In practice the test is so strict that it requires something overwhelming. As a result, cases in which administrative decisions fail the tests are very rare. Some examples follow. In Payne v Deer220 the Supreme Court of Queensland overturned an administrative decision made by Chief Magistrate Deer in exercise of his power to allocate a Magistrate to a particular place. He had decided to appoint a Magistrate with primary responsibility for the day to day care of five young children to a place away from her home town within one month of her appointment as a Magistrate. De Jersey J decided this was an improper exercise of power as the decision could not reasonably have been made. Her status as carer of her five children overwhelmed the other aggregation of relevant circumstances. The timing of the allocation was important, given the Magistrate was willing to serve at the place she had been allocated to, provided she was given more time to make appropriate arrangements for her family. In Sunwater v Burdekin Shire Council,221 the Supreme Court of Queensland found a local authority’s decision to set a minimum general rate for a certain category of land was unreasonable in the Wednesbury sense because it produced anomalous results. The effect was that general rates had been levied in virtually all cases at a sum which exceeds the value of the land rising to a high of 700% of that value in one case. Generally, though, the requirement for unreasonableness is not an opportunity to challenge an evaluative judgment with which a court disagrees even though it is 216

Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. 218 Freckelton (2013), p. 59. 219 Hettiarachi (2007), p. 230. 220 Payne v Deer [2000] 1 Qd R 535. 221 Sunwater v Burdekin Shire Council (2002) 125 LGERA 23, [49]-[50]. 217

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rationally open to the decision-maker.222 Gageler J considers it is constrained by two principal considerations. Firstly, the stringency of the test itself. Secondly, the practical difficulty of a court being satisfied the test is met where the decisionmaker is an administrator and the decision is legitimately informed by considerations of policy.223 Courts are reluctant to intervene in decisions involving planning schemes and conditions on the grounds of unreasonableness. In Massie & Ors v Brisbane City Council the Queensland Court of Appeal said a challenger to an amendment to a planning scheme had a heavy burden if proceeding on the ground of unreasonableness. Such decisions involve broad questions of policy on which reasonable minds might provide different answers and it is for the decision-maker to address those questions.224 An example of insufficient weight amounting to unreasonableness can be found in the decision of a parole board in Queensland. In Bulger v Queensland Community Corrections Board225 the Court of Appeal concluded the Board had given insufficient weight to a sentencing judge’s non-binding recommendation that the prisoner’s parole period be reduced in light of his significant co-operation in numerous prosecutions. It considered the Board had an obligation to consider whether, in the public interest, the prisoner should be released on parole to encourage others who might be minded to give similar co-operation. Failing to do so resulted in a manifestly unreasonable decision. Recently, the High Court has contextualized the concept. In Minister for Immigration and Citizenship v Li, it said that Wednesbury should not be treated as either the “starting point” or the “end point” in determining the relevant standard. Instead it is the standard indicated by the “true construction of the statute” because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.226 In Li, the tribunal had refused an application to adjourn the hearing pending a new assessment of the applicant’s skills, a relevant factor for her application for a skilled student visa. The Court considered the Tribunal’s refusal was capricious and arbitrary. French CJ said the concept of unreasonableness implies a limitation that Parliament “never intended to authorize that kind of decision”.227 Hayne, Kiefel and Bell JJ said228: The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have

222

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [108]. 224 Massie & Ors v Brisbane City Council [2007] QCA 159, [41]. 225 Bulger v Queensland Community Corrections Board [1993] QCA 493. 226 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 364. 227 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 351. 228 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 364. 223

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limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognize that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified.

The proposition that unreasonableness may mean different things in different contexts has been criticized as having robbed the standard of any meaningful content.229 However, the standard of legal unreasonableness applies across a range of statutory powers with its “indicia. . . to be found in the scope, subject and purpose of the particular statutory provisions”.230 Li provides a link to what might otherwise be considered a distinct ground of review—irrationality and illogicality. Hayne, Kiefel and Bell JJ held “unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.231

8.2

Irrationality and Illogicality

The test of irrationality and illogicality emerged in the context of the litigation about privative clauses introduced into the Migration Act 1958 (Cth).232 The effect of the test is that a want of logic or rationality in administrative decision-making processes can give rise to jurisdictional error sufficient to afford relief under s 75(v) of the Constitution. There are important limits for review on this ground. Compelling criticism is insufficient and a decision may not be void even though the ultimate conclusion is one that most reasonable decision-makers would not reach.233 When Is a Decision Illogical, Irrational or Unreasonable? One formulation of the test is set out in the majority judgment of the High Court in Minister for Immigration v SZMDS234: If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusion to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion

229

McDonald (2014), p. 130. Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, 447. 231 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 367. 232 SZALDC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1497; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. 233 M v P [2011] QSC 350, [38]. 234 Minister for Immigration v SZMDS (2010) 115 ALD 248, [131]. 230

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The dissenting judgment of Gummow AJ and Kiefel J adopted a less rigorous test that had been propounded by Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v SGLB235: “the critical question is whether the determination was irrational, illogical and not based on findings of inferences of fact supported by logical grounds”.236 There is an important distinction between the two formulations. The minority test determines whether the decision-making process is rational and whether the findings or inferences of fact are supported by logical grounds. The majority test is less demanding and will not review a decision where a logical or rational mind could have made the determination, even if the reasons given by the decision-maker are not rational or logical. In A v Corruption and Crime Commissioner the Court of Appeal of Western Australia heard an appeal about a decision by the Commissioner that the public interest required release of CCTV footage relevant to an investigation and subsequent proceedings. The majority of the Court considered the public interest is multifaceted and, because the assessment of public interest will likely involve the evaluation of competing considerations, it will be a rare case in which the “process of evaluation and assessment could be said to lack an evident or intelligible justification”.237 In SZMDS the fact in issue was whether the applicant should be granted a visa on the basis of his claim to having a well-founded fear of persecution as a member of a social group, namely homosexuals. The Refugee Review Tribunal rejected his claim and did not accept he was homosexual. Ultimately, the majority in the High Court found those findings were open to the tribunal on the evidence. A decision is not illogical or irrational if a logical or rational person could reach the same decision on the evidence. An example of applying the more rigorous test is CMC v Assistant Commissioner JP Swindells.238 The Misconduct Tribunal was found to have fallen into error by failing to be satisfied that a police officer had assaulted a person in police custody. The Supreme Court of Queensland found the only rational and logical conclusion on the evidence before the Tribunal was that the assault took place. In those circumstances, the Tribunal’s failure to be “reasonably satisfied” of that fact was perverse.

235

Minister for Immigration and Multicultural Affairs v SGLB (2004) 78 ALD 224, 232–233 [38]. Minister for Immigration v SZMDS (2010) 115 ALD 248, [40]. 237 A v Corruption and Crime Commissioner [2013] WASCA 288, [129]. 238 CMC v Assistant Commissioner JP Swindells [2009] QSC 409, [13]. 236

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Proportionality

In the UK during the 1990s, a test of proportionality developed. The graver the impact of the decision on the affected person, the more substantial the justification will be required to uphold it. In Australia, the concept of proportionality has had its clearest expression in constitutional, not administrative, law. That is, it is applied in determining whether an impugned law is unconstitutional. Examples include defence laws239; the constitutional prohibition on restriction of free trade240; and the external affairs power when relied on to pass domestic legislation to give effect to an international treaty obligation.241 Although there are advocates, particularly in relation to rights based disputes,242 the concept of proportionality has not been accepted as a basis for judicial review because, potentially, it invokes a merits review.243 It may go further than the traditional grounds of judicial review and require review of the balance struck by the decision-maker within the range of rational or reasonable decisions.244 More recent refinements of the tests for unreasonableness, irrationality and illogicality may well shift the courts towards a proportionality assessment. Preston argues proportionality can be used as an indicator of unreasonableness in the Wednesbury sense.245 Freckelton argues Li is one small step on that journey.246

9 Conclusion The strict separation of powers in the Australian Constitution has profound implications for the administrative law system and for judicial review in Australia. The principle in Marbury is now generally accepted as a principle of administrative as well as constitutional law. Commonwealth courts cannot be invested with administrative functions and merits review of administrative decisions is considered to be beyond the scope of judicial power. The courts are reluctant to review political decisions, but the demarcation between the legal and the political is hard to draw. Some types of decisions and decisions by some institutions in the political system, are considered to be 239

Leask v Commonwealth (1996) 187 CLR 579, 601. Betfair Pty Ltd v State of Western Australia (2008) 234 CLR 418, [101]. 241 Commonwealth v Tasmania (1983) 158 CLR 1, 260 (Tasmanian Dam Case). 242 Hettiarachi (2007), pp. 223–251. 243 Administrative Review Council. 2012. Federal Judicial Review in Australia. Report No 50/2012, [3.30]. 244 Regina (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, 547. 245 Preston (2006), p. 36. 246 Freckelton (2014), p. 79. 240

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non-justiciable because they are inherently political. It seems, though, that the political nature of the decision or decision-maker will more likely affect the intensity of the review and, perhaps, the standard of reasonableness. This fits with Gageler J’s argument that judicial review should be responsive to the level of political accountability of the decision-maker. Further, courts will give weight to the expertise of the decision-maker and to government policy in deciding whether to conduct the review and to what extent. The distinction between high and low policy is controversial and, generally, courts and tribunals are reluctant to either review or ignore government policy. Judicial review is confined to the review of the legality of an administrative decision. Substantial statutory reform of judicial review has not reduced the fundamental importance of that distinction. A court will intervene if it perceives there has been an error of law, but not otherwise. Vigilance by the High Court about its constitutional role in reviewing administrative decisions has ensured that privative clauses are narrowly interpreted to preserve the Court’s function. Where possible, they will be read to maintain the Court’s supervisory jurisdiction. The concept of jurisdictional error has played a critical role in the High Court’s approach to these clauses. However, what is a legal or “jurisdictional” error is somewhat flexible. Denial of procedural fairness is an error of law. An erroneous finding of fact is not an error of law unless it is a jurisdictional fact or if that finding results in a decision which is legally unreasonable. In practice, identification of a jurisdictional fact might draw the courts into merits review. That is checked by formulations of jurisdictional facts which rest on the decision-maker’s satisfaction as to a fact or circumstance. Provided there is a reasoned basis for that state of satisfaction, the courts will not review a finding about that sort of jurisdictional fact. As for unreasonableness, the scope of that ground of review is more nuanced than suggested by the very high threshold set by the Wednesbury test: a decision so unreasonable that no reasonable decision-maker could have made it. It is now accepted that legal unreasonableness is contextualized by reference to the statute governing the decision. An irrational or illogical decision may be legally unreasonable, justifying review. Although the courts do not apply a test of proportionality to administrative decisions, there is some connection between that concept and irrational or illogical decision-making. That is an accepted ground of review. Lack of proportionality may be used as an indicator that the decision is irrational, illogical or unreasonable in the legal sense. 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. Much of the law of judicial review involves appeals from or reviews of decisions by administrative tribunals. A well-resourced tribunal sector led by professional experts can meet the needs of first instance review on the merits, allowing the courts to intervene only where there is legal error.

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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. Recognition of the expertise of administrative decision-makers may lead to greater deference, even in matters of interpretation. That is more likely to reflect Gageler J’s first meaning of deference: respectful regard for the judgment or opinion of another. The second meaning of deference identified by Gageler J is respectful acknowledgement of the authority of another. Overt application of that form of deference is constrained by the full expression given to the Marbury principle which exclusively allocates to the courts the function of saying “what the law is”.

References A v Corruption and Crime Commissioner [2013] WASCA 288 Act No 31 of 1855-56 (SA) Administrative Decisions (Judicial Review) Act 1989 (ACT) Administrative Decisions Review Act 1997 (NSW) Administrative Law Act 1978 (Vic) Administrative Review Council (2011) Proposed Considerations in Developing a Guide to the Scope of Judicial Review. Administrative Review Council. https://www.arc.ag.gov.au/Docu ments/jrpart5.htm. Accessed October 2017 Administrative Review Council, 2012, Federal Judicial Review in Australia Al-Kateb v Godwin (2004) 219 CLR 562 Arnold v Minister Administering Water Management Act 2000 [2014] NSWCA 386 Aronson M, Dyer B (2000) Judicial review of administrative action. LBC Information Services, Sydney Asimow M, Lubbers JS (2011) The merits of “merits review”: a comparative look at the Australian administrative appeals tribunal. Aust Inst Adm Law Forum 67:58–79 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 Attorney General v Quinn (1990) 170 CLR 1 Attorney-General (NSW) v Quinn (1990) 170 CLR 1 Aurukun Shire Council & Anor v EO Office of Liquor Gaming and Racing in the Department of Treasury [2010] QCA 37 Australia Act 1986 (Cth) Australia Act 1986 (UK) Australian Aluminium Shop Fitters and Glazing Contractors Pty Ltd v City of Fitzroy (1982) 1 PABR 47 Australian Broadcasting Commission Staff Association v Bonner (1984) 2 FCR 561 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Australian Capital Territory Civil and Administrative Tribunal Act 2008 (ACT) Australian Communist Party v Commonwealth (1951) 83 CLR 1 Australian Constitution Australian Courts Act 1828 (Imp) Australian Fisheries Management v PW Adams Pty Ltd (1995) 39 ALD 481 Australian Heritage Commission v Mount Isa Mines Ltd (1995) 39 ALD 262 Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Limited (1998) 194 CLR 247 Bayne P (1991) The court, the parliament and the government – reflections on the scope of judicial review. Fed Law Rev 20:1–49 Betfair Pty Ltd v State of Western Australia (2008) 234 CLR 418

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Binse v Williams (1998) 1 VR 381 Blackstone W (1765–1769) Commentaries on the Laws of England, vol 1. Oxford Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Buck v Bavone (1976) 135 CLR 110 Bulger v Queensland Community Corrections Board [1993] QCA 493 Chevron USA Inc v Natural Resources Defense Counsel, Inc (1984) 467 US 837 Church of Scientology v Woodward (1982) 154 CLR 25 Cianfranco v Director General, Premier’s Department [2006] NSWADTAP 137 CMC v Assistant Commissioner JP Swindells [2009] QSC 409 Commonwealth, Commonwealth Administrative Review Committee, Parl Paper No 144 (1971) Commonwealth, Report of the Committee of Review of Prerogative Writ Procedure, Parl Paper No 56 (1973) Commonwealth of Australia Constitution Act Commonwealth v Tasmania (1983) 158 CLR 1 Compton v Deputy Commissioner Ian Stewart [2010] QCAT 384 Constitution Act 1867 (Qld) Constitution Act 1889 (WA) Constitution Act 1902 (NSW) Constitution Act 1934 (SA) Constitution Act 1934 (Tas) Constitution Act 1975 (Vic) Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Council of Civil Service Unions v Minister of Civil Service [1985] AC 374 Craig v South Australia (1995) 184 CLR 163 Creyke R (1998) The criteria and standards for merit review by administrative tribunals. Law Policy Pap 9:1 Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 Drake (No 2): Re Drake and Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634 Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR 409 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Edgar A (2009) Tribunals and administrative policies: does the high or low policy distinction help? Aust J Adm Law 16:143–161 Edney R (2001) Judicial deference to the expertise of correctional administrators: the implications for prisoners’ rights. Aust J Hum Rights 7(1):91–133 Egan v Willis (1998) 73 ALJR 75 Enfield City Corp v Development Assessment Commission (2000) 199 CLR 135 Ericson v Queensland Building Services Authority [2012] QCAT 13 Ex parte Walsh [1942] ALR 359 FAI Insurances Ltd v Winneke (1981-82) 151 CLR 342 Fencott v Muller (1983) 152 CLR 570 Flynn v King (1949) 79 CLR 1 Foley v Padley (1984) 154 CLR 349 Freckelton A (2013) The concept of “deference” in judicial review of administrative decisions in Australia – Part 2. Aust Inst Adm Law Forum 74:46–61 Freckelton A (2014) The changing concept of ‘unreasonableness’ in Australian administrative law. Aust Inst Adm Law Forum 78:61–81 Gageler S (2009) Beyond the text: a vision of the structure and function of the constitution. Aust Bar Rev 32:138–157 Gageler S (2015) Deference. Aust J Adm Law 22:151–156

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George v Rockett (1990) 170 CLR 104 Gerhady v Brown (1985) 159 CLR 70 Gleeson M (2004) The centenary of the high court: lessons from history. Paper presented at the Thirteenth AIJA Oration in Judicial Administration, AIJA, Melbourne, 2004 Gleeson J, Yezerski R (2013) The separation of powers and the unity of the common law. In: Gleeson J, Watson J, Higgins R (eds) Historical foundations of Australian law, vol I. The Federation Press, Annandale Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection (2017) 91 ALJR 890 Gray, Hunter & Speedy v Director-General of Queensland Corrective Services Commission (1990) 45 A Crim R 364 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532 Hall AN (1981) Administrative reviews before the administrative appeals tribunal – a fresh approach to dispute resolution? Fed Law Rev 12(1):71–94 Hettiarachi P (2007) The sacred and the profound: judicial review and rights, proportionality and deference to executive conduct. Aust Bar Rev 29(3):223–251 Hogg P (1969) Judicial review of action by the crown representative. Aust Law J 43:215–222 Judicial Review Act 1991 (Qld) Judiciary Act 1903 (Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Kehl v Board of Professional Engineers [2010] QCATA 58 Kerr D (2005) Private clauses and the courts: why and how Australian courts have resisted attempts to remove the citizen’s right to judicial review of unlawful executive action. Queensland Univ Technol Law J 5(2):195–215 Kioa v West (1985) 159 CLR 550 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Leask v Commonwealth (1996) 187 CLR 579 Lloyd v Wallach (1915) 20 CLR 299 M v P [2011] QSC 350 Mabo v Queensland (No 2) (1992) 175 CLR 1 Maitland FW (1919) The constitutional history of England. University Press, Cambridge Marbury v Madison 5 US (1 Cranch) 137 Mason A (1994) The importance of judicial review of administrative action as a safeguard of individual rights. Aust J Hum Rights 1(1):3–11 Mason A (2000a) Judicial review: a view from constitutional and other perspectives. Fed Law Rev 28:331–343 Mason A (2000b) The high court as gatekeeper. Melbourne Univ Law Rev 24(3):784–796 Massie & Ors v Brisbane City Council [2007] QCA 159 Maxwell v The Queen (1996) 184 CLR 501 McDonald L (2014) Rethinking unreasonableness review. Public Law Rev 25:117–133 McEvoy v Lobban (1989) 48 A Crim R 412 McGinty v Western Australia (1996) 186 CLR 140 Migration Act 1958 (Cth) Mineral Resources Act 1989 (Qld) Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 75 ALR 218 Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 65 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZJSS [2010] HCA 48

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Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 250 Minister for Immigration and Multicultural Affairs v SGLB (2004) 78 ALD 224 Minister for Immigration v SZMDS (2010) 115 ALD 248 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 Nelson W (1972) Changing constitutional conceptions of judicial review: the evolution of constitutional theory in the states. Univ Pa Law Rev 120:1166 New South Wales Administrative Decisions Review Act 1997 (NSW) New South Wales Civil Administrative Tribunal Act 2013 (NSW) New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337 New South Wales v Commonwealth (Wheat case) (1915) 20 CLR 54 Nicholas v The Queen (1998) 193 CLR 173 Northern Territory Civil Administrative Tribunal 2014 (NT) Official Record of the Debates of the Australasian Federal Convention, Adelaide, 20 April 1897 Official Record of the Debates of the Australasian Federal Convention, Melbourne, 31 January 1898 Palmer v The Chief Executive, Qld Corrective Services & Ors [2010] QCA 316 Payne v Deer [2000] 1 Qd R 535 Pearson L (2010) Planning principles and precedents in merits review. Paper presented at ACPECT Conference, 2010 Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) 126 FCR 354 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 290 ALR 616 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 Prasad v Minister for Immigration and Citizenship (2012) 128 ALD 113 Precision Data Holdings Pty Ltd v Wills (1991) 173 CLR 167 Preston B (2006) Judicial review of illegality and irrationality of administrative decisions in Australia. Aust Bar Rev 28:17–42 Public Service Association (SA) v Federated Clerks’ Union (SA) (1991) 173 CLR 132 Puhlhofer v Hillingdon London Borough Council [1986] AC 484 Queensland Building Services Authority v Meredith [2010] QCAGTA 50 Queensland Civil Administrative Tribunal Act 2009 (Qld) R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415 R v Commonwealth Court of Conciliation & Arbitration; Ex parte Tramways (No 1) (Tramways case (No 1)) (1914) 18 CLR 54 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (1910) 11 CLR 1 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ case) (1956) 94 CLR 254 R v Quin (1990) 170 CLR 1 R v Quinn; Ex parte Consolidated Food Corporation; (1977) 138 CLR 1 R v Richards; ex parte Fitzpatrick & Browne (1955) 92 CLR 157 R v Toohey; ex parte The Northern Land Council (1981) 151 CLR 170 Re Aston and Department of Primary Industries (1985) 8 ALD 666 Re Becker and Minister for Immigration & Ethnic Affairs (1977) 15 ALR 696 Re Chief Commissioner of State Revenue and Pacific General Securities Ltd and Finmore Holdings Pty Ltd (No 2) [2005] NSWADTAP 54 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 Re Greenham and Minister for the Capital Territory (1979) 2 ALD 137 Re Lumsden and Secretary, Department of Social Security (1986) 10 ALN N225 Re Minister for Immigration & Multicultural Affairs; Ex parte S20/2002 [2003] HCA 30 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59

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Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Re MT and Secretary, Department of Social Security (1986) 4 AAR 295 Re Wakim; Ex parte McNally (1999) 198 CLR 511 Regina (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 Richardson v Forestry Commission (1988) 164 CLR 261 S157/2002 v The Commonwealth (2003) 211 CLR 476 Saaed v Minister for Immigration & Citizenship (2010) 241 CLR 252 Sackville R (2000) The limits of judicial review of executive action – some comparisons between Australia and the United States. Fed Law Rev 28(2):315–330 Sankey v Whitlam (1978) 142 CLR 1 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 Shi v Migration Agents Registration Authority (2008) 248 ALR 390 South Australia v O’Shea (1987) 163 CLR 378 South Australian Civil and Administrative Tribunal Act 2013 (SA) Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 State Administrative Tribunal Act 2004 (WA) Statute of Westminster Adoption Act 1942 (Cth) Stella v Whittlesea City Council [2005] VCAT 1825 Stewart v Lewis (1993) 70 A Crim R 83 Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 Sunwater v Burdekin Shire Council (2002) 125 LGERA 23 Superannuation (Resolution of Complaints) Act 1993 (Cth) Supreme Court Act 1867 (Qld) Supreme Court Act 1880 (WA) Supreme Court Act 1890 (Vic) Supreme Court Ordinance 1861 (WA) SZALDC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1497 Thomas v Mowbray (2007) 233 CLR 307 Timbarra Protection Coalition Inc v Ross Mining NL & Ors (1999) 102 LGERA 52 Victorian Civil and Administrative Tribunal Act 1998 (Vic) Walker v R (1992) 60 A Crim R 463 Western Australia v Commonwealth (1975) 134 CLR 201 Wilcox M (1989) Judicial review and public policy. Canberra Bull Public Adm 58 Winterton G (2003) The communist party case. In: Lee H, Winterton G (eds) Australian constitutional landmarks. Cambridge University Press, Cambridge, pp 108–144 Woodward v Minister for Fisheries [2000] NSWADT 143 Zines L (1997) The high court and the constitution. Butterworths, Sydney

Fleur Kingham is the President of the Land Court of Queensland. Prior to that appointment in August 2016, she served 10 years as a Judge of the District, Children’s, and Planning and Environment Courts of Queensland. President Kingham has also held positions on Tribunals, including 6 years as Deputy President of the Land and Resources Tribunal and, in her capacity as a District Court Judge, 3 years as the inaugural Deputy President of the Queensland Civil and Administrative Tribunal.

Comparer la déférence judiciaire : regards canadiens vers l’extérieur Nicolas Lambert

Abstract 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.

N. Lambert (*) Faculté de droit, Université de Moncton, Moncton, NB, Canada e-mail: [email protected] © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_4

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1 Introduction Au Canada, la notion de déférence a un double sens : une forme de validation judiciaire de l’action administrative, et deuxièmement, elle s’exprime dans la recherche d’une neutralité judiciaire – une standardisation de la méthodologie judiciaire d’interprétation de la loi. Cette confusion entre la substance et forme témoigne d’une part des origines jurisprudentielles du droit administratif canadien, et d’autre part de l’importance qu’exerce les fameux « brefs de prérogative » sur la pensée juridique anglo-saxonne. Comme on le sait, les droits en common law ont été « secrétés par les interstices de la procédure ». En effet, au Canada, c’est le juge ordinaire qui est le gardien ultime de la légalité administrative. L’absence de privilège juridictionnel de l’administration accentue le clivage entre l’expertise de l’administrateur et le pouvoir judiciaire. Par ailleurs, contrairement au continent européen où le juge judiciaire s’est vu restreint de l’extérieur,1 la déférence judiciaire au Canada est une histoire d’autolimitation. Par exemple, au début du XXe siècle, l’accroissement de pouvoirs de l’administration a été vu comme une forme de « despotisme » nécessitant des limites établies et sanctionnées par le pouvoir judiciaire.2 Or, la dépression économique des années 30 et la Seconde Guerre mondiale correspondent pour leur part à une mise en cause judiciaire de l’état providence, et par après, à une déférence excessive envers l’autorité exécutive. Par exemple, dans un jugement caractérisant la soumission du pouvoir judiciaire envers l’exécutif, Lord Atkin a critiqué ses confrères d’être « more executive-minded than the executive ».3 Dans cette cause, la House of Lords a choisi de ne pas contester le bien-fondé d’une détention d’un particulier soupçonné « d’associations hostiles » avec l’ennemi. Aujourd’hui, Liversidge v Anderson est vu comme un cas de déférence extrême, s’expliquant plus par le contexte d’urgence caractérisant l’Angleterre des années 40 que par une passivité judiciaire systémique.4 Ainsi, si la déférence ne suppose ni soumission judiciaire aveugle, elle devient un notion de plus en plus discutée. La Cour suprême du Canada utilise d’ailleurs « retenue » et « déférence » comme synonymes. Elle souligne : « la notion de [traduction] « retenue au sens de respect » n’exige pas de la cour de révision [traduction] « la soumission, mais une attention respectueuse aux motifs donnés ou qui pourraient être donnés à l’appui d’une décision ».5 En d’autres termes la déférence ne viserait pas le résultat particulier, mais la manière de l’atteindre. 1

Décret du 16 fructidor an III : « Défenses itératives sont faites aux tribunaux de connaître des actes d’administration, de quelque espèce qu’ils soient, aux peines de droit. » 2 Hewart (1929). 3 Liversidge v Anderson [1941] UKHL 1. 4 Nakkuda Ali v Jayaratne [1951] AC 66 disant que l’administration doit avoir des motifs réels pour ses actes; au Canada, voir R v Storrey [1990] 1 S.C.R. 241 décrivant les pouvoir d’arrestation des agents de police, tiré de la dissidence de Lord Atkin, ibid. 5 Dunsmuir c. Nouveau-Brunswick, [2008] 1 R.C.S. 190, 2008 CSC 9 au para 48, citant D. Dyzenhaus, « The Politics of Deference: Judicial Review and Democracy », dans M. Taggart, dir., The Province of Administrative Law (1997), 279, p. 286.

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Ainsi, la question n’est pas de savoir si la déférence joue un rôle en droit administratif – on sait qu’elle joue un certain rôle, ce que représente cette approche définitionnelle. En effet, il ne manque d’ailleurs pas d’écrit sur la déférence en droit administratif.6 Mais le problème est que la déférence est de plus en plus vue comme sa dimension principale, de telle sorte que le droit administratif devient en quelque sorte le « droit de la déférence judiciaire ». Alors que Dicey distinguait entre « contrôle interne » et « contrôle externe », la question qui se pose aujourd’hui n’est pas au niveau de l’autorité de contrôle, mais au statut juridique de la déférence dans le droit administratif. L’objet de cette étude est de jeter des regards généraux sur le droit canadien afin d’y permettre une comparaison avec d’autres pays. En même temps, nous chercherons à démontrer qu’il n’est pas opportun de comparer la déférence – en tant que « validation » judiciaire - puisqu’elle relative et contingente au contexte. Ainsi, si la différence n’est pas entre le caractère interne ou externe du contrôle, on peut constater une différence de perception du rôle du droit dans la description de ce contrôle.

2 ARRIÈRE-PLAN CONCEPTUEL DE LA DÉFÉRENCE Quand on compare le droit administratif en common law avec la variante européenne, il est courant de tirer des conclusions rapides en se fiant aux seules apparences. Ainsi, avant d’entrer dans le vif du sujet, il convient de voir comment la déférence judiciaire est entourée de notions voisines qui témoignent de son caractère récurrent. Elles forment l’ossature du droit public canadien et on ne saurait les ignorer, surtout si on cherche à expliquer le droit public canadien aux étrangers. Ainsi, bien qu’elle se voit de plus en plus comme un thème central du droit administratif canadien, la déférence doit être vue en contexte – en particulier celui d’un juge de plus en plus actif dans la vie du pays.

2.1

Immunité de la Couronne

Les origines historiques de la déférence peuvent se retrouver dans la notion d’immunité de la Couronne. Cette notion est illustrée par la maxime « le roi ne peut malfaire ».7 En droit public canadien, cela signifie que les entités souveraines au Canada – le pouvoir fédéral et provincial – exécutif et législatif – ne peuvent être tenus responsables pour un acte délictuel causant préjudice à un individu. La Couronne bénéficie donc l’une « immunité » générale de poursuite en responsabilité, 6 7

Daly (2012) and Lewans (2016). Hogg et al. (2011).

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sauf dans les cas où la poursuite est autorisée, soit par la common law, ou par la législation, voire la constitution. Au départ, cette doctrine était beaucoup plus large qu’elle ne l’est aujourd’hui. L’image d’une peau de chagrin est appropriée, particulièrement en matière de contestation de la légalité. Par exemple, jusqu’aux années 60, avant les réformes procédurales des brefs de prérogatives ouvrant droit à une demande unique de « révision judiciaire », la règle de common law voulait que la Couronne ne puisse émettre un bref de prérogative contre elle-même. Par exemple, dans Liversidge v Anderson, le bref d’habeas corpus est dirigé contre le Ministre personnellement – Sir John Anderson. Aujourd’hui, le recours serait intitulé « Liversidge v Secretary of State » parce que les recours ne sont plus vus comme des litiges privés entre particuliers.8 En revanche, en matière de contestation de responsabilité, l’immunité joue encore un rôle important. La raison de cette dualité est que lorsque la Couronne agit pour son propre compte – par opposition à celui des particuliers, elle n’est pas liée par les lois et règlements sauf si ces mêmes lois le prescrivent. Par exemple, lorsque la Couronne fédérale ou provinciale construit un bâtiment, elles ne sont pas liées par un règlement de construction, sauf si la loi l’exige en disant « cette loi lie la couronne ». Une autorité policière n’est pas liée par les limites de vitesse lorsqu’elle appréhende un criminel. En revanche les autorités publiques ne peuvent abuser de leur immunité.9 Un premier ministre qui abuse de son pouvoir politique pour faire retirer un permis d’alcool d’un restaurateur pourra être tenu personnellement responsable de l’abus.10 L’immunité de la Couronne est donc une règle de common law prévoyant que le législateur peut élargir la responsabilité de la Couronne s’il le souhaite. L’immunité de la Couronne ne signifie donc pas que les particuliers ne peuvent pas contester les actes de l’administration par la révision judiciaire – ils le peuvent pleinement. Même dans les cas où le législateur tente d’interdire la révision judiciaire par l’édiction d’une clause « privative », le pouvoir judiciaire rappelle au législateur le fondement constitutionnel de son autorité. En effet, au Canada, le pouvoir judiciaire tire ses pouvoirs de révision l’article 96 de la Loi constitutionnelle de 1867 – l’article prévoyant la nomination des juges des cours supérieures (les seules cours habiletés à exercer la révision judiciaire du fait de leur compétence « inhérente »). Comme l’a dit le juge en chef de la Cour suprême du Canada, Bora Laskin : chaque fois que le législateur provincial prétend soustraire l’un des tribunaux créé par la loi à toute révision judiciaire de sa fonction d’adjuger, et que la soustraction englobe la compétence, la loi provinciale doit être déclarée inconstitutionnelle parce qu’elle a comme conséquence de faire de ce tribunal une cour au sens de l’art. 96.11

8

Malgré l’issue particulière de cette cause, l’habeas corpus a toujours été un bref qui faisait abstraction de l’immunité royale. Voir Hogg,Monahan, Wright, ibid., à la p. 62. 9 Elles ne peuvent pas librement vendre de la drogue pour attirer des criminels: R. c. Campbell, [1999] 1 R.C.S. 565. 10 Roncarelli c. Duplessis, [1959] R.C.S. 121. 11 Crevier c. P.G. (Québec) et autres, [1981] 2 R.C.S. 220 à la p. 235.

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Ce que le juge en chef veut dire est que donner effet à une clause privative permettrait aux législatures provinciales de créer des tribunaux judiciaires sans passer par le processus de nomination judiciaire fédéral créé par l’article 96. L’argument est tenu, et ne dit rien quant à la validité des clauses privatives créées par la législation fédérale.12 Par ailleurs, le juge Laskin dit que le choix est soit d’ignorer les clauses privatives, soit de leur donner un effet total. En pratique, nous verrons que la solution actuelle est plutôt d’utiliser l’existence d’une clause privative comme facteur favorisant l’exercice de plus de déférence. La position du pouvoir judiciaire est la même que lorsqu’il s’agit de la déférence envers le pouvoir exécutif et administratif : il y porte une attention particulière, sans que cela lui dicte une solution dans un sens ou dans un autre. En revanche, malgré le fondement constitutionnel de la révision judiciaire, la révision judiciaire retrouve néanmoins ses limites dans l’immunité de la Couronne – l’ancienne règle de common law. En particulier, cette règle signifie que le pouvoir judiciaire ne peut enjoindre la Couronne à agir, ou forcer l’exécution de ses jugements contre l’administration. Il n’existe pas de sanction judiciaire ou d’exécution forcée de jugements contre l’administration. Dans les rares cas où l’administration ignore un jugement favorable à un particulier, c’est le ministre personnellement qui devra répondre au pouvoir judiciaire à travers un recours pour outrage au tribunal et non la Couronne dans son ensemble.13 En revanche, ce problème ne s’est pas encore posé au Canada.

2.2

Justiciabilité du litige

Le prochain volet de la déférence est que cette dernière doit se comprendre comme le revers d’un pouvoir judiciaire qui joue un rôle de plus en plus actif dans la vie du pays, et ce en particulier grâce au développement de la procédure. Par exemple, dans les pays de common law, la révision judiciaire n’est pas vue comme une actio popularis du droit romain, mais le moyen de sanctionner un préjudice personnel. Pour ce qui est de la nature des litiges « justiciables », il est généralement reconnu que seule une personne directement touchée par un acte de l’administration peut en contester la légalité par le biais de la révision judiciaire. En revanche, il existe de nombreuses lois et décisions qui par leur nature, ne touchent aucune personne directement et de ce fait, pourraient acquérir une immunité de fait. Ainsi, au début des années 70, sous l’impulsion des droits fondamentaux de la personne, le juge canadien reconnut qu’appliquer la doctrine de l’intérêt pour agir au niveau constitutionnel pourrait donner une immunité de fait à la loi.14 Les 12

Les clauses privatives fédérales et provinciales obéissent même régime bien que la justification dans Crevier ne visait que le pouvoir provincial. Pour un exemple de clause fédérale, voir MacMillan Bloedel Ltd. c. Simpson, [1995] 4 R.C.S. 725. 13 Voir l’exemple britannique de M. v. Home Office [1994] 1 AC 377. 14 Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138.

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réformes constitutionnelles de 1982 confirmèrent cette jurisprudence en disant à l’article 52(1) de la Loi constitutionnelle de 1982: La Constitution du Canada est la loi suprême du Canada; elle rend inopérantes les dispositions incompatibles de toute autre règle de droit.

Dans ces circonstances, lorsqu’un particulier n’est pas directement touché par une acte administratif ou législatif,15 il peut en demander la révision judiciaire à condition de démontrer : des motifs de contrôle sérieux, un intérêt légitime à la cause, et enfin, bien qu’il ne faille plus démontrer qu’il n’y ait pas d’autres voies de recours disponibles, ils doivent néanmoins démontrer que le moyen utilisé est un recours raisonnable.16 Cela veut pas dire que les juges au Canada ne se voient pas comme les conseillers juridiques du gouvernement, mais plutôt comme les responsables de la résolution de conflits nés et actuels.17 En revanche, il existe des mécanismes législatifs permettant aux autorités exécutives de poser une question au pouvoir judiciaire (le « renvoi »), mais ce dernier n’est jamais obligé de répondre.18 Ainsi, il est généralement accepté que tous les actes gouvernementaux peuvent faire l’objet de contrôle. Il n’existe pas au Canada « d’actes de gouvernement » susceptibles d’immunité de par leur nature même.19 Ainsi, la décision d’autoriser un gouvernement étranger à faire des tests missiles par-dessus le territoire canadien n’est pas une décision, de par sa nature même, obligeant le juge canadien de se plier envers l’administration.20 Dans cette instance, la Cour suprême du Canada a jugé que la question qu’on lui posait était « justiciable », en ce sens qu’il n’existe pas de « doctrine de questions politiques » comme aux États-Unis, ou « d’actes de gouvernement » comme en France. En revanche, le résultat est très similaire – le pouvoir exécutif bénéficie d’une large discrétion quant aux questions de relations internationales et de défense nationale. Ainsi, pour conclure cette section, on pourrait dire que bien que le thème de déférence joue un rôle de plus en plus grand en droit public, c’est probablement parce que le juge lui-même joue un rôle de plus en plus grand. Cela ne veut pas dire que le gouvernement est de plus en plus difficile à contrôler ou que la révision judiciaire est de plus en plus accessible pour les particuliers (au contraire – tout porte à croire qu’elle ne l’est pas), mais que le juge se voit de plus en plus ouvert à recevoir une contestation avec un esprit ouvert, et non limité par les cadres d’autrefois. 15

Finlay c. Canada (Ministre des Finances), [1986] 2 R.C.S. 607 (contrôle des décision administrative). 16 Canada (Procureur général) c. Downtown Eastside Sex Workers United Against Violence Society, 2012 CSC 45, [2012] 2 R.C.S. 524. 17 Par exemple, bien que le recours a été infructueux, au Canada un homme a intérêt à contester les lois sur l’avortement : Tremblay v Daigle [1989] 2 S.C.R. 530. Aux Etats-Unis la notion de « cases and controversies » dans l’article III de la Constitution empêche ce genre de recours. 18 Renvoi relatif à la sécession du Québec, [1998] 2 R.C.S. 217; Renvoi relatif au mariage entre personnes du même sexe, [2004] 3 R.C.S. 698, 2004 CSC 79, où la Cour a refusé de répondre à la question de fond. 19 La base de comparaison est le droit administratif français. Voir CE, ass., 29/09/1995, Ass. Greenpeace France ; CE, 8/12/1995, M. Lavaurs et autres). 20 Operation Dismantle c. La Reine, [1985] 1 R.C.S. 441.

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Révision judiciaire et appel

Bien qu’elle n’est pas généralement décrite comme une « doctrine », la « révision judiciaire » a un sens particulier. La révision judiciaire n’est donc pas un processus où le juge vérifie l’opportunité d’une décision administrative, ou recherche à savoir si elle est généralement bonne ou mauvaise, mais se limite à vérifier la légalité – sa conformité au droit écrit (lois, règlements) et normes de common law (équité procédurale). La façon que le droit canadien décrit cette fonction est en disant que le rôle du juge se limite à la « révision » d’un acte et non pas à en exerçant une fonction « d’appel ». Ce qu’on veut dire par là est que le juge ne peut substituer sa décision à celle de l’administration. A cela, il importe d’apporter quelques précisions. Premièrement, la justification à cette limite tient au fait que le Canada est une démocratie constitutionnelle où le pouvoir judiciaire se limite à contrôle l’administration à travers la constatation de la volonté législative.21 Cette limite peut se retracer à la Loi constitutionnelle de 1867 qui n’établit toutefois pas de séparation stricte des pouvoirs comme aux États-Unis, mais ne permet également pas un « gouvernement des juges ». Il s’ensuit que la révision judiciaire au Canada est généralement un pouvoir à caractère déclaratoire – où le juge se limite à constater l’illégalité d’un acte sans pour autant énoncer les suites qu’il faudrait en donner. Le juge « renvoie la balle » à l’administration; il ne s’empare pas de la cause. Le pouvoir d’injonction ou de « mandamus » est exceptionnel. Deuxièmement, la Constitution du Canada est essentiellement composée de deux lois constitutionnelles – celle de 1867 et celle de 1982. Une des grandes innovations de la réforme de 1982 est l’adoption d’une Charte canadienne des droits et libertés. Or, bien que cette dernière accroit les pouvoirs du juge, elle n’a pas fondamentalement pas changé la nature du contrôle judiciaire. La Charte canadienne établit de nouveaux moyens de contrôle, mais de rompt pas la distinction entre la révision judiciaire et l’appel. Par ailleurs, l’article 1 de la Charte dit que les droits et libertés qui y sont garantis : ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d’une société libre et démocratique.

Cette disposition est lue comme établissant un régime général de limitation des droits fondamentaux où il incombe au gouvernement de justifier la limitation lorsque le particulier démontre que ses droits ont été brimés ou niés.22 Cette disposition s’applique tant aux lois qu’aux actes administratifs. L’idée derrière cette disposition est que les gouvernements ont la responsabilité de défendre leurs choix lorsque les

21 Le pouvoir exécutif bénéficie de pouvoirs non-législatifs (pouvoirs dits de « prérogative » e.g. signatures de traités internationaux, relations internationales, émission de passeports), mais de tels pouvoirs sont exceptionnels et ne se trouvent de par leur nature en dehors de la sphère du contrôle judiciaire. 22 R. c. Oakes, [1986] 1 R.C.S. 103.

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droits des particuliers en souffrent.23 On parle ainsi d’un renversement de la charge de la preuve. C’est donc suivant le régime décrit à l’article 1 de la Charte que les gouvernements doivent se justifier devant le juge de révision.24 L’article 1 de la Charte est souvent décrit par les tribunaux et la doctrine comme un pouvoir exceptionnel, mais il ne doit pas être confondu avec la clause nonobstante – l’article 33 de la Charte – permettant au pouvoir législatif de légiférer en dérogation de la Constitution pour une période déterminée. Dans ces circonstances, la loi se voit conférer une immunité d’examen par le pouvoir judiciaire quant au contenu visé. La clause nonobstante est donc une dérogation quant au régime général mais elle ne vise que le pouvoir législatif et non exécutif. Ce dernier ne peut l’invoquer qu’à travers une loi dument votée. La troisième précision à apporter à la distinction entre révision judiciaire et appel est qu’il n’est pas facile de comprendre l’objet de loi dans la mesure où certaines lois interdisent la révision judiciaire et d’autres donnent un droit d’appel direct au pouvoir judiciaire. En d’autres termes, certaines lois semblent donner un rôle « politique » au juge en leur permettant de déterminer l’issue du processus administratif alors que d’autres leur interdisent d’intervenir sans exception au moyen d’une clause privative. Or, bien que ces clauses ne soient pas effectives en droit canadien, il n’est pas toujours facile de comprendre la logique du législateur.25 La manière de régler la question est de ne plus voir la révision judiciaire de manière binaire, mais d’adopter une méthode d’analyse permettant au juge de varier son ingérence selon l’intention du législateur. Nous proposons donc de nous tourner vers cette question.

3 LA DÉFÉRENCE JUDICIAIRE : UNE ŒUVRE SYSYPHÉENNE A côté de l’ouverture d’une plus en plus grande à la révision judiciaire, il convient de noter la recherche de plus en plus ardue d’une méthode pour cadrer l’activité interprétative du juge. Cette recherche se voit en continuité historique avec le rôle de protection du pouvoir judiciaire des individus contre le pouvoir de l’état. Il s’agit là d’une application de plus en plus pointilleuse de l’idée que le pouvoir discrétionnaire n’est pas absolu. C’est à travers la méthode d’interprétation qu’on 23

Certains juges ont critiqué cette interprétation en disant qu’elle présuppose que le gouvernement est dans une meilleure place pour définir l’objet de la loi. Voir les propos de la juge Abella dans Doré c. Barreau du Québec, 2012 CSC 12. 24 Suivant le régime décrit dans l’arrêt Oakes, le gouvernement doit démontrer que l’objectif est réel et urgent et que les moyens utilisés en sont proportionnels. La proportionnalité des moyens se démontre par l’existence d’un lien rationnel entre les moyens et l'objectif de la mesure; par le fait que mesure porte atteinte minimale au droit en question ; et enfin que la restriction est proportionnelle à l'objectif. 25 Evans (1993), pp. 47–75.

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parle aujourd’hui de déférence judiciaire envers l’administration. Cela tient au fait que de nombreux litiges portent moins sur une administration arbitraire que sur des textes de loi ambigus. Le juge de révision cherche une méthode pour adresser de telles ambiguïtés. Ce qui est propre au Canada, en revanche, est l’intensité de la recherche des méthodes d’interprétation de la loi. Alors que le juge français distingue entre le contrôle normal et le contrôle restreint comme une forme de « politique jurisprudentielle »,26 le juge canadien opère une distinction similaire tout en cherchant à juridiciser l’entreprise. Cette recherche est problématique dans la mesure où le droit n’a jamais prétendu offrir des « règles » d’interprétation de la loi. Par ailleurs, il faut rappeler que dans bien des cas, l’ambigüité de la loi est accidentelle parce que le législateur ne peut anticiper toutes ses applications possibles. Ainsi, le pouvoir judiciaire se retrouve régulièrement en train de tenter de réconcilier ses précédents avec de nouvelles questions parce que la méthode antérieure semblait utile à l’époque. Comment réconcilier la systématisation du contrôle judiciaire avec l’incertitude propre à chaque loi?

3.1

Compétence « préliminaire »

Le premier outil d’analyse qui contribue au développement d’une doctrine de déférence analytique est la notion de « compétence ». Le rôle de cette notion aujourd’hui est ambigu et contesté. Cela tient au fait que la notion a un sens différent selon la lecture qu’on en fait. Pour certains, la notion a un sens étroit et technique alors que pour d’autres, elle a un sens large. L’origine de ce débat tient au fait que le contrôle judiciaire de l’administration s’exerçait autrefois principalement par les brefs de prérogative. Les brefs étaient à la fois des recours pour les particuliers, mais de manière incidente, une manière de définir l’autorité de la Couronne. A travers les nombreux recours exercés pendant les siècles, le pouvoir judiciaire a ainsi défini la « compétence » de la Couronne et corrélativement les droits et libertés des particuliers. Le problème est qu’au cours du XXe siècle, la nature des pouvoirs de la couronne a changé radicalement. Il ne s’agit plus de libertés fondées sur la common law, mais au contraire des zones d’autorité fondées sur la loi. Dans ce contexte, la notion de « compétence » devient tant un prétexte d’intervention ou de déférence judiciaire qu’une manière d’expliquer l’exercice valide de l’autorité administrative.27 En d’autres termes, la « compétence » peut se comprendre de manière historique ou selon le contexte actuel où elle opère. Par exemple, dans Canada v. Nat Bell Liquors, Ltd.,28 la House of Lords explique que la culpabilité d’un individu sans preuve ne peut être remise en question par une

26

CE Ass. 2 novembre 1973 Société Anonyme -Librairie François Maspero. Gordon (1929), p. 459. 28 [1922] 2 A.C. 128. 27

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demande de révision judiciaire parce que l’état a une « compétence » reconnue de sanctionner les individus pour l’infraction visée.29 Inversement, lorsqu’une demande de révision judiciaire vise non pas une activité de l’état-police, mais de l’état providence, la doctrine de la compétence justifie l’intervention du pouvoir judiciaire avant même que l’administration puise elle-même refuser une demande infondée. Par exemple, dans Bell v Human Rights Commission,30 la Cour suprême accorde un « bref de prohibition » interdisant à la Commission de droit de la personne de l’Ontario d’enquêter sur une plainte de discrimination par le propriétaire d’une maison ayant refusé d’y louer une chambre à un individu d’origine jamaïcaine. Dans cette instance, la loi antidiscriminatoire ne s’appliquait qu’aux unités d’habitation autonomes – et donc pas à la chambre en question. Mais ne faisant pas confiance à la Commission des droits de la personne, la Cour suprême est intervenue de manière précipitée, appuyée par la théorie de la compétence dite « préliminaire ».31 Bien que la Cour suprême ait infirmé la solution dans Bell,32 la théorie de la compétence continue à diviser le pouvoir judiciaire et la doctrine. Dans plusieurs causes rendues après Bell, la Cour suprême a rejeté la théorie de la compétence préliminaire.33 Inversement, Alberta (Information and Privacy Commissioner) c. Alberta Teachers’ Association, la Cour suprême insiste qu’il est possible de discerner des « questions touchant véritablement à la compétence ».34 Plus récemment, dans Canada (Commission canadienne des droits de la personne) c. Canada (Procureur général),35 note que les juges doivent moins de retenue pour les questions touchant « véritablement à la compétence » tout en soulignant que la question a été tantôt écartée par la jurisprudence, tantôt maintenue artificiellement en vie. Ce que ce jugement souligne est que la notion de « compétence », bien que régulièrement contestée, est difficile à faire disparaitre du

29

« A justice who convicts without evidence is doing something that he ought not to do, but he is doing it as a judge, and if his jurisdiction to entertain the charge is not open to impeachment, his subsequent error, however grave, is a wrong exercise of a jurisdiction which he has, and not a usurpation of a jurisdiction which he has not.” Ibid. au para 33. Cette cause constitue une utilisation particulière des brefs de prérogative – celle de recours contre un jugement judiciaire, qui normalement serait susceptible d’appel. Ce type de recours est rare aujourd’hui, mais néanmoins possible si les voies de recours ordinaires (appel) sont épuisées. 30 Bell v. Ontario Human Rights Commission [1971] S.C.R. 756. 31 Hogg (1971), p. 203. 32 Halifax (Regional Municipality) c. Nouvelle-Écosse (Human Rights Commission), 2012 CSC 10, [2012] 1 R.C.S. 364. 33 Syndicat canadien de la Fonction publique, section locale 963 c. Société des alcools du NouveauBrunswick, [1979] 2 R.C.S. 227 à la p. 228; U.E.S., local 298 c. Bibeault, [1988] 2 R.C.S. 1048 au para 117; Pushpanathan c. Canada (Ministre de la Citoyenneté et de l’Immigration), [1998] 1 R.C.S. 982 au para 28. 34 Alberta (Information and Privacy Commissioner) c. Alberta Teachers’ Association, 2011 CSC 61. 35 Canada (Commission canadienne des droits de la personne) c. Canada (Procureur général), 2018 CSC 31.

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vocabulaire juridique. La doctrine de la compétence illustre comment le vocabulaire et les techniques du juge doivent continuellement s’adapter aux contextes dans lesquels ils opèrent; ils ne peuvent se permettre de se figer comme une règle de droit particulière.

3.2

Normes de contrôle

Ce qui appuie cette recherche d’approche « contextuelle » est le développement de « normes » de contrôle. Une norme de contrôle pourrait être décrite comme l’optique ou la lentille par laquelle une situation de fait sera observée. L’idée de « norme » (standard of review en anglais) répond à un besoin de flexibilité judiciaire. La seconde est que la « norme » est une question de droit déterminée a priori – avant l’analyse du litige – la norme est donc une question de « droit », distincte de la substance du litige. La question qu’on peut se demander est si ces deux prémisses sont compatibles. En effet, si la norme (au sens de standard) présuppose une flexibilité, la séparation entre substance et « forme de contrôle » a mené à une ossification progressive de la jurisprudence qui l’oblige à se remettre régulièrement en question. La première pierre dans cet édifice a été érigée dans Syndicat Canadien de la Fonction Publique c. Société des Alcools du Nouveau-Brunswick.36 Dans cette cause, la Cour suprême a noté qu’une cour ne devrait pas contredire une autorité administrative que si sa décision est « manifestement déraisonnable ». En l’espèce, il s’agissait de savoir si une commission des relations de travail avait outrepassé sa compétence en interdisant aux gérants d’une société publique d’alcool de continuer à travailler pendant une grève. Selon la Cour suprême, on ne peut dire clairement s’il s’agit d’une question qui touche à la compétence du tribunal ou non. Par ailleurs, il existe une « clause privative » interdisant la révision judiciaire. Le juge, dans ces circonstances, valide la décision parce que l’ambiguïté de la loi profite à l’administration. En même temps, le juge dit que cette solution ne s’applique pas aux « questions relatives à la compétence ». La deuxième pierre dans l’édifice est U.E.S., Local 298 c. Bibeault.37 Dans cette cause, la Cour suprême propose une alternative pour distinguer les questions relatives à la « compétence » et celles qui ne le sont pas – le juge propose une approche « pragmatique et fonctionnelle ». L’autre apport de cette cause est d’ajouter que lorsqu’il s’agit de questions qui n’entrent pas dans l’expertise de l’autorité administrative, le juge de révision aura le dernier mot. En l’espèce, une commission du travail a mal interprété des dispositions du Code civil du Québec. La question ne relevait pas de son expertise parce qu’il ne s’agit pas d’une question particulière au droit du travail. Dans ces circonstances, c’est au juge d’intervenir et d’exercer son

36 37

Fonction Publique c. Société des Alcools du Nouveau-Brunswick, [1979] 2 R.C.S. 227. U.E.S., Local 298 c. Bibeault, [1988] 2 R.C.S. 1048.

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jugement. Il n’y a pas, contrairement, à Société des Alcools, de faire profiter l’ambigüité à l’administration puisque la question relève de l’expertise judiciaire. La troisième pierre se propose comme un intermédiaire entre ces deux issues. La raison pour cet intermédiaire est que le contrôle judiciaire peut se faire soit par voie d’appel, soit par voie de « révision » proprement dite. Au Canada, bien que l’appel judiciaire est défini comme un droit d’infirmer une décision administrative pour des motifs d’opportunité, ce pouvoir est exercé avec beaucoup de circonspection, surtout que sa raison d’être n’a jamais été identifiée. Encore plus, il se voit conféré dans des causes où le juge n’a pas de véritable expertise. Par exemple, dans Pezim c. British Columbia (Superintendent of Brokers), la loi confère un droit d’appel des décisions d’un tribunal administratif spécialisé en activités boursières vers la Cour d’appel.38 Pour déterminer si le tribunal a bien exercé ses pouvoirs, la Cour suprême juge que sa décision doit être ni « manifestement déraisonnable », ni « correct » mais « simplement déraisonnable ». Par conséquent, « lorsqu'il n'existe pas de clause privative et que la loi prévoit un droit d'appel, le concept de la spécialisation des fonctions exige des cours de justice qu'elles fassent preuve de retenue envers l'opinion du tribunal spécialisé sur des questions qui relèvent directement de son champ d'expertise. »39 A ce stade, la théorie des normes de contrôle peut se voir comme un microscope à trois optiques: le correct, le raisonnable, et le manifestement déraisonnable. La détermination de la norme applicable se fait selon un faisceau d’indices : l’objet de la loi, la nature de la question (fait, droit ou mixte), l’existence d’une clause privative et enfin l’expertise de l’administration sur la question faisant l’objet d’examen.40 La quatrième pierre se situe dans un objectif de rationalisation. Il s’agit ici de l’affaire Dunsmuir c. Nouveau-Brunswick,41 où la Cour suprême décide qu’il n’y a plus lieu de rechercher à distinguer le « déraisonnable » du « manifestement déraisonnable ». En ses propres mots : [S]outenir que seule la décision « clairement irrationnelle » est manifestement déraisonnable, à l’exclusion de celle qui est irrationnelle simpliciter, vide de sens la règle de droit. Rattacher l’adverbe « clairement » à l’adjectif « irrationnelle » est certes une tautologie. Tout comme l’« unicité », l’irrationalité est ou n’est pas. Une décision ne peut être un peu irrationnelle.

Cette cause est généralement citée comme une « pierre angulaire » de la théorie de la déférence judiciaire, mais il convient de noter que c’est l’administration qui demandé la révision judiciaire de la sentence arbitrale. L’arbitre était prévu dans la loi comme autorité d’appel des griefs entre employeurs et employés. Ses sentences arbitrales étaient protégées par une clause privative. Ayant statué en faveur de l’employé, le gouvernement a par la suite demandé la révision de cette sentence. La Cour suprême juge invalide la sentence donnant ainsi droit à la demande de 38

Pezim c. British Columbia (Superintendent of Brokers), [1994] 2 R.C.S. 557. Ibid. Voir également Canada (Directeur des enquêtes et recherches) c. Southam Inc., [1997] 1 R.C.S. 748. 40 Pushpanathan c. Canada (Ministre de la Citoyenneté et de l'Immigration), [1998] 1 R.C.S. 982. 41 Dunsmuir c. Nouveau-Brunswick, 2008 CSC 9. 39

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révision judiciaire du gouvernement. Or, tout au long du jugement la Cour dit que la révision judiciaire n’est pas possible si l’employé est lié par contrat à l’administration, ce qui était le cas en l’espèce. La Cour a consacré beaucoup plus de temps à expliquer sa théorie des normes de contrôle que de réfléchir à l’issue du litige. En fin d’analyse, la décision illustre la relativité de la notion de déférence, surtout lorsque le litige est réglé par sentence arbitrale comme l’espèce. En ce sens, la recherche d’une théorie des normes de contrôle est loin d’être terminée.42

3.3

Valeurs de la Charte

Tout comme les normes de contrôle, les questions relatives aux droits fondamentaux accentuent les problèmes de déférence fondés sur l’expertise de l’administration. La raison en est que le juge se voyant gardien ultime de la liberté individuelle alors que l’administration se voit experte en application de sa loi habilitante. Ainsi, la jurisprudence établit dans l’arrêt Oakes une méthode d’analyse propre aux droits fondamentaux. La question est de savoir si l’interprétation de la loi se fait dans un cadre d’analyse distinct du droit administratif. La première grande cause illustrant ce dilemme est Slaight Communications Inc. c. Davidson.43 Dans cette affaire, la Cour suprême était confrontée à une demande de révision d’une ordonnance administrative obligeant un employeur à ne pas critiquer l’employé qu’il venait de licencier. La même ordonnance l’obligea à écrire une lettre de recommandation favorable à cet employé. La contestation allégua que l’ordonnance était déraisonnable et contraire aux droits contenus dans la Charte – notamment la liberté d’expression. A cette époque, la Cour conclut que la norme de contrôle était celle du « manifestement déraisonnable », mais en même temps, la Charte obligeait une justification plus poussée. La Cour suprême se divisa sur l’issue du litige, la majorité estimant que les deux mesures étaient justifiées, alors que le juge en chef Lamer prit position contre l’ordonnance « positive ». En revanche, le juge en chef proposa une méthodologie qui devint la méthode acceptée pour contrôler les mesures administratives au regard de la Charte canadienne des droits et libertés. A titre de rappel, toutes demandes de révision liée à un droit fondamental sont décrites comme un litige en deux temps : le demandeur démontre premièrement une « violation » d’un droit ou d’une liberté; deuxièmement, le gouvernement justifie cette violation au regard de l’article 1 de la Charte, tenant compte de la méthodologie « Oakes ».44 Selon le juge Lamer, le gouvernement devait soit justifier 42

Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770, où la juge Abella propose d’ouvrir une discussion sur les normes de contrôles et suggère l’abolition de la norme de la décision « correcte », pour être remplacée par une norme unique – la décision raisonnable. Les autres juges ne jugent pas opportun de revenir sur Dunsmuir comme le suggère Abella dans son « obiter ». 43 Slaight Communications Inc. c. Davidson, [1989] 1 R.C.S. 1038. 44 Voir ci-haut, note 22.

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la loi conférant le pouvoir à l’arbitre, soit l’exercice de ce pouvoir si la loi est constitutionnelle. La méthodologie avait une logique analytique, mais le problème était de savoir comment réconcilier la théorie des normes de contrôle de droit administratif avec la méthodologie des droits fondamentaux. La question resta sans résolution.45 Ce qui accentue le problème est la méthodologie Oakes a été jugée l’équivalent de la norme du correct.46 Par ailleurs, comme certains juges l’ont noté, le fait d’invoquer la Charte semblait donner droit automatiquement à la norme de contrôle la plus exigeante.47 Ainsi, dans une deuxième étape, la Cour suprême pris position sur cette question sans pour autant rechercher une méthodologie précise. Dans Baker c Canada (Ministre Immigration),48 la juge L’Heureux-Dubé déclara même si, en général, il sera accordé un grand respect aux décisions discrétionnaires, il faut le pouvoir discrétionnaire soit exercé conformément aux limites imposées dans la loi, aux principes de la primauté du droit, aux principes du droit administratif, aux valeurs fondamentales de la société canadienne, et aux principes de la Charte.49

Cette cause portait sur une décision de renvoyer une mère résident illégalement au Canada, ce qui aurait eu pour effet de la séparer de ses quatre enfants citoyens du Canada. La loi lui offrait la possibilité de revenir en faisant une nouvelle demande de résidence à partir de son pays d’origine, mais son état de santé rendait cette issue improbable. La loi prévoit néanmoins la possibilité l’octroyer d’une dispense à ces exigences pour des motifs humanitaires, dispense qui avait été refusée sans motifs. A travers son avocat, Mme Baker apprit que les motifs de ce refus étaient tout simplement que le Canada ne peut se permettre « cette sorte de générosité ». Selon la Cour suprême, le gouvernement a agi déraisonnablement en ne prenant pas en compte le meilleur intérêt des enfants. Ce qui ressort de l’affaire Baker est premièrement que les pouvoirs dits « discrétionnaires » ne sont pas une catégorie particulière de décision mais tombent dans la méthodologie générale de l’analyse relative aux normes de contrôle. En revanche, malgré l’issue favorable de la cause, la jurisprudence a continué de voir l’analyse de la Charte et celle du droit administratif comme représentant deux avenues distinctes pour justifier une atteinte aux droits fondamentaux.50 La dernière étape est Doré v. Barreau du Québec.51 Cette cause propose une unification des normes de normes de contrôle du droit administratif avec la méthode 45

Selon le juge en chef Dickson, « Le rapport précis entre la norme traditionnelle de contrôle, en droit administratif, du caractère déraisonnable manifeste et la nouvelle norme constitutionnelle de contrôle va se dégager de la jurisprudence à venir. » ibid. 46 Cuddy Chicks Ltd. c. Ontario (Commission des relations de travail), [1991] 2 R.C.S. 5 à la p. 17. 47 Barrie Public Utilities c. Assoc. canadienne de télévision par câble, [2003] 1 R.C.S. 476, 2003 CSC 28533-34. 48 Baker c Canada (Ministre Immigration) [1999] 2 R.C.S. 817. 49 Ibid. au para 56. 50 Multani c. Commission scolaire Marguerite-Bourgeoys, [2006] 1 R.C.S. 256, 2006 CSC 6. 51 Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395.

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Oakes en proposant, à l’instar de l’affaire Baker, que les décisions administratives soient évaluées conformément aux valeurs de la Charte. Techniquement, ce que les « valeurs de la Charte » représentent, par opposition aux « droits et libertés de la Charte », est une analyse plus flexible, une application non mécanique du test Oakes décrit ci-haut. Beaucoup de critiques ont été faites au sujet de ce projet unificateur. En particulier, certains ont décrit le nouveau régime comme représentant un recul dans la protection des droits fondamentaux – des droits fondamentaux à la légère. Mais cela ne s’est pas concrétisé.52 Les droits fondamentaux restent protégés – c’est plutôt le droit administratif qui s’est fait peau neuve.

4 Conclusion Tous les auteurs au Canada sont d’accord qu’une déférence absolue aux décisions administratives n’est pas souhaitable. En revanche, la recherche d’une neutralité analytique n’est pas aussi facile que les juges semblent croire. Les « révolutions » jurisprudentielles sont de plus en plus fréquentes, à tel point que la matière même du droit administratif devient de plus en plus centrée sur les normes de contrôle. En fait, plus le juge recherche la perfection analytique, plus il témoigne de son ignorance de l’activité administrative, ce qui suggère que le problème est peut-être en ce sens. Le juge Stratas écrit : “I look forward to the day when we can close the never-ending construction site that, to this point, has been Canadian administrative law”.53 Or si la recherche parait interminable, c’est peut-être que l’entreprise de juridiciser l’interprétation de la loi est trop complexe pour être systématisée. En même temps, le contrôle judiciaire de l’administration restera un fait relativement rare dans l’ensemble. Ainsi, plutôt que de chercher à juridiciser l’interprétation de la loi, il faudrait plutôt se demander si les débats de méthode judiciaire ne sont pas plutôt un prétexte à ne pas s’aventurer dans le monde de l’administration publique. On sait d’ailleurs que la common law part du principe qu’il n’existe pas de droit administratif en tant que tel. Or, bien que la majorité des auteurs n’aient pas suivi Dicey sur ce point, le rôle croissant de la déférence témoigne d’un aveuglement volontaire envers l’administration publique. Tantôt associée à la souveraineté de l’état, tantôt une notion méthodologique, la déférence judiciaire témoigne de l’enchevêtrement du droit substantif dans celui des recours. Aujourd’hui, les brefs de prérogative ont une existence beaucoup plus limitée, mais la notion de déférence nous rappelle que le droit public canadien reste calqué sur ses origines procédurales. 52

École secondaire Loyola c. Québec (Procureur général), 2015 CSC 12, [2015] 1 R.C.S. 613; Trinity Western University c. Barreau du Haut-Canada, 2018 CSC 33; Law Society of British Columbia c. Trinity Western University, 2018 CSC 32. 53 D. Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency” à la p. 27; disponible à SSRN: .

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Références Daly P (2012) A theory of judicial deference in administrative law – basis, application and scope. Cambridge University Press, Cambridge Evans JM (1993) Administrative appeal or judicial review: a Canadian perspective. Acta Juridica, pp. 47–75 Gordon DM (1929) The Relation of Facts to Jurisdiction. Law Q Rev 45:459 Hewart L (1929) The new despotism. Ernest Benn Limited, London Hogg PW (1971) The jurisdictional fact Doctrine in the Supreme Court of Canada: Bell v. Ontario Human Rights Commission. Osgoode Hall Law J 9:203 Hogg PW, Monahan P, Wright D (2011) Liability of the crown. Carswell, Toronto Lewans M (2016) Administrative law and judicial deference. Hart, Oxford

Nicolas Lambert teaches administrative law and contract law at the Université de Moncton, in New Brunswick Canada. Before teaching, Nicolas studied in France (Strasburg), the United Kingdom (London School of Economics) and Canada before writing his doctoral thesis with Roderick Macdonald at McGill University, Faculty of Law, Canada.

Deference to the Administration in Judicial Review in China Qinwei Gao

Abstract 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.

1 Introduction 1.1 1.1.1

Constitutional Structure and Judicial Power Separation of Powers in China and a Weak Judiciary

The Chinese Constitution does not clearly establish the principle of separation of powers as the constitutions in other countries. The powers of state are concentrated into the people’s congresses, including National People’s Congress (NPC) and local people’s congresses, according to Article 2 of the Chinese Constitution.1 However, administrative organs are entitled to administrative power and the judiciary is given

1

The English translation of the laws in this report referred to www.pkulaw.cn. Article 2 of the Chinese Constitution states: All powers in the People’s Republic of China belong to the people. The National People’s Congress and the local people’s congresses at various levels are the organs through which the people exercise state powers.

Q. Gao (*) Law School, Sun Yat-Sen University, Guangzhou, China © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_5

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with judicial power. They are both accountable to the people’s congresses at their same level. Although most Chinese constitutional scholars admitted that there was kind of de facto separation of powers (or functions) within the constitutional structure, the people’s congresses in theory have the concentrated powers.2 In practice, during the transitional period, China led a strong planned economy after its foundation in 1949. Under this economic model, the administrative branch was given tremendous powers and played a much more crucial role than the other two branches (the legislative branch and the judicial branch). Therefore, the people’s congresses had been described as a ‘rubber stamp’ in academic literature for a long time. Administrative organs were so powerful and dominant in all levels of governments. A GDP-oriented mechanism of competition and evaluation led by the administrative branches was especially emphasized in the local governments. Against these backgrounds, the judicial power was always weak and even underdeveloped in comparison with the other two branches. This greatly obstructed the development of administrative litigation in China. It is not surprising that the mechanism of administrative litigation was not established by law until 1989, 40 years after the foundation of China. Moreover, even though administrative litigation existed, the citizens could not obtain effective remedies from the judiciary because the judicial power itself was not strong enough. Some scholars concluded the problems of administrative litigation as three aspects3: (1) the plaintiffs could not smoothly file a case in the court; (2) the citizens could not usually win the cases; and (3) the judgments could not be well executed by the administrative organs sometimes.

1.1.2

Recent Reforms About Administrative Litigation

In the past 5 years, the China’s judiciary has been undergoing an intensive reform, which aimed to carry out further political reforms, putting more effective controls on the administrative power. In this course, the judicial reform was thought as a powerful tool to achieve this aim. There were thus some institutional reforms regarding administrative litigation mechanism, including appropriately establishing several cross-border administrative courts4 and the specialized courts,5 trying to get rid of the control from the local governments in personnel, expenditure and The people administer state affairs and manage economic, cultural and social affairs through various channels and in various ways in accordance with the law. 2

See Yang (2001a), p. 486. See Jiang (2013), pp. 5–20; also see Hu and Wu (2014), pp. 28–45. 4 See Cheng (2016), p. 15. 5 In the Organic Law of People’s Court 1979, some specialized courts including martial courts, railway courts, maritime courts, and forestry courts, were established according to law. These special courts enjoyed the jurisdictions as other intermediate people’s courts, and thus the cases decided by the specialized courts could be appealed to the higher people’s courts at the provincial level. 3

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infrastructure construction of the courts,6 and also establishing some itinerant courts of the Supreme People’s Court (SPC) in the designated districts.7 Since 2009, the Working Committee of the NPC has commenced to amend the Law of Administrative Litigation. A new law came into effect in 2014, as the landmark of the development of administrative litigation in China. The amended Law of Administrative Litigation obviously alleviated the thresholds of administrative litigation,8 and prohibiting the administrative organs from hindering the plaintiffs in litigation.9 It also expanded the issues which are subject to judicial review, added the review of the normative administrative instruments that the courts could not review before, and clearly stipulated the administrative responsibilities of refusing or ignoring the judgments. All in all, these reforms greatly strengthened the judicial power in administrative law cases. Meanwhile, the reforms of administrative organs have also been proceeding in the past several years. The government under the term of Prime Minister, Li Keqiang, brought some proposals to restructure the governmental departments (大部制改 革)10 which attempted to re-designate the administrative power to meet the requirements of market economy and released the market gradually from the control of the governments. To carry out the administrative reforms in the local levels, the State Council established a mechanism of “Three Lists” (三个清单): “Powers List”,

6

See Chen (2017), p. 4. In 2015, the SPC began to establish the itinerant courts in Shenzhen, Shenyang, Nanjing, Zhengzhou, Chongqing and Xian. These itinerant courts hear the cases within the respective circuit districts, which fall within the jurisdictions of the SPC according to the Civil Procedural Law, the Criminal Procedural Law and the Law of Administrative Litigation. See Fang (2017), p. 16. 8 Article 51 of the Law of Administrative Litigation states: 7

A people’s court receiving a complaint shall docket it if it meets the conditions for filing a complaint as set out in this Law. Where a people’s court is unable to determine on the spot whether a complaint meets the conditions for filing a complaint as set out in this Law, the people’s court shall receive the complaint, issue a written certification showing the date of receipt, and decide whether to docket the complaint within seven days. If the complaint does not meet the conditions for filing a complaint, the people’s court shall enter a ruling not to docket the complaint. The written ruling shall state the reasons for not docketing the complaint. The plaintiff may file an appeal against the ruling. This provision in fact abolished the previous mechanism of the review at the stage of filing a case. 9 Article 96 of the Law of Administrative Litigation provides with some remedies when the administrative organs refuse to execute the judgments, such as issuing a notice directly to the bank, levying the fines on administrative organs, publishing an announcement on this refusal, submitting a judicial advice to the superior organs, and imposing other punishments on the relevant officials. 10 Prime Minister’s speech at the homepage of the State Council (2016). www.gov.cn/guowuyuan/ 2016-05/22/content_5075741.htm. Accessed 17 Dec. 2017.

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“Prohibitions List”, and “Responsibilities List”.11 This internal control of the administrative power in turn improved the rule of law and institutional environments in which the courts are embedded.

1.2

China’s Courts’ System and the Administrative Division

According to Article 123 of the Chinese Constitution, people’s courts are entitled in judicial power.12 Constitutional scholars mainly thought judicial power as being a power of the central government, not belonging to the local governments, due to a literal interpretation of Article 123.13 The Chinese Constitution thus established a unitary system of the judiciary without any special branch at the top level. The SPC is the only highest court with the power of final adjudication.14 Other local people’s courts are composed with the higher people’s courts at the provincial level, the intermediate people’s courts at the municipal level and the people’s courts at district level which are the trial courts in most cases.15 Even at the local level, China does not adopt a system like French administrative tribunal (Tribunal administratif), or Germany Federal Administrative Court (Bundesverwaltungsgericht). Most local people’s courts have full jurisdictions over all kinds of cases, including civil, criminal and administrative cases. In comparison with judicial review in common law jurisdictions like the UK, administrative litigation in China is only one kind of ordinary cases which can be brought in any lowest trial court. Although some scholars suggested establishing special administrative courts in the course of the discussion over the amendment of the Law of Administrative Litigation, the proposals were not adopted eventually. In accordance with Article 18 of the Law of Administrative Litigation, an administrative case shall be filed in the people’s court at the place where the administrative agency taking the original action is located. Considering the two-tier appellate mechanism, most cases (including administrative cases) will finish at the municipal level. That could be

11 Prime Minister’s explanation on “Three Lists” at the homepage of the State Council (2014). www.gov.cn/guowuyuan/2014-09/10/content_2748393.htm. Accessed 17 Dec. 2017. Also see Zhang (2018), pp. 18–19. 12 Article 123 of the Chinese Constitution states: “The people’s courts of the People’s Republic of China are the judicial organs of the state.” 13 See Wang (2015), pp. 59–70. 14 Article 127 of Chinese Constitution states:

The Supreme People’s Court is the highest judicial organ. The Supreme People’s Court supervises the administration of justice by the people’s courts at various local levels and by the special people’s courts. People’s courts at higher levels supervise the administration of justice by those at lower levels. 15

See Jiang (2013), p. 5.

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treated as one of the reasons for which the central government tried to reform the mechanism of administrative litigation to reduce the influence of local protectionism. Moreover, there is no clear distinction between public law and private law in China. The Chinese Constitution is not judiciable up to date.16 It is the administrative divisions within people’s courts that hear administrative cases and make judgments. In most courts, the number of panels or judges in the administrative divisions is much fewer than that of criminal and civil divisions because administrative cases are comparatively fewer. After the reform of the specialized courts, current maritime and intellectual property courts gradually have full the jurisdictions over criminal, civil and administrative cases altogether. The jurisdictions of these specialized courts were limited previously.

1.3 1.3.1

Administrative Litigation and Other Relevant Mechanisms Letter-and-Visit Complaint and Administrative Litigation

In the traditional Chinese legal system, law was almost equal to a penal code. Old codes and statutes of law regulated matters that would be considered under criminal law in modern legal approaches. Disputes between individuals dealing with family matters or land were generally settled through the mediation. The emperors and their subordinates enjoyed omnipotent authorities, including executive, legislative and judicial powers. These may explain the reasons why Chinese people did not sue in the courts, but choose an alternative way to resolve the disputes. In China, administrative reconsideration (行政复议) and letter-and-visit complaint (信访) existed as the other mechanisms by which the citizens could seek the relief. Letter-and-visit complaint is not a formal legal procedure, but a political mechanism.17 It existed in modern Chinese history for a longer time than the formal legal procedures. Before the foundation of the PRC, the party leader had already established a special institution to deal with the letter complaints. Although a plaintiff could not get a formal judgment, an order or a dictum through the letterand-visit complaint, he/she might possibly solve the problems and settle down the disputes by complaining to the higher level administrative organs or the central government. Therefore, many people were accustomed of resorting to complaints rather than suing in the courts, or even going to complain after obtaining the judgments. Recently, the central government has already undertaken some reforms to reduce inappropriate use of complaint mechanism and encourage the citizens to solve the disputes through legal procedures.

16

The courts cannot decide a case directly according to the Constitution. The rules of letter-and-visit complaint mechanism were given in the Regulation on Letter-andVisit Complaint 2005 passed by the State Council. 17

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Administrative Reconsideration and Administrative Litigation

Administrative reconsideration (or called administrative appeal) is the other remedy provided by law besides administrative litigation. It was formally established by the Administrative Reconsideration Law 1999 which was amended in 2009 and 2017. Administrative reconsideration l is a mechanism of dispute resolution within the administrative branch. The citizens can bring up their complaints to the superior administrative organs or the people’s governments at the same level. Different from the letter-and-visit complaint, there are clear legal provisions which stipulated the subject, procedures and remedies of administrative reconsideration. Moreover, the plaintiffs can obtain formal decisions after the reconsideration, which could be sued in the courts. First, in comparison with administrative litigation, administrative reconsideration is an internal mechanism so that the plaintiffs can sue the appeal organs in the courts which upheld the controversial administrative decisions together with the initial administrative organs. Second, a reconsideration organ is not an administrative tribunal even though some administrative organs have a specialized division (the Office of Legal Affairs) to deal with administrative reconsiderations. Furthermore, in practice, some lower local governments lacked enough legal professionals to solve these legal affairs. The central governments suggested local governments to establish a formal mechanism of governmental legal counsels in 2016. Third, the plaintiff could not bring further appeal on the decision of administrative reconsideration. Efficiency and expertise are thought as the important goals of the mechanism of administrative reconsideration. Therefore, the decision of administrative reconsideration is the final one within the administrative branch. Nevertheless, the plaintiffs can file a case after obtaining the decision of administrative reconsideration. Although the plaintiffs need not to exhaust this procedure before administrative litigation except some special cases,18 they usually would like to bring reconsideration first because they could be heard by more organs and even sue the reconsideration organs in the higher courts in order to avoid that local protectionism hindered the success in administrative litigation.19 Fourth, the organs of administrative reconsideration took a kind of full merits review of legality and reasonableness of the

18

Article 44(1) of the Administrative Litigation Law states: For administrative cases within the scope of cases accepted by the people’s courts, a citizen, a legal person, or any other organization may first apply to the administrative agency for reconsideration, and then file a complaint against the reconsideration decision with a people’s court; or directly file a complaint with a people’s court.

19

Article 26(2) of the Administrative Litigation Law states: For a case that has undergone reconsideration, if the reconsideration agency’s decision upholds the original administrative action, the administrative agency taking the original administrative action and the reconsideration agency shall be co-defendants; or, if the reconsideration agency’s decision modifies the original administrative action, the reconsideration agency shall be the defendant.

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concerned administrative actions,20 and also limitedly reviewed the normative instruments incidentally. The scope of review may be the most important difference between administrative litigation and administrative reconsideration.21 Fifth, administrative reconsideration usually took the form of documental review that is more efficient and much easier than administrative litigation.22

1.4

Literature on Judicial Deference in Chinese Scholarship

Judicial deference, as a terminology, does not have an exact counterpart in Chinese, usually translated as “司法谦抑” (judicial self-restraint with caution), “司法尊让” (judicial respect and deference), “司法自制” (judicial self-restraint), or “司法消极 主义” (judicial passivism), and so on. In the CNKI,23 there are only 3 articles with the keywords of “judicial respect and deference” and “administrative”, 18 articles with the keywords of “judicial self-restraint with caution” and “administrative”, and also 4 articles with the keywords of “judicial passivism” and “administrative”. Part of these articles studied the judicial attitudes of American courts and European

20

Article 3(3) of the Administrative Reconsideration Law stipulates: . . .reviewing the legality and appropriateness of any specific administrative acts being applied for administrative reconsideration, and drawing up decisions of administrative reconsideration.

21

Article 6 of the Administrative Litigation Law states: In the trial of administrative cases, the people’s courts shall examine the legality of administrative actions.

22

Article 22 of the Administrative Reconsideration Law states: Administrative reconsideration shall, in principle, examine the application in written. Except for the circumstances where the applicant makes a require or the office responsible for legal affairs of the administrative reconsideration organ deems it necessary, the administrative reconsideration organ may investigate facts among the organizations and citizens concerned and listen to the views of the applicant, the respondent of the application, and the third party. For example, Article 41 of the Patent Law states: The patent administrative department of the State Council shall form a Patent Re-examination Board. If any patent applicant is dissatisfied with the decision of the patent administrative department of the State Council on rejecting the application, it/he may, within three months as of receipt of the notification, appeal to the Patent Re-examination Board for review. The Patent Re-examination Board shall, after the review, make a decision and notify the patent applicant. Where a patent applicant is dissatisfied with the review decision of the Patent Re-examination Board, it/he may, within three months as of receipt of the notification, bring a lawsuit with the people’s court.

23

It is the most comprehensive electronic database of the journals and dissertations in China.

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courts as comparative law studies,24 and some of them focused on the coordination between criminal procedure and administrative procedure in the same cases, or the role of procuratorates in environmental administrative law which has a special mechanism of public interest litigation. Regarding the traditional administrative law, some of the articles paid attention to the self-regulation of universities and judicial deference to the decision of these universities. In the meanwhile, a few literatures which researched judicial attitudes25 and judgments on administrative discretion may also mention the degree of judicial deference in Chinese administrative law. Nevertheless, all in all, judicial deference could not be thought as a welldiscussed terminology in Chinese administrative law scholarship. This may differ from other common law jurisdictions, like the US, the UK, and Canada. Therefore, the core meaning of judicial deference as a theoretical notion may be a little bit vague in China. There was even no definition in influential administrative law textbooks. Some Chinese scholars mentioned it in the theories on the boundaries of judicial powers in administrative cases,26 which argued that the judiciary should not give substantive guidance to the administrative organ. In fact, judicial deference has not been given enough emphasis by Chinese scholars probably because this word does not show in any official legal instrument, or in judicial policies passed by the SPC. There are even so few administrative judgments in which the judges clearly used the notion of self-restraint, deference or respect. In China Judgments Online (the only official database of judgments), there are only 29 administrative judgments in which the courts used the words of “restraint” or “deference” (谦抑).27 In other cases, courts could also possibly reflect the attitude of deference implicitly; while the courts did not show their intent explicitly. Some of these cases will be discussed in the following parts. Generally speaking, it lacks a set of mature theories of judicial deference developed by the scholars, or by the judges in China up to date.

2 Judicial Deference in China 2.1 2.1.1

Institutional Design of Judicial Review The Scope of Judicial Review

In china, administrative law scholars borrowed Germany theories to divide the administrative action into abstract administrative action and concrete administrative action.28 Article 12 of the Administrative Litigation Law provided with a list of the

24

See Gao (2006), pp. 142–149. See Wang (2013), pp. 93–99. 26 See Yang (1999), pp. 72–77. 27 This word would have many meanings, depending on the context. 28 See Jiang (2011), p. 26. 25

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judiciable actions which are mainly concrete administrative actions.29 The citizens can bring an administrative case when their rights were violated by administrative organs. However, under Chinese principle of the separation of powers/functions, the power of the judiciary was limited so that some issues could not be brought to judicial review. According to Article 13 of Administrative Litigation Law, the following categories are not subject to judicial review: (1) state action of national defence and foreign affairs. Even in other countries, this affair does not usually fall into the jurisdiction of the courts. (2) Administrative legislation. “Abstract” here 29

Article 12 of the Administrative Litigation Law states: The people’s courts shall accept the following complaints filed by citizens, legal persons, or other organizations: (1) A complaint against any administrative punishment, such as administrative detention, suspension or revocation of a license or permit, ordered suspension of production or business, confiscation of illegal income, confiscation of illegal property, a fine, or a warning. (2) A complaint against any administrative compulsory measure, such as restriction of personal freedom or seizure, impoundment, or freezing of property, or administrative enforcement. (3) A complaint against an administrative agency’s denial of, or failure to respond within the statutory period to, an application for administrative licensing or any other administrative licensing decision made by the administrative agency. (4) A complaint against an administrative agency’s decision to confirm the ownership or the right to use any natural resource, such as land, mineral resources, water, forest, hill, grassland, wasteland, tidal flat, or sea area. (5) A complaint against a decision on expropriation or requisition or a decision on compensation for expropriation or requisition. (6) A complaint against an administrative agency’s refusal to perform, or failure to respond to an application for the administrative agency to perform, its statutory duties and responsibilities in respect of protecting personal rights, property rights, and other lawful rights and interests. (7) A complaint claiming that an administrative agency has infringed upon the plaintiff’s autonomy in business management, right in the contractual operations on rural land, or right in operations on rural land. (8) A complaint claiming that an administrative agency has abused its administrative power to preclude or restrict competition. (9) A complaint claiming that an administrative agency has illegally raised funds or apportioned expenses or illegally required performance of other obligations. (10) A complaint claiming that an administrative agency has failed to pay consolation money, minimum subsistence, or social insurance benefits according to the law. (11) A complaint claiming that an administrative agency has failed to perform according to the law or as agreed upon, or illegally modified or rescinded, an agreement, such as a government concession agreement or a land and building expropriation compensation agreement. (12) A complaint claiming that an administrative agency has otherwise infringed upon personal rights, property rights, or other lawful rights and interests.

In addition to those as set out in the preceding paragraph, the people’s courts shall accept administrative cases which may be filed as prescribed by laws and regulations.

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means normative and general rules. Administrative legislation is a typical abstract administrative action. However, there are many types of abstract actions of which the legal effects differed from each other. According to the Law on Legislation 2000 (amended in 2015), administrative organs, including the State Council, the departments of the State Council, and the people’s governments of the provinces and municipalities, were authorized subordinate legislative powers to make regulations (法规) and rules (规章). These legislation passed by the administrative organs could not be reviewed by the people’s courts, but subject to the “record and review” (备案 审查) by the standing committees of people’s congresses respectively.30 However, for those normative instruments lower than the rules (normative instruments translated as “规范性法律文件”), the courts could review their legality and submitted the recommendation for change according to Article 64 of the Administrative Litigation Law to the administrative organs which made these documents when the courts find the contradiction. (3) Internal administrative decisions about personnel affairs, including rewards, punishments for the employee and the appointments or removals from the offices within administrative organs. (4) Other administrative action over which administrative organs have the power of final adjudication according to specific laws. Within the fourth category, there are also two kinds of cases: first, there are specific legal provisions which precluded the jurisdiction of courts and entitled administrative organs in the power of final adjudication. When the Law of Administrative Litigation passed in 1989, several laws, such as the Patent Law and the Trademark Law, provided that Patent or Trademark Re-examination Board could review the decisions of the relevant administrative departments of the State Council on the application for a utility model or design (实用新型), or trademark, and the Boards had the power of final adjudication over these affairs. However, with the development of administrative law, these specialized authorities were gradually abolished when the legislature revised the relevant laws. Up to date, there are only a few fields in which administrative organs have the final adjudication. According to Article 30(2) of Administrative Reconsideration Law, the decision of the State Council or the people’s governments of provinces, autonomous regions and municipalities directly under the Central Government to prospect and confirm or adjust administrative divisions into districts (行政区划), or to requisition lands, an administrative reconsideration decision to confirm ownership and right to use of natural resources, such as land, mineral resources, rivers, forests, mountains, grasslands, unreclaimed land, beaches, and maritime waters, is the final one. The other kind of cases within the fourth category gave the options to the citizens. According to Article 14(2) of Administrative Reconsideration Law, citizens can choose either to apply for the final decision of the State Council, or to bring a law suit before a people’s court if

30

Article 98 of the Law on Legislation states: An administrative regulation, local regulation, autonomous regulation, separate regulation, or rule shall, within 30 days of issuance, be reported to the relevant authority for recordation in accordance with the following provisions.

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they are not satisfactory with the appeal decision of a department under the State Council, or the people’s government of a province, an autonomous region, or a municipality directly under the Central Government on their concrete administrative action. It means that once the citizen decided to appeal to the State Council, the decision of the State Council will be the final one and he/she will not bring the case before the court again.

2.1.2

The Principles of Judicial Review

In Chinese administrative law, legality review could be treated as the principal rule of judicial review. Article 6 of Administrative Litigation Law provided that “[i]n the trial of administrative cases, the people’s courts shall examine the legality of administrative actions.” How much difference exists between the rule of legality review and ultra vires in British common law could be a noteworthy and interesting research topic.31 It will not be discussed deeply here. Legality review was established to refute the supporters of the review of reasonableness. Professor Jiang Mingan made his observations in his very influential textbook: Administrative Litigation Law provided legality review because administrative power and judicial power are different from each other. When administrative organs are making decisions, they shall be given discretion and execute such discretion comprehensively. Administrative organs have dealt with administrative affairs for a long time and thus had enough professional experience to respond appropriately to the situations and make decisions. Therefore, it shall not be the courts that make use of administrative discretion in the place of administrative organs. However, even so, the courts could still have the power to revoke or ask administrative organs to modify the controversial administrative actions when they think the action as ‘obviously inappropriate’ rather than ‘merely unreasonable’.32

When drafting the first Administrative Litigation Law in 1989, the legislature has already discussed these issues intensively and held different views about them, such as “which kinds of actions shall be subject to judicial review?”, and “shall the courts review the appropriateness of an action if it falls within the legal powers of

31

Article 70 of the Administrative Litigation Law states: Where the alleged administrative action falls under any of the following circumstances, a people’s court shall enter a judgment to entirely or partially revoke the alleged administrative action, and may enter a judgment to require the defendant to take an administrative action anew: (1) (2) (3) (4) (5) (6)

32

Insufficiency in primary evidence. Erroneous application of any law or regulation. Violation of statutory procedures. Overstepping of power. Abuse of power. Obvious inappropriateness.

See Jiang (2015), p. 409.

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administrative organs?”33 In the end, legality review was established as the principal rule of judicial review in Administrative Litigation Law 1989. The courts do not usually review the appropriateness of administrative action unless the execution could be treated as the abuse or being obvious inappropriate. In the official explanation of the draft of Administrative Litigation Law 1989, the Standing Committee of NPC explained in the following way: The people’s courts will review the legality of concrete administrative actions in administrative litigation. Regarding the inappropriateness of concrete administrative actions in accordance with laws and regulations, it is the procedure of administrative appeal that deals with this issue. The people’s courts shall not make decision in the place of administrative organs.34

Some scholars made further comments on this explanation: Administrative organs have a better situation to tell whether a concrete administrative action is reasonable or not. It is just within the authorities (discretion) of administrative organs. Therefore, the courts shall show their respect and thus avoid making decisions in the place of administrative organs on the issues regarding the administrative functions.35

From the above comments and explanation, it may obviously conclude that in Chinese administrative law scholarship, the discussion directly about judicial deference is not as much as those in common law jurisdictions, Chinese legal scholars have already touched the core of the principle of judicial deference, recognized the fundamental difference between judicial power and administrative power, and thought that the judiciary should not take the place of administrative organs when drafting the Administrative Litigation Law 1989. Eventually, the principle of legality review could be treated as the result of this debate, and become the fundamental rule of Chinese administrative law.36

2.2 2.2.1

Deference in Judicial Review of Administrative Decisions Deference in the Review of the Factual Issues

Under the separation of powers in common law jurisdiction, the rule of non-review of the determination of fact exists. However, like most civil law jurisdictions, judicial review in China did not clearly distinguish the scrutiny of factual issues from that of legal issues. In an inquisitorial system, the courts usually have more

33

See Gu (1989), p. 27. Wang, Hanbin (1989). The Explanation of the Draft of Administrative Litigation Law of the People’s Republic of China. http://www.npc.gov.cn/wxzl/gongbao/1989-03/28/content_1481184. htm. Accessed 30 Nov. 2017. 35 See Ying (1999), pp. 61–62. 36 This is the mainstream viewpoint in most textbooks and books in China. For example, see Jiang and Liang (2009), p. 34. 34

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powers than their counterparts in an adversary system. According to Article 39 and Article 40 of Administrative Litigation Law, the courts have the powers to require a plaintiff to provide or add evidence and to obtain evidence from administrative organs, other organizations and citizens. In accordance with Article 5 of Administrative Litigation Law, the courts make decision according to law and the fact, but not limited to the fact or evidence given by the concerned administrative organs. Nevertheless, if the courts collect some evidence which the administrative organs did not know when they made the decisions, these evidences cannot be used to justify the administrative actions. That is to say that the administrative organs cannot enjoy the benefit from the court’s investigation. That is not a limitation on the courts’ power to collect evidence actively or on the way of the use of evidence. As it may, the courts would like to show more respect in practice on the factfinding by administrative organs in some specific fields. For example, in the fields of the administration for land, food and drug, environment, maritime issues and the determination of labour injury, the courts in general have shown more deference on the determination of facts because they thought that these issues probably need more expertise and techniques; while some courts have held different opinions.37 In Linwu Villagers’ Group of Youlian Villagers’ Committee of Shihuipu Town of Yingde City v Qingyuan Municipal People’s Government of Guangdong Province (英德市石灰铺镇友联村民委员会林屋村民小组诉广东省清远市人民政府), Guangdong Higher Court said in the appellate judgment: In the course of the previous procedures, Yingde People’s Government, Qingyuan People’s Government and the trial court have all made on-the-spot survey on the controversial legal issues. Therefore, the Court decided to respect the result of survey and the decision.38

In Zhengzhou Runrui Commercial Co. Ltd. v Food & Drug Administration of Guancheng Hui Minorities District of Zhengzhou and People’s Government of Guancheng Hui Minorities District of Zhengzhou(郑州润瑞商业有限公司与诉郑 州市管城回族区食品药品监督管理局、郑州市管城回族区人民政府案), the appeal court, Zhengzhou Intermediate People’s Court, held that The appellant, Guancheng Food & Drug Administration, in its execution, thought that there was some foreign matter which differed from normal food in light of fact and relying on its expertise, feeling sense and experience. This determination of fact fell well into its jurisdiction and discretion. Moreover, normal people can also see the foreign matter within the package of food by the naked eye. If there is no evidence which shows the contrary, the court decided to respect the decision and discretion of the administrative organ.39

37

There is no precedent mechanism in China. The judgments passed by the higher courts do not have legally binding effects on lower courts. However, due to the reform of publication of judicial decision and accountability of judges, the judgments by the same courts or higher courts are de facto highly persuasive. 38 Guangdong Higher People’s Court (2015) Admin. Final No. 121. 39 Zhongmu People’s Court of Zhengzhou, Henan (2016) 0122 Admin. First No. 89; Zhengzhou Intermediate People’s Court (2016) 01 Admin. Final No. 955.

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In Hainan Kaili Co. v China Securities Regulatory Commission (CSRC) (海南凯 立公司诉证监会案),40 however, the court thought that it shall first tell whether the facts in accordance with which the CSRC made decisions are correct before deciding the legality of the CSRC’s action. The concerned actions of the CSRC included: (1) the disqualification of Hannan Kaili Co.’s issuing stock certificates because 97% of the company’s profit was found fictitious; and (2) the return of Hannan Kaili Co.’s application materials for the pre-selection of issuing stock certificates because the company’s accounting materials were found false. Therefore, the CSRC made the decision on the basis of the above facts. The plaintiff brought the suit to the court and required the court to examine the above facts and then overrule the CSRC’s decision. The trial court took a cautious attitude towards the claims of the plaintiff and held that the CSRC’s return was illegal and ordered it to restore the process of assessment and make a decision within a limited period. However, in the appellant judgment, the Higher Court treated the controversial issue in this case as the fact-finding of accounting materials and held that the CSRC was wrong because it had not asked a competent department or expertise organization to appraise the accounting materials and thus its decision of falseness was arbitrary. This judgment brought out many controversies in administrative law scholarship. Some scholars asserted: The court shall not usurp the administrative power to determine the fact. Under the principle of reasonableness review, the court shall uphold the decision of administrative organs unless it is obviously inappropriate. The court shall show its deference to administrative organ and cannot overrule it so freely, so long as its determination of fact is fair and reasonable, within the scope of recognition of an average intellectual and reasonable person.41

For some specific determination of facts, such as investigatory reports in fire, maritime accidents, and traffic accidents, administrative organs usually made and published an official investigatory before making administrative decisions in their own or submitting to other administrative organs for further decisions. In most occasions, these reports would be highly depended on and relevant to the final decision. There is no clear provision in Administrative Litigation Law about whether these reports could be reviewed by the courts. Most courts thought that the reports are not subject to judicial review in that they are merely the determination of facts. In Yang Weikun and Ren Sufang v Fire Detachment of Yili Kazakhstan Autonomous Region Police Office and Fire Department of Xinjiang Police Office (杨维 坤、任素芳诉伊犁哈萨克斯坦自治州公安消防支队、新疆维吾尔自治区公安 消防总队案), the plaintiff were not satisfied with the judgment of Xinjiang Higher People’s court and brought the appeal to the SPC for re-trial. The SPC held that The investigatory report of a fire accident is a piece of evidence on which the fire detachment makes its decision. It is an objective assessment on the causes of fire and the technical expertise. This report does not directly influence rights and liabilities of the plaintiff and

40 Beijing First Intermediate People’s Court (2000), First Inter. Admin. First No. 118; Beijing Higher People’s Court (2001), High. Admin. Final No. 7. 41 See Zhou and Gao (2001), p. 99.

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relevant administrative organs. Therefore, the investigatory report is not a justiciable administrative action.42

2.2.2

Deference in the Review of Legal Issues

As mentioned above, legality review is the principal rule of administrative litigation. Furthermore, in the designed institutional structure, the people’s courts cannot review the legality of abstract regulations and rules passed by administrative organs. Article 63 of Administrative Litigation Law provides that the courts shall apply laws, administrative regulations and local regulations, and can also refer to administrative rules. Moreover, the SPC issued an abstract interpretation (judicial interpretation) in 2009, entitled “the Rules of the SPC on the Application of Law, Regulation and other Normative Legal Instruments”, which stipulated that An administrative judgment shall apply laws, legal interpretations, administrative regulations or judicial interpretations, and may directly apply the local regulations, regulations on the exercise of autonomy and separate regulations, and interpretations of administrative regulations or administrative rules promulgated by the State Council or the departments authorized by the State Council, which shall be applied.43

In this rule, the SPC indeed provided with the hierarchy of legal instruments in administrative litigation, which can be considered as the source of administrative law in China. Except the regulations and rules, there is another kind of normative instruments which are called legal interpretation, including legislative interpretation issued by the Standing Committee of NPC, judicial interpretation issued by the SPC and the SPP, and administrative interpretation by the State Council and its departments.44 According this provision of the above SPC’s Rule, the court may also directly apply administrative interpretation by the State Council and its departments. In other jurisdictions, administrative organs do usually not share the authority of interpreting legal instruments with the courts. It is the courts that have the exclusive jurisdiction to interpret and apply laws in common law countries. This could be treated as one of institutional incompetence of the Chinese courts. Only the SPC, rather than the lower courts, can issue a piece of normative judicial interpretation.45 In an early case in 1990, Xia Xiaosong v Fuyang Police Office of Zhejiang Province (夏小松诉富阳县公安局案),46 the villagers in Hongguang village and those in Qianglie village of Fuyang had some controversies over the reparation of a 42

(2016) Supreme People’s Court Administrative Complaint No. 775. Article 5. Emphasis is given by this author. In practice, the courts usually did not distinguish the application from direct reference. The former has a higher legal effect than the latter in theory. 44 Article 3 of the Resolution of the Standing Committee of the NPC on the Improvement of Legal Interpretation 1981 stated that “[i]nterpretation of questions involving the specific application of laws and decrees in areas unrelated to judicial and procuratorial work shall be provided by the State Council and the competent departments.” 45 See Yang (2008), p. 255. 46 See Yin (1992), p. 32. 43

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dyke, and then they quarrelled and fought with each other. Consequently, Fuyang Police Office made an order of 12-day detention on the leader of Hongguang villagers, Xia Xiaosong, according to the provision on “spreading disruptive rumours and inciting disturbance” in Article 19 (5) of Public Order Administration and Punishment Law 1986.47 Xia Xiaosong brought the law suit before the trial court and the court upheld this order. In the appeal, Hangzhou Intermediate People’s Court overruled the judgment because Xia Xiaosong did not have the intention to incite the disturbance. Fuyang Police Office requested the procuratorate to counterappeal. In the course of re-trial, Police Office of Zhejiang Province brought a request to the Police Department subordinate to the State Council. Subsequently, the Police Department issued an administrative interpretation that the concerned provision of Article 19(5) indicated two kinds of disruptive behaviours which are connected with each other but different from each other. Even so, the Police Department interpreted that the violation of either branch of this provision could be thought as a violation of public order. Zhejiang Higher People’s Court, the re-trial court, followed this interpretation and overruled the appellant judgment. In fact, the courts did not question the Police Department’s interpretation of the relevant law, which could be treated as the function of the judiciary. Nevertheless, this case happened in 1990 when Chinese administrative law was still in its infancy. With the development of administrative law, the courts have gradually shown more confidence in applying and interpreting laws. In Fengxiang Co. v Shanghai Salt Affairs Administration (丰祥公司诉上海市盐 务局案), Shanghai Second Intermediate People’s Court pointed out: . . .Shanghai People’s Government passed the Rules on Shanghai Salt Affairs Administration, in which Article 4 provided that Shanghai Commercial Committee shall take in charge of salt affairs administration, . . . ., not Shanghai Salt Affairs Administration. Therefore, Salt Affairs Administration can only have the power to monitor the sales of salt . . . and no authority to seal, seize the illegal goods in this case.48

Regarding the functions of special governmental branches, the courts usually followed the administrative rules or interpretation. However, for normal reply or other advisory opinions by the governmental branches, the courts reviewed their legality as other normal cases; while the attention was also paid on the qualification of that governmental branch, the consistence of the reply with the higher legal instruments, and so on.49 This may share some common features with Chevron50 in the US.

47 This law was passed by the Standing Committee of the NPC and named as a regulation before its amendment in 2005. It had been heavily criticized by the scholars that its name was not the formal style of “law”. 48 The SPC Gazette, No. 1, 2003. 49 See Shao Zhongguo v Huangpu Monitoring Bureau on Working Safety, the SPC Gazette, No. 8, 2006. 50 467 U. S. 837 (1984).

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In most cases, actually, the courts kept their independent powers to interpret the law and overrule the interpretation of administrative organs. For instance, in one guiding case issued by the SPC, Huang Zefu and others v Jintang Administration for Industry & Commerce of Chengdu (黄泽富、何伯琼、何熠诉成都市金堂工商行 政管理局案),51 the administrative organ did not take a hearing procedure before the decision because it thought that Article 42 of Administrative Penalty Law did not require such a procedure. Article 42 reads as: An administrative organ, before making a decision on administrative penalty that involves ordering for suspension of production or business, rescission of business permit or license or imposition of a comparatively large amount of fine, shall notify the party that he has the right to request a hearing. . .52

The administrative organ took this list as an exclusive one and thus did not hold the hearing because the confiscation in this case was not included in the list of Article 42. The Court took a different view on the interpretation and held that the list just took some examples of influential penalties, not being an exhausted one, and thus the plaintiff had the right to participate in the hearing procedure in this case. It is a more generous interpretation by the court than that of the administrative organ. Compared with Xia Xiaosong judgment, it may clearly demonstrate the distinction between institutional deference of the courts and the functions and missions of judicial review. In a latest controversial case, Zhang Guang v Yitong County People’s Government (张光诉伊通县政府辞退民办教师案),53 Yitong government decided to fire all the non-government funded (community-supported) teachers who had worked since 1987, according to the working policy in the county. Zhang Guang, as one of them, brought the law suit before the court and required to review the relied instrument. Siping Intermediate People’s Court and Jilin Higher People’s Court both held that an administrative action according to a policy was not subject to judicial review in accordance to Article 53 of Administrative Litigation Law. Therefore, the court cannot review the relevant policy as well. Zhang Guang brought the request of re-trial eventually. The SPC held that the court shall review the legality of administrative actions and thus cannot decide whether an administrative action made according to a policy was contradictory with a law (no law exists at all). This over-deference to the policy might cause a dilemma in practice: an administrative action made according to a law could be subject to judicial review; while an administrative law not according to law could exempt from judicial review. Is there any possibility to stimulate the governments to escape legal review by issuing a policy? It is thus understandable that legal scholars took negative viewpoints towards this judgment.

51

Guiding Case No.6 issued by the SPC. Emphasis is given by this author. 53 The SPC (2017) SPC Admin. Retr. No. 2245. 52

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The Review of the Administrative Action Within the Discretion

As mentioned above, Article 70 of Administrative Litigation Law authorized the courts to repeal the concerned administrative actions when finding the illegality or obvious inappropriateness. Regarding the boundaries between illegality and obvious inappropriateness, a judge of the SPC observed that Due to the expansion of administrative powers, the discretion will also expand. There are many illegal and unreasonable, legal but unreasonable administrative actions in practice. In recent years, in the cases relevant to natural resources, labour, social security, registration of real estates and expropriation, the discretion of administrative organs obviously increased. If the legality rule of Administrative Litigation Law was over emphasized and the review of reasonableness was ignored, the disputes in practice cannot be substantially resolved. This cannot meet the requirements and expectation of citizens in administrative litigation.54

In the provision of Article 54, there is another category subject to review: the abuse of power. However, the courts usually did not review the abuse of power because the Crime Code 1997 provided with the relevant offence and penalty. Moreover, Administrative Reconsideration Law also stipulated the review of obvious inappropriateness55 and thus these two provisions had better keep coherent in the legal system. In a report of the Legal Committee of the NPC on the amendments of Administrative Litigation Law, the Committee also pointed out that the reason for adding the review of obvious inappropriateness is to resolve the real disputes between the citizens and administrative organs. This is also the supplement to the rule of legality review. Therefore, the Working Committee of the NPC explained that this was to strengthen judicial review on the basis of legality review and thus the courts would take those obviously inappropriate administrative actions into accounts.56 However, if an action falls within the discretion of administrative organs, the courts usually defer to administrative decision except in an obviously inappropriate situation. In Qi Mingxi v Songjiang People’s Government of Shanghai (齐明喜诉上海市 松江区人民政府案), the SPC held that The judgment on the scope of privacy in administration shall be the jurisdiction of administrative organs according to their practice and consideration on the legal rights of citizens. Therefore, the courts should defer to administrative decisions unless their decisions are obviously inappropriate.57

Also, in another case, Cai Guoqiang v Jiangsu Police Office (蔡国泉诉江苏省公 安厅政府案), the SPC held: Whether a piece of public information which was requested to open by the citizens belongs to national secret or not, and to what extent the administrative organs shall explain the secrets

54

See Liang (2017), p. 538. Article 28 (1)(3)(5) of Administrative Reconsideration Law. 56 See Xin (2014), p. 20. 57 The SPC (2017) SPC Admini. Retr. No. 309. 55

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to the citizens are the discretion of the relevant administrative organs. The courts shall defer to this discretion.58

In the recent case of Guangzhou Defa Real Estate Construction Co. Ltd. v Guangzhou Local Taxation Bureau of Guangdong (广州德发房产建设有限公司 诉广东省广州市地方税务局案), the SPC pointed out that Regarding the situation about the judgments of ‘taxation base is obviously low without any justification’, the courts usually defer to the expertise of taxation offices through their legal investigation because these issues clearly fall into the discretion of taxation offices, unless their judgements are obviously unreasonable or based on the abuse of powers.59

Although it is not clear in the current judgments in which fields exactly the courts prefer to defer to the expertise of administrative organs, the above cases made by the SPC may be influential to lower courts. Furthermore, the courts will decide the degree of deference as the concerned situation indicates. In addition, the principle of proportionality has gradually become a popular method when the courts reviewed the discretion of administrative organs recently. Among the famous cases published in the SPC’s Gazettes, there are more and more cases in which the principle of proportionality was applied. In Suzhou Dingsheng Food Co. v Suzhou Administration for Industry and Commerce (苏州鼎盛食品公司诉苏州市工商局案), Jiangsu Higher People’s Court said: The administrative organ shall keep the punishment proportionate to the wrong when making the decision on administrative penalty about the tort on the trademark even when the decision is within its discretion. That is to say that the administrative organ shall protect the legal rights of the citizens as well as achieve the aims of administration, and keep the administrative penalty within the limitation as the aims are to be achieved. . .If the administrative organ violated the principle of proportionality, this violation will compose of ‘obvious inappropriateness’.60

In another famous case about the principle of proportionality, Heilongjiang Huifeng Haerbin Planning Bureau of Heilongjiang Huifeng Industrial Development Co. Ltd. (黑龙江汇丰实业发展有限公司诉黑龙江省哈尔滨市规划局案), the SPC held that When making a decision on the penalty, the administrative organ shall consider its influence on the citizens and order the plaintiff to correct its behaviour in order to achieve the aims of administrative and to protect the rights of citizens, which shall be the least intrusive mean.61

In this way, the court actually levied on the discretion a more calculable standard: the least possible intrusive mean. All in all, the courts usually thought the controversial action as “obvious inappropriate”, if the action failed the principle of proportionality or violated the

58

The SPC (2017) SPC Admini. Retr. No. 2213. The SPC (2017) SPC Admini. Retr. (actively) No. 13. 60 The SPC Gazette, No. 10, 2013. 61 The SPC Gazette, No. 5, 1999. 59

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principle of equality, such as unjustified different treatment, bias or discrimination, or infringed the principle of due process. Proportionality is clearly much harsher than Wednesbury62 unreasonableness in the UK.

2.3

The Remedies of Judicial Review

Regarding the remedies of judicial review, Administrative Litigation Law provides with several ways: to repeal or partly repeal the controversial administrative action possibly with the request for the administrative organ to re-make the decision,63 and to order the performance for the case of negligence,64 to declare the illegality of the concerned administrative action but not to repeal it,65 to decide it as void66 with compensatory measures if available,67 to modify the administrative action in case of obvious inappropriateness,68 and to order the administrative organs to continue the compulsory performance.69 Moreover, for the re-making remedy, the administrative organ cannot make basically the same decision as the previous one.70 It seems that the courts have some choices in making decisions. However, in most cases, the courts choose to repeal the administrative action rather than other remedies; in another word, the repeal remedy is the most important one provided by Administrative Litigation Law. Usually, the courts would like to declare the illegality or being void as the special request of plaintiffs or because it is impossible or impracticable to repeal an administrative action. The courts were very careful to make a modification decision, which may be the most robust and intrusive remedy for administrative organs. The order of compulsory performance is also intrusive. Some foreign scholars who advocated the theory of judicial deference thought that the court shall not invade the domain of administrative organs to order them to perform some functions, especially on the specific contents of a certain function. This kind of decisions would usurp the power of the administrative branch and thus violate the rule of separation of powers.71 Professor Zhang Jiansheng commented that these two remedies (modification and performance) would be relevant to the boundaries between judicial power and administrative power.72 In practice, it may

62

Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223. Article 70. 64 Article 73. 65 Article 74. 66 Article 75. 67 Article 76. 68 Article 77. 69 Article 78. 70 Article 71. 71 See Lehner (1983), pp. 627, 631. 72 See Zhang (2011), p. 142. 63

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be difficult to decide whether an administrative organ meets its legal responsibility or not. In Guo Chuanxin v Juye County People’s Government (郭传欣诉山东省巨野县 人民政府案), the SPC said in the judgment: The court. . .not only reviewed the legality of administrative action and repealed the illegal one, but also made a judgment on the responsibility of the administrative organ. . .However, in some cases, if the burden of factual investigation is too heavy or if there is a great margin of appreciation for the administrative organ, the court can also make a reply decision to request administrative organ to re-consider the condition, rather than deciding the liabilities of the administrative organ. Obviously, although the trial court has shown the certain deference to the administrative organ, it did not make such a reply decision which is necessary in this case.73

Article 77 (1) of Administrative Litigation Law stipulated that the court can order administrative organs to modify the decisions in the following two conditions: (1) obviously inappropriate penalty; the wrong assessment on the relevant amounts. For example, in Jiujiang Long-haul Transportation Co. Ltd. of Jiangxi Province v Dafeng District Agricultural Committee of Yancheng City and Yancheng Forestry Administration (江西九江长途汽车运输集团有限公司诉盐城市大丰区农业委 员会、盐城市林业局案), Jiangsu Higher People’s Court held: When the concerned administrative action is obviously inappropriate, the court shall order the administrative organ to modify it. . .The defendant did not consider all the facts in context and made a 13632000 RMB penalty which is 2840 times of the income of the plaintiff. This obviously exceeded the necessity in case of illegal transporting wild animals.74

Comparatively, the decision of modification is a most intrusive remedy for administrative organs because the courts indeed make their own judgments on administrative decision. However, how to prevent the courts from invading administrative power excessively is always on the highlight of administrative law scholars. In China, this kind of decision can only be issued in very limited cases as mentioned above.75

2.4 2.4.1

Theoretical Discussion Over the Relevant Cases What Influenced the Deference of the Courts?

Firstly, As mentioned in the introduction, judicial power is not as strong as administrative power in China. The imbalance in practice does influence the degree of deference in judicial review. However, with the development of administrative law and the rule of law in China, judicial power has been much strengthened than before.

73

The SPC (2016) SPC Admin. Retr. No. 2621. (2017) Jiangsu Admin. Final No. 294. 75 See Yang (2001b), p. 96. 74

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Therefore, an active model of judicial deference gradually took place of a passive model of deference. Under the active model, the courts thought more about why and how to show the deference in the specific cases of judicial review and to what degree they defer to the administration. In this way, the Chinese courts could have more chances to communicate with their colleagues in other jurisdictions. Chinese judicial deference could share more and more common concerns with other countries. In any way, judicial independence is significant for judicial deference. Secondly, the development of legislation on administrative litigation also influenced judicial deference. If an administrative litigation law leaves too much gaps on the subjects and methods of judicial review, the courts would more probably increase the level of scrutiny to ensure the legality of the controversial administrative actions. In China, there is neither an Administrate Procedural Code up to date to unify all the legal administrative remedies, nor the principle of the exhaustion of remedies as the US. Furthermore, there is no precedent mechanism like French administrative courts in China. Therefore, the Chinese courts met more difficulty in establishing a set of methodologies to tell the determination of the facts and legal issues, the boundaries of legality review and the review of discretion. Sometimes, the courts reviewed these factual issues according to the principle of reasonableness in practice. The unconscious judicial deference does not benefit the development of the jurisprudence in China. Thirdly, nevertheless, we can still observe that the courts would like to demonstrate more deference in cases of the administrative expertise. For the review of these issues, the judiciary usually deferred to the judgment of administrative organs and kept self-restraint unless the actions in the cases were obviously inappropriate. Comparatively, the courts seemed more ambitious in the review of normal legal issues, except for those controversial political topics. Fourthly, with the development of Chinese administrative law, more and more citizens were inclined to sue the administrative organs in the courts. The courts will also obtain more independence and confidence through the comprehensive judicial reforms which are undergoing now. In accordance with the aims of administrative legislation, the courts will be the most important protector of the citizens, and the Letter-and-Visit complaint mechanism will be combined into the legal procedures in the future. It can be thus expected that in those administrative cases which have great influence on the rights of the citizens, the courts may enhance their standards of scrutiny respectively. Of course, last but not least, the courts need to consider the context to decide whether or how to defer to the administrative organs; therefore, in those cases dealt by higher or more self-restrictive administrative organs, the courts would like to demonstrate more deference in the cases. The high quality and self-restraint of administration will encourage the judiciary to develop their deference in judicial review.

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Table 1 Two types of deference Intensity catalogues Subject Types Principle Remedy

2.4.2

Strong deference Abstract review Expertise cases Discretion (reasonableness) Repeal

Weak deference Concrete review Normal cases Legality Modification, performance

The Degrees of Judicial Deference

On the analysis of Chinese cases, we can observe some types of deference, if any: strong deference and weak deference as indicated in the following Table 1. Furthermore, the courts usually showed more deference when administrative organs have held consistent actions for a longer time, or when the administrative organ actually took part in drafting the relevant legislation substantially, or when the administrative organs had more public support; and showed less deference when the concerned administrative organs were not the authority in charge of respective administration, or when the administrative interpretation contradicted with common sense. When commenting on the cases relevant to the autonomy of universities, a judge in the SPC wrote in an academic article: When dealing with the cases about disciplinary penalty by the university . . . the judges have usually enough knowledge and experience to solve the problems. . .Therefore, the courts can take a full-merit review of the whole case. . .However, regarding the cases relevant to the expertise of the university, . . .especially on the examination, assessment, dissertation, academic competence and other qualification, the courts shall have an appropriate deference.76

3 Conclusion 3.1

The Features of Chinese-Style Judicial Deference

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. The administrative branch, other than the courts, is located in the center of Chinese state power. The courts depend on the government substantially in the aspects of human resources, personnel establishment, and financial expenditure. These factors all weakened judicial power in practice. After all, Chinese administrative litigation has not been developed for a long time and thus judicial power still needs to be strengthened in order to scrutinize administrative actions effectively.

76

See Geng (2013), p. 97.

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However, to some degree, the courts frequently showed their deference to the administrative branch consciously. It can be expected that with the further development of China’s administrative litigation, the Chinese judiciary would develop its jurisprudence on deference and make remarkable progress soon. The development in the separation of functions, administrative expertise and efficiency of administrative litigation could explain such a trend. Therefore, it would be expected that more and more Chinese scholars will pay remarkable attention to judicial deference in China. China is a civil law system with the socialist law characteristics. Administrative law theories were greatly influenced by those in continental law countries. Administrative litigation is the case, but could also be treated as an exception. The mechanism of administrative litigation has also strongly borrowed the experience in Anglo-American jurisdictions and thus established a mixed style of judicial review. Judicial review was brought up and dealt by a common court with full jurisdiction in China. Nevertheless, China did not establish a case-law system and thus cannot learn directly from the jurisprudence in other common law countries. There is no well-established pure theory on the intensity and scope of judicial review like German. As a result, the courts feel hard to escape or avoid the institutional hinders as designed in the Chinese polity, and to balance the relationships between the judicial and administrative powers. This mixed-style feature of Chinese administrative law explained the predicament with which the Chinese courts have faced in the past 20 years. How to improve Chinese administrative litigation, how to coordinate administrative litigation with other legal procedures (especially with administrative reconsideration), and how to establish a set of mature jurisprudences on judicial review in China, could be thought as very significant topics for Chinese administrative legal scholarship. In the course of developing Chinese theories of administrative law, judicial deference will also show its importance in the future. All in all, regarding some salient features of judicial deference in China, it may be concluded in the following ways: (1) when judicial deference is concerned, if any, it is more a passive model than an active model as designed institutional competence currently; (2) the Chinese courts are probing a set of consistent methodologies of the active deference in the course of distinguishing the factual issues, considering the expertise of specific administrative organs, establishing the reasonableness review and applying the principle of proportionality; (3) there is some imbalance among different types and different levels of courts due to the complexity of Chinese judicial system and legislative system. The courts are from time to time adjusting their degrees of deference to achieve the balance between the protection of citizens’ rights and the prevention from an excessive intrusion on administrative power.

3.2

The Future of Judicial Deference in China

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

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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. Firstly, it is necessary for the courts to unify the standard of judicial review. In the course of judicial review, the Chinese courts will have more experience to establish a reasonable spectrum of scrutiny: in the field of policy making, the courts respect the margin of appreciation of administrative organs; in the field of expertise, such as food safety and risk regulation, the courts also loose the intensity of review; stricter scrutiny could be applied when administrative organs make a decision on punitive penalty or the deprivation of freedom or property rights of citizens. Secondly, the courts shall also carry out further investigation on the distinction between the fact-findings and legal controversies. This is closely related with the development of administrative procedures, administrative reconsideration and other remedial mechanisms. It is necessary for the courts to pay more attention to the legal arguments and to impose judicial remedies in an appropriate way, so as to establish the jurisprudence of deference rather than blindly deferring to administrative organs or robustly replacing the role of administrative organs. Thirdly, when the influence of foreign and comparative law is concerned, undoubtedly, the Chinese courts can benefit from the rich cases in foreign countries and comprehensive academic literature. An important solution to this issue depends on the Chinese courts’ experience and the knowledge from foreign legal theories. Nevertheless, under the principle of separation of powers in China, the Chinese courts had to face with some dilemma in Chinese contexts. Therefore, the courts shall develop their own methodologies regarding the application of legality review, “obvious inappropriateness”, and the principle of proportionality, to contribute the world in turn as a sample of developing countries. In one word, as a Common law scholar pointed out, one of the core issues in administrative law lies in determining the boundaries of judicial power.77 The discussion over judicial deference in China is crucial to the rule of law and judicial independence in China. Foreign experience cannot provide the only right answer to Chinese problems; while comparative studies will definitely contribute the development of the theories of judicial deference in China.

References Chen W (2017) On the judicial reform after the 18th party’s conference: past and future (十八大以 来司法体制改革的回顾与展望). Law Sci 10:4 Cheng H (2016) Concentrated jurisdiction over cross-border administrative cases and the reform of the mechanism of administrative trials (行政案件跨行政区域集中管辖与行政审判体制改 革). J Law Appl 8:15

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Daly P (2012) A theory of deference in administrative law, vol 1. Cambridge University Press, Cambridge Fang L (2017) The institutional functions of Supreme People’s Court’s itinerant courts (最高人民 法院巡回法庭的制度功能). Jurist 3:16 Gao Q (2006) Policy formation and judicial review:enlightenment from the Schaefer Case in the United States (政策形成与司法审查——美国谢弗林案之启示). Zhengjiang Acad J 6:142–149 Geng B (2013) Judicial deference and self-restraint in administrative cases regarding the universities (高校行政案件中的司法谦抑与自制). Adm Law Rev 1:97 Gu A (1989) The drafting history and guidelines of administrative litigation law. In: Symposium on administrative litigation law. People’s Court’s Press, Beijing, p 27 Hu J, Wu H (2014) On the evolution of the Chinese administrative litigation law in the past 100 years (中国行政诉讼法制百年变迁). Law Soc Dev 1:28–45 Jiang B (2013) Some observations on the improvement of the mechanism of administrative litigation (完善行政诉讼制度的若干思考). Chin Leg Sci 1:5–20 Jiang B, Liang F (2009) Theories and practice on administrative litigation law. Peking University Press, Beijing, p 34 Jiang M (2011) The administrative litigation law textbook. China Legal Publishing House, Beijing, p 26 Jiang M (2015) Administrative law and administrative litigation law. Peking University Press & Higher Education Press, Beijing, p 409 Lehner PHA (1983) Judicial review of administrative inaction. Columbia Law Rev 83:627, 631 Liang F (2017) Interpretation of new administrative litigation law. In: 2nd. China Legal Publishing Press, Beijing, p 538 Wang J (2013) The administrative appeal shall not accept decision of actionable: based on analysis of the Supreme People’s Court judicial attitude (论行政复议不予受理决定之可诉性——基 于最高人民法院司法态度的分析). J Gansu Polit Sci Law Inst 130(9):93–99 Wang J (2015) A normative analysis of the status of local people’s courts (地方各级人民法院宪法 地位的规范分析). Chin J Law 4:59–70 Xin C (ed) (2014) The explanation of administrative litigation law of the PRC. Law Press, Beijing, p 20 Yang H (ed) (2001a) Chinese constitutional theory in the new century (2nd half). China Personnel Press, Beijing, p 486 Yang J (1999) The limits of administrative litigation and administrative jurisprudence research topic (行政诉讼的界限及行政法学研究的课题). Adm Law Rev 4:72–77 Yang W (2001b) An analysis of the decision of performance and modification. Tribune Polit Sci Law 3:96 Yang X (2008) Legislative interpretations by the Standing Committee of the National People’s Congress. Hong Kong Law J 38:255 Yin C (1992) Legal issues of the first administrative counter appeal case (全国首例行政抗诉案件 所涉及的法律问题). Law Sci 7:32 Ying S (1999) Textbook on administrative litigation law. China University of Political Science and Law Press, Beijing, pp 61–62 Zhang J (2011) On the decision of the performance of legal responsibility in litigation: on the basis of Article 54(3) of administrative litigation law (行政诉讼履行法定职责判决论——基于第54条第3项规定之展开). China Legal Sci 1:142 Zhang J (2018) On breakthroughs and impacts of the state council’s institutional reform in 2018 (2018国务院机构改革的突破和影响). People’s Tribune 23:18–19 Zhou S, Gao H (2001) On the standards of the review of facts in administrative litigation (试论行政 诉讼对事实审查的标准). ZUEL Law J 5:99

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Qinwei Gao is Professor of Administrative Law of Sun Yat-Sen University Law School. He is the Council Member of China Administrative Law Studies Institute. He graduated from Renmin University with B.A. in 1995, LL.M in 2002 and LL.D in 2005. He served as Lecturer from 1995–2005 in China National School of Administration, Associate Professor and Professor from 2005–2019 in Central University of Finances and Economics. He was a Visiting Scholar at Law School of Columbia University in 2010–2011. A prolific administrative law scholar, his central focus of research has been on regulation and governance, and comparative administrative law. As an influential administrative law scholar and a leading scholar in regulation and administrative law, his academic works are among the highly cited ones in China. His recent publications include “Social Self-Regulation and the Tasks of Administrative Law” in China Legal Science (2015); “The Private Entity and Food Safety Standard-Setting: Based on the Co-Regulation Theory”, in Peking University Law Journal (2012).

Deference to the Administration in Judicial Review in the Czech Republic Zdenek Kühn and Josef Staša

Abstract 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.

1 Introduction The experience of the Czech administrative judiciary is framed by the unfortunate legacy of communism. Between 1952 and 1991 administrative review proper did not exist as it was considered useless in a communist regime which did not want to allow its citizens to sue their state.1 Complex issues of administrative, constitutional or commercial law left the court rooms to be decided by different bodies or, simply, did

This paper was written under the project of the Czech Science Foundation reg. No. 16-22016S entitled “Legal Transactions and Legal Responsibility of Juristic Persons”. 1

Cf. in English Markovits (1977–1978), pp. 619–620.

Z. Kühn (*) · J. Staša Faculty of Law, Charles University, Prague, Czech Republic © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_6

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not exist in the communist state.2 We will show that the experience of the communist regime and the lack of proper judicial review before 2003 contributed to the activist notion of the contemporary Czech administrative judiciary. The second legacy relates to the historical origins of the administrative judiciary in the Austro-Hungarian Empire in the 1870s. The Administrative Court in Vienna (Verwaltungsgerichtshof) was created in 1876 and exercised the review of legality of administrative decisions. This was the only administrative court deciding in the single instance.3 In 1918, when Austria-Hungary was dissolved, the Czechoslovak Supreme Administrative Court continued its tradition, survived the Nazi occupation and continued to operate until it was abolished by the communist regime in 1952. However, the conceptions of administrative law review used between 1876 and 1952 were reborn in the 1990s and influenced the new Czech administrative courts in the 2000s. The influence of these two legacies should not be underestimated. Much of what relates to judicial deference has been inspired by conceptions dating back to the scholarship and case law of the old Austrian Administrative Court and the Czechoslovak Supreme Administrative Court. In contrast, much of what relates to judicial activism of the contemporary administrative courts could be explained as negation of the communist past. Discontinuity in the legal development, both the absence of judicial review during the socialist regime and the lack of traditional relations between the executive and judicial branch play a significant role in the difficult search for judicial self-restraint.

2 Judicial Review and Deference to the Administration: Institutional Settings The administrative judiciary of the Czech Republic in its current form was created in 2003. Until then, provisional and simplified post-communist review functioned between 1991 and 2002, basically decentralised among eight regional courts and two higher courts, however without the supreme court or any appellate court which would unify the case law. Today the Czech Republic has a two-tier system of administrative courts. One of eight regional courts decides the case in the first instance. Cassation complaint against the first-instance decision is decided by the Supreme Administrative Court (SAC). Although, in theory, cassation complaint is an extraordinary remedy, technically the access to SAC is wide open and SAC has no filtering mechanism to select cases (with the sole exception of asylum cases). Therefore, in reality, cassation complaints could be used against any final decision of the first instance court. 2

Cf. Markovits (2002), p. 852. See the Act No. 36/1876 RGBl. [Imperial Collection of Laws of the Austrian Empire] on the establishment of Administrative Court. 3

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Interestingly, SAC is not limited to legal issues and could equally decide issues of fact as well. Hence, the admissibility of “extraordinary” cassation complaints is wide open and resembles appeal in all but name. Administrative courts never decide on the compensation of damages caused by the administration. This is a result of the strong adherence to the public/private law divide, mentioned above. According to this rigid theory, which has been rejected in many other European jurisdictions,4 administrative courts, being courts of public law, should never decide on financial compensation or anything of a private law nature. In this line of reasoning, deciding on money, compensation and damages is not a task for the administrative courts. The leading and most important task of the administrative judiciary is to review the lawfulness of decisions of the public administration. In addition, the administrative judiciary decides lawsuits seeking protection against the failure of an administration to make a decision as well as protection against an unlawful interference by an administration. While the former is protection against the public administration unduly not making a decision (inactivity lawsuits)), the latter is protection against any other illegal encroachment on rights (different from decision), such as illegal police intervention, illegal inspection or seizure, etc. (lawsuits against unlawful interference). Last but not least, protection against so-called “measures of a general nature” (inspired by the German concept of Allgemeinverfügung)5 should also be mentioned. Administrative courts also perform some additional tasks which it is, however, not necessary to analyse for the purpose of this paper (e.g. election issues). The general concept of judicial deference to the administration is unknown in Czech law. However, there are many specific features close to what is known in the common law system as judicial deference to administrative action or administrative interpretation of law.6 Above all, the key principle of subsidiarity of judicial review applies in all three main types of lawsuits, i.e. against administrative decisions, against inactivity or against unlawful interference. In sum, this means that the court should intervene only if the administration was not able or willing to remedy the alleged injustice. If a plaintiff does not exhaust the available remedies within the administrative proceedings, the lawsuit would be dismissed as inadmissible. This is additionally strengthened by the fact that administrative proceedings have two instances. Case law emphasises the constitutional nature of the subsidiarity of judicial review: “Based on the [constitutional] principle of the separation of power and subsidiarity in the protection of individuals’ rights, it is clear that the protection of the rights of individuals in the case under judicial review is primarily in the hands of 4

Cf. France and jurisdiction of administrative courts there. See Brown et al. (1998). Measures of a general nature are defined by their specific subject and indeterminate group of their addressees. The most typical examples cover urban zone plans and other measures of land-use planning. 6 Chevron U.S.A. Incorporated v. Natural Resources Defense Council Incorporated, 467 U.S. 837 (1984); United States v. Mead Corporation, 533 U.S. 218 (2001). See in the comparative perspective Garoupa and Mathews (2014). 5

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legislative and executive powers. Only if they do not protect individual rights it is the task of courts to step in.”7 Subsidiarity of judicial review is an expression of the separation of powers, checks and balances in a country governed by the rule of law, where no power could dominate over any other. Therefore, there must be both limits on undue expansion of either power and guarantee of effective protection of rights when needed.8 The key concepts relating to judicial deference are the notions of administrative discretion and deference to the administrative interpretation of open-ended (ambiguous) administrative terms. We will show that the notion of deference persists in the former, while it seems to disappear in the latter. Before going into the details of practical implementation of these doctrines, however, let us highlight some specific features of the Czech administrative judiciary which have an important impact on the judicial deference to the administration. One important issue which could affect judicial deference to the administration is non/specialisation of administrative law judges. We could expect, at least on a general and theoretical level, that judges with narrower specialisation would have greater deference to an administrative decision. On the contrary, the less judges are specialised, the more often they would be willing to encroach on administrative discretion.9 Like most of their European counterparts, Czech administrative judges are specialised judges in the field of administrative (public) law. Technically, the Czech administrative judiciary is a mixture of general courts, inside which specialised administrative judges sit, on the one hand, and the separate SAC at the top of the system, on the other hand. However, the key question is whether the administrative judges are further specialised within the more specific fields of administrative law. It is fair to say that the Czech judiciary is considerably less specialised than most other European administrative court systems.10 The law does neither require nor does it prohibit court specialisation. The actual framework rests with the decision of the court’s president. At the first instance level, a judge’s specialisation varies court by court. Because of the seat of some important authorities, the cases of a specific nature could be reviewed by only one of eight regional courts. This is the case of competition and public procurement law, industrial property law, etc. These complex issues are decided by a few specialised judges within one court. Moreover, most courts of the first instance do apply some sort of

7 Judgment of the Grand Chamber of the SAC of 27 August 2015 No. 1 Afs 171/2015-41, para 22, Photon SPV 3. 8 See judgment of the Grand Chamber of the SAC of 21 November 2017 No. 7 As 155/2015-160, Eurovia, para 40. 9 See Garoupa and Mathews (2014), p. 12. 10 Cf. for instance the Polish administrative judiciary. The Supreme Administrative Court of Poland is divided into three chambers, the Financial Chamber, the Commercial Chamber and the General Administrative Chamber, within which judges are further specialised. See .

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specialisation in many of the areas they deal with (environmental law, construction and building law, administrative penal law etc.). The situation with respect to specialisation is different at the level of the SAC. The law does not require internal division of the SAC. Based on the decision of the SAC sitting en banc, the SAC had two sections or “collegiums” (collegiums of financial law and social security law) between 2003 and 2013. In fact, it was a rather limited specialisation because most areas of law were dealt with by all judges. The specialisation prior to 2014 meant that tax law cases and financial law issues were decided by six chambers of the financial law collegiums whereas social security law belonged to three remaining chambers of the second collegium. The cases in any other field were decided by all chambers indiscriminately. In 2014, however, this internal division of the SAC was abandoned altogether by a qualified majority vote of the SAC’s plenary session. At the present time, all the judges of the SAC deal with all cassation complaints.11 The lack of any specialisation at the SAC is rather rare within the European continental judiciary. It could be explained by several factors. The SAC is formed of a diverse judicial body; only less than half of its judges are classical European career judges, who would be more in favour of specialisation. The majority of the SAC is made up by “outsiders”, coming from other legal professions, from academia, private practice, etc., many of whom are not particularly specialised within one special field of administrative law. Last but not least, the personality and influence of the SAC’s first President, Josef Baxa (2003–2018), contributed to the non-specialised court. Likewise, the number of cases decided by administrative courts and the fact of the number of cases that an average judge must decide could also be important. The number of cases decided by the Czech administrative judiciary is admittedly not large. Conversely, the number of administrative judges is also small, compared to the overall Czech judiciary (approx. 120 administrative judges out of the total number of 3000 judges). The workload at the administrative courts of the first instance in 2014, 2015 and 2016 was 8609, 8705 and 9664 cases respectively. The number of judges at those courts is approx. 90, which means approx. 100 cases per judge annually. At the SAC the number of cassation complaints was increasing (2647 in 2014, 2886 in 2015 and 3246 in 2016).12 The number of judges at the SAC is 32 which makes this court one of the smallest supreme administrative courts in continental Europe.13

11

The only exception to the rule of the non-specialised SAC is its specialised chamber, which deals with elections and the lawfulness of political parties and another chamber which deals with competence issues within the public administration. 12 See the data at the SAC website (www.nssoud.cz) and at the Ministry of Justice for the lower courts (www.justice.cz). 13 Cf. 115 judges at the Polish Supreme Administrative Court (Naczelny Sąd Administracyjny), almost 70 judges at the Austrian Supreme Administrative Court (Verwaltungsgerichtshof)—see www.vwgh.gv.at/english.html or 54 judges at the German Federal Administrative Court (Bundesverwaltungsgericht)—see www.bverwg.de/informationen/english/federal_administrative_

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Before we start analysing specific features of judicial deference to the administration, it is necessary to point out that this sort of deference is not applicable to judicial review of administrative decisions in civil matters. The Czech legal system does distinguish between cases decided by administrative authorities in the area of public law and civil law. Lawsuits in cases relating to public law are decided solely by administrative courts. Civil courts rule on appeals when administrative bodies decide in some private-law matter (e. g. the telecommunication office’s decision on unpaid balance on a phone bill, compensation for expropriation, etc.). The criteria are based on the public/private law divide: if the issue is of private law nature, it is decided by a civil court, notwithstanding the fact that the final administrative decision was made by an administrative authority. Vice versa, if the case is of public law nature, the administrative court would decide. The public— private law divide, incomprehensible from the common law perspective, has produced a great many questionable interpretations and sometimes delays deciding the case in merits.14 In public law cases, the administrative court reviews decisions of the administration. It has the power to quash the decision if it is unlawful or to declare that the decision is null and void. In these cases, the court returns the case for further proceedings to the administration. Otherwise, it dismisses the lawsuit. The court is not limited to the facts found by the administration, it could repeat taking some of the evidence or it could take new evidence. Likewise, the plaintiff can bring new legal arguments before the court. The only limitation is that the state of facts and law is fixed at the moment the administrative decision is made (ex ante judicial review). On the contrary, in civil law cases the activity of the civil courts, governed by the Code of Civil Procedure,15 is of an entirely different nature. Strictly speaking, it is not judicial review of the administrative decision but rather new judicial proceedings notwithstanding the earlier administrative decisions. A plaintiff who has exhausted all remedies within the public administration and is not happy with the outcome has the right to ask the court to hear the case once more. Unlike administrative courts in public law matters, the courts in civil law cases do not quash the decision if they find the plaintiff is right. Instead they decide the case again in place of the administrative authority. They do not annul the administrative decision; courts’ judgments simply replace the administrative decisions. However, if the court finds that the verdict of the decision is correct then, the court will dismiss the lawsuit.16 The administrative authority which decided the case in earlier administrative proceedings is not the

court.php. Moreover, in Germany two additional supreme courts in administrative matters exist— the Federal Social Court (Bundessozialgericht) and the Federal Finance Court (Bundesfinanzhof). 14 It happens that both the civil and administrative court refuses to decide the case for lack of jurisdiction or (less often) both claim jurisdiction. If this is the case, a special competence chamber would decide such a competence dispute. This consists of three Supreme Court judges and three SAC judges. 15 Part Five of the Code of Civil Procedure. 16 Decision of the Supreme Court of 26 February 2014, No. 21 Cdo 1072/2013, or decision of the Supreme Court of 31 August 2010, No. 33 Cdo 415/2008.

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defendant in this case (this is another deviation from the judicial review in public law matters). The only function of the administration in judicial proceedings is to hand in the dossier. In addition, it can write its viewpoint on the case.17 The court is not bound by the fact-finding of the administration and is free to take new evidence. In sum, there is no scope for any deference in this type of proceedings.

3 Judicial Deference to the Administration: Leading Concepts 3.1

The Court Cannot Go Beyond the Plaintiff’s Arguments

The administrative courts operate on the principle that they can review only those deficits on the part of the administration which have been claimed (on time) by the lawsuit. The court cannot go beyond the arguments brought by the plaintiff.18 This is perhaps one of the most important examples of the statutory limitation of the administrative judiciary. Even if the deficiency is clear and the judge notices it, the court cannot interfere on its own motion without the argument brought by the plaintiff. If the court violates this rule and quashes the decision for the reasons which were not disputed by the lawsuit, this is a reason for annulling such a judgment by the SAC.19 The law and the case law formulated only a few exceptions to this rule. The most typical example is if the administrative decision is not comprehensible or its parts are in inner contradiction or some arguments are entirely lacking and that is why the decision is not eligible for the review.20

3.2

The Decline of Judicial Deference to the Administrative Interpretation of Law?

Laws are full of ambiguous terms. The SAC explained that “ambiguous terms cover phenomena or circumstances which cannot be properly defined by the law, because their meaning and scope could change, could be subject to scientific findings in empirical sciences, time and location of the application of the rule, etc. The use of ambiguous terms relates to the diversity and variability of social relations and the

17

Judgment of the Supreme Court of 25 February 2016, No. 21 Cdo 5046/2014. Section 75 (2) of the Code of Administrative Justice. 19 See the recent decision of the Grand Chamber of 21 February 2017 No. 1 As 72/2016-48. 20 Id. 18

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need to take into account all possible conditions of the rule application with respect to changing circumstances.”21 Legal scholarship has always distinguished between ambiguous terms and administrative discretion (see below).22 Unlike administrative discretion, ambiguous terms do not allow the option of whether to act in some way or not, or to pick one of the choices provided by the law. The real question is whether courts should be content to accept reasonable interpretation of the law by the executive branch notwithstanding the fact that another interpretation is also plausible. One (minority) line of the earlier case law from the early 2000s seemed to suggest that this is exactly the case, i.e. that courts should defer to reasonable interpretation of ambiguous terms of the statute.23 However, this case law has never gained the majority support of the SAC. Moreover, it has recently been rebuffed by the Grand Chamber of the SAC, with respect to ambiguous terms “likelihood of confusion of the trademarks”: Interpretation of ambiguous term and its application to the facts of the case should be fully reviewable by court [. . .] If the administrative court would assess “likelihood of confusion of the trademarks” [. . .] in a different way than the administrative authority, the court can make a different legal evaluation of the facts of the case which would then be binding on the administrative authority.24

The question of judicial deference with respect to ambiguous terms is not entirely resolved, however. In fact, it is possible to link deference to the concept of uniform administrative practices. In defining the doctrine of the binding force of uniform administrative practices, the SAC was inspired by the German concept of “selflimitation of the administration” (“Selbstbindung der Verwaltung”).25 The SAC allows the creation of uniform practice if the law includes gaps or indeterminate phrases,26 which obviously also includes ambiguous terms. If uniform administrative practice has once been “established, the administration cannot deviate from it in an individual case. Such a deviation would have been arbitrary, which is unacceptable in the rule of law state.” The deviation would be possible in an individual case only if such a case was unique and unusual. “The administration could deviate from its practice in general only in the future, based on rational arguments and for all cases which relate to formerly established practice.”27

21

Judgment of the SAC of 28 April 2004, No. 7 A 131/2001-47; similarly decision of the Grand Chamber of the SAC of 22 April 2014, no. 8 As 37/2011-154 (case FERRERO), para 15. 22 Cf. Bažil (1993). 23 See judgment of the SAC of 22 March 2007 No. 7 As 78/2005-62, or judgment of the SAC of 30 April 2008 No. 1 As 16/2008-48. 24 See the decision in FERRERO, supra note 21, para 24. 25 See BVerwG (the German Supreme Administrative Court), the decision of 17 January 1996 11 C 5.95 - NJW 1996, 1766. 26 See judgment of the SAC of 23 August 2007 No. 7 Afs 45/2007-251. 27 Judgment of the SAC of 28 April 2005 No. 2 Ans 1/2005-57. Cf. decision of the Grand Chamber of the SAC of 21 July 2009 No. 6 Ads 88/2006-132, L’ORÉAL, paras 80–82.

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It is obvious that self-limitation of the administration is applied by the SAC in order to promote principled decision-making of public administration. However, by the same line of reasoning, it could be plausibly argued that if the administration has once created a uniform practice, it is not for the court to reject this practice only because there is another, competing reading of the law.

3.3

Administrative Discretion: The Bastion of Judicial Deference?

When analysing judicial deference to the administration, most Czech lawyers would think of the notion of administrative discretion. The concept of administrative discretion refers to the flexible exercise of decision-making allocated by the law to public administration.28 The discretion relates to (1) whether to act in a certain way or not, or (2) which of the options allowed by the law the administrative should choose. The Grand Chamber of the SAC defined administrative discretion in the following way: The concept of administrative discretion [. . .] in general exists if the law gives the administrative authority a certain free space within certain limits. The operative facts of the rule are not linked to a single legal outcome and the lawmaker gives the administrative authority the option to choose from more outcomes given by the legal rule. This free space is typically delineated by phrases such as “the administrative authority could”, “can be” etc.29

The notion of administrative discretion dates back to the late nineteenth century and the birth of modern judicial review. Originally, administrative discretion was excluded from any judicial review whatsoever.30 This limitation was abolished in 1918.31 However, the review of discretion has always been limited and did not touch the core of administrative discretion. The newly established Czechoslovak Supreme Administrative Court followed the tradition of the Austrian judiciary and limited judicial review of administrative (free) discretion to only the issue of whether the administration “did not overstep its limits” of discretion stated by the goal of the law and nature of the case, especially whether it did not follow other than lawful criteria to exercise discretion. The power of the administrative court to review discretion did not include the power to replace administrative discretion by its own judicial discretion.32

28

Therefore, this concept is understood more or less similarly throughout different legal cultures. Cf. Rabin (2003), p. 35. 29 Decision of the Grand Chamber in the case FERRERO, supra note 21, para 14. 30 Art. 3 (e) of Act No. 36/1876 RGBl., on the establishment of the Administrative Court. 31 Act No. 3/1918 Sb., on the Supreme Administrative Court. 32 Judgment of the Czechoslovak Supreme Administrative Court of 21 January 1919 No. 191/18, Boh. A. (The Bohuslav Collection of the decisions of the Czechoslovak Supreme Administrative

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Interestingly, the case law remained consistent although between 1918 and 1952 the law did not address the review of discretion at all, whereas between 1992 and 2002, at the time of renewal of judicial review after the fall of the socialist regime, administrative discretion was limited only to the issue of whether a decision did not deviate from the limits or standpoints given by the law.33 The case law of that time highlighted that “administrative discretion should not be confused with total arbitrariness. This would have been in conflict with the nature of the administration as an activity within the law and guided by the law.”34 Today the importance of administrative discretion is highlighted by the Code of Administrative Justice.35 In its Section 78 (1), it states that the court shall annul administrative decision for its unlawfulness “if the administrative authority overstepped the legal limits of discretion or the authority abused the discretion”. This implies that the court shall not question the exercise of discretion if the authority stayed within the limits stated by the law. These limits are usually explicit, stated expressly by the law. However, even if the limits are not stated by the law, there are still limits which bind the authority, following from the constitution and protection of basic rights (implicit limits).36 Therefore the court reviews whether the limits of discretion have been overstepped, whether the decision is consistent with the rules of logic and whether propositions of that decision have been found in due process. Moreover, additional limits could be (self)imposed on the administration by creating an established administrative practice.37 However, the court cannot simply disagree with the outcome of the discretion. The ban on the abuse of discretion is rarely found by the administrative courts. One of few examples of abuse was the case when the administration initially promised to make a decision of a certain type but later changed its mind without sufficient justification, the only justification being that after all the administrative authority is equipped with the power of discretion.38 The Grand Chamber of the SAC in its 2005 case stressed that “absolute discretion” in the rule of law state never exists. This is a major deviation from the earlier case law which simply assumed that if the law states no limits (legal criteria to exercise discretion), there is nothing which could be reviewed by the court:

Court, administrative section) No. 13, in the same line of argument see judgment of the Czechoslovak Supreme Administrative Court of 1 September 1919, No. 3755/19, Boh. A No. 164. 33 Mazanec (2000), p. 8. Between 1992 and 2002 the provision on discretion was Section 245 (2) of the Code of Civil Procedure. 34 Judgment of the High Court in Prague of 15 October 1992, No. 6 A 6/92. 35 Act No. 150/2002 Sb., the Code of Administrative Justice (Sbírka zákonů, Collection of laws of the Czech Republic). 36 Judgment of the SAC of 28 February 2007, No. 4 As 75/2006-52. 37 See judgment of the SAC of 13 August 2009, No. 7 As 43/2009-52. 38 See judgment of the SAC of 20 July 2006, No. 6 A 25/2002-59, Nabhani II.

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Administrative discretion has always been limited first by the principles stemming from the Czech Constitution; these principles make it clear that, even in cases of pure discretion, the administrative body is limited by the prohibition of arbitrariness, the duty to decide like cases alike (divergences of decision-making in similar cases could be the expression of constitutionally prohibited arbitrariness), i.e. the principle of equality, the prohibition of discrimination, the duty to preserve human dignity, as well as the duty of the administrative body to state expressly which criteria and consideration it has used in its discretion, which evidence it applied and how it evaluated it, and explain the factual and legal conclusions.39

This means that even discretion bound by no limits (quite often called “absolute” discretion by scholarship40) will not escape judicial review, although this review would be limited to only to the basic principles just mentioned. The Grand Chamber’s decision of 2005 was a turning point in the development of Czech judicial review as it technically allowed, though very limited, review of “absolute” discretion. The SAC emphasises that the administrative authority must carefully explain the way it applied its discretion. Its reasoning must be transparent, it must explain which facts were established and which evidence was used in finding those facts. Legal reasoning must be also outlined in detail.41 The concepts of administrative discretion and the limitation of judicial review have constitutional value. The Czech Constitutional Court stressed that the limitation is demanded by the constitutional requirements of the separation of powers between the judicial and executive branches of government. Therefore, the court cannot unduly interfere with administrative discretion; if the court violates this limitation, it acts unconstitutionally.42

3.4

Judicial Deference and Administrative Penal Law

The whole area of administrative penal law is decided by the administrative authorities and ultimately controlled by the administrative judiciary. Administrative penal law covers a plethora of very different (public) wrongdoings, including both individuals and corporations. The law43 distinguishes between the offenses of individuals, on the one hand, and the offenses of corporations and individuals acting as entrepreneurs, on the other hand. The range of mostly financial punishments is very broad, from petty penalties for minor traffic offences of individuals to significant penalties (in millions of Euros) imposed on corporations in competition and public procurement law, environmental law, etc.

39

Decision of the Grand Chamber of the SAC of 23 March 2005, No. 6 A 25/2002-42, Nabhani I. See Mazanec (2000). 41 E.g. judgment of the SAC of 30 November 2004, No. 3 As 24/200479. 42 Judgment of the Constitutional Court of 16 March 2006, No. IV. ÚS 49/04. 43 Act No. 250/2016 Sb., on responsibility for public offenses and related proceedings. 40

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Unlike administrative discretion, where the situation with respect to deference remains pretty much stable since 1918 (with the exception of “absolute discretion”), the deference with respect to administrative penal law has undergone the most significant development. Originally, in the first half of the twentieth century, the Czechoslovak Supreme Administrative Court insisted that it had no power to deal with the lawfulness of the amount of a penalty imposed by an administrative authority. The only issue subject to judicial review was whether the fine remained within the limits stated by the law. If it did, the court had no further power to meddle with the free exercise of the administrative discretion to impose an appropriate penalty. It was up to the administration to decide which amount of penalty corresponds to the nature and circumstances of the offense at stake.44 The nineteenth century and the early twentieth century conception of the limitation of the judicial review of administrative penalties came into conflict with the requirements of the European Convention of Human Rights, notably Art. 6 (1) which provides, inter alia, that in the determination of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. According to the European Court of Human Rights (ECtHR), the scope of criminal charge also includes administrative offences and relating punishments, no matter how trivial and no matter how small the fine that could be imposed. What matters is the deterrent nature of the penalty.45 This means that the limitation of judicial review of administrative penalties was in open conflict with Art. 6 (1) of the Convention. The broad interpretation of criminal charges within the meaning of Art. 6 (1) of the European Convention by the ECtHR caused the transformation of the Czech notion of deference to the administration in the realm of administrative penal law. When the administrative judiciary was revived in the Czech Republic in 1992, deference to administrative penalties was broadly criticised. One of the reasons why the early regulation of the administrative judiciary was annulled as unconstitutional by the Czech Constitutional Court (the legislature followed in due course and subsequently enacted a new 2002 Code of Administrative Justice) was the lack of review of the proportionality and appropriateness of administrative penalties. The

44 Judgment of the Supreme Administrative Court of Czechoslovakia, No. 1466/23, Boh. A. 1918/ 1923 (Administrative courts could deal with the amount of the penalty only with respect to the question whether it remained within the legal margins); judgment of the Supreme Administrative Court of Czechoslovakia, no. 8244/32, Boh. F. 6261/1932 (The issue of which particular amount of penalty imposed within the lawful limits is appropriate falls beyond the jurisdiction of the administrative court). 45 See the European Court of Human Rights, case Lauko v. Slovakia, 2 September 1998, case No. 26138/95, and Kadubec v. Slovakia, 2 September 1998, case No. 27061/95 (the absence of any judicial review of a decision imposing a fine on applicants who committed a common traffic offense constituted a violation of their right to a hearing by an independent and impartial tribunal established by law).

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Constitutional Court emphasised that the court had to “be endowed with the power to evaluate not only the legality of the sanction, but also its reasonableness.”46 The 2002 Code of Administrative Justice established the new power of the administrative courts to reduce or waive a penalty for an administrative offense (also called “moderation”). Section 78 (2) of the Code states that if there are no reasons to quash the administrative decision for its unlawfulness, the court may waive the penalty or reduce it within the limits provided by the law if the amount is apparently disproportionate. The court can do this if the outcome could be justified by the facts found by the administrative authority, or also those modified by the administrative court. The court can proceed to make this decision only if the plaintiff suggested this in the lawsuit. The power to moderate a penalty is an important tool which has modified the long-established nature of the Czech administrative judiciary. This means that the court could interfere with the exercise of administrative discretion (could substitute its own opinion for the administrative evaluation). Moreover, it is an exception to the cassation principle: the cassation principle means that the court can only quash a decision but never replace it by its own judgment. The replacement of the administrative decision by the court’s judgment is possible only if the administrative decision does not suffer from any unlawfulness. For instance, if the justification of the amount of penalty is incomprehensible or for any other reason insufficient, the court should quash the decision instead of exercising its own power to moderate. The function and purpose of judicial moderation is neither a search for any “ideal” amount of the penalty nor should it try to replace the administrative authority. Rather, it is judicial discretion which functions in parallel and independent of administrative discretion. It is the correction of an amount which is not just and adequate despite the fact that this amount is imposed within the lawful limits including all the legal criteria for its calculation. One could hardly imagine the exercise of discretion in the area of minor offenses of individuals. Therefore, in general, the moderation would be more frequent with respect to harsher penalties imposed on an entrepreneur or corporations.47 Another important feature of the judicial power to moderate penalties is that the facts relating to moderation are not fixed at the moment when the administrative decision was made. The court could take into account new facts which occurred only after the reviewed decision was made (for instance, this could be the fact that the corporation’s property has significantly changed and the amount of penalty originally imposed could threaten the corporation’s very existence). A very important deviation from standard judicial review also lies in the fact that the plaintiff can bring new evidence before the court even though he or she did not use this evidence during the administrative proceedings. The plaintiff can bring this

46

Judgment of the Czech Constitutional Court of 27 June 2001, No. Pl. ÚS 16/99 (translated into English at www.usoud.cz/en/decisions/). 47 Cf. the judgment of 19 April 2012, no. 7 As 22/2012-23; in the same line the decision of the Grand Chamber of the SAC of 16 November 2016, no. 5 As 104/2013-46, para 25.

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evidence to judicial proceedings even if it was available to him earlier. This does not mean that the administrative procedure does not matter or that the plaintiff could be entirely passive in the course of those proceedings, waiting for the judicial review to “surprise” the administration. New evidence could often be considered as unreliable if the administration carried out proper proof-finding. A reason to quash administrative decision would usually be only that the administrative decision was based on insufficient evidence. New evidence brought before the court could constitute proof that this is indeed the case.48

3.5

The Treatment of Fact Finding Based on Science and Technology

The administrative courts cannot form their own opinions in respect of purely technical questions. If it is necessary to deal with these questions or to assess correctness of the findings of the administration, the court should appoint its own expert who would make his or her own expert testimony. As summarised by the SAC: Experts should be called [. . .] so they would observe facts whose knowledge requires specific expertise and would make their own findings based on those observations (expert opinions). Experts should not be called, however, to communicate their views and judgments on legal issues [. . .] nor should they be called to testify about aspects that do not require expert knowledge and normal judicial experience is sufficient.49

Section 70 (d) of the 2002 Code of Administrative Justice excludes from judicial review an administrative decision which depends solely on the state of health of persons or is of a purely technical nature (technical state of things), unless it represents “by itself” an obstacle to the pursuit of a profession, employment or business, or any other economic activity.50 The application of Section 70 (d) is rare; furthermore it is not entirely clear how to interpret a key condition as not an obstacle “by itself”. According to case law, decisions which depend solely on the technical condition of things include determination of whether some item fits within the range of a certain utility model, a decision to terminate temporary incapacity for work, a physician’s report on medical disability to hold a firearms license, or certain other decisions relating to medical capacity without any impact on the pursuit of professional activities etc.51

48

See decision of the Grand Chamber of the SAC of 2 May 2017, No. 10 As 24/2015-71. Judgment of the SAC of 12 May 2010, No. 1 Afs 71/2009-113. 50 Section 70 (d) of the Code of the Administrative Justice. 51 Decision of the Municipal Court in Prague of 29 April 2015, No. 9 A 160/2011-49, judgment of the SAC of 7 October 2004, No. 2 As 16/2004-44, decision of the Municipal Court in Prague of 49

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The Czech Constitutional Court reviewed the constitutionality of Section 70 (d) and did not find it unconstitutional. However, administrative courts should avoid unconstitutional application of this provision. Above all, an administrative court should deny the review of decisions which affect fundamental rights.52 This is why the SAC concluded that a decision of a health insurance company whether or not to provide comprehensive rehabilitation care does not fit within the scope of Section 70 (d). Although this is purely a medical question, it also interferes with the protection of fundamental rights, namely the right to healthcare.53 Another reason why not to apply Section 70 (d) could be its conflict with EU law. If EU law provides for judicial review of some administrative decisions, it is the duty of the national courts to review such a decision despite Section 70 (d). One example is binding tariff information within the meaning of Article 12 of the 1992 Community Customs Code. The courts have to review such a measure despite the fact that it is of purely a technical nature.54 The exception under Section 70 (d) should be construed narrowly. If it is not clear whether Section 70 (d) should be applied, it is necessary to choose the interpretation which is plaintiff-friendly, which means it would establish the plaintiff’s standing.55 Last but not least, the concept of administrative discretion (see Sect. 2.3 above) is often mentioned with respect of not interfering with the expert competence of public authority.56

3.6

The Use of Proportionality Review

The principle of proportionality is one of the general legal principles which applies to all branches of government. At the beginning of its decision-making activity, the Constitutional Court already defined the application of proportionality to include its three criteria (the criteria of appropriateness, of necessity and of balancing of competing interests – proportionality in a narrow sense).57 With respect administrative law and activities of the administration, one can refer to the proportionality of legal regulation which forms the basis of the administrative activities, the proportionality of administrative decision making and other activities of public administration and, in addition, also the proportionality of judicial

21 February 2012, No. 9 Ca 100/2009 – 48, judgment of the SAC of 17 February 2010, No. 4 Ads 168/2009-86. 52 Judgment of the Constitutional Court of 15 January 2013, No. Pl. ÚS 15/12. 53 Judgment of the SAC of 30 September 2013, No. 4 Ads 134/2012-50. 54 Judgment of the SAC of 28 March 2013, No. 1 Afs 72/2012-29. 55 Judgment of the SAC of 15 December 2005, No. 3 As 28/2005-89. 56 Judgments of the SAC of 18 December 2003, No. 5 A 139/2002-46, of 30 November 2004, No. 3 As 24/2004-79, and of 26 November 2009, No. 1 As 89/2009-73. 57 First formulated by Judgment of the Constitutional Court of 12 October 1994, No. Pl. ÚS 4/94.

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decisions reviewing the activities of the administration. The latter is closely associated with judicial deference to the administration. The requirement of proportionality in relation to the administration stems from the Czech Constitution and is also expressly stated in the Code of Administrative Procedure.58 The duty of the public administration is to make sure that the outcome of the case corresponds to the circumstances of the case (“static” aspect of proportionality) as well as to guarantee that like cases should be decided alike (“dynamic” aspect of proportionality, which relates to established uniform legal practice). If the administration can choose among more measures to deal with the case it should choose the most appropriate measure. Second, if the measure could be implemented in several ways, it is necessary to choose the least invasive approach. Finally, negative impacts of the measure should be also taken into account. Much of these considerations should be applied in the exercise of administrative discretion, interpretation of ambiguous legal terms, evaluation of the evidence, etc. The use of proportionality by the judiciary is not very consistent. Sometimes, its application turns into mere rationality, although the court would not admit this and rhetorically uses the proportionality language. In doing so, the judiciary, in fact, defers to the administration. This is very important, especially with regards to the review of zoning plans (see below).

3.7

Zone Planning and Self-Administration

We have already said that the general concept of judicial deference to the administration does not exist. So far the most complex idea of deference could be found in the area of local development plans and zoning ordinances. The legal form of local development plans is a measure of general nature.59 They are enacted by the local municipal or regional assemblies in the exercise of their territorial autonomy (local self-government as opposed to state administration). The municipalities and regions are local self-governed bodies distinct from the state; they have the constitutionally protected right to self-administration. The state can interfere with the exercise of self-government only based on the law.60 Local development plans could be challenged by a lawsuit against a measure of general nature. The lawsuit could be made by the plaintiff who claims that he was harmed by the measure of general nature. The lawsuit could be made separately or together with the lawsuit against the decision which applied the measure of general nature.61

58

Section 2 (4) of the Act. No. 500/2004 Sb., Code of Administrative Procedure. See note 5 and the accompanying text. 60 Art. 99, Art. 100 (1) and Art. 101 (3) and (4) of the Czech Constitution. 61 Section 101a (1) of the Code of Administrative Justice. 59

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The court reviews the lawfulness of the local development plans and zoning ordinances based on the following criteria: (1) the power of the administration to enact the measure of general nature, (2) whether the administration overstepped the limits of its jurisdictions (including possible ultra vires decision), (3) whether the measure of general nature was enacted in a lawful way (question of due process), (4) lawfulness of the content of the measure of general nature, and. (5) proportionality of the measure of general nature.62 Assessment of the proportionality of local development plans is complicated both due to the expertise and technicalities of their content and the constitutional autonomy of local self-government. The concept of judicial deference is based mainly on the latter. The SAC emphasised that the proportionality test must be exercised with utmost care and deference. The constitutional right of the municipality to self-government must be also taken into account. This includes the right to organise their territorial relations according to their own ideas. On the other hand, zoning and local development plans are a serious breach of property rights to the extent that the court cannot resign on its duty to review obvious excesses and extreme violations of the fundamental rights of an individual. The SAC also emphasised that judicial intervention (annulment of a local development plan) must be based on the principle of subsidiarity of judicial review and minimization of the court’s intervention.63 The same approach was taken by the Constitutional Court, which criticised some judgments of the administrative courts. It reproached the courts for excessive formalism of the SAC with respect to local self-administration: the requirements for dealing with the objections of land owners in the course of local development proceedings cannot be too detailed. In addition, the Constitutional Court highlighted that judicial review should not threaten the stability of the local development plans.64 Deference to the assessment of proportionality also relates to the aspect of how to proceed with respect to the person who questioned the proportionality of the measure before the court but had not used this right in the proceedings before the administration. The SAC emphasised that the court could not judge the proportionality of the measure if the administration had not decided on this issue in the first place because no one had questioned proportionality earlier.65

This test was applied for the first time by the SAC in its judgment of 27 September 2005, No. 1 Ao 1/2005-98. 63 Judgment of the SAC of 31 August 2011, No. 1 Ao 4/2011-42. 64 Judgment of the Constitutional Court of 7 May 2013, No. III. ÚS 1669/11, Rokytnice nad Jizerou. 65 Judgment of the SAC of 7 October 2011, No. 6 Ao 5/2011-43. See also judgment of the SAC of 13 May 2014, No. 6 Aos 3/2013-29. 62

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The SAC emphasised its deference also with respect to the selection of variants of the key highway infrastructure corridor—this is a matter of the expertise of the administration, which is not for the court to question.66

3.8

Deference and Courts’ Interim Measures

Deference is obviously also the issue when the courts decide on interim measures in the initial stage of judicial proceedings. The law is based on the concept that a lawsuit does not have suspensive effect (with a few exceptions, such as asylum cases). After all, the administrative decision has the force of res judicata and is considered correct and lawful until the court decides otherwise in its final judgment. However, at the plaintiff’s request after hearing the opinion of the public administration, the court could award suspensive effect to the lawsuit if the enforcement of the administrative decision or any other consequence of the decision would result in irreparable damage to the complainant, provided that the award of suspensive effect does not unreasonably affect the acquired rights of third persons and is not contrary to the public interest. If this interim measure is granted, the decision ceases to have any effect till the end of judicial proceedings (the court could annul or modify its earlier interim measure if it turns out that there were no reasons to grant it or that circumstances have changed).67 Deference to the administration matters in deciding on interim measures and is also visible in comparing the threat to the plaintiff’s rights, on the one hand, and public interest to enforce and apply the duties arising out of a decision, on the other hand. This is why the opinion of the public administration is important, because it is the administration which should defend public interest in the court proceedings. The judicial decision on interim measures must be well justified. Deference to the administration and the preference of the ongoing effects of its decision over their suspension is also visible on the example of a decision which did not threaten the rights of the plaintiff as a whole, but only in part. Then the court would grant suspensive effect only vis-à-vis that part of the decision which threatens the plaintiff’s rights, whereas the rest of the decision remains fully applicable and enforceable.68 Moreover, in granting an interim measure, the court cannot go beyond the scope of the lawsuit and cannot rule on decisions which are not subject to judicial review, although they relate to the case.69

66

Judgment of the SAC of 21 June 2012, No. 1 Ao 7/2011-526. The Code of Administrative Justice, Section 73. 68 Decision of the Regional Court in Prague of 12 May 2014, No. 45 A 35/2013-58 (at stake was an urban zone plan, or its part). 69 Decision of the Regional Court in Prague of 6 February 2013, No. 45 A 4/2013-29. 67

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The second type of interim measure, although rarely applied, is injunction.70 By virtue of an injunction the court can order someone to do something or abstain from doing something in order to avoid the threat of serious harm. Injunction is applicable only if the award of suspensive effect of the decision cannot redress the problem.71 Interestingly, injunction is in theory applicable also if serious harm threatens the public interest represented by the public administration.72 Unlike most other issues discussed in this paper, decisions on interim measures are not subject to appeal (cassation complaint) and the SAC thus cannot unify the case law of the lower courts in this respect.73 Therefore, the actual application of interim measures and the level of deference to the administration vary throughout the administrative judiciary.

3.9

Cassation Principle

One important expression of a sort of deference is the so-called cassation principle in the decision-making of an administrative court. It has been the rule since the beginning of the administrative judiciary in the 1870s in the Austro-Hungarian Empire that courts can quash the decision of the administration but can never replace it by their own judgment (the principle of cassation). Nothing much has changed 150 years after this original conception was created. The origins of this principle, which are still applicable today, rest with the concept of the separation of powers. The administrative court is not part of the administration and this is why it cannot decide on the merits of the case instead of the administration.74 It cannot decide the case instead of the administration even if the outcome of its judgment is absolutely clear and gives the administration no option but to make just one specific decision according to the clearly expressed legal opinion of the court. The major exception (besides moderation—see Sect. 2.4 above) to the cassation principle is the Freedom of Information Act, which binds the court to order the administration to disclose the information rather than just annulling the decision which refused to provide the information. But even here the case law limited the power of the court to decide the case instead of the administration. One important condition to the order to provide information (and thus to complete and close the case) is that the decision challenged by the lawsuit include sufficient reasons to be reviewed. If this is not so (the lack of justification, contradictory or internally

70

The Code of Administrative Justice, Section 38. Decision of the SAC of. 24 May 2006, No. Na 112/2006-37. 72 Decision of the SAC of 1 February 2017, No. 6 As 6/2017-75. 73 The Code of Administrative Justice, Section 104 (3)(c). 74 Hoetzel (1937), p. 447. 71

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conflicting reasons, etc.), the court must give the administration a second chance to explain the reasons why it did not provide the information.75 The cassation principle still prevails in much of Central Europe today, such as in Slovakia or Poland (an important exception being Austria, where the courts are required to not only annul the administrative decision, but also to decide the issue instead of the administration).

3.10

Period of Prescription (Statutes of Limitation) and the Protection of Good Faith

The legality and the need to annul unlawful decisions could come into conflict with legal certainty and good faith. One well-known way to protect legal certainty and to question the activity of the administration without unnecessary delays is the rule on time limits to file a lawsuit (which limits the possibility of judicial intervention to annul administrative decisions or measures of a general nature, ordering the administration to act or declaring unlawful interference by the administration). The Code of Administrative Justice gives the plaintiff the right to challenge the decision of the administration within 2 months from the date of delivery (Section 72 (1)), within 1 year from the time when the decision was supposed to be made (in lawsuits against inactivity of the administration—Section 80 (1)), within 2 months from the date when the plaintiff learned about the unlawful interference, but no longer than 2 years of the time when the unlawful interference took place (Section 84 (1)), or within 1 year since the given measure of general nature became valid (Section 101b (1)). Those deadlines cannot be excused even if there are good reasons on the part of the plaintiff to extend the relevant periods of time.76 Another problem is connected with protection of rights acquired in good faith. This relates, first, to rights acquired in good faith based on an unlawful decision which has become valid but later became subject to review in extraordinary administrative proceedings. Second, the protection relates to a decision which in reality never became valid, typically because it was never delivered to one of the parties (but other parties acted in good faith as if it was indeed valid and binding). The Czech Code of Administrative Procedure77 deals with both types of good faith protection. The first case is when an administrative decision which has meanwhile become legally effective is reviewed by the superior administrative authority (review of binding decisions processed by the superior authority based on its own motion). Even if the decision is found unlawful, the superior authority should not annul it if the harm to the rights acquired from the decision in good faith would be in

75

Judgment of the SAC of 31 July 2006 no. A 2/2003-73. See judgment of the Grand Chamber Eurovia, supra note 8. 77 Act No. 500/2004 Sb. 76

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apparent disparity compared to the harm to other parties or the public interest.78 Second, in the course of deciding on the appeal of the omitted party, the rights in good faith of the other parties based on the (not yet valid) decision should be taken into account and protected.79 Ironically, the Code of Administrative Justice does not mention protection of rights acquired in good faith or legitimate expectation based on the unlawful decision or (not-yet) valid decision. It is very debatable whether such a difference in the regulation of administrative procedure and subsequent judicial review can be justified. This relates not only to the aspect of deference to the administration but also to the protection of legal certainty. One solution would be to find such a protection of good faith in the general principles of public law. However, case law does not go in this direction. Quite the opposite, it starts from the premise that other parties which could be affected by the annulment of the administrative decision cannot base their legitimate expectation on the unlawful decision. If some parties suffer damage because the decision was annulled by the court they should seek damages against the public administration. The SAC says that the administrative courts must not deviate from their duty to annul unlawful decisions and protect legality.80 The SAC noted that the impacts of unlawful decisions in social reality cannot justify a different decision of the administrative court and that the court simply cannot ignore unlawfulness.81 Case law is also not entirely clear with respect to the effects of annulment. With respect to annulment of a measure of general nature, the SAC emphasised that the effect of annulment shall arise at the moment when the judgment is announced; the SAC emphasised the protection of good faith and legitimate expectation.82 The effects of the annulment of an unlawful decision are more questionable, however, and case law has still not settled this issue.83

4 Conclusions Contemporary administrative courts face the challenge of ever-changing legislation. In relation to fluid laws, it is not the executive branch but the judiciary which has the more important word in most cases. Frequent amendments do solve some gaps but

78

Section 94 (4), Section 95 (5). Cf. also Section 97 (3) and Section 99. Section 84 (3). 80 Judgment of the SAC of 14 May 2008, No. 3 As 11/2007-92. 81 Judgment of the SAC of 21 July 2010, No. 3 Ans 11/2010-193. 82 Judgment of 21 June 2017, No. 3 As 157/2016-63. 83 Interestingly, if the superior administrative authority annuls the decision outside of appellate proceedings (based on some extraordinary remedies), it enjoys discretionary power to decide about the effects of the annulment. See Section 99 of the Code of Administrative Procedure. If we were to apply analogy, the court should enjoy a similar freedom. 79

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create even more gaps which have to be filled by the courts. Moreover, legislative chaos and uncertainty in the current state of legislation further complicates judicial deference to the administration. Last but not least, the legacy of communism is still present in the Czech Republic. The former degradation of the judiciary in the communist period (and almost complete annihilation of judicial review between 1952 and 1991) caused a reverse movement of the pendulum after 1990. Much of judicial activism and the relative lack of judicial deference can be explained by the historical memory and the discontinuity of legal development. Another reason for judicial activism lies in the current nature of the Czech administrative judiciary. Relative ease of judicial review by the courts of first instance and the wide open access to the SAC mean that many administrative cases are resolved in four instances—two instances of administrative proceedings and additional two instances of judicial proceedings. While this wasteful approach overburdens the SAC, it also provides a plethora of options for reversing decisions of the administration. All these things considered, it is not surprising that neither legal scholarship nor case law defines any general concept of judicial deference to the administration. If any general doctrines were formulated, it was in the area of urban planning, where especially the Constitutional Court restrained the administrative courts. The rationale behind this case law, however, lies in the protection of local self-government, which should be safeguarded from undue interference from all state power including the administrative courts. Other areas contain are 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”.

References Bažil Z (1993) Neurčité právní pojmy a uvážení při aplikaci norem správního práva [Ambiguous legal terms and administrative discretion]. Charles University, Prague Brown LN, Bell J, Galabert J-M (1998) French administrative law. Clarendon Press Garoupa N, Mathews J (2014) Strategic delegation, discretion, and deference: explaining the comparative law of administrative review. Am J Comp Law 62:1 Hoetzel J (1937) Československé správní právo. Část všeobecná [Czechoslovak administrative law. General Part]. Melantrich, Prague Markovits I (1977–1978) Socialist vs. Bourgeois rights – an East-West German comparison. Univ Chicago Law Rev. 45:612, 619–620 Markovits I (2002) Justice in Lüritz. Am J Comp Law 50:819, 852 Mazanec M (2000) Neurčité právní pojmy, volné správní uvážení, volné hodnocení důkazů a správní soud [Ambiguous legal terms, administrative discretion, free evaluation of evidence and the administrative court]. Bulletin advokacie 4:8 Rabin J (2003) Administrative discretion. In: Encyclopedia of public administration and public policy. Dekker, New York

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Zdenek Kühn is a Professor of Jurisprudence at the Faculty of Law of Charles University and judge at the Supreme Administrative Court of the Czech Republic. He graduated from the Charles University Law School (PhD 2001) and University of Michigan Law School, Ann Arbor (LL.M. 2002, S.J.D. 2006). Josef Staša is a lecturer of administrative law at the Faculty of Law of Charles University. His area of specialization covers general administrative law, construction law and urban zoning law.

Deference to the Administration in Judicial Review in Denmark Bent Ole Gram Mortensen and Frederik Waage

Abstract 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.

In the following we understand judicial deference as a legal doctrine which calls for a certain margin of appreciation in situations where an independent court reviews an administrative decision made by the government, e.g. the executive power, a regional public authority or a municipality. Considering the doctrine of judicial deference, the scope of a court review of certain administrative actions may be limited unless other doctrines such as e.g. the principle of legality demands a more thorough examination of a decision or an action. This report will explain the fundamental rules and principles of judicial review in Denmark with a focus on case law from the Danish High courts and the Danish Supreme Court.

1 The Development of Judicial Review in Denmark Until the middle of the nineteenth century, public authorities could not be challenged in court in Denmark, as the State was immune to proceedings brought by individual citizens. This changed with the Danish 1849 Constitution which introduced the current constitutional monarchy. However, the State’s immunity from judicial review did not end immediately, but only gradually. The current judicial review (and with it the legal discipline of administrative law) emerged based on legal principles formulated by the courts. Administrative law

B. O. G. Mortensen (*) · F. Waage Department of Law, University of Southern Denmark, Odense, Denmark e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_7

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principles were created by the courts in order to establish norms for government action. Step by step, with the gradual introduction of the administrative law principles, the free discretion of the administrative power became more and more restricted. The evolution over time of judicial review and the evolution over time of the Danish courts’ judicial deference are therefore inextricably linked. Towards the end of the twentieth century many of the administrative law principles were codified in different statutes. The most important of these is the Act of Administration (in Danish Forvaltningsloven). Denmark belongs to the Civil Law tradition and as it follows below, the starting point for all judicial interpretation is the acts of the legislator. In order to foresee whether or not a court will conduct a full review of a case the attention should therefore be on the provisions in the statutes that allows the state to act. Within Danish administrative law a number of cases can be identified where the court will limit its examination of an administrative action, including decisions, decrees etc. made by public authorities. The Danish Constitution includes a general provision (article 63) that allows the courts to conduct judicial review of administrative action. The original purpose of this provision was to allow Danish courts a limited review of administrative decisions. The constitution gave the courts the possibility to review whether the authorities had violated the law, including statutory acts. Later, judicial review was expanded also to include general principles of law such as the principle of equality, the principle of proportionality, detournement de pouvoir etc. On the other hand, so called “Questions of Wisdom” (in Danish “Klogskabsspørgsmål”) were originally meant to be excluded from review. Questions of Wisdom would for instance be matters where a public decision maker had access to experts within different areas, for instance regarding medicine or engineering. In these cases, the courts were expected to be reluctant to overrule the expert/ knowledge based government decisions. This approach was understandable since the judge was expected to be a generalist with no other formal qualifications than a candidate degree of law. To the extent that this approach is followed by the courts in Denmark today, it can be argued that the more specialized agency decisions are, the more reluctant should the court’s approach be expected to be when they review agency actions.

2 The General Approach to Judicial Review In Danish law a division is made between (1) the free discretion of the authority (in Danish “skøn”) and (2) legal requirements of the decision that follows the rule of law (in Danish “retsspørgsmål”).1

In a doctoral thesis from 1969, ”Øvrighedsmyndighedens grænser” [The Limits of Administrative Power], Ole Krarup argued against the distinction between free discretion and legal requirements. The distinction has, however, been withheld by the Danish Supreme Court in a number of cases. 1

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It is stated in Section 64 of the Danish Constitution that the courts are meant to deem in accordance with the law. Accordingly, Danish courts will always be qualified when it comes to answering whether a government decision is legal. But the courts usually hesitate to intervene in government action in areas that are outside the scope of the law and within the sphere of administrative discretion. This can be explained by the following example: In a Supreme Court Case from 2007 (published in The Danish Weekly Law Report 2007 pp. 1575 ff.) a government board had refused to grant permission to allow a citizen to build a house at a cultural heritage site in Denmark. The Danish Supreme Court stated that the administrative board was supposed to make a discretionary decision where a balance was to be structed between the interest of the citizen and the interest that was contained in the law. The Supreme Court found that the decision was formally legal and the court refused to conduct any kind of a review on the discretionary elements of the case. On the other hand, Danish courts are ready to conduct a full review of the legality of the government decision. This can be explained by the following example: Denmark is known for having the heaviest taxation on cars in the world. In a Danish Supreme Court case (published in The Danish Weekly Law Report 2009 pp. 1026 ff.), a tax payer imported a used car to Denmark. He registered the value of the car at DKK 140.000 (about EUR 19.000) and the tax authorities estimated that value of the car was DKK 310.000 kr. (about EUR 40.000). At first, the Danish Supreme Court investigated whether the decision (the value estimate) was in line with Danish legislation and EU-law. Thereafter the court investigated whether the tax authorities had examined the market and other comparable cars in accordance with the administrative law principle of investigation. Having completed these investigations, the court deemed that “there was no basis for setting aside the assessment of the value of the car made by the tax authorities”.

It follows from the example that the court examines the legal basis for the decision as well as general principles of administrative law, such as the principle of investigation. If these requirements have been met, the court will defer from further scrutiny of the discretionary decision in the case.

3 The Principle of Manifestly Wrong2 Decision Making (in Danish “Åbenbar Urimelighed”) In 1950 the Danish legal scholar Max Sørensen introduced the principle of manifestly wrong decision making.3 This principle completes the picture and the tool collection that the Danish courts have access to when dealing with discretionary decisions. While keeping the traditional reluctance towards setting aside discretionary decision making of the authorities, the principle of manifestly wrong decision 2

Or obvious unfairness. Sørensen “Kan domstolene efterprøve forvaltningens skønsmæssige afgørelser” [Can the courts review the discretionary decisions of the administration], published in The Danish Weekly Law Report 1950B. pp. 273 ff.

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making allows the courts to investigated not only whether the decision is based on e.g. the principle of proportionality, but also whether the decision in itself is manifestly wrong. The principle can be considered a General Clause (in Danish Generalklausul) or legal standard quite comparable to similar clauses of reason known from e.g. German or Scandinavian contract law and marketing law.4 The use of the principle of manifestly wrong decision making can be explained by the following example: In a Danish Supreme Court case from 19995 a man had lived together with his wife and her 4 children for many years. He had taken over the father role of all four children, however the Danish adoption authorities would only allow him to adopt the youngest child. This followed from a highly discretionary decision where the authorities amongst others focused on the relatively short age gap between the coming stepfather and the three oldest children. The Danish Supreme Court overruled this discretionary decision and deemed that the stepfather should be allowed to adopt all four children. In the decision the court made it clear that the authorities should have focused on supporting family unity.

In Danish legal theory this court decision is generally understood as based on an assessment of reasonableness or the principle of manifestly wrong decision making.

4 An Interpretation of the Words and Meaning of the Section of the Act Defines the Scope of the Investigation In order to explain to which degree Danish courts, investigate authority decisions, the above mentioned distinction between legal requirements that follow from the rule of law and free discretion also applies. Danish literature of administrative law has divided the level of the courts review into two main categories, namely areas where the courts are conducting a full review and areas where the courts conducts a limited review or no review at all. When establishing whether or not a Danish authority can make a discretionary decision focus will always be on the individual provisions in the legislation. Thus, if an act stipulates that the authority “can” do something, this would be considered to provide the authority with a certain amount of discretion.

4

A General clause can be seen as a statutory provision, which is structured such that its legal effects occur when certain generally formulated conditions are met. Such a legal formulation is usually due to the desire to allow a judicial area to develop in harmony with the patterns of trade that unfold in the area in question. General clauses are therefore used most often in areas with voluntary industry regulation or administrative practice, or where there is a possibility that practices can be clarified due to frequent litigation. Garde and Hansen-Jensen compares the principle of manifest wrong decision making to the General Clause in art. 36 of the Danish Act on Contracts which states that a contract may be set aside by the court if it is unreasonable or against common trade practice to invoke the law, cf. The Lawyer (in Danish Juristen) 2009, p. 66. 5 See The Danish Weekly Law Report 1999 pp. 614.

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Areas Where the Courts Conduct a Full Review

Within all areas of law, Danish judges consider themselves experts on interpreting legislative acts and perhaps more importantly, the acts as they are understood in light of legislative proposals or the travaux préparatoires of the acts. This approach applies even to broad and abstract interpretation as long as this interpretation involves the interpretation of the law. The courts will normally be ready to conduct a full review of e.g. the agencies interpretation of the law and usually the provisions of the legislative acts. If an act stipulates a rule (a section) in precise and detailed terms the courts can be expected to duly investigate whether the agency has in fact followed these details. If in contrast, the provision is formulated more broadly, the courts will be more reluctant to scrutinize the decision. This approach can be explained by the fact that the courts consider themselves experts on reading and applying the law, while they do not consider themselves experts on areas where the authority is supposed to be competent. The approach can be explained by a Supreme Court Case from 19956: In the case two shops which were situated off a freeway claimed to have the right to keep their shops open outside normal opening hours. The shops claimed that the location next to the freeway was placed in what in the Danish Act on opening hours in retail (in Danish “lov om butikstid”) was defined as a “major junction”. Following an interpretation of the arguably broad term “major junction”, the High Court and the Supreme Court ruled that the location of the shops was not placed at a major junction. The interpretation also includes the “concrete legal subsumption” (in Danish “konkret fortolkning”) between the fact and the law. Thus, Danish courts are ready to investigate whether Danish authorities have applied the legal statutes correctly considering the law. In a case from 2006 the question was whether a homemade soap box car could be considered a motorcycle cf. the Danish Road traffic act. The courts made a full review of the act and the soap box car and concluded that the car was in fact a motorcycle in terms of the act.7

4.2

Areas Where the Courts Conduct a Limited Review or no Review at All

On the other hand—as described in the example in the above on taxation of cars— there are areas of law where the court will only conduct a limited review. This is the

6 7

Published in The Danish Weekly Law Report 1995 pp. 495 ff. Published in The Danish Weekly Law Report 2006 pp. 681 ff.

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case when the provision of the legislative act is formulated broadly, for instance if the provision indicates that the government “in special circumstances can” (do something) without indicating from the legislator what those circumstances are.

5 Concluding Remarks It follows from the above, that Danish courts as a starting point investigate and analyze the legal basis, the section of the legislative acts, that provides the authority with a competence to act within a given area. Based on this interpretation the courts will decide the level of judicial deference. The approach of the court reflects the fact that Danish judges are generalists. They do not consider themselves competent in setting aside the expertise of the authorities as long as they have reached the conclusion that the authorities have made their decisions in accordance with the law. In a modern democratic society where the government is answerable to parliament this understanding corresponds very well to the separation of powers. The courts have no parliamentary legitimacy but they have an independent role within judicial review.

References Literature Garde J, Jensen MH (2009) Åbenbar urimelighed som prøvelsesgrundlag I forvaltningsretten [Manifestly wrong as a probationary basis in administrative law]. Lawyer (in Danish Juristen) 3:66 Krarup O (1969) Øvrighedsmyndighedens grænser” [The Limits of Administrative Power]. Juristforbundet Sørensen M. Kan domstolene efterprøve forvaltningens skønsmæssige afgørelser [Can the courts review the discretionary decisions of the administration]. The Danish Weekly Law Report 1950B, pp 273 ff

Laws The Danish Constitution of 5 June 1849 The Danish Constitution of 5 June 1953 (the present) The Danish Act of Administration (in Danish Forvaltningsloven) No 433 of 22 April 2014

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Danish Supreme Court Cases Supreme Court judgment of 28 March 1995, Case No I 151/1994, The Danish Weekly Law Report 1995 pp. 495 ff Supreme Court judgment of 26 March 2007, Case No 357/2005, The Danish Weekly Law Report 2007 pp. 1575 ff Supreme Court judgment of 28 January 2009, Case No 127/2007, The Danish Weekly Law Report 2009 pp. 1026 ff

Other Court Cases Eastern High Court judgment of 4 December 1999, Case No B-3033-98, The Danish Weekly Law Report 1999 pp. 614 Western High Court judgment of 24 November 2005, Case No S-1846-05, The Danish Weekly Law Report 2006 pp. 681 ff

Bent Ole Gram Mortensen is a professor of Law at the University of Southern Denmark. Since 2004 he has had a Chair of Public Law and since 2009 a Chair of Environmental and Energy Law. He has more than 30 years of postgraduate experience with a background in law firms, the oil industry, the Danish Ministry of Justice and the university sector. He has since 1995 dealt with legal research in public law especially environmental and energy regulation but also administrative and international law. He has published a large number of books, book chapters and articles in English, German and Danish. Further, he is Chairman of the Valuation Authorities in the Region of Southern Denmark in compliance with the Danish Renewable Energy Act, Vice Chairman of the Danish Energy Board of Appeal and Member of The Council for Protection of Intellectual Property (UBVA). Frederik Waage is an associate professor of Law at University of Southern Denmark, and currently director of the Public Law research group at University of Southern Denmark. He obtained an LLM (cand.jur) in 2006. The same year he obtained an LLM from College of Europe in Bruges. After the defense of his thesis “The state as party in civil litigations” in 2017, he obtained the Danish Doctor Juris (dr.jur.) degree, which is comparable to the German Habilitation. He is a former civil servant and attorney-at-law. His publications include articles and books on civil procedure, administrative law and constitutional law.

Deference to the Administration in Judicial Review: The European Union Mariolina Eliantonio

Abstract 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.

1 Introduction 1.1

The Judicial Architecture of the European Union

In the European Union (EU) legal system, the judicial powers are exercised by a body referred to as ‘Court of Justice of the European Union’ (hereinafter: CJEU). This institution consists at present of two courts—the Court of Justice and the General Court. As a consequence of the reform of the General Court, which took effect as of September 2016, the Civil Service Tribunal has stopped operating and has been absorbed into the General Court.1 In the future, new specialised courts may

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Regulation EU 2015/2422 of the European Parliament and of the Council amending Protocol No 3 on the Statute of the Court of Justice of the European Union (Euratom) [2015] OJ L341/14. M. Eliantonio (*) Maastricht University, Maastricht, The Netherlands e-mail: [email protected] © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_8

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be created in accordance with the procedure set up in Article 257 of the Treaty on the Functioning of the European Union (hereinafter: TFEU), in order to exercise judicial competence in certain specific areas. The most important cases in which the General Court has jurisdiction concern actions for annulment of acts of the EU institutions under Article 263 TFEU and actions for failure to act on the side of the EU institutions under Article 265 TFEU brought by natural or legal persons (for example, a case brought by a company against a Commission decision imposing a fine on that company); actions seeking compensation for damage caused by the institutions or the bodies, offices or agencies of the European Union or their staff under Articles 268 and 270 TFEU; and actions based on contracts made by the European Union which expressly give jurisdiction to the General Court under Article 272 TFEU. The General Court may, therefore, be considered as the “administrative court” of the European Union, because it has jurisdiction to review acts of the European executive, namely the European Commission and the other institutions, bodies, agencies and offices of the European Union when they implement EU legislation. The decisions of the General Court may, within 2 months, be subject to an appeal before the Court of Justice, limited to points of law. According to Article 256(3), the General Court has the jurisdiction to give preliminary rulings (Article 267 TFEU) in the areas laid down by the Statute. However, since no provisions have been introduced into the Statute in that regard, the Court of Justice currently has the sole jurisdiction to give preliminary rulings (i.e. rulings concerning the interpretation or validity of EU law sent by national courts). Apart from appeal functions against rulings of the General Court, the Court of Justice has jurisdiction in first and last instance in infringement proceedings under Articles 258–260 TFEU (i.e. actions brought by the Commission against a Member State for failure to fulfil its obligations and under EU law), and in proceedings against the EU institutions for annulment and for failure to act when they are brought by a Member State or an EU institution.2 In a similar manner to the French legal system, the judges of the Court of Justice are assisted by 11 Advocates General (hereinafter: AG) who are responsible for presenting a legal opinion on the cases assigned to them. In the EU legal order, the Advocate General is not part of the chamber determining the case, but participates in the oral proceedings and may question the parties. The Advocate General then delivers his or her opinion in public on the legal questions of the case, based on a thorough analysis akin to an academic discussion, and suggests how the court should decide. The opinion is always published separately and in full. In the General Court, there are no Advocates General, but the judges themselves may be called upon to perform the task of Advocate General.

2 Please note that infringement proceedings and preliminary rulings will not be further dealt with in this contribution, as they do not have the nature of ‘judicial review of administrative action’.

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The Grounds of Review of Administrative Action

In the European system, a fixed set of grounds for judicial review exists. In Article 263 TFEU, which stipulates the requirements for an action for annulment, specific reasons are listed. The claim can only be based ‘on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaties or of any rule of law relating to their application, or misuse of powers’. Thus, complaints based on procedural grounds as well as claims based on the infringement of substantial law are covered. An action for failure to act, according to Article 265 TFEU, may be brought when the failure to act is allegedly ‘in infringement of the Treaties’. The grounds for review were originally taken over from the French legal order, but they have developed autonomously and have currently an own distinct shape. These grounds only cover a review of legality of the EU action or inaction, which means that the European courts are precluded from assessing the merits of the actions or decisions reviewed.3 Judicial review of discretionary choices of the administration is carried through one specific ground of review, namely ‘infringement of the Treaties or of any rule of law relating to their application’.

1.3

The Concept of ‘Discretion’ in the EU Legal System

In the EU legal system, there is no clear conceptual distinction between ‘discretionary choices’ and ‘technical choices’ (or, as some legal systems call it, ‘technical discretion’) of the EU administrative authorities. While it has been argued that the differentiation in references to concepts such as ‘margin of appraisal’, ‘power of appraisal’, ‘discretion’ or ‘margin of discretion’ might seem to indicate that the European courts try to differentiate such concepts,4 the doctrine is consistent in holding that no clear distinction between types of discretionary choices—akin to that made at national level—can be identified in the case law of the European courts.5 As is well known, this distinction is not necessarily an easy one to make.6 Discretion stricto sensu is taken in this contribution to mean the process through which the EU administration assesses and weighs competing public interests. ‘Technical discretion’ refers to the assessment, within the framework of set legislative criteria, of the aspects of the decision-making process that require expert knowledge (and which may ultimately leave no actual discretion stricto sensu to the authority). To the extent that this acquired technical knowledge still leaves room for choice, the authorities are then authorized to choose an alternative by exercising their ‘technical

3

Baran (2017), p. 295. Prek and Lefèvre (2019), p. 344. 5 See e.g. Fritzsche (2010), p. 364; Schwarze (2006), p. 297; Widdershoven (2019), p. 53. 6 See further on this point, Mendes (2016), pp. 419–452. 4

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discretion’.7 This ‘technical discretion’ is exercised at EU level both at the moment of determination of a complex factual background and that of establishment of complex facts and their assessment in light of the relevant law.8

2 Intensity of Review of ‘Technical Discretion’ in the EU Legal System: The Evolving Threshold of ‘Manifest Error’ The question of the appropriate standard of review in administrative decisionmaking of technical nature has come to the attention of the European courts most often in competition cases where the European courts, for example, scrutinize the decisions of the European Commission whereby the latter finds a violation of Article 101 (on anti-competitive agreements) or Article 102 (on abuse of dominant position) TFEU, or declares a concentration compatible or incompatible with the common market, and is thus faced with decisions that are the products of so-called ‘complex economic assessments’. Another area where discretionary choices are often at stake is the Common Agricultural Policy, when for example the Commission is authorized to take stabilization measures if a certain market imbalance is likely to materialize.9 Although less often, the European courts have also scrutinized decisions requiring technical assessments in the field of protection of the environment and human health.10

2.1

The Early Case Law and the ‘Light-Touch’ Approach

Originally, when a EU body was vested with a wide margin of technical discretion, the perspective of the EU courts was that of clear deference to the discretionary choices of the administrative authorities. According to the early case law of the Court of Justice, judicial review should be limited to verifying ‘whether the rules on Advocate General Leger calls this form of appraisal ‘discretion of “technical” nature’, see Opinion in C-40/03 P, Rica Foods (Free Zone) NV v Commission ECLI:EU:C:2005:93, para. 46; Schimmel and Widdershoven prefer the term ‘margin of appreciation’: Schimmel and Widdershoven (2009), p. 65. Paul Craig refers to this concept as ‘jurisdictional discretion’: Craig (2012), p. 404. 8 Fritzsche (2010), p. 364. 9 See e.g. Case 78/74, Deuka, Deutsche Kraftfutter GmbH, B. J. Stolp v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, ECLI:EU:C:1975:44; Case 98/78, A. Racke v Hauptzollamt Mainz, ECLI:EU:C:1979:14. 10 See e.g. Case C-77/09, Gowan Comércio Internacional e Serviços Lda v Ministero della Salute ECLI:EU:C:2010:803 concerning the question of whether a substance meets the safety requirements of Council Directive 91/414/EEC concerning the placing of plant protection products on the market. 7

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procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated, and whether there has been any manifest error of assessment or misuse of powers’.11 In this early case law, the court’s review of the discretionary choices of the EU administration is carried out without much argumentation and attention for the factual support of the conclusions reached by it.12 During this early period, ‘review of the sufficiency of the evidence supporting an administrative measure is virtually non-existent’.13 The rationale of this ‘light-touch’ standard can be ascribed to the concept of discretion which Azoulay presents as being ‘the principle of all the Commission’s interventions in the area of competition policy’ and to the idea that the Commission, in this area, enjoys an ‘attribution of executive competence that is close to a reserved area’.14 Craig also argues that, at the time, a more thorough evaluation would have been too time-consuming, as it would have implied a review of measures which were often taken under time pressure and with an urgent need to tackle a specific problem in the internal market. It is therefore unsurprising, according to Craig, that the Court did not want to engage in complex economic assessments.15 However, throughout the years, this apparent position of deference has not prevented the European courts from carrying out a rather strict scrutiny of EU administrative decisions in as far as the establishment of facts is concerned. As such, as Craig has argued, the reference to the threshold of ‘manifest error’ has not changed, but its scope has evolved throughout time to permit an increasingly intensive review.16 This evolving standard of review is analysed in the next section.

2.2

The Tetra Laval Case and the Path Towards a More Intensive Review

The move towards a less ‘light-touch’ approach towards the review of discretionary choices can be first observed in the Technische Universität München case.17 The case concerned a preliminary question sent by a German court, which questioned the ‘lightness’ of the standard of review used by the European Courts. The Court of Justice was clear in holding that

11

See e.g. Case 42/84, Remia and Others v Commission EU:C:1985:327, para. 34. In the context of the Common Agricultural Policy see Case 98/78, A. Racke v Hauptzollamt Mainz, ECLI:EU: C:1979:14. 12 Craig (2012), p. 411. 13 Anderson (2014), p. 434. 14 Azoulay (2001), pp. 429–430. 15 Craig (2012), p. 415. 16 Craig (2012), pp. 415–416. 17 Case C-269/90, Technische Universität München, ECLI:EU:C:1991:438.

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It must be stated first of all that, since an administrative procedure entailing complex technical evaluations is involved, the Commission must have a power of appraisal in order to be able to fulfil its tasks. However, where the Community institutions have such a power of appraisal, respect for the rights guaranteed by the Community legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case, the right of the person concerned to make his views known and to have an adequately reasoned decision. Only in this way can the Court verify whether the factual and legal elements upon which the exercise of the power of appraisal depends were present. The Court must therefore examine whether the disputed decision was adopted in accordance with the principles mentioned above.18

It is clear that in this case, the Court placed specific emphasis on the respect of procedural principles and the fact that it will not refrain from examining thoroughly the procedural side of EU administrative decision-making. The move towards a more intense ‘process review’ can be further observed in the subsequent Tetra Laval case,19 in which the ECJ explained that whilst . . . the Commission has a margin of discretion with regard to economic matters, that does not mean that the Community Courts must refrain from reviewing the Commission’s interpretation of information of an economic nature.20

On the contrary, not only must the Community Courts, inter alia, establish whether the evidence relied on is factually accurate, reliable and consistent but also whether the evidence contains all the information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it.21

Despite the formula being repeated on several occasions,22 ‘academics and practitioners alike are still struggling to grasp fully under what circumstances EU Courts are likely to take fault with the Commission’s decision-making and what

18

Ibid., paras 13 to 15. C-12/03 P, Tetra Laval, ECLI:EU:C:2005:87. For an examination of the Tetra Laval test and the distinction between establishing the facts which are relevant in the decision-making and the appraisal of these facts, and the different review of the European courts see Schimmel and Widdershoven (2009), pp. 61 ff. 20 C-12/03 P, Tetra Laval, ECLI:EU:C:2005:87, para. 39. 21 C-12/03 P, Tetra Laval, ECLI:EU:C:2005:87, para. 39. This test has been reiterated in a long line of case law after that. See recently C-389/10 P, KME Germany and others v. Commission, ECLI: EU:C:2011:816, para. 121; T-177/13, TestBioTech eV and Others v. Commission, ECLI:EU: T:2016:736 para. 79. For an examination of Tetra Laval and the subsequent case law Meij (2009), pp. 8–21. 22 See e.g. T-377/07, Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v. Commission, ECLI:EU:T:2011:731, para. 22 and the case law cited therein. 19

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errors may strike a fatal blow to the lawfulness of its analysis’.23 Notwithstanding the elusiveness of this test, it can nevertheless be established that the European Courts are consistent on the necessity of thorough and careful examination of facts where their establishment is objectively difficult and it requires expert knowledge.24 Furthermore, the control exercised by EU courts does not preclude establishing facts independently or reviewing the facts established by the EU authorities with regard to the content (and not only the procedure).25 The possibility to carry out an in-depth analysis of the evidence which has served as the basis of the decision under review is also necessary because the European courts have jurisdiction to assess the appropriateness of the interpretation given by the Commission to vague legal notions.26 On the basis of this case law, it can be concluded that the European courts have not formally moved away from the ‘manifest error’ threshold as a standard of review in administrative decision-making, but the case law suggest that, in order to assess whether a manifest error has been committed by the EU institutions, EU courts are required to be able to assess the evidence submitted. In the words of AG Kokott, it would be an error to assume that the Commission’s margin of discretion precludes the Community Courts in any event from giving their own analysis of the facts and the evidence. On the contrary, it is essential for the Community Courts to undertake such an assessment of their own where they are assessing whether the factual material on which the Commission’s decision was based was accurate, reliable, consistent and complete, and whether this factual material was capable of substantiating the conclusions the Commission drew from it. Otherwise, the Community Courts could not sensibly assess whether the Commission had stayed within the limits of the margin of discretion allowed to it or had committed a manifest error of assessment.27

Commentators are virtually unanimous in concluding that this test provides for a relatively strict review of the Commission’s decisions.28 Hence, it can be concluded that the current, still Tetra Laval-based, intensity of review exercised by the EU courts, while not requiring a full assessment of the Commission’s decisions, does extend to ‘a review of factual accuracy, reliability, consistency and completeness of evidence, and allows the court to assess whether it serves as a sufficient basis for 23

Kalintiri (2016), p. 1285 with further references on the debate surrounding the standard of review in economic cases. 24 T-13/99, Pfizer Animal Health SA v Council of the European Union, ECLI:EU:T:2002:209, para 172. 25 C-12/03 P, Tetra Laval, ECLI:EU:C:2005:87, para. 39. Of course whether the EU courts do carry out this review in practice and have the instruments to do so, is a different question. See further on this point Kalintiri (2016), pp. 1311–1312. 26 Baran (2017), p. 307. 27 C-413/06, P Bertelsmann AG and Sony Corporation of America v Independent Music Publishers and Labels Association (Impala) ECLI:EU:C:2007:790, para. 240. 28 Wils (2010), p. 31; Lavrijssen and de Visser (2006), p. 131; Lenaerts and Gerard, note that “despite the language of Article [263 TFEU], the ‘manifest error of appraisal’ standard for reviewing the application by the Commission of Article [101 (3) TFEU] for instance has considerably evolved over time towards a ‘full review standard’”. Lenaerts and Gerard (2004), p. 340.

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Commission’s conclusions’.29 Widdershoven considers therefore that ‘judicial deference in relation to the substance of the decision, is compensated to some extent by a strict review of the reasons of the decision’.30 Some have gone that far as to argue that the Court of Justice has moved from a mere procedural review of discretionary decisions to a ‘quasi-substantive review of the scientific evidence relied upon in the decision-making process’.31

2.3 2.3.1

Probing the Test of ‘Manifest Error’ Beyond Competition Law Public Health and the Environment

A more intense scrutiny compared to the earlier case law can be identified also beyond the field of competition law. A first step towards a more thorough review of the discretionary choices of the EU administration can be observed in Pfizer, which concerned a challenge against a measure withdrawing the authorization for an additive to animal feeding stuffs.32 Again, while not formally departing from the test of ‘manifest error’ the General Court (then called the Court of First Instance) carried out a thorough evaluation to assess whether a manifest error had been committed by the European Commission. This same approach has been repeated also in later case law concerning the regulations of risks to public health or the environment.33 Furthermore, in the Schräder case concerning the application for a plant variety right, the General Court (seized in first instance in an action for annulment under Article 263 TFEU) used the Tetra Laval formula and stated that this was the applicable standard of review for cases in which the decision is the result of complex economic or technical assessments.34 The General Court moreover added that the same standard could apply in cases where the technical complexity stems from ‘appraisals in other scientific domains, such as botany or genetics’.35 It can therefore be concluded that, also beyond competition law, whenever the EU administration is faced with technical discretionary choices, the European courts will review whether a ‘manifest error’ has been committed and will review whether the

29

Baran (2017), p. 311. Widdershoven (2019), p. 56. 31 Leonelli (2018), p. 1248 [emphasis added]. 32 Case T-13/99, Pfizer Animal Health SA v Council of the European Union, ECLI:EU:T:2002:209. 33 See Case T-475/07, Dow Agro Sciences Ltd and Others v European Commission EU:T:2011:445, paras. 150–153; Case T-257/07, France v Commission, EU:T:2011:444, para. 87. 34 Case T-187/06, Ralf Schräder v Community Plant Variety Office (CPVO), EU:T:2008:511, para. 61. 35 Ibid, para. 62. 30

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factual basis on which the administration grounded its decision was ‘accurate, reliable, consistent and complete’, and whether this factual material was ‘capable of substantiating the conclusions’ the EU authority drew from it.

2.3.2

Fundamental Rights

Also with regard to fundamental rights cases, the case law presents an approach to the review of ‘technical discretion’ which is similar to the one examined above with regard to competition law. The seminal case in this respect is Kadi II.36 The Kadi litigation concerns the freezing of assets of suspected terrorists pursuant to the placing of such people on a list drawn up by the United Nations (UN) Sanctions Committee. In the Kadi II case, the applicant argued that the evidentiary basis underlying the reasons provided by the UN Sanctions Committee for placing his name on the list had to be reviewed by the EU courts. The European Commission, supported by some Member States tried to plead for a limited understanding of the concept of ‘manifest error’, ‘such as an error as to the identity of the person designated’.37 The General Court disagreed and held that, while the competent Community institution possesses some latitude in that sphere, that does not mean that the Court is not to review the interpretation made by that institution of the relevant facts. The Community judicature must not only establish whether the evidence relied on is factually accurate, reliable and consistent, but must also ascertain whether that evidence contains all the relevant information to be taken into account in order to assess the situation and whether it is capable of substantiating the conclusions drawn from it. However, when conducting such a review, it is not its task to substitute its own assessment of what is appropriate for that of the competent Community institution.38

On appeal, the Commission and the Member States qualified this approach as ‘excessively interventionist’.39 The Court of Justice however upheld the standard of review used by the General Court and held that the effectiveness of the judicial review guaranteed by Article 47 of the Charter also requires that, as part of the review of the lawfulness of the grounds which are the basis of the decision to list or to maintain the listing of a given person in Annex I to Regulation No 881/2002 . . . , the Courts of the European Union are to ensure that that decision, which affects that person individually . . . , is taken on a sufficiently solid factual basis [. . .]. That entails a verification of the factual allegations in the summary of reasons underpinning that decision [. . .], with the consequence that judicial review cannot be restricted to an assessment of the cogency in the abstract of the reasons relied on, but must concern whether those reasons, or, at the very least, one of those reasons, deemed sufficient in itself to support that decision, is substantiated.40

36

Case T-85/09, Yassin Abdullah Kadi v European Commission, ECLI:EU:T:2010:418. Case T-85/09, Yassin Abdullah Kadi v European Commission, ECLI:EU:T:2010:418, para. 96. 38 Ibid., para. 142. 39 C-584/10 P, Commission and Others v Kadi, ECLI:EU:C:2013:518, para. 74. 40 Ibid., para. 119. 37

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3 Intensity of Review of Discretion stricto sensu in the EU Legal System: Between ‘Manifest Error’ and the Principle of Proportionality The case law above applies to situations in which the EU authorities have to carry out complex factual assessments. The analysis of this case law has revealed that the European courts exercise a rather strict review of the correctness of the factual basis of the discretionary decisions of the EU authorities. This case law, as Mendes has argued, seems to leave considerations of public interest out of the equation, as it enables the courts to scrutinize those choices that follow logically from factual assessments – as a matter of cognition – not the choices that stem from balancing the public interests that ought to be pursued against those that may be forfeited in the given circumstances – a matter of volition.41

However, often issues of technical discretion and of discretion stricto sensu are intertwined and it is hard to disentangle them.42 It is to the review of this latter form of discretion that this contribution now turns. As regards the review of discretion stricto sensu, the case law is split between a review based on ‘manifest error’ and one based on proportionality review (or possibly a combination of the two).

3.1

Manifest Error

As in the review of ‘technical discretion’, the Court of Justice used the test of ‘manifest error’ also cases of ‘pure discretion’. The landmark case in the field is Westzucker.43 In this case the applicant challenged a European Commission Regulation concerning the granting of certain premiums for sugar production. As Craig explains, the discretion on the part of the Commission in this case is recognizable at two distinct levels of the regulatory scheme: first, because the relevant provision was phrased in terms of merely allowing and not obliging the Commission to grant such premiums; and second, because the criteria according to which the Commission could exercise its discretion were broad and open-ended, including for example the amount of sugar surplus present in the Community and the foreseeable market price for certain alternative products, all of which had to be weighed by the Commission when deciding whether to grant the premium. In this case, the Court displayed a clear restraint in reviewing the choices of the Commission: it stated that the Commission enjoyed in this field a ‘significant freedom of evaluation’ and therefore the court’s review was limited to determine ‘whether the 41

Mendes (2016), p. 436. Ibid., at pp. 419–452. 43 Case 57/72, Westzucker GmbH v Einfuhr- und Vorratsstelle für Zucker, ECLI:EU:C:1973:30. 42

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evaluation of the competent authority contains a patent error or constitutes a misuse of power’.44 Furthermore, in this line of case law, as with the review of ‘technical discretion’ the Court of Justice did not carry out an in-depth analysis of the EU authorities’ decisions and ‘was normally content with two brief paragraphs before finding that there was no manifest error’.45 The same approach was repeated in more recent case law.46 In a case concerning, as Westzucker, import duties for sugar, the Court of Justice added that [T]he depth of the Court’s review must be limited in particular where [. . .] the Community institutions have to reconcile divergent interests and thus select options within the context of the policy choices which are their own responsibility.47

It is therefore clear that the European courts will not readily re-assess the weighing of interests carried out by the EU administration. As Craig notes, this is bound specifically to be the case in policy areas such as the Common Agricultural Policy, which sets out several objectives which might clash with each other.48

3.2

Proportionality Review

Discretionary choices of the EU administration are also often reviewed under the heading of proportionality. Proportionality is an important principle of EU administrative law and, although borrowed from the German administrative law tradition, it has acquired an own meaning at EU level.49 As in the German legal system, the EU courts consider the relevant interests, and will further enquire as to whether the measure at stake was suitable to achieve the desired end and necessary to it. The

44

Ibid., para. 14. Craig (2012), p. 442. 46 See e.g. Case C-390/95 P, Antillean Rice Mills and Others v Commission, ECLI:EU:C:1999:66, para. 48; Joined Cases C-37 & 58/06, Viamex Agrar Handels GmbH et al. v Hauptzollamt Hamburg Jonas, ECLI:EU:C:2008:18, para. 34. 47 C-41/03 P, Rica Foods (Free Zone) NV v Commission, ECLI:EU:C:2005:456, para. 54. 48 Craig (2012), p. 442. According to Article 39 TFEU, the objectives of the common agricultural policy are 45

(a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour; (b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture; (c) to stabilise markets; (d) to assure the availability of supplies; (e) to ensure that supplies reach consumers at reasonable prices. 49

See e.g. Tridimas (2007), Chapter 3; Schwarze (2006), Chapter 5.

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latter point requires an examination of whether the end could have been achieved though milder, but equally effective, means. The German proportionality test requires also a third step, which is often referred to an proportionality stricto sensu, which entails an assessment of whether the burden imposed is proportionate to achieve the desired objective. It is not completely straightforward whether this third limb of the test is also applied by the EU courts when reviewing the discretionary choices of the EU administration.50 De Bùrca, who has conducted a thorough study of the use of the principle of proportionality by the EU courts, has stated that, as such, there is not one single application of the principle at EU level. Instead, the courts will exercise a more or less stringent control according to the ‘relative expertise, position and overall competence of the Court as against the decision-making authority’.51 The review of the discretionary choices of the EU authorities is, from this perspective, an example of a rather deferential proportionality review. For example, in a case concerning certain import arrangements in the banana market, the applicant tried to rely on the principle of proportionality, by arguing that there were possibly less restrictive arrangements.52 The General Court did not uphold the argument and departed from the explanation that the Common Agricultural Policy is an area where the EU authorities are granted a wide margin of discretion. In this area, [R]eview by the Community judicature must be limited in that way in particular if, in establishing a common organisation of the market, the Commission has to reconcile divergent interests and thus select options within the context of the policy choices which are its own responsibility.53

As a consequence, according to the court, the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue. More specifically, where the Community legislature is obliged, in connection with the adoption of rules, to assess their future effects, which cannot be accurately foreseen, its assessment is open to criticism only if it appears manifestly incorrect in the light of the information available to it at the time of the adoption of the rules in question.54

The proportionality review of the court seem, therefore, not to entail a review of the possible choices which the EU authorities could have adopted and an assessment of whether the selected one was the least onerous, but is limited to a mere examination of ‘manifest disproportionality’. This limited proportionality review has been

50

Craig (2012), p. 592. De Búrca (1993), p. 111. 52 Case T-30/99, Bocchi Food Trade International v Commission, ECLI:EU:T:2001:96. 53 Ibid., para. 93. 54 Ibid., para 92. 51

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used beyond Common Agricultural Policy cases, to, for example, health and risk management cases.55 Craig however suggests that this ‘low intensity’ proportionality review should not be underestimated, in the sense that, while the Court does not per se review all possible appropriate measures to assess whether the least onerous was chosen, it does review in detail the alleged ‘manifest disproportionality of the selected measure.56

4 Conclusions From the starting point that the review of the European courts is limited to the legality (and does not extend to the merits) of the decisions taken by the European administrative authorities, the analysis carried out in this contribution has delivered a number of conclusions. Firstly, whenever the EU administration exercises ‘technical discretion’ (which often translates into the jargon of ‘complex technical assessments’), the review of the European courts on the discretionary choices of the EU administration revolves around the concept of ‘manifest error’. While this term has never been explicitly departed from, it has acquired a different meaning throughout time. Indeed, while the earlier case law on the standard of review understood the threshold of ‘manifest error’ as entailing a very light review, the more recent case law has moved toward a deeper—process-oriented—review, entailing an examination of whether the factual basis of a decision justifies the outcome of the decision itself. As has been argued, the European courts have moved ‘from review of the sufficiency of the reasons to review of the adequacy of the reasoning’.57 Importantly, it has been shown that this more intensified review is applicable to situations in which the EU administration was faced with not only economically, but also technically and scientifically complex choices, and also in situations in which EU fundamental rights were at stake. It should be pointed out that the rationale for a more ‘hands-on’ approach have been labeled as ‘eclectic’, ranging from the need to dissipate fears that, in the context of public health decisions, the precautionary principle might be used as a barrier to trade; to the need to alleviate the problematic perception of the Commission acting both as a prosecutor and a judge in competition cases; to the need to protect EU fundamental rights.58

55

Case C-77/09 Gowan Comércio Internacional e Serviços Lda v Ministero della Salute, ECLI:EU: C:2010:803, where in para. 82 the Court states that review is limited to cases in which the measure at stake is ‘manifestly inappropriate’. 56 Craig (2012), pp. 595–597. 57 Baran (2017), p. 314. 58 Craig (2012), p. 438.

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Secondly, this contribution has revealed that, whenever the EU authorities are vested with the discretionary powers to weigh conflicting interests, the control of EU courts, exercised both through the tool of ‘manifest error’ and through the proportionality review, is relatively limited and will only lead to a finding of unlawfulness if serious flaws in the exercise of the discretionary powers can be detected by the European Courts. With regard to this second type of control of discretion, it can be stated that this limited review is linked to core idea that where the Treaties or the legislator accord a broad discretion to the EU administration, the courts should be wary of substituting their judgment with that of the primary decision-maker. Finally, it should be pointed that, despite the systematization efforts made in this contribution and elsewhere in literature, the case law of the European courts still displays significant uncertainties with regard to the way in which the courts conceptualize and review the various forms of discretion afforded to the European executive. As argued also elsewhere,59 it is therefore to be hoped that, in the future, an attempt will be made by the European courts to more clearly distinguish between ‘technical discretion’ and discretion stricto sensu and clarify the intensity of review carried out for each form of discretion.

References Anderson C (2014) Contrasting models of EU administration in judicial review of risk regulation. Common Mark Law Rev 51(2):424–454 Azoulay L (2001) The Court of Justice and the administrative governance. Eur Law J 7:425–441 Baran M (2017) The scope of EU Courts’ jurisdiction and review of administrative decisions – the problem of intensity control of legality. In: Harlow C, Leino P, della Cananea G (eds) Research handbook on EU administrative law. Edward Elgar, pp 292–315 Craig P (2012) EU administrative law, 2nd edn. Oxford University Press De Búrca G (1993) The principle of proportionality and its application in EC law. Yearb Eur Law 13(1):105–150 Fritzsche A (2010) Discretion, scope of judicial review and institutional balance in European law. Common Mark Law Rev 47(2):361–403 Kalintiri A (2016) What’s in a name? The marginal standard of review of “complex economic assessments” in EU competition enforcement. Common Mark Law Rev 53(5):1283–1316 Lavrijssen S, de Visser M (2006) Independent administrative authorities and the standard of judicial review. Utrecht Law Rev 2(1):111–135 Lenaerts K, Gerard D (2004) Decentralisation of EC competition law enforcement: judges in the frontline. World Compet 27(3):313–349 Leonelli GC (2018) European Commission v. Bilbaína and Others: the fine line between procedural and substantive review in cases involving complex technical-scientific evaluations. Common Mark Law Rev 55(4):1217–1249

See e.g. Prek and Lefèvre who argue that ‘the language of the judgments should reflect the fact that discretion is not a homogeneous concept, and that the intensity of judicial scrutiny may vary accordingly’. Prek and Lefèvre (2019), p. 377. 59

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Meij A (2009) Judicial review in the EC Courts: Tetra Laval and beyond. In: Essens O, Gerbrandy A, Lavrijssen S (eds) National Courts and the standard of review in competition law and economic regulation. Europa Law Publishing, pp 8–21 Mendes J (2016) Discretion, care and public interests in the EU administration: probing the limits of law. Common Mark Law Rev 53(2):419–452 Prek M, Lefèvre S (2019) “Administrative discretion”, “power of appraisal” and “margin of appraisal” in judicial review proceedings before the General Court. Common Mark Law Rev 56(2):339–380 Schimmel M, Widdershoven R (2009) Judicial review after Tetra Laval: some observations from a European administrative law point of view. In: Essens O, Gerbrandy A, Lavrijssen S (eds) National Courts and the standard of review in competition law and economic regulation. Europa Law Publishing, pp 51–78 Schwarze J (2006) European administrative law, Revised 1st edn. Thomson/Sweet & Maxwell Tridimas T (2007) The general principles of EU law, 2nd edn. Oxford University Press Widdershoven R (2019) The European Court of Justice and the standard of judicial review. In: de Poorter J et al (eds) Judicial review of administrative discretion in the administrative state. Springer, pp 39–62 Wils W (2010) The increased level of EU antitrust fines, judicial review and the European Convention on Human Rights. World Compet Law Econ Rev 33(1):5–29

Mariolina Eliantonio is a professor of European and Comparative Administrative Law and Procedure.

Deference to the Administration in Judicial Review in Finland Olli Mäenpää

Abstract 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.

1 Introduction 1.1 1.1.1

General Background The Legal System and the Role of the Executive

The Finnish legal system is based on the civil law tradition, and it belongs to the family of Nordic law.1 Its characteristics include a commitment to statutory law,

1

On the characteristics of Nordic Law, see Letto-Vanamo et al. (2019).

O. Mäenpää (*) University of Helsinki, Helsinki, Finland e-mail: olli.maenpaa@helsinki.fi © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_9

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respect for the Parliament and rule of law, an emphasis on practical legal thinking and a limited role of judicial precedents.2 The welfare state, public administration and administrative agencies play a central role in all the Nordic countries. However, with respect to the relationship between the judiciary and the executive, a significant difference exists between the Eastern and Western Nordic states. Sweden and Finland have specific administrative courts hearing all appeals against administrative agencies. By contrast, Norway, Denmark and Iceland lack a system of administrative judiciary. In those countries, judicial protection is provided, to a certain extent, by ordinary courts, but in actual practice administrative disputes are mainly settled by special administrative tribunals or processed by administrative ombudsmen. Legalism and strict adherence to law have traditionally played a central role in Finland. To be sure, formal legalism has been substituted by more goal-oriented and value-based objectives in the welfare state. Nevertheless, legalism continues to have significance in the exercise of administrative functions. With respect to public administration, the rule of law requires that the executive powers of any administrative authority must have an express basis in law, and the exercise of public power must be justified on grounds laid down by law. The principle applies especially when an administrative authority (e.g. a ministry, agency, municipality or public official) makes administrative decisions or performs other acts that directly affect the rights and obligations of a person. The rule of law is thus a necessary prerequisite in all exercise of administrative authority. In the provision of public services, legalism is somewhat more subdued, but a legal basis is still necessary for any social benefit or service. The Finnish Constitution (2000) stipulates that all public action must be authorised by law, the law must be strictly complied with in the exercise of any public activity and the executive must comply with the qualitative requirements of good, transparent and accountable administration; in addition, there must be access to judicial review for any administrative decision concerning one’s rights or duties. According to the Constitution, it is the duty of the public authority (authorities) to ensure that fundamental and human rights are guaranteed and protected.

1.1.2

Sources of Law

The principal and most important sources of general administrative law are defined in the Constitution Act (2000). Its provisions identify the general constitutional limits of the executive as well as qualitative requirements for the activities of the administrative authorities. Of special significance for the role of the courts are the rule of law, the right to good administration, the right to a fair trial and effective judicial protection in administrative matters as well as the legal accountability of public officials.

2

For more detail, see Nuotio et al. (2012).

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The principal legislative basis of administrative activity is the Administrative Procedure Act (2003) and the Act on the Openness of Government Activities (1999). In turn, the framework for judicial procedure in the administrative courts is provided by the Act on Judicial Procedure in Administrative Courts (1996, AJPA). The AJPA contains general provisions on the right of appeal, the procedure to be followed in initiating the administrative appeal procedure and details of the review procedure in the administrative courts. Access to judicial review in all administrative cases is defined as a constitutional right by Section 21(2) of the Constitution: Everyone shall have the right to have his or her case heard appropriately and without undue delay by a court of justice or other authority competent under an Act of Parliament as well as the right to have a decision relating to his or her rights and duties reviewed by a court or other independent tribunal. Openness of the proceedings as well as the right to be heard, to receive a decision with stated reasons and to appeal the decision as well as any other safeguards of fair trial and good government shall be secured by an Act of Parliament.

1.1.3

The Judiciary

The judiciary consists of two sectors. The administrative courts have jurisdiction in all administrative cases. The administrative courts are mainly concerned with administrative appeals concerning administrative decisions. Their jurisdiction also covers administrative litigation over administrative disputes between a public authority and private actors arising, for instance, from administrative contracts or claims for reimbursement. The administrative court system functions on two levels. Supreme administrative jurisdiction is vested in the Supreme Administrative Court, which exercises the highest judicial power in administrative cases. At the regional level, the Administrative Courts are general first instance courts in administrative cases. General courts have jurisdiction in civil and criminal cases. Due to the constitutionally guaranteed public accountability of administrative staff, civil and criminal procedures can also be used as avenues for seeking redress for administrative wrongs. However, since neither kind of procedure can result in a reversal or modification of the administrative decision, they have, at best, a secondary role in administrative cases and usually serve only as individual remedies complementing the judicial procedure in administrative courts. Disputes concerning private law contracts and actions also fall under the jurisdiction of general courts in cases where a public body is party to such a contract.

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Judicial Procedure

The AJPA sets out a uniform judicial procedure for administrative courts. It also defines in more detail the right to appeal against an administrative decision and the reviewability of administrative acts. In addition to affirming or annulling the decision subject to review, an administrative court may also amend it, although not to the detriment of the appellant. According to the AJPA, an administrative appeal may be directed against any act or measure of an administrative authority whereby a matter has been resolved or dismissed. The right to appeal may be exercised by any person to whom a decision is addressed or whose right, obligation or interest is directly affected by a decision. Judicial review focuses on the legality of administrative decisions. Consequently, an investigation into the advisability or expediency of those decisions is beyond the remit of the administrative courts. The basis of judicial control is regulated, albeit in a fairly general manner, in European law, thus forming a general European standard on access to the judicial process and fair trial. According to Article 6(1) of the European Convention of Human Rights (ECHR) on the Right to a fair trial: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Similarly, the Charter of Fundamental Rights of the European Union lays down the basic rules of judicial protection with respect to the application of EU law. Article 47, which defines the Right to an effective remedy and to a fair trial, states: Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

2 Special Characteristics 2.1 2.1.1

Procedural Requirements Fair Trial in Administrative Cases

Guarantees of procedural fairness must also apply in judicial proceedings concerning administrative cases. In addition to the essential right of access to judicial review, these guarantees include the right to be heard and the right to procedurally equal status and to a public hearing. The primary basis of judicial control of executive action is a court hearing. Both the private party and the public authority have a right to be heard. Both parties (or all

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the parties, as the case may be) must be presented an opportunity to comment on the demands of the other parties. They are also entitled to give their opinions on all the factual evidence that may affect the resolution of the matter. In order to exercise the right to be heard, the private party to an administrative judicial procedure enjoys considerable right of access to the case documents. In addition, the private appellant usually gains access to classified documents of potential relevance to the processing of the case. According to the European Court of Human Rights, the adversarial nature of the procedure must be guaranteed. Thus, “each party must in principle have the opportunity not only to make known any evidence needed for his claims to succeed, but also to have knowledge of and comment on all evidence adduced or observations filed with a view to influencing the court’s decision.”3 Such a confrontational procedure is necessary, since “the very purpose of adversarial procedure . . . is to prevent the Court from being influenced by arguments which the parties have been unable to discuss”.4 The minimum requirements for due process are clearly defined procedural rules, their regulation in law and their vigorous application in individual proceedings. All cases and parties must be treated equally and with equal fairness.

2.1.2

Equality of the Parties: Equality of Arms

A key measure of fairness in judicial procedure is equality. Only parties’ equal treatment and equal procedural rights and obligations are capable of guaranteeing a procedural balance that will put neither party at a disadvantage. In the judicial review of administrative action, the requirement of procedural equality can be approached from two angles, formal and material. Formal equality can be accomplished by treating both parties—both the administrative agency and the private party—in exactly the same manner. On the other hand, material equality requires that actual differences between the parties are accounted for without compromising the equilibrium of the procedure. Finnish administrative law assumes that in administrative decision-making the administrative authority usually has de facto superiority of power compared to the private party. The executive’s superior position is based on several factors, usually including the right to exercise unilateral public power, sophisticated expertise in legal and administrative issues, and broader access to government-held data and information. Of significance is also the administrative authority’s general proficiency in conducting the decision-making procedure and participating in judicial procedures. Rarely, and perhaps only in the case of large companies or organisations, is the private party actually capable of matching the administration in all these areas.

3 4

Mantovanelli v. France, ECHR (1997) § 33. See generally Kress v. France, ECHR (2001).

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As a consequence of these and similar factors, a considerable gap usually exists between the information and procedural skills of the private party and those of the administrative agency. Therefore, the procedural rules must be simple, transparent, easy to comply with and foreseeable. The court conducting the procedure must also actively ensure that the private party is not left at a disadvantage because of his or her inferior procedural skills or informational abilities. Similarly, the European Court of Human Rights has stressed that the requirement of equality of arms implies that “each party must be afforded a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent”.5 Against this backdrop, material equality as a supplement to formal equality is stressed in the Finnish legislation governing judicial proceedings in administrative courts. First, the administrative authority is not considered to have its own individual rights that it should defend as an adversary of the private party. Since public authority belongs to the public domain and is exercised in the general interest, an agency or official does not possess administrative authority. Second, although the agency is procedurally a party, it is nevertheless bound by the principles of legality, objectivity and impartiality as well as by the obligation to protect the general interest. Thus, its position as a procedural party neither relieves the agency of its official duties nor does it authorise partial action. In a recent decision, the Supreme Administrative Court (KHO) emphasised that administrative authorities must act in a detached and impartial manner in judicial procedures based on the rule of law. Even when in the role of a procedural party, an administrative authority must take account of all the facts, regardless of whether they support or conflict with that authority’s reasoning and conclusion.6 For instance, the authority must provide all the evidence at its disposal, even if it might compromise the authority’s case. Furthermore, official statements submitted by the authority must be based on a neutral and objective evaluation.

2.2 2.2.1

Definitions and Characterizations The Dual Role of the Administrative Courts vis-à-vis the Executive

To understand the function of judicial deference in the Finnish legal system, the dual role of administrative courts must be taken into account. First, administrative courts are considered to act as a constraint on the use of executive power, thereby upholding the rule of law and providing judicial protection for private actors. Second, the administrative courts are also understood to function as guarantees of the lawful implementation of legislation and legislative intent. In this sense, the role

5 6

Vilén v. Finland, ECHR (2009) § 21; Helle v. Finland, ECHR (1997) §§ 53-54. KHO 2016:180.

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of the administrative courts is based on the idea that the court is not only the arbiter of a dispute between the executive and the private party but it also represents the general interest of society. Judicial control of the executive is one of the cornerstones of the rule of law. It is conventionally understood to mean that the law acts as a constraint on both individual and public action. Therefore, government and those who govern must also be subjected to the law, and their actions must be independently reviewable. Protection of individual basic rights, human rights and ordinary legal rights can be seen as the nucleus of the rule of law. In this respect, the right to challenge administrative decisions on legal grounds is a central guarantee of individual rights. This can also be understood as one of the main reasons for imposing independent judicial control and review on government and executive action. In this regard, the courts’ chief role is negative and restrictive. The courts act as a constraint on the exercise of administrative power and as a provider of judicial relief in cases of an administrative encroachment on private rights as well as the abuse of executive power. The law nevertheless also imposes obligations and sets down objectives to be achieved. It is the task of the executive to implement legislation and to realise rights, obligations and goals, and this provides courts with a constructive, even creative, role. Furthermore, since the actualisation of rights and obligations can be seen as a basic function of the executive within the framework created by the legislature, judicial review should also reinforce this task. Consequently, the administrative court’s role can also be characterised as that of a positive guarantor that legislative intent is carried through and that duties are observed.

2.2.2

A Characterisation of the Concept of “Deference” or “Judicial Deference”

In common-law jurisdictions, judicial deference usually means that courts should primarily ensure legislative intent and its implementation by the executive. Therefore, the courts should also be deferential to administrative decision-making and accord it a varying degree of deference.7 The deferential treatment of executive power may also imply that courts refrain from examining the discretion used by an administrative authority, with the exception of clearly unreasonable interpretations. For instance, in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the US Supreme Court concluded that courts must “give effect to the unambiguously expressed intent of Congress”. However, if the law in question is silent or ambiguous, courts must defer to any reasonable interpretation made by the administrative authority.8

7 8

See in general Daly (2012). Chevron U.S.A. Inc. v. Natural Resources Defence Council Inc., 467 U.S. 837 (1984), 843–844.

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With respect to the range and depth of review, one of the central questions concerns the degree of deference a court can or should concede to the executive authority. For instance, should the court be an active investigator or only a neutral or passive referee? Should the scope of review be limited to only the formal and procedural requirements of the exercise of administrative powers, or should the court have the authority also to scrutinise and judge the use of discretionary powers? In other words, should the court’s default approach be to give a “green light” to administrative decision-making unless the decision is manifestly unlawful or based on grave unreasonableness, or should the court apply a more stringent and in-depth degree of scrutiny, amounting to a “red light” approach?9 Continental European jurisdictions apply varied standards of deference. For instance, in Finland, Sweden and France, the use of the executive’s discretionary powers is subject to judicial review, even though the standards of review may vary. In Finland, the administrative courts have (and use) the power to investigate whether the authority in question has complied with general administrative principles (e.g. objectivity, equality, impartiality, proportionality, the protection of legitimate interests and the prohibition on abuse of power) when exercising its discretionary powers. Thus, even if the administrative authority has wide discretionary powers, it is within the courts’ remit to evaluate how the use of those powers conforms to said administrative legal principles. Moreover, the review of legality also extends to the authorities’ compliance with constitutional rights.10 As a legal concept, deference has failed to gain recognised status in Finnish legal doctrine. Nonetheless, in actual judicial practice, the administrative courts give certain consideration to the discretion of administrative decision makers. Such deference is moderated and limited by four significant considerations: (1) legality, (2) effective judicial protection, (3) fair trial and (4) the basic rights of the individual. Furthermore, deference to these four considerations tends to surpass deference to administrative discretion. First, the rule of law, as such, signifies that consideration can only be given to an authority’s interpretation to the extent that the applicable legislation allows administrative discretion. Moreover, the significant role of the principles of statutory administrative law imposes considerable constraint on the discretionary powers of any administrative decision maker. A strong tradition of legalism also plays a role in the emphasis on statutory law. Second, the main duty of an administrative court is to provide effective judicial protection to the private party. The courts are first and foremost obliged to implement the constitutionally guaranteed right to an effective remedy. Any latitude to executive decision-making is secondary to this judicial function. Furthermore, the mindset of administrative judges and the legal culture in administrative courts is very much based on the idea of effective judicial protection.

9

The traffic-light theory was first introduced by Harlow and Rawlings (1997), pp. 29–127. For a comparative analysis see e.g. Spiliotopoulos (2000).

10

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When conducting a judicial review, the administrative court must assess the decision making of an administrative agency or official in order to provide effective judicial protection. Both the scope and intensity of the court’s review therefore become central issues in guaranteeing such protection. Third, as a constitutional right, fair trial also sets limits to deference. Due process denotes the equal rights and duties of the parties involved, but it also imposes duties on the court. Since the rule of law also applies to courts, due process is a guarantee of both the procedural equality and fairness of the proceedings. The fourth consideration is based on a reference to human rights and fundamental freedoms. In recent years, the administrative courts have adopted an approach to domestic legislation that favours human rights and basic rights at the expense of traditionally strict adherence to the letter of the law. This approach emphasises an authority’s general duty, where possible, to interpret and apply statutes in a way that promotes basic and human rights. In a situation calling for interpretation, this principle thus requires authorities to choose the alternative best conducive to the implementation of human rights. In a recent ruling,11 the Supreme Administrative Court based its argumentation on this approach by stressing that out of all the legally valid interpretations of the Act on Public Meetings, the administrative agency concerned must select the one that best promotes the realisation of basic rights. Therefore, the Police Department was considered to have acted ultra vires when it forbade a public artistic performance on the grounds of it being a potential affront to decency and public morality.

3 Judicial Deference 3.1

The Scope of Deference

An essential factor defining the relationship between courts and the executive is courts’ ability to perform inclusive and wide-ranging judicial scrutiny. Since judicial review interferes with executive powers, at least whenever an administrative authority can be shown to have acted illegally, the latitude of that review is a measure of judicial power vis-á-vis executive power.12 Consequently, to the extent that courts can investigate the lawfulness of the administrative action, they can also affect the separation of powers between the judiciary and the executive. In this sense, the scope of judicial review also has constitutional dimensions.13

11

KHO 2017:151. On the concept and scope of judicial review with respect to executive action, see Hertogh et al. (2004). 13 On the constitutional implications in general, see e.g. Elliott (2001). 12

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Judicial Deference and the Intensity of Judicial Review

The intensity of judicial review is a crucial question when judicial review focuses on administrative action. Even if the formal reviewability of administrative acts is broad, there may be considerable case-by-case differences in the depth and intensity of the review and the active role of the courts in relation to executive authorities and their different kinds of action. An ordinary administrative appeal is characterised as reformatory in nature. It thus allows the reviewing court to be relatively active at the investigative stage. The court is also required to conduct the procedure in an active manner and it is authorised to take a detailed stand on the contents of the case. For an ordinary administrative appeal, the degree of judicial scrutiny is also comprehensive. All issues of legality—including compliance with the principles of statutory administrative law—may be reviewed by the court, although it is not authorised to go beyond the grounds invoked in the appeal.

3.1.2

Powers of the Court

The powers of the Finnish administrative courts are limited in the sense that a court may not substitute itself for the administrative authority which made the contested decision. There is an understandable reason for this reticence: the courts are judicial organs and they lack the power to make (original) administrative decisions. After annulling an administrative decision, the courts usually refer the case back to the administrative authority in question, while usually also indicating what amendments or improvements should be made. An administrative court basically has the power to uphold or annul a contested decision. Moreover, in addition to affirming or annulling the decision subject to review, the court may also amend it. In particular, the courts are considered to have wide powers to amend contested decisions concerning the administrative application of environmental legislation or other regulatory decisions. In environmental cases, for instance, the Supreme Administrative Court has frequently added new and tighter conditions to environmental permits. For example, in cases where the court finds that an environmental permit has been granted without taking sufficient account of the requirements of the applicable environmental laws, it may either annul the decision or uphold the permit but add stricter and more detailed conditions.14 Similar remedial powers may be used in other cases concerning the regulation of health standards or consumer protection, for example.

14

E.g. KHO 2017:167.

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Specific Types of Agency Action Administrative Decisions

According to Section 5 of the AJPA, an appeal may be directed against any act or measure performed by an administrative authority whereby a matter has been resolved or dismissed. In this respect, no distinction is made between, for instance, administrative decisions and acts of state. Thus, administrative decisions by the Cabinet or the ministries, as well as those of central, regional and local authorities, may be subject to appeal, even if they were based on a very wide margin of discretion.

3.2.2

Outsourcing

The outsourcing of administrative functions to private actors has increased considerably during the last 10–15 years. For instance, private companies or associations may perform administrative duties or produce public services. The right to challenge administrative decisions by appeal also extends to private organisations to the extent they are empowered to exercise public powers or perform public duties under specific provisions.

3.2.3

Administrative Governance Outside Judicial Review

Due to the growth of the welfare state, the quantitative emphasis of administrative activity has shifted to providing social benefits and public services. Public administration has also become more involved in administrative networks and economic activities. Moreover, the administrative machinery has simultaneously grown and become more complicated, multi-layered and integrated into the European administration. The significance of the rule of law in public action has by no means diminished. However, new challenges to judicial review are posed by such developments as privatisation and decentralisation, regulatory reform, new forms of normative regulation and transformations in the mode and methods of administrative governance. Private law relationships are used when a public authority acts in the capacity of a private law subject, for instance as a landlord, tenant, buyer or employer. In that role, it may enter into private law relationships under the same conditions as any private subject. Judicial review by the administrative courts does not necessarily extend to these new modes and methods of administrative governance.

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4 Standards, Approaches and Grounds of Review 4.1

Standard Grounds of Judicial Review

Since law governs the relationship between the executive and the private subject, legality and the rule of law are particularly central requirements in administrative decision-making. It is the administrative court’s task both to judge the legality of the administrative decision and to provide judicial protection to the private party. The administrative court needs to assess the action of the administrative agency or official concerned in order to provide judicial protection. Both the scope and intensity of the court’s review therefore become central issues. The powers of the court are also of significance: how far and to what degree of detail can or should the court interfere with the powers of the executive by exercising its judicial powers in order to produce effective protection and redress? Even though the standard and scope of judicial review may vary in different cases, it normally focuses only on whether the administration acted in a legal manner and within the powers defined by law and legal principles. Thus, reticence is expected of the courts in other issues that are not directly connected to the evaluation of legality. In particular, the scope of judicial review is considered limited in respect to policy issues and the actual exercise of executive power. Administrative appeals are not, however, limited to specific grounds; in practice, the grounds for the appeal vary from case to case. Nevertheless, the decisions of executive authorities may only be appealed against on the grounds of legality. There is no exclusive list of what those grounds are, but in practice the appellant may successfully claim that the authority: • • • •

has made a procedural error (e.g. there has been a conflict of interests), has exceeded its powers (e.g. acted without a legal basis) has abused its discretionary powers by violating legal principles has otherwise acted in an unlawful manner.

The review of legality is thus also understood to extend to whether the exercise of discretionary powers has complied with general administrative law principles. Thus, even if an administrative authority has wide discretionary powers, the use of those powers can be reviewed by the courts. Authorities’ compliance with constitutional and human rights also comes within the scope of the review of legality. In practice this means that if, for instance, a ministry has dismissed an official for expressing certain opinions in public, the decision can also be appealed against on the basis that a constitutional right to free expression has been infringed. Here, the court must give precedence to that constitutional right and annul the ministerial decision if there are sufficient grounds.

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Principles of Administrative Law As Grounds of Review

In addition to substantial legal regulation, a number of legal principles enjoy a prominent role in all administrative activity. The principles of administrative law provide a qualitative value basis for the interpretation and application of law by administrative authorities. They include the principles of objectivity, transparency, good governance and the prohibition of abuse of power. While such principles were originally developed in administrative law doctrine and judicial practice, many have gradually been assigned a more binding legal role by elevating them to constitutional entitlements or by enshrining them in ordinary laws. In this way, the principles have become part of the law that the courts must uphold. The general principles of administrative law have, moreover, gradually acquired their binding quality in the case law of the Supreme Administrative Court. At present, there are five statutory legal principles that must be observed in all executive activity and administrative decision making. These are the principles of equality, impartiality, proportionality, prohibition of the abuse of power, and the protection of legitimate interests. These principles have also been codified in the Administrative Procedure Act. Section 6 states that “[a]n authority shall treat the customers of the administration on an equal basis and exercise its competence only for purposes that are acceptable under the law. The acts of the authority shall be impartial and proportionate to their objective. They shall protect legitimate expectations as based on the legal system.” These statutory principles mainly function as guidelines for and constraints on using discretionary administrative powers. The principles may be relied on by private individuals in administrative procedures, and they can also be asserted in judicial proceedings related to administrative decisions. Thus, administrative decisions taken in breach of one of these principles may be annulled or revoked by administrative courts. Any procedure or decision conflicting with these general administrative principles can be challenged as a misuse of power, especially in connection with an appeal. In judicial review, the misuse of executive power has been established as independent legal grounds for annulling or revoking an administrative decision. The observance of these principles can also be deemed to belong to the official duties of public servants. The establishment of legal accountability for a public act is thus possible as a consequence of a procedure that violates these principles.

4.3

Constitutional Grounds for Review

The Constitution obliges administrative courts to accord primacy to constitutional provisions should the application of a law be in evident conflict with the Constitution

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(Sec. 106, Constitution Act).15 In actual practice, this duty empowers the administrative courts to consider the constitutionality of a legislative norm in an individual case. Thus, while legislative acts cannot, as such, be challenged in an administrative court and they cannot be declared invalid, no procedural rule prevents a legislative norm from being disputed in connection with an appeal directed against an administrative decision taken pursuant to such a norm. If an administrative court finds that a legislative provision applied by the authority concerned is in evident conflict with the Constitution, the court is obliged to disapply that provision and apply the constitutional provision in its stead. In this manner, the administrative courts have the power—and the obligation—also to examine the constitutionality of the legislative norms applied by the administration in a specific case. Nevertheless, in recent discussions, the justifications for the evidence-test have been criticised and calls have been made for its removal from the Constitution Act. There is no similar limitation on the powers of the courts with respect to delegated legislation and different kinds of administrative norms and instructions. Instead, in considering an administrative appeal, the courts are bound by Section 107 of the Constitution Act, which puts them under an express obligation to disapply government decrees and similar norms of inferior rank to the extent that they conflict with the Constitution or an Act of Parliament.16 This constitutional provision can be seen as creating the judicial power to examine the constitutionality and legality of delegated legislation when considering an appeal against an individual decision.

4.4

The Effectiveness of Judicial Review

The effectiveness of judicial powers can be measured in a number of dimensions. One can assess, for instance, the remedial, reformatory, constructive, compensatory, constitutional and interim powers of a court. Remedial powers constitute the main foundations of any judicial remedy. In short, the administrative courts have the power to uphold or annul a contested administrative decision. The courts may also refer the case back to the administrative authority for reconsideration. Reformatory powers refer to the administrative courts’ power to substantially amend or otherwise modify the administrative decision subject to review. For instance, in cases concerning the application of environmental legislation or other regulatory decisions, the courts have the power to amend a positive decision by supplementing it with more stringent conditions or limitations. Section 106: “If in a matter being tried by a court, the application of an Act of Parliament would be in manifest conflict with the Constitution, the court shall give primacy to the provision in the Constitution.” 16 Section 107: If a provision in a Decree or another statute of a lower level than an Act is in conflict with the Constitution or another Act, it shall not be applied by a court of law or by any other public authority. 15

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Constructive powers refer generally to the administrative courts’ power to impose new obligations, restrictions or positive objectives on the administrative authority. Such powers are situated squarely on the problematic boundary between the judiciary and the executive. In principle, the courts cannot assume executive functions, but, on the other hand, they must provide effective judicial protection. Thus, how far does the objective of remedial effectiveness empower the courts to extend their jurisdiction into the realm of the executive in a constructive manner? Established doctrine and case law tend to favour considerable reticence in this respect. However, a more practical and extensive interpretation is possible if more emphasis is placed on the corrective outcome of the review. Compensatory powers refer to the courts’ power to hear restitution claims arising from a violation of rights or duties under administrative law and to award damages for the harm caused by the activity (or failure to act) of an administrative agency. In Finland, the compensatory powers of the administrative courts are limited, since in most cases only ordinary civil courts can award damages against the administration. In principle, the powers of administrative courts could just as well include compensatory powers, since there are no fundamental reasons or statutory constraints to limit their remedial powers in this respect. Constitutional powers define the boundary between the judiciary and the legislature. A critical yardstick is whether the courts are empowered to declare a legal provision null and void if it violates the Constitution. The administrative courts lack the power to invalidate an act of parliament even if they find it in conflict with constitutional provisions. Similarly, the administrative courts are not empowered to declare a legal provision null and void if it violates the constitution. Nevertheless, if the conflict between a legal norm and the Constitution is clear, it may be the courts’ duty to refuse to apply the disputed legal provision and, instead, give precedence to the Constitution in a concrete case. Interim powers refer to the courts’ power to issue administrative agencies with injunctions and to stay the execution of an administrative decision. Since the duration of a judicial procedure can vary and proceedings can be delayed, interim powers may offer significant, albeit provisional, judicial protection.

5 Dimensions of Deference 5.1

The Role of Information and the Investigation Principle

The courts have the ultimate responsibility to guarantee procedural fairness. The administrative courts are under a general obligation to actively conduct the proceedings and obtain evidence and factual information, also on their own initiative. In this sense, the appeals procedure is characterised by the investigation principle, according to which the court is responsible for comprehensively scrutinising the contested decision. As a part of this responsibility, the court is required to review all evidence available and examine the facts and considerations on which the decision is

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based. Furthermore, the court must “on its own initiative obtain evidence in so far as the impartiality and fairness of the procedure and the nature of the case so require” (Sec. 33(2), AJPA). Since the administrative courts may use their own initiative to acquire the necessary supplementary information, they are empowered to conduct their own investigation into the substantive issues of the case and collect evidence. For this purpose and where necessary, the court must inform the party or administrative authority of the additional evidence to be presented. The court may also take account of evidence not presented by the parties, provided, of course, that the parties have been provided an opportunity to comment on it. Although the administrative court has the power to examine of its own motion the facts of the case before it, fairness and impartiality of the procedure requires that the court may not substitute itself for the administrative authority. As a procedural party in the case it is therefore the authority’s responsibility to provide all the evidence necessary to enable that court to determine whether it acted within the limits of its legal obligations. Should the authority fail to provide such information or justification for its decision, the court is required to draw all inferences which result from such failure.

5.2

Judicial Construction

The rule of law, and especially the requirement and principle of conformity to law, can be problematic in the administration of the modern state. On one hand, the law cannot be ‘strictly’ observed, as the Constitution requires, if the applicable provisions are broad and if they entitle an authority to use discretionary power. In such situations, the principles of administrative law have a central role in supplementing the formal duty to adhere to legal norms.

5.3

Proportionality and Other Legal Principles

Since any administrative decision conflicting with the general administrative principles can be challenged on the grounds of misuse of power (see under II.3.1), compliance with the principle of proportionality can also be reviewed by the administrative courts.

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6 Activism or Restraint In addition to the scope of judicial review, another measure of the character of the court-executive relationship is the degree of judicial activism. An active court is required to conduct the proceedings in a dynamic manner and investigate on its own initiative; moreover, the court is also empowered to take a detailed stand on the contents of the case. In this manner, the court is thought to be able to promote equilibrium in the inherently unbalanced relationship between the executive and private parties. In Finland, as in several other continental European jurisdictions with separate administrative courts, procedural law tends to attribute an active role to the courts.17 As previously mentioned, the administrative courts are under a general obligation to actively conduct proceedings. The appeals procedure is characterised by an investigative principle, according to which the court is responsible for comprehensively scrutinising the contested decision. Although the burden of proof lies with the parties involved, the court may also obtain evidence and factual information on its own initiative if this is deemed necessary to supplement the evidence supplied by the parties and to guarantee the fairness of the procedure. However, a more restrained procedural model is applied especially in tax law cases and administrative litigation as a special procedure concerning administrative disputes. Both procedures rely more clearly on the activity of the parties involved, who are expected to obtain and present the substantive evidence. Since the parties share the burden of proof, the administrative court rarely acts on its own initiative. In these procedures, the court is, in fact expected to base its decision solely on the evidence presented by the parties, the executive party and the private party.

7 Limits of Judicial Review 7.1

Policy Issues

Judicial review focuses on whether the administration has acted in a legal manner and within the powers defined by law, whereas administrative policies are considered to be the exclusive domain of the executive. Therefore, investigation of the advisability and expediency of an administrative decision falls outside the jurisdiction of the administrative courts, and policy issues should be excluded from judicial review—provided of course that the authority concerned has used its discretion within the limits defined in law. However, the line between administrative policy and discretion is difficult to draw, and the limits of judicial review in this area are, to a certain extent, open to interpretation.

17

Galera (2010).

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For instance, if an administrative authority were to consider a choice between several lawful alternatives, the decision would depend primarily on a consideration of expediency, i.e. a question of policy. The administrative courts are considered to lack the power to choose between various lawful alternatives and thus impose their will on the executive. Indeed, in a recent case, the Supreme Administrative court affirmed this approach.18 The case concerned the Firearms Act (1998), according to which, an acquisition permit may be granted, among others, for target shooting or practice if the firearm is not unnecessarily powerful for the purpose stated by the applicant. The Police Department has discretion in granting an acquisition permit, and no one has a universal right to obtain such a permit. Consequently, the Supreme Administrative Court ruled that the rejection of a permit application was within the statutory limits of the Police Department’s discretionary powers.

7.2

Separation of Powers

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. Because the courts are judicial organs, they lack the power to exercise executive power and to make original administrative decisions. Consequently, a court should not substitute itself for the administrative authority which has made the contested decision. Nevertheless, this limitation can only be indicative, since the courts are commonly considered to have the power to amend administrative decisions, at least under some circumstances.

7.3

Constitutional Review

Finland lacks a specific constitutional court, but the courts and other authorities are required to interpret legislation in such a way as to comply with the Constitution and respect human rights. In deciding a case, the courts must give primacy to the Constitution. If an applicable provision in a law is in apparent conflict with the Constitution, the court must disapply that provision and instead apply the Constitution. However, the judiciary lacks the power to declare a law invalid and unconstitutional. The administrative courts are only constitutionally empowered to perform limited judicial review of legislative acts. This power is relatively new, since it was only introduced in the Constitution Act of 2000. If a court finds that a provision in an Act

18

KHO 2017:130.

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of Parliament is in manifest conflict with the Constitution, the court shall then disapply that provision and give primacy to the Constitution.

7.4

Administrative Inaction

There remains a problematic gap in the reviewability of executive action. If an authority remains passive, delays the matter, or completely fails to act, no appeal is available against such conduct or omission. Unless there is a specific provision making inaction reviewable, the only, albeit fairly ineffective, remedy is an informal administrative complaint which can be made to a superior authority or and the Ombudsman (the Parliamentary Ombudsman or the Chancellor of Justice).

7.5

Local Self-government

The scope of review generally depends also on the nature of the appeal. The degree of judicial scrutiny is comprehensive in an ordinary administrative appeal; by contrast, it is more limited and passive in cases concerning a municipal appeal. In both cases, the court nevertheless has the power either to affirm or overrule the decision challenged by appeal. Ordinary administrative appeal is characterised as a reformatory type of appeal, which allows the court to be more active at the investigative stage and which also gives it wider powers in passing judgment. By contrast, municipal appeals concern cassation, which means that the appellate court is required to conduct the procedure in a more passive and adversarial manner, and its powers are more limited. Furthermore, proceedings are conducted in a more active manner in ordinary administrative appeals, where the court is empowered to take a more detailed stand on the contents of the case.

8 Concluding Remarks The role of judicial deference varies between different legal systems due to context and traditions, juridical cultures, divergent perceptions of the proper functions of the courts, and the value accorded to judicial protection. 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.

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However, a more detailed analysis might reveal distinct and fruitful tensions in the relationship between the courts and the executive with respect to their different functions in exercising public power. The courts exercise judicial power and play a central role in offering legal protection to individuals affected by administrative decision-making. The basic function of the executive, on the other hand, is to exercise administrative power in order to realise rights and obligations within the framework defined by the legislature. The tension primarily arises from the fact that judicial review can constrain the exercise of executive power because of its emphasis on adherence to the law and legal principles. Nevertheless, judicial review can also support administrative activity, since the courts and the executive share the function of guaranteeing legality and the rule of law, both in individual cases and in the implementation of legislative intent.19 Well-functioning judicial review and effective remedies are necessary guarantees of legal protection for individuals subject to executive power. They are also needed to ensure that administrative action complies with the law. Even in an ideal situation where laws are correctly observed and implemented by the administration in a proactive and practical manner, the possibility of judicial review would still be required for preventive reasons.

References Daly P (2012) A theory of deference in administrative law. Cambridge University Press, Cambridge Elliott M (2001) The constitutional foundations of judicial review. Bloomsbury Publishing, Oxford Galera S (ed) (2010) Judicial review: a comparative analysis inside the European legal system. Council of Europe, Strasbourg Harlow C, Rawlings R (1997) Law and administration, 1st edn. Weidenfeld and Nicolson, London. 1984 Hertogh M, Halliday S, Arup C (2004) Judicial review and bureaucratic impact: international and interdisciplinary perspectives. Cambridge University Press, Cambridge Letto-Vanamo P, Tamm D, Gram Mortensen B (eds) (2019) Nordic law in European context. Springer, Berlin Mäenpää O (2017) Judiciary v. executive: judicial review and the exercise of executive power. Juridiska Föreningens Tidskrift 2–4:242–255 Nuotio K et al (eds) (2012) Introduction to Finnish law and legal culture. Faculty of Law, University of Helsinki, Helsinki Spiliotopoulos E (ed) (2000) Towards a unified protection of citizens in Europe (?). Esperia, London

19

For more detail, see Mäenpää (2017).

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Olli Mäenpää has been professor of Administrative Law at the University of Turku 1982–1992 and in the University of Helsinki 1992–2019. He was the Dean of his Faculty in Helsinki 1998–2003. He has served as judge in the Supreme Administrative Court in 1994 and 2006, as Chair of the Council for Mass Media (a self-regulatory body) 1999–2003, as a legal expert of the Council of Europe and as chair or member of several government committees. He has chaired the Research Council for Culture and Society and served as a member of the Board of the Academy of Finland. He is frequently heard as a legal expert by ministries and the committees of the Parliament on questions pertaining to national and European constitutional and administrative law. His recent publications in Finnish include Judicial Procedure in Administrative Courts (2019), Administrative Law (2018), General Administrative Law (2017), The Principle of Access to Public Information (2016), Administrative Procedure Act (2016), and European Administrative Law (2011).

A Principled Approach to Judicial Deference for Hong Kong Cora Chan

Abstract 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.

In the past two decades or so, courts around the world have increasingly resorted to the approach of “deference” to governmental authorities in adjudicating human rights cases,1 and the Hong Kong courts are no exception. The advent of the human rights review necessitated by the enactment of the Bill of Rights Ordinance (BORO) in 1991, and its proliferation since the Hong Kong Basic Law entered into force in 1997, has been accompanied by a concomitant rise in judicial deference to the executive and legislature in adjudicating human rights cases. Accordingly, judicial deference has become a core part of public law doctrine in Hong Kong. The dearth of academic literature on deference in Hong Kong is thus rather surprising. There has been some commentary on the Hong Kong courts’ attitudes and approaches in individual cases,2 but little systematic analysis of their approach to deference more broadly.3 This chapter is part of the first-ever comprehensive study of deference in post-handover human rights cases in Hong Kong. In the earlier, empirical parts of the project, I examined how often deference has arisen as an issue in human rights cases, what jurisprudence has shaped the Hong Kong courts’

1 The literature on deference is voluminous. See, e.g., part II of Kavanagh (2009); Kavanagh (2010); Young (2009); part II of King (2012); Rivers (2006); Brady (2012); Hunt (2003), p. 337; Jowell (2003), p. 67. For critiques of deference, see Allan (2006); Allan (2011). 2 See, e.g., Chan (2010); Chan (2011); Wong (2018); Yap (2018). 3 Cf., Chan and Lim (2015), pp. 17.065–17.073; Yap (2007).

C. Chan (*) Department of Law, The University of Hong Kong, Hong Kong Special Administrative Region, China e-mail: [email protected] © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_10

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approaches to deference, and, using an original methodological framework, measured the degree of deference the courts have exhibited in human rights cases and from those findings distilled the relative impact of various factors on the degree of deference. These findings have been published elsewhere.4 This chapter presents the findings of the final, normative part of the project in which I evaluated whether the approach to deference that the post-handover Hong Kong courts have taken is justified and proposed an approach that the courts should adopt in light of Hong Kong’s unique constitutional and institutional landscape. The remainder of the chapter proceeds as follows. First, for the benefit of readers who are not familiar with the Hong Kong context, I outline the features of Hong Kong’s constitutional framework and political system, an understanding of which is necessary for analysing the issue of judicial deference in Hong Kong. Section 2 then defines deference, outlines the factors that generally affect the degree of deference, and surveys the various means by which the courts exhibit deference. Section 3 describes the Hong Kong courts’ current approach to judicial deference, and Sect. 4 evaluates that approach and then proposes a general approach to deference for jurisdictions that share certain assumptions and legal traditions with Hong Kong. Section 5 applies the proposed approach to Hong Kong and suggests the specific principles its courts should follow. Section 6 concludes. Arguments about deference are grounded in deeper, normative assumptions about the proper roles of the courts and the government. Moreover, to be useful, suggestions on how deference is to be manifested must be made in relation to a jurisdiction’s pre-existing legal principles. The principles proposed in Sect. 4 of this chapter are sketched with Hong Kong in mind, but may also be applicable to jurisdictions that share with Hong Kong certain assumptions about the constitutional role of the courts, such as the assumption that the government should respect the fundamental principles of its constitutional order (and the courts’ role in enforcing those principles) and that judicial decisions should be based on reason, and certain legal traditions, such as adoption of the principles of proportionality and reasonableness in judicial review. Most obviously, the UK—from which Hong Kong inherited or imported these assumptions and principles—is a jurisdiction that largely shares them and hence to which the suggestions in this chapter also apply, although there may be other jurisdictions in which similar assumptions and traditions hold.5

4

Chan (2016); Chan (2018). I am non-committal concerning which other jurisdictions share these assumptions and legal principles, but tentatively consider Canada and Israel to be plausible candidates. 5

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1 The Constitutional and Political Context of Hong Kong6 In 1997, Hong Kong was returned to Chinese sovereignty, ending more than 150 years of British colonial rule. The handover was underpinned by an international treaty, the Sino-British Joint Declaration, which guarantees that Hong Kong shall have a high degree of autonomy vis-à-vis China and shall practise different systems, including a different legal system. These guarantees are elaborated upon in Hong Kong’s post-handover constitution, the Basic Law. Hong Kong practises a common law legal system, distinct from China’s socialist legal system. The Basic Law guarantees a long list of fundamental rights and grants Hong Kong extensive selfgoverning powers, although those powers are subject to the Chinese government’s close supervision, manifested most prominently in the National People’s Congress Standing Committee’s free-standing and plenary power to interpret the Basic Law. The Basic Law divides powers amongst the three branches of the Hong Kong government: the executive, the legislature and the judiciary. The executive, headed by the Chief Executive, enjoys wide powers of making and implementing laws and policies. In contrast, the legislature’s powers are much more circumscribed. It plays a subsidiary role in governance, passing bills and budgets and debating important issues, but its power to introduce bills is limited. Hong Kong is thus said to have an executive-led system, although that does not mean that there is no separation of powers. The thrust of such separation is that various powers are not concentrated in the same hands, with effective checks and balances amongst different branches of government. Such checks are clearly in place in Hong Kong. The legislature is able to scrutinize bills and important policies and to veto bills introduced by the government. However, given the current configuration of the legislative branch (a point to which I return below), it rarely exercises the latter power. In addition, the Basic Law grants Hong Kong courts the independent and final power of adjudication. The courts’ power to review executive acts for compliance with administrative law is grounded in the Basic Law’s stipulations that Hong Kong shall continue to practise common law and that the courts shall be afforded final powers of adjudication. The courts’ power to review executive acts for compliance with the Basic Law is expressly provided for in the Basic Law. Their power to review legislative acts for such compliance can be inferred from the stipulations that the Basic Law is higher than other laws and that the courts have final adjudication power, and has been unequivocally established in Ma Wai Kwan7 and Ng Ka Ling.8 The Hong Kong courts have exercised their powers of administrative and constitutional review rigorously.

6

See, e.g., Chan (forthcoming-c). HKSAR v. Ma Wai Kwan David and others [1997] HKCA 652; [1997] HKLRD 761; [1997] 2 HKC 315. 8 Ng Ka Ling and another v. The Director of Immigration [1999] HKCFA 72; [1999] 1 HKLRD 315; (1999) 2 HKCFAR 4; [1999] 1 HKC 291. 7

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Hong Kong’s political system is closer to a presidential than a parliamentary model in that two separate routes to election are provided for: one for the Chief Executive (who nominates officials to join his or her cabinet), and the other for the legislature. The Basic Law states that the final goal is universal suffrage in the election of both branches of government. However, the various post-handover attempts to democratize the election systems have yet to achieve that goal. The Chief Executive is currently elected by a 1200-person election committee, and only half the legislature is returned by direct election, with the other half returned by functional constituencies (constituencies based on professional interests). The way in which the election committee and functional constituencies are returned is biased in favour of business elites and pro-China and/or pro-establishment individuals and groups, bias that is manifested in the election results: although the pan-democrats are usually able to capture about half the votes in direct elections, the Chief Executive and more than half the legislature are members of the pro-establishment camp, meaning that pan-democrats control only about one-third of the legislature. This set-up, together with the split voting system entrenched by the Basic Law—in which government bills can be passed by a simple majority in the legislature, whereas individual legislators’ bills must be passed by a simple majority of both legislators returned by direct election and those returned by functional constituencies—ensures that government bills are successfully passed most of the time with the pro-establishment camp’s backing. It is clear that the Chinese government in Beijing is reluctant to grant universal suffrage to Hong Kong. In the most recent attempt at reform, Beijing decided to impose tight strictures on the form of election that may be implemented as universal suffrage, strictures that enable it to control who can run in the election.9 This decision triggered a large-scale civil disobedience movement in 2014 that came to be known internationally as the “Umbrella Movement”. It remains uncertain when, if ever, genuine universal suffrage will be introduced in Hong Kong. Before leaving this section, it is also worth highlighting the way in which the executive and legislature have functioned in recent years. Pan-democratic legislators have resorted extensively to filibustering techniques to delay the passage of government bills, a tactic rooted in part in the lack of democratic legitimacy enjoyed by the executive and half of the legislature. The pan-democrats are of the view that although they are more democratically legitimate than the other parties concerned, they are unable to halt the passage of government-introduced bills they consider contrary to the public interest or introduce bills they believe to be in the public interest. Accordingly, they are forced to resort to filibustering and other means of protest. The end result is that neither the executive nor legislature can properly perform its constitutional role. On the one hand, the legislature is unable to veto unmeritorious

9

Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Selection of the Chief Executive of the Hong Kong Special Administrative Region by Universal Suffrage and on the Method for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2016.

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government bills, and, when it filibusters, is unable to fully perform its role of scrutinizing the merits of individual bills and policies. On the other hand, the executive often faces obstacles introducing laws that are in the public interest. The latter also does not dare to introduce reforms that are important but controversial and not favoured by the majority of the public. That said, the executive is a vast bureaucracy with an elaborate division of work. The bulk of its decisions are made by civil servants in accordance with established procedures. Although the executive is not always able to introduce laws efficiently, the majority of its decisions do not need to go through the legislature. Any assessment of the constitutional and institutional competence of the executive and legislative branches has to be made in this light.

2 Deference: Definition, Underlying Factors and Means of Exhibition Deference refers to the courts giving leeway to the government in assessing the legality of the latter’s decisions.10 The issue of deference is distinct from that of jurisdiction: the former refers to a court’s granting of latitude to the government on a matter on which it has the legal power to intervene, whereas the latter refers to the legal power of the court to intervene on a particular matter. In Hong Kong, for instance, the courts have no legal power to determine issues relating to foreign affairs and defence (Article 19 of the Basic Law), but they do have the legal power to strike down socioeconomic policies. However, the fact that they enjoy the jurisdiction to interfere with such policies says nothing about how active they are or should be in exercising such jurisdiction. For example, it is widely believed (rightly or wrongly) that the courts should accord more deference to the government and be slower to intervene in socioeconomic issues.11 The issues of jurisdiction and deference, though distinct, are nevertheless grounded in the same concerns as those underlying the separation of powers. Whether the courts should have jurisdiction over certain matters and how much deference they should accord to governmental authorities are generally determined by two main considerations12: (1) whether the governmental authority possesses special institutional competence (i.e. expertise and knowledge-gathering powers) on the matter at hand and (2) whether the governmental authority has special constitutional competence to deal with that matter. The second consideration can encompass three sub-considerations: (2.1) whether the matter warrants stronger checks and

10

Chan (2016), p. 854. See section 3 of this article. 12 See the debate between Hunt and Jowell on whether the U.K. courts should defer on the grounds of democratic legitimacy since the entry into force of the Human Rights Act 1998: Hunt (2003); Jowell (2003). 11

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balances by the court, in which case the court possesses a stronger constitutional duty to intervene; (2.2) whether the constitution expressly precludes or weakens the court’s involvement in a particular matter; and (2.3) whether the governmental authority in question possesses the democratic legitimacy to decide the matter. As I have argued elsewhere, the courts can exhibit deference in various ways.13 First, they can relax the standard of review, i.e. lower the legal standard that the government must meet. Second, they can relax the cogency of the evidence required from the government to meet that standard, i.e. afford a degree of weight to the government’s judgment that the legal standard has been met. For example, the proportionality standard is generally considered a more demanding (less deferential) standard of review than the Wednesbury unreasonableness standard that asks whether a decision is so unreasonable that no reasonable decision-maker would have come to it or one that asks whether a measure is manifestly without reasonable foundation. In assessing whether a governmental measure passes particular standards, however, the courts may afford more or less weight to the government’s argument that the standards have been met. Third, a less common means of exercising deference is to adjust the burden of proof, requiring the litigant to demonstrate that a measure fails a requisite legal standard rather than requiring the government to demonstrate that it meets it. In the following parts of the chapter, I refer to these three ways of exercising deference as strategies or means of deference.

3 Current Approach: Doctrine and Practice In Hong Kong, the issue of deference arises most prominently in cases in which an act is challenged on the ground that it violates a human right guaranteed in the Basic Law and/or BORO, although it has arisen in non-rights contexts as well. The Hong Kong courts have not distinguished between principles of deference for administrative and legislative acts, with the principles they have pronounced applicable to both. Therefore, if one is interested in examining deference in relation to administrative acts (as the readers of this volume may well be), one must examine case law in relation to legislative acts as well. In the following, I therefore draw on case law pertaining to both. It should also be noted that the courts in Hong Kong have drawn heavily from the jurisprudence of the UK and the European Court of Human Rights (ECtHR) in formulating their approach to deference,14 with the main principles they have employed imported from these two jurisdictions.

13 Chan (2016), p. 851; Chan (2013b), pp. 5–6. See also Elliott (2010), p. 264; Elliott (2015), pp. 61, 70–71. 14 Chan (2018), pp. 55–56.

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209

General Principles Where Rights Are Involved

The highest authority on deference in Hong Kong is the Court of Final Appeal’s (CFA) 2016 decision in Hysan Development Co Ltd v Town Planning Board15 in which certain planning restrictions imposed by the Town Planning Board were challenged for violating the developer’s private property rights under the Basic Law. This was a landmark case for several reasons. First, it established that in assessing whether a prima facie rights limitation is justified, the courts should apply a four- rather than three-limb proportionality test. Prior to Hysan Development, the Hong Kong courts applied three-limb proportionality, which asks (1) whether the right limitation pursues a legitimate aim; (2) whether it is rationally connected to that aim; and (3) whether it is no more than is necessary for achieving the aim. In line with global jurisprudence on human rights, the case added a fourth limb: (4) whether a reasonable balance has been struck between the societal benefits of the encroachment and the harm to the individual right being encroached, asking in particular whether the measure would result in an unacceptably heavy burden on the individual concerned (commonly known as the “fair balance” or “proportionality stricto sensu” limb).16 Second, the CFA in Hysan Development established the factors that the courts should consider in deciding whether and how much deference should be granted, and highlighted the following three factors. 1. The significance of and degree of interference with the right: the more important the right and more significant the interference, the more active (and less deferential) the court should be.17 2. The identity of the decision-maker and nature and features of the right-limiting measure. Here, the court was really referring to two considerations. The first is whether the question is one that the primary decision-maker enjoys superior institutional competence to decide. The court said that if the question is one that calls for the “application of purely legal principles” and is one that the court has the expertise to decide, then no deference will likely be accorded.18 If, in contrast, the question is one concerning which the primary decision-maker has special access to information or special expertise, then more deference may be accorded. For example, when the decision-maker is better placed to assess what is needed in the public interest or to make “predictive or judgmental decisions” about something for which there is no single right answer, the courts may defer to a greater extent. The CFA cited national security as an example of subject matter that is likely to attract more deference.19 The second consideration relates to the

15

[2016] HKCFA 66; [2016] 6 HKC 58. Ibid at [70]–[80]. 17 Ibid at [108]–[113]. 18 Ibid at [115]. 19 Ibid at [114]–[117]. 16

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constitutional roles played by the court and the primary decision-maker. Certain types of decisions are mandated by the principle of the separation of powers to be made by certain institutions. For example, the CFA indicated that the legislature’s enactments on the allocation of public resources are likely to attract greater deference on the ground that the distribution of scarce public resources is the responsibility of politically accountable politicians.20 Third, Hysan Development was significant in establishing how deference is to be manifested. The CFA confirmed that once the first two limbs of the proportionality test were passed, deference is to be accorded by adjusting the standard of review at the third limb of the proportionality test. Rather than asking whether a measure is no more than reasonably necessary for achieving an aim, a deferential court will ask whether the measure is manifestly without reasonable foundation. However, the CFA made it clear that the two standards are points on a “continuous spectrum”,21 the implication being that there may be standards of review between the two points. The more deference a court grants, the closer the standard of review comes towards the “manifestly without reasonable foundation” standard; the less deference it grants, the closer the standard moves towards the “no more than necessary” standard. Town planning restrictions that are able to survive administrative law muster should in general be struck down on property rights grounds only if they are manifestly without reasonable foundation.22 The CFA also established that the courts should not defer by relaxing their scrutiny of the government’s justification on whether the standard of review has been met: a court should still “consider in some depth the factual foundation and reasoning underlying that [i.e. the government’s] judgment”.23 This stipulation suggests that the CFA ruled out the second means of deference referred to above (relaxing the cogency of arguments required of the government), at least in relation to the third limb of the proportionality test. Fourth, Hysan Development constituted a landmark in watering down the “no more than necessary” test to that of “no more than reasonably necessary”.24 The court held that this limb requires not strict necessity but reasonable necessity. As long as the measure in question falls within a range of reasonable alternatives, a court should not strike it down merely because it can imagine an alternative that might be less intrusive. Instead, it should intervene only if the government fails to explain why a significantly less intrusive and equally effective measure had not been adopted.25 The court should consider “whether some less onerous alternative would have been

20

Ibid at [118]. Ibid at [119]–[122]. 22 Ibid at [129]. 23 Ibid at [123], citing Lords Reed and Toulson JJSC in R (Lumsdon) v Legal Services Board [2016] AC 697 at [44]. 24 Ibid at [83]–[88]. 25 Ibid [85], citing McLachlin J in RJR-MacDonald Inc v A-G of Canada [1995] 3 S.C.R. 199. 21

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available without unreasonably impairing the objective”.26 Accordingly, even in its most rigorous form, the third limb now requires reasonable rather than strict necessity. Finally, the CFA made it clear that the requirement of proportionality is substantive rather than procedural.27 The courts must decide on their own as a matter of substance whether a measure is proportionate. They should not require the primary decision-maker to have undergone proportionality analysis, although they are not precluded from deferring more to that decision-maker’s decision if it has gone through in-depth proportionality analysis.

3.2

Equality and the Socioeconomic Context

It has been firmly established in Hong Kong that decisions involving the allocation of scarce resources attract more deference, subject to the case impinging on fundamental values. In Fok Chun Wa v Hospital Authority,28 the government’s policy on subsidizing obstetric services was challenged on equality grounds because the policy offers subsidies only to pregnant women who are Hong Kong residents (“eligible persons”). The applicant in Fok Chun Wa was not a Hong Kong resident, although her husband was. She argued that she shared a relevant similarity with an eligible person in that both were bearing the child of a Hong Kong resident and Hong Kong would be the centre of life for both upon the birth of the child. Accordingly, the policy was discriminatory on the ground of residency. In deciding the case, the CFA distinguished two categories of discrimination. The first concerned grounds of discrimination relating to the personal characteristics of a human person, including race, gender, sexual orientation, religion, political views and social origin. Non-discrimination on these grounds is a core value. The second concerned grounds of discrimination that do not affect core values, such as residency. The court held that in cases in which the first category of discrimination is involved, the courts should be rigorous and non-deferential because core values are at stake. In cases involving the second category of discrimination, in contrast, the courts should be more deferential because no core values are at stake, and hence the third limb of the proportionality test should be diluted to that of “manifestly without reasonable foundation”.29 In sum, the courts should be slow to assess the merits of the government’s socioeconomic policies. In the allocation of scarce resources, a line very often must be drawn, and there will inevitably be hard cases in which an

26

Ibid at [86], citing Lord Sumption JSC in R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2015] AC 945 at [34]. 27 Ibid at [130]. For more on the debate over whether proportionality is a substantive requirement only or a procedural requirement as well, see, e.g., Kavanagh (2014). 28 [2012] HKCFA 34; [2012] 2 HKC 413. 29 Ibid at [76]–[81].

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individual falls on the wrong side of that line. In cases concerning the second category of discrimination, the court would intervene only if the line drawn by the government was manifestly without reasonable foundation. In evaluating the reasonableness of a governmental measure, the court may take into account the need to draw a clear and easily administrable line.30 Beyond the discrimination context, the CFA in Fok Chun Wa considered the following as fundamental values requiring vigilant judicial scrutiny: the right to life, the right not to be tortured, the right not to be held in slavery, freedom of expression and opinion, freedom of religion, the right to a fair trial and the presumption of innocence.31 The CFA ultimately upheld the government’s residence-based subsidies policy in the case, ruling that it was not manifestly without reasonable foundation for the court to draw the line at residency. The same principles were applied in Kong Yunming v The Director of Social Welfare32 and Yao Man Fai v The Director of Social Welfare.33 In the former, the CFA struck down the 7-year residency requirement for obtaining Comprehensive Social Security Allowance on the ground that it was either not rationally connected to the proffered aim of the requirement or manifestly without reasonable foundation. In the latter, the Court of Appeal (CA) upheld the 1-year immediate residency requirement for obtaining the same welfare measure on the ground that it was not manifestly without reasonable foundation. The different result reached in the two cases reveals an inconsistency in the rigour with which the two courts applied the “manifestly without reasonable foundation” standard: they were haphazard in applying the second means of deference highlighted above (relaxing the cogency of evidence), which the CFA subsequently ruled out in Hysan Development. In Fok Chun Wa, in addition to diluting the third limb to that of manifestly without reasonable foundation, the CFA also relaxed that limb in scrutinizing the government’s arguments over whether the standard had been met. In Kong Yunming, in contrast, the CFA was much more demanding in terms of evidential proof on the various limbs of the proportionality test, and, accordingly, ruled against the government on that basis. These cases demonstrate that, at least prior to Hysan Development, the courts commonly resorted to the second means of exercising deference, and, as a result, the application of a particular standard of review was no guarantee of a particular level of analytical rigour.

30

Ibid at [71]–[75]. Ibid at [79]. 32 [2013] HKCFA 107; [2014] 1 HKC 518. 33 [2012] HKCA 79; [2012] 4 HKC 180. 31

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Immigration Decisions

The courts have generally deferred to the government in decisions concerning whether to allow non-residents to enter Hong Kong: [T]he legislature has chosen to entrust the high responsibility for and discretions on immigration matters to the Director of Immigration. It is an important responsibility, given Hong Kong’s unique circumstances [little land, huge population, and economic and social conditions compared to those in the region], and the discretions conferred are wide. . . . The courts . . . will not lightly interfere with the Director’s policies or exercise of discretion.34

The main thread of the argument is that the Basic Law vests the executive branch with the responsibility for overseeing immigration control, and hence that immigration is an area in which the executive should be granted particularly wide discretion. One factor contributing to the court’s less interventionist approach in immigration decisions affecting non-residents is the reservation in section 11 of BORO stating that its provisions shall not affect the government’s implementation of immigration laws. The upshot is that—absolute non-derogable rights aside35—decisions barring entry to non-residents can be challenged only on traditional administrative law grounds, that is, not on constitutional rights grounds. The legal standard for the former is inherently more deferential than that for the latter. For example, the orthodox standard for reviewing administrative discretion is Wednesbury unreasonableness, a standard that is less demanding than proportionality. Also, in traditional administrative law contexts, the burden of proof is on the applicant to show that a measure is Wednesbury unreasonable, whereas in rights cases the burden is placed on the government to justify a prima facie rights limitation. This does not mean that it is impossible for an applicant to successfully challenge an immigration decision on traditional Wednesbury grounds. The recent CFA decision in QT v Director of Immigration36 struck down the government’s policy of not granting dependent visas to same-sex spouses on Wednesbury unreasonableness grounds. This case was ground-breaking in confirming two points. First, non-discrimination is a requirement of Wednesbury reasonableness. Second, whenever discrimination is potentially involved, the court’s Wednesbury inquiry should include an application of the legal principles on non-discrimination, including the legal test of proportionality and its associated principles of deference.37 Although QT was argued primarily on Wednesbury grounds, the CFA’s approach was no different from that it would have adopted had the case been argued on constitutional rights grounds. The implication of the case is that, in future, if a non-resident is able to raise a prima facie case of discrimination, the government will have to defend 34

Gurung Deu Kumari v Director of Immigration [2010] 5 HKLRD 219 at [20] at [54]. For a recent case in which the court explains its approach to deference on immigration issues, see BI v Director of Immigration [2016] 2 HKLRD 520. 35 Ubamaka Edward Wilson v Secretary for Security [2012] 15 HKCFAR 743; [2013] 2 HKC 75. 36 [2018] HKCFA 28. 37 Ibid at [87]. For an excellent analysis of the Court of Appeal’s judgment, see Wong (2018).

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itself as if the case were a constitutional rights case involving a resident. The CFA held in QT that even if socioeconomic policies are involved, where invidious grounds of discrimination or other core values are at stake, the courts should apply the more rigorous “reasonable necessity” proportionality formula.38

3.4

“Political” Judgments

In recent years, the Hong Kong courts seem to have accorded a wide margin of appreciation to “political” judgments. The CFA’s 2017 judgment in Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs39 casts aside any doubt on the issue. In that case, a legislative provision prohibiting individuals from standing in a by-election triggered by their own resignation was challenged on the ground that the prohibition violated their right to stand for election. The background to the enactment is that five legislators had resigned to trigger a de facto referendum on a political issue. Their position was that if they were re-elected, that would constitute proof of public support for their (rather than the government’s) stance on the issue. To stop legislators from making such a move again, the government introduced the legislative provision in question, a highly controversial measure that was passed only after heated debate. The CFA upheld the government’s legislative provision. It confirmed that political issues such as that in the case at hand should attract the “manifestly without reasonable foundation” formula because the courts are institutionally and constitutionally unequipped to rule on them: “[w]here electoral laws involve political or policy considerations, a wider margin of appreciation ought generally to be accorded. . . . In particular, where there has been active political debate on an issue or piece of legislation, the Court will again be inclined to give a wider margin of appreciation.”40 The court took the view that Kwok Cheuk Kin involved the “predictive and judgmental” decisions referred to in Hysan Development.41 Presumably, the prediction involved whether legislators would abuse the system if a legislative amendment were introduced, and the value judgment whether it was necessary to curb such abuse. The CFA’s approach in Kwok Cheuk Kin has been mirrored in the courts’ approach to other electoral cases in the past 2 years in which they have adopted a similarly deferential approach. In one such case, for example, the court rejected an application for leave to challenge the legal age requirement for standing for election being set at 21 (rather than 18, the legal age for voting).42 In another, it rejected an

38

Ibid at [108]. [2017] HKCFA 44; [2017] 5 HKC 242. 40 Ibid at [42]. 41 Ibid at [41]. 42 Wong Chi Fung v Secretary for Justice [2016] HKCFI 1047; [2016] 3 HKLRD 835. 39

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application for leave to judicially review the government’s consultation exercise on democratic reform.43 It remains unclear, however, what constitutes a “political” judgment that warrants deference. The courts’ approach seems to suggest that any decision on electoral rights that they deem politically controversial will attract a wide margin of appreciation. Furthermore, in such instances the right to stand for election and the right to vote will not be considered “core values” or “fundamental concepts” that attract a higher intensity of review even though they are arguably two of the most fundamental rights under the Basic Law. This understanding of the courts’ approach also rationalizes some of the earlier jurisprudence on political rights, such as the decision in Chan Kin Sum v Secretary for Justice44 on prisoners’ right to vote. In that case, the court was relatively rigorous, presumably because no political controversy was involved.

3.5

National Security Assessments

The courts in Hong Kong have hitherto not had to deal with many matters concerning national security, an area that has attracted a large degree of deference in other jurisdictions. However, they have on occasion reinforced as an academic point that national security is an area that attracts deference. Hysan Development is an example of such reinforcement.45 The closest that the Hong Kong courts have come to reviewing national security decisions is Chu Woan Chyi v Director Immigration,46 in which the applicants challenged, on traditional administrative law grounds, the government’s decision to bar certain Falun Gong members from entering Hong Kong for security reasons. What was alarming about the case was that the government was unable to point to any evidence demonstrating that the applicants posed a security threat. The courts were therefore asked to adjudicate the claim purely on the basis of affirmations by government officials. Ultimately, the applicants’ substantive challenge failed because the burden of proving that the government had not acted on bona fide security grounds rested with the applicants, and clear evidence would be needed before the court could find that a senior official has been deliberately untruthful in its affirmation, evidence that was not available in the circumstances.47 This case suggests that the courts may be deferential when the government is unable to produce evidence demonstrating a security risk. In the case, they seemed ready to accept that the government’s decision met the requisite administrative law

43

Leung Lai Kwok Yvonne v Chief Secretary for Administration [2015] HKCFI 929. [2009] HKCFI 172. 45 Another example is Nkokwo v HKSAR Government [2016] 5 HKLRD 126 at [33]. 46 [2009] HKCA 316; [2009] 6 HKC 77. 47 Chan and de Londras (forthcoming-b). 44

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standards even though the government could produce no evidence showing that they had been met. In the parlance adopted in this chapter, the court applied the second means of deference: relaxing the cogency of arguments required of the government. Nevertheless, the court’s deferential disposition might be different in cases in which the burden of proof is on the government to show that a legal standard (e.g. proportionality) has been met. Indeed, Chu Woan Chyi might be decided differently today in light of the CFA’s ruling in QT.

3.6

Moral Judgments

Some earlier jurisprudence suggests that the courts will defer to elected politicians in morally controversial matters (see, e.g. Lau Cheong v HKSAR48 and the Court of First Instance (CFI) judgment in W v Registrar of Marriages49). The CFA decision in W,50 however, stated emphatically that the courts will not shy away from protecting minority rights even if the granting of such rights is a matter of controversy. In that case, it struck down a government decision to not allow a postoperative transsexual woman to marry her male partner. The CFA held that the courts must not rely on the absence of societal consensus to deny minority rights. Nevertheless, the courts are still likely to defer on morally controversial matters to institutions that are more representative of the public in two situations. The first is situations involving the definition of a social institution. The courts have emphasized that a social institution must be defined by society; it cannot be defined by the courts. Accordingly, for instance, although the majority of judges ruled in favour of the applicant in W, their approach suggested that who is entitled to marry should still be defined by societal views, albeit changing ones.51 That position was left untouched by QT in which the CFA, although rejecting the CA’s approach of allowing tradition to determine what rights should be treated as core and exclusive to marriage,52 made it clear that it was not dealing with the issue of whether same-sex couples were entitled to marry under Hong Kong law.53 The second situation in which the courts are likely to defer concerning a moral controversy is when they are of the view that there is no one right answer to the question at hand. The CFA in Hysan Development, for example, referred to judgmental decisions that admit of no single right

48

[2002] HKCFA 46; [2002] 3 HKC 146. [2010] HKCFI 827; [2010] 6 HKC 359. 50 [2013] HKCFA 39; [2013] 3 HKC 375. 51 Ibid at [85]–[112]. See also Leung Chun Kwong v Secretary for the Civil Service and another [2018] HKCA 318; [2018] 3 HKLRD 84 esp at [101]–[111], [128]. 52 Ibid at [66]. 53 Ibid at [25]–[26]. See Chan et al. (forthcoming). 49

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answer.54 Controversy, therefore, may not be the key; rather, it is uncertainty, even after thorough moral reasoning by the court, over which side has the better argument.

4 Critiques and Suggestions for a General Approach Three critiques of the Hong Kong courts’ current approach to deference and corresponding suggestions are in order. The first concerns how the courts decide whether a question should attract deference. Whilst the grounds on which the courts defer are generally sound, the way in which they assume the relevance of such grounds is problematic. Currently, the courts adopt what Hunt calls a “spatial” approach to deference,55 carving out wholesale subject areas as automatically warranting a small or large degree of deference. As Lim and I have argued elsewhere (this and the next five paragraphs are drawn partly from our earlier work),56 that approach has the advantage of predictability (although, as we have seen, unpredictability still exists because the courts are inconsistent in applying the second means of deference), but is insufficiently sensitive to the forces for and against judicial control within a given subject matter.57 For example, even if the courts lack the expertise to adjudicate a particular national security question (a factor for deference), very important rights may still be at stake in the case (a factor against deference). Also, not all questions within a particular subject area are of the same nature. Although the courts may, in the absence of relevant intelligence information, be unable to assess the gravity of a national security risk, they may be able to do so in situations where the relevant information is disclosed. It would therefore be overly crude to assume that national security matters as a whole attract a large degree of deference. The spatial approach, together with the different ways in which courts may exercise deference, also leads to the risk of the courts affording a double dose of deference, that is, deferring twice for the same reason. For example, in Fok Chun Wa the court afforded deference once when it diluted the proportionality test to that of being manifestly without reasonable foundation and then again when it deferred to the government’s view concerning why the subsidy scheme was not manifestly without reasonable foundation. The same reason—the court’s lack of institutional competence—underlay both counts of deference. In view of the shortcomings of the spatial approach, a number of public law scholars in the UK have formulated a more context-sensitive approach that requires the courts to afford a suitable degree of latitude to the decision-maker on a particular issue within a case, with such latitude to be determined by various factors, including

54

Ibid at [116]. Hunt (2003). 56 Lim and Chan (2019), pp. 106–109. 57 See Hunt (2003); Young (2009), p. 554; Kavanagh (2010), p. 222; Chan (2010), pp. 3–7. 55

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the importance of the interest at stake and how much expertise or legitimacy the court has in adjudicating the issue. This approach, known as the “due deference” approach,58 has found favour,59 and there are signs that the English courts are beginning to adopt it.60 It is sufficiently sensitive to the forces for and against greater judicial control, but is less predictable, not least because of the array of factors involved and the variety of ways in which the courts can afford latitude. There is a plethora of work in the public law arena on how the intensity of review in human rights adjudication should be determined, but few studies address the issue of unpredictability. One suggested approach can potentially alleviate the problem of unpredictability. It by and large maps the considerations that should affect the degree of deference onto courts’ various strategies for exhibiting deference.61 Building on this approach,62 Lim and I argue that which formulation of the standard of review applies (i.e. whether the classic Wednesbury formula, no more than necessary formula, or manifestly without reasonable foundation formula of proportionality applies) and where the burden of proof lies (i.e. on the government to justify the measure or on the applicant to show that it is unjustified) should be determined primarily by the nature of the interest at stake and the extent to which it is affected. That determination then sets the legal standard, that is, the level of scrutiny that the courts should in theory exercise to control abuses of power. The more important the interest at stake, the higher the legal standard the decision-maker has to meet to justify impinging on that interest. This position is justified by the courts’ role in controlling abuses of governmental powers, a role that is assumed by the courts in jurisdictions with rigorous judicial review. By contrast, the degree of weight to be afforded to the decision-maker’s views that the legal standard has been met—which concerns the courts’ ability to decide whether such a standard has been discharged—should be determined by the court’s institutional and constitutional competence in adjudicating the issue in question. For example, interests that are relatively unimportant and do not warrant particularly intense protection by the courts should attract the Wednesbury standard, with the burden of proving wrongdoing placed on the individual. Constitutional rights, common law rights and non-rights interests of heavy normative weight, such as

58

Hunt (2003); Young (2009), p. 554; Kavanagh (2010), p. 222; King (2008), p. 409. A prominent exception is Allan (see, e.g., Allan TRS [2006] Human rights and judicial review: a critique of “due deference.” CLJ 65:671), who objects to any attempt to treat deference as an independent doctrine. 60 See, e.g., A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 A.C. 68 (known as the Belmarsh case), wherein the court carefully scrutinised whether a measure is rationally connected to the propounded purpose—an issue of logic and facts that the court is capable of assessing—even though the decision concerned national security. 61 Elliott (2015), pp. 76–81. 62 Elliott suggests that, in general, the standard of review in rights adjudication should be determined by the importance of the value affected by the decision, whereas the degree of weight afforded the decision-maker’s views on whether the standard is satisfied should be determined by the court’s institutional and constitutional competence in adjudicating the issue. See Ibid at pp. 76–81. 59

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legitimate expectations, should attract the proportionality standard, with the burden of justifying rights limitations placed on the government to reflect the importance that society attaches to those interests. The no more than necessary formula should be applicable to rights generally unless it is clear that a particular right assumes significantly less importance in the constitutional order, or its violation is extremely trivial, in which case the manifestly without reasonable foundation standard would be more appropriate. In the latter case, the scrutiny of rights is still more intense than the scrutiny of a decision under traditional Wednesbury principles because the burden of proof is on the government rather than the applicant. How much weight a court attaches to the government’s arguments that the legal standard has been met depends on the court’s relative institutional competence and constitutional legitimacy in assessing the question at hand, and can even vary within a given subject matter. The advantages of this suggested approach are that it is relatively predictable, is tailored to the grounds for deference and avoids the risk of the courts deferring twice for the same reason. The second critique and corresponding suggestion relate to the reformulation of proportionality in Hysan Development. It was correct for the court to import the fair balance limb, as the inquiry in that fourth limb is an important part of proportionality analysis that is conceptually distinct from the first three limbs.63 However, the court’s dilution of the third limb to “reasonable necessity” is problematic. The third limb assesses whether the means are narrowly tailored to the ends, and the underlying assumption is that rights are valuable and should be limited only to the extent necessary. If there is an alternative way for the government to achieve the aim in question that is less intrusive of the right, then the burden is on the government to show that the suggested alternative is not a real alternative. It can do so by, for example, proving that that alternative does not or is unlikely to achieve the aim to the same degree. If the government is unable to do so, then the court should have no problem striking down a measure on the grounds that the applicant is able to conceive of an alternative that is less intrusive. It is not impracticable to ask the government, which is equipped with the information needed to formulate the measure in question, to demonstrate that a suggested alternative is not equally effective. In Kong Yunming, for example, the government could have tried to demonstrate that a six- as opposed to 7-year residency requirement would require additional expenditure that would have damaging consequences for the sustainability of the welfare system, and thus was not a real alternative. If the court were to strike down a measure only because “a significantly less intrusive and equally effective measure”64 had not been chosen, it would be allowing the government to limit a right even when it had other ways of achieving its aim, which is contrary to the point of having a third limb.

63 64

On why the fourth limb is needed, see, e.g., Barak (2012), ch 12. Hysan Development, at [136].

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Also, the incorporation of a reasonableness assessment into the third limb conflates the analysis of the third and fourth limbs.65 In assessing whether a government measure falls within a range of reasonable alternatives, the court would already have had to assess whether the limitation was reasonable in light of its harm to the right, a value judgment that properly belongs to the fourth limb. Therefore, to preserve the purpose, integrity, analytical clarity and structure of the proportionality test, the third limb should remain a test of strict necessity when applied in its most rigorous form. The third and final critique and corresponding suggestion relate to when the courts should consider the primary decision-maker as being institutionally and constitutionally more competent to decide a particular question than the courts. Currently, the courts assume that the primary decision-maker has superior institutional and constitutional competence in assessing particular subject matter, e.g. socioeconomic and national security matters. As noted above, this spatial approach is problematic, not least because the decision-maker may not necessarily have superior competence on all such matters. Hence, when faced with an invitation to give weight to the government’s views, the court should first identify the specific question on which it is being asked to defer.66 After that question has been identified, the court should then ask whether it indeed suffers from incompetence thereon. If it is a question of logic or one concerning which the court has all of the relevant information it needs to decide, then the court suffers no institutional incompetence.67 That the question requires a value judgment does not preclude the court from being capable of adjudicating it. Courts make value judgments all the time, and the strength of such judgments can be tested by reason. Accordingly, there must be something about the question that renders the court incapable of assessing it before deference is warranted, and that something would be exemplified by the court facing uncertainty in adjudicating the question. Such uncertainty can arise from the court viewing two sides of an argument as equally strong or being unable to assess the strength of either or both sides owing to epistemic limitations.68 If the court faces uncertainty, then the question of whether the original decision-maker has more competence than the court arises, and deference may legitimately kick in.69 The courts should accept a claim that a government body possesses superior institutional competence to assess a particular question only if there is evidence supporting that claim.70 Otherwise, they would be acting on blind faith. Furthermore, the evidence must demonstrate that the government body in question is generally reliable in making assessments of the type in question.71 A court is entitled

65

Cf., Elliott (2010), pp. 278–280. See also Chan (2019), pp. 267–278. Chan (2010), p. 5. See also Brady (2012). 67 Foley (2008), ch 8; Chan (2011), pp. 17–19. 68 Chan (2013a), p. 603. 69 Ibid at 598, section 2. 70 Ibid at 598, section 3. See also Brady (2012), pp. 114–117. 71 Chan (2013a), p. 598, section 3. 66

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to make general assumptions about a government body’s ability and good faith provided that the assumption in question is supported by evidence. For example, before concluding that a government body has more expertise than the court in determining whether a fair balance is being struck between protecting the right to welfare and maintaining a sustainable welfare system, the court ought to be satisfied that the government has a good track record of striking a balance between those two goals and does not just, say, accommodate one and neglect the other. If there is evidence casting doubt on general assumptions about a government body’s ability and good faith, then the court should hesitate before affording weight to its assessment on institutional grounds. In determining whether a government body has more constitutional legitimacy concerning a particular question, the Hong Kong courts currently rely on the fact that the Basic Law assigns particular subject matter to particular branches of government. However, most constitutions assign all law and policy making and implementation functions to the executive or legislature. If the Hong Kong courts’ logic is followed, then that would mean that the courts have to defer to the executive and legislature in all instances of judicial review, which would defeat the purpose of having such review. The proper starting point must instead be to look at what role the constitution assigns the courts. If, like the Basic Law, it assigns the courts the role of resolving questions of law and powers of judicial review, and hence of checking abuses of power by the executive and legislature, then the fact that the constitution assigns a particular policy function to the executive or legislature should not absolve a court of taking a close look at a matter pertaining to that function. The fact that a question of law is raised in a policy or political context does not turn that question into a pure question of policy or politics reserved for the government, and it is still the court’s constitutional role to closely examine it. If, however, the constitution makes it clear that the courts have a relatively weak role to play with respect to a particular legal question, then government bodies should be considered to have more constitutional legitimacy than the courts in resolving it. The other component of constitutional legitimacy relates to democratic accountability. Currently, the courts assume that certain types of value judgments are best made by democratically accountable bodies. That position needs to be further unpacked. The democratic legitimacy argument can be understood in two ways: first, as a legitimacy argument in that some decisions are better made by democratically elected bodies regardless of whether they are more likely to get it right, and, second, as a subset of the institutional argument in that by virtue of its more democratic decision-making processes, the primary decision-maker is more likely to get it right.72 The first kind of argument should be irrelevant if the courts have a constitutionally mandated role to serve as a check against abuses of power and as a protector of rights, if, in other words, they are constitutionally mandated to ensure that the policy decisions made by the government comply with the law and constitutional values. A

72

Young (2009), pp. 565–566.

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legal question—even if raised in a policy or political context—is still a legal question which the courts have the legitimacy to resolve. The second type of argument can still be relevant, however. If the nature of the question is such that a government body that is more reflective of public views is more likely to get it right, then the courts are justified in deferring on such grounds, provided that the body is indeed representative of public views.73 The courts ought to assess whether the original decision-making procedure is indeed representative of and enables accountability to the wider public.74 Again, the courts are entitled to make assumptions about the democratic nature of certain decision-making processes, provided that those assumptions are grounded in evidence. If they are refuted by evidence, however, the courts should not grant deference on that ground.

5 Application of Suggested Approach to Hong Kong The suggestions made thus far can be summarized as follows. 1. The courts should discard the spatial approach, i.e. should not carve out wholesale subject areas as warranting a high or low degree of deference. 2. The courts should determine the standard of review and burden of proof according to the importance of the interest at stake. For non-rights interests and other interests that do not carry special normative weight, the Wednesbury standard should apply, with the burden of proof placed on the individual; for constitutional rights, common law rights and interests with a special normative pull, the strict necessity proportionality test should apply, with the burden of proof placed on the government to justify any limitation thereon, except for rights that clearly assume little importance in the constitutional order or whose violation is extremely trivial, in which case the manifestly without reasonable foundation version of proportionality should apply. Even in these cases, however, the burden of proof rests with the government to justify a limitation. 3. The courts should identify the specific question they are being asked to defer on. Only if they are uncertain of the legal answer should the courts consider according the primary decision-maker’s views on that question any degree of weight. 4. How much weight should be accorded to the primary decision-maker’s views should be determined by whether that decision-maker has special institutional or constitutional competence to decide the question at issue. 5. Any assumptions about the decision-maker’s institutional and constitutional competence on a particular issue must be grounded in evidence.

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Chan (2010), pp. 5–7. Ibid; see also Brady (2012), pp. 107–113.

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6. A government body should be considered to have more constitutional legitimacy to resolve a particular legal question in a policy context only if the constitution makes it clear that the courts have a weaker role to play on such questions than other branches of government. 7. The democratic or participatory decision-making processes of the primary decision-maker should be relevant only insofar as they render the decisionmaker more likely to arrive at the right answer on the issue concerned. 8. Contrary to the Hysan Development ruling, the most rigorous form of the third limb should be strict rather than reasonable necessity. I now apply some of these suggestions to illustrate some principles of deference that the Hong Kong courts should follow in light of Hong Kong’s unique institutional and constitutional environment.

5.1

Standard of Review

There is a clear theme of democracy in the Basic Law. Given the foundational importance of the rights to vote and stand for election to a democratic society, those rights should attract the strict necessity formula of proportionality and should not be diluted to the formula of manifestly without reasonable foundation. The right to welfare, right to equality and right to property—all of which are protected in the Basic Law—should similarly attract the strict necessity formula. There is no indication in the Basic Law or in its contextual documents—i.e. the Sino-British Joint Declaration and the records of the Basic Law’s drafting—that rights raised in the socioeconomic context assume less importance. Indeed, the fact that the right to welfare is listed in the chapter entitled “fundamental rights” suggests its importance. The perceived difficulties of assessing whether a socioeconomic policy is no more than necessary should be dealt with through the second means of deference, not by diluting the legal standards that the government is in principle required to meet. As for the right to private property, although it is not listed under the chapter on fundamental rights, the fact that it is mentioned numerous times in the Basic Law and constitutes the crux of the governing framework of Hong Kong—the separation of Hong Kong’s capitalist system from mainland’s China’s socialist system—underscores its fundamental nature. Jurisprudence from the UK and the ECtHR suggesting that socioeconomic policies and property rights attract lower legal standards than other rights may not be applicable to Hong Kong because of its unique constitutional context.

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Giving Weight to the Government’s Views: Constitutional and Institutional Competence

Regarding the constitutional allocation of powers, the Hong Kong courts are vested with powers of constitutional and administrative review. The fact that the Basic Law vests a certain policymaking function in the executive or legislature is not a reason for the courts to grant either body a large degree of deference in assessing a question of law related to that policy area. Examination of the Basic Law and its drafting history, as well as the Sino-British Joint Declaration, confirms that, with the exception of acts of state such as foreign affairs and defence (over which the courts have no jurisdiction) and other limitations on the courts’ jurisdiction carried over from the pre-handover era, no other subject area calls for weak judicial supervision. Turning now to the issue of deference on democratic grounds (as a subset of institutional reasons for deference), given that Hong Kong’s legislature and Chief Executive are not fully democratic, arguments for deferring to legislative choices or decisions made by politically accountable officials have to be approached cautiously.75 It could be argued that even though those institutions are not yet fully democratic, they are more democratic, and hence more reflective of the public’s views, than the courts. This argument on relative democratic legitimacy may be valid in some jurisdictions, but not in Hong Kong. The current methods of electing the Chief Executive and half the legislature are biased in favour of particular sectors of the population. Accordingly, not only may the returnees’ views not be fully representative of public views; they may actually distort or misrepresent what the wider public wants.76 The voting system within the legislature also makes it difficult for the views of directly elected members to prevail. Although half the legislature is returned by direct election, and thus represents the wider public, that does not necessarily mean that the decisions taken by the legislature as a whole represent the wider public’s wishes. Therefore, typical assumptions in Western democracies about the democratic processes of the legislature or political appointees cannot be transposed to Hong Kong. Before affording weight to the decisions of the legislature or politically accountable officials on this ground then, the courts ought to look at whether their decision-making process has indeed incorporated the views of those affected and whether the final decision was arrived at in a fair manner. With respect to the legislature, attention should also be paid to whether the views of the directly elected legislators are sufficiently reflected in the final decision. Ironically, in the context of Hong Kong, it may sometimes be easier for the government to establish an argument on democratic processes in relation to administrative decisions made by civil servants than to those made by politically accountable officers because there are well-established rules and procedures within the administration for incorporating stakeholders’ views in the decision-making process

75 76

Chan (2010), pp. 5–7. See the “biased sampling argument” in Lai (2015), section 3.3.2.

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and for ensuring an unbiased such process. Given that the decision-makers are for the most part civil servants, and thus not politically appointed, there is less incentive for them to act in a biased manner towards particular sectors to the neglect of others. The courts are therefore entitled to make assumptions about the participatory nature of administrative decision-making. With regard to special expertise and information-gathering powers, the key here is to identify the question that the government is claiming special expertise over. It may well transpire that the courts are not in fact handicapped in assessing the question, and hence face no uncertainty and need not consider giving weight to the government’s judgments. For example, the Hong Kong courts are often asked to defer on the third limb of the proportionality test in socioeconomic cases. However, the questions of whether a socioeconomic policy is manifestly without reasonable foundation and whether an alternative is less intrusive and equally effective are both susceptible to proof by evidence and reason. Moreover, the courts in Hong Kong have experience adjudicating the fit between the means and ends of a measure, even in socioeconomic contexts. For example, it was their assessments on just such questions that ultimately led the CA in Yao Man Fai to strike down the 1-year residency requirement and the CFA in Kong Yunming to strike down the 7-year residency requirement. Hence, it is simply untrue to posit that the courts (in Hong Kong at least) are generally ill-equipped to assess the fit between the means and ends of a socioeconomic measure. If the courts are asked to defer on the fourth (fair balance) limb of the proportionality test, again, they should note that they are used to weighing different values and interests. For example, they did so in HKSAR v Ng Kung Siu77 and, more recently, in Kwok Cheuk Kin and HKSAR v Fong Kwok Shan.78 Moreover, institutional competence can be accumulated. Even if the courts lacked the experience and expertise necessary to adjudicate certain types of questions in the early days of exercising their constitutional review power, they may have gained the competence to do so over time. If the courts do indeed face uncertainty over what a particular legal answer should be, they should defer only if it is safe to assume that the primary decision-maker is more likely to get the answer right. When it comes to the third limb of proportionality, the courts can defer on institutional grounds only if there are reasons to believe that the primary decision-maker is expert in narrowly tailoring the means to the end. When it comes to the fourth, they can do so only if there are reasons to believe that the primary decision-maker is usually right in assessing questions pertaining to striking a balance between rights and societal interests. Both of these assessments inevitably hinge on whether the primary decision-maker is rights-conscious. In Hong Kong, the executive and legislature’s undisputed lack of sensitivity to minority

77 78

[1999] HKCFA 10; [2000] 1 HKC 117. [2017] HKCFA 59; [2017] 6 HKC 33.

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rights should certainly be a consideration for the courts in making such assessments.79 A word about national security decisions is in order. If and when national security legislation is introduced in Hong Kong,80 the courts will have to adjudicate many more national security issues. In Western democracies, the typical national security context that gives rise to deference is one in which the executive is unable to reveal intelligence information to the court. It has been observed that courts elsewhere, for example, were highly deferential in national security cases in the immediate aftermath of the 11 September attacks, but have become less deferential in recent years.81 Their change in attitude may be attributable to their gradual building of expertise in assessing such cases, as well as to the exposure of blunders on the part of the executive in calculating security risks.82 In Hong Kong, a case to date that provides good hints on how the jurisdiction’s courts might handle cases in which they are unable to view certain security information is Chu Woan Chyi. In that case, even though the court was dissatisfied with the clandestine behaviour of the government, it was ready to grant the government the benefit of the doubt. In handling cases involving undisclosed intelligence information from the government, rationality requires the courts to have some reasoned basis for trusting the government’s claims. They should also have sound reasons for believing that the government is capable and credible in making national security decisions.83 Given the oblique manner in which the Hong Kong government treated security information in the Chu Woan Chyi litigation, and real concerns that it may simply accept security advice from the Chinese government without independent vetting, the courts ought to at least require the former to disclose the broad skeleton of the framework (if any) it used to vet whether the latter’s intelligence assessments are bona fide.84

6 Conclusion The courts in Hong Kong are laudable in correctly identifying the factors that should affect their degree of deference, that is, the importance of the individual interest at stake and whether the primary decision-maker has special institutional and 79

That the executive and legislature in Hong Kong are not sensitive to the protection of minority rights is not disputed. The reluctance of both branches to introduce anti-discrimination legislation for sexual minorities is a case in point. 80 Article 23 of the Basic Law mandates that the HKSAR government enact laws on its own to prohibit several national security offences. See Fu et al. (2005) and Chan and de Londras (forthcoming-a). 81 See, e.g., de Londras (2011), pp. 230–279; Kavanagh (2011), p. 172. 82 Chan (2013a), p. 615. See also Chan and de Londras (forthcoming-b). 83 Chan (2013a), p. 598, section 3. 84 Chan and de Londras (forthcoming-b).

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constitutional competence in determining the matter at hand. They have also rightly introduced different standards of review for different rights and interests. The Hong Kong courts’ open attitude towards considering the jurisprudence of other constitutional democracies is again laudable, as is their refusal to shy away from taking institutional considerations into account and readiness to approach the issue of deference systematically. These are all good practices that the courts in other jurisdictions would do well to consider. However, the courts in Hong Kong are still a long way from adopting a coherent and principled approach to deference. They have proved most deferential in recent years in cases pertaining to socioeconomic issues, election cases raising politically controversial issues and immigration matters. Their wrong turn presents lessons for other jurisdictions, and their at times blind importation of deference principles from other jurisdictions highlights the need for courts to be sensitive to the unique institutional and constitutional landscape in which those principles were formulated. For example, the courts ought to be sensitive to the particular constitutional context in determining the importance of a right or interest, and hence the standard of review applicable thereto. In the case of Hong Kong, given the importance of the right to vote, the right to stand for election, the right to equality and the right to property under the Basic Law, the courts should apply the strict necessity rather than manifestly without reasonable foundation standard in adjudicating these rights. The Hong Kong courts’ spatial approach is not conducive to tailoring the degree of deference according to the primary decision-maker’s competence, and may thus lead to, inter alia, a double dose of deference—deferring once when relaxing the standard of review and then again when assessing whether that standard has been satisfied. The courts could avoid the double-deference issue by setting the standard of review according to the importance of the interest at stake and determining the degree of weight to be given to the original decision-maker’s views that the standard has been satisfied according to whether the decision-maker has special constitutional and institutional competence concerning the issue. On the issue of giving weight to the government’s judgments, the courts should identify the specific question upon which they are being asked to defer. Only if they are uncertain of the correct legal answer to that question should they proceed in considering whether to give weight to the government’s answer. Such weight should be granted only if there is evidence to show that the primary decision-maker has special institutional competence in determining the specific issue at hand or that the original decision-maker is more likely to get it right than the courts in light of its more democratic decision-making process. In Hong Kong, given the skewed ways in which the Chief Executive and legislature are returned, arguments that a decision reflects the public’s views because it came from the executive or legislature must be scrutinized very closely indeed. Finally, if the constitution of a jurisdiction, like that in Hong Kong, clearly assigns the courts the role of enforcing the law, then the courts should not defer simply because the constitution also assigns a policymaking function in a particular subject area to another branch of government. If, however, the constitution makes it clear that the courts have a weak role to play in deciding legal questions raised in

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particular contexts—which is not the case in Hong Kong—then the courts indeed have weaker constitutional legitimacy to deal with such questions. Acknowledgements This project is funded by the Research Grants Council of Hong Kong (RGC Ref No. 759613). I thank Francis Chung, Stephanie Leung, Philip Mak, and Allison Wong for their helpful research assistance, and participants at the session on “Deference to the Administration in Judicial Review” at the 2018 Congress of International Academy of Comparative Law for their comments. Special thanks to Francis Chung for his untiring assistance and support throughout the project on deference. All errors are my own.

References Allan TRS (2006) Human rights and judicial review: a critique of “due deference”. Camb Law J 65 (3):671–695 Allan TRS (2011) Judicial deference and judicial review: legal doctrine and legal theory. Law Q Rev 127:96–117 Barak A (2012) Proportionality: constitutional rights and their limitations. Cambridge University Press, Cambridge Brady ADP (2012) Proportionality and deference under the UK Human Rights Act: an institutionally sensitive approach. Cambridge University Press, Cambridge Chan C (2010) Judicial deference at work: some reflections on Chan Kin Sum and Kong Yun Ming. Hong Kong Law J 40:1–14 Chan C (2011) Deference and the separation of powers: an assessment of the court’s constitutional and institutional competences. Hong Kong Law J 41:7–25 Chan C (2013a) Deference, expertise and information-gathering powers. Legal Stud 33(4):598–620 Chan C (2013b) Proportionality and invariable baseline intensity of review. Legal Stud 33(1):1–21 Chan C (2016) A preliminary framework for measuring deference in rights reasoning. Int J Const Law 14(4):851–882 Chan C (2018) Rights, proportionality and deference: a study of post-handover judgments in Hong Kong. Hong Kong Law J 48(1):51–78 Chan C (forthcoming-c) Subnational constitutionalism: Hong Kong. In: Law DS (ed) Constitutionalism in context. Cambridge University Press, Cambridge Chan J (2019) Proportionality after Hysan: fair balance, manifestly without reasonable foundation and Wednesbury unreasonableness. Hong Kong Law J 49(1):265–294 Chan C, de Londras F (eds) (forthcoming-a) China’s national security: endangering Hong Kong’s rule of law? Hart, Oxford Chan C, de Londras F (forthcoming-b) Building rule of law resilience through institutions: a proposed institutional infrastructure for national security legislation. In: China’s national security: endangering Hong Kong’s rule of law? Hart, Oxford Chan J, Lim CL (2015) Interpreting constitutional rights and permissible restrictions. In: Chan JSC, Lim CL (eds) Law of the Hong Kong constitution, 2nd edn. Sweet & Maxwell, London. ch 17 Chan C, Lo PY, Jhaveri S (forthcoming) The Hong Kong Special Administrative Region of the People’s Republic of China. In: Albert R, Landau D, Faraguna P, Drugda Š (eds) The I
CONnect-Clough Center 2018 Global Review of Constitutional Law. Clough Center for the Study of Constitutional Democracy, Chestnut Hill de Londras F (2011) Detention in the “war on terror”: can human rights fight back. Cambridge University Press, Cambridge

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Elliott M (2010) Proportionality and deference: the importance of a structured approach. In: Forsyth C, Elliot M, Jhaveri S et al (eds) Effective judicial review: a cornerstone of good governance. Oxford University Press, New York Elliott M (2015) From bifurcation to calibration: twin-track deference and the culture of justification. In: Wilberg H, Elliott M (eds) The scope and intensity of substantive review: traversing Taggart’s rainbow. Hart, Oxford Foley B (2008) Deference and the presumption of constitutionality. Institute of Public Administration, Dublin Fu H, Petersen C, Young S (2005) National security and fundamental freedoms: Hong Kong’s article 23 under scrutiny. Hong Kong University Press, Hong Kong Hunt M (2003) Sovereignty’s blight: why public law needs “due deference”. In: Bamforth N, Leyland P (eds) Public law in a multi-layered constitution. Hart, Oxford Jowell J (2003) Judicial deference and human rights: a question of competence. In: Craig P, Rawlings R (eds) Law and administration in Europe: essays in honour of Carol Harlow. Oxford University Press, Oxford Kavanagh A (2009) Constitutional review under the UK Human Rights Act. Cambridge University Press, Cambridge Kavanagh A (2010) Defending deference in public law and constitutional theory. Law Q Rev 126:222–250 Kavanagh A (2011) Constitutionalism, counter-terrorism and the courts: changes in the British constitutional landscape. Int J Const Law 9(1):172–199 Kavanagh A (2014) Reasoning about proportionality under the Human Rights Act 1998: outcomes, substance and process. Law Q Rev 130:235–258 King J (2008) Institutional approaches to judicial restraint. Oxf J Legal Stud 28(3):409–441 King J (2012) Judging social rights. Cambridge University Press, Cambridge Lai H (2015) Should the deferential ground of “democratic legitimacy” be applicable and applied in Hong Kong? If so, how? Unpublished manuscript Lim E, Chan C (2019) Problems with Wednesbury unreasonableness in contract law: lessons from public law. Law Q Rev 135(Jan):88–113 Rivers J (2006) Proportionality and variable intensity of review. Camb Law J 65(1):174–207 Wong KY (2018) An incomplete victory: the implications of QT v Director of Immigration for the protection of gay rights in Hong Kong. Modern Law Rev 81(5):874–889 Yap PJ (2007) 10 years of the Basic Law: the rise, retreat and resurgence of judicial power in Hong Kong. Common Law World Rev 36(2):166–191 Yap PJ (2018) Spouses without benefits: “ring-fencing” marriage after W and QT have unbolted its gates? Hong Kong Law J 48(2):365–374 Young AL (2009) In defence of due deference. Modern Law Rev 72(4):554–580

Cora Chan is an Associate Professor of Law at the University of Hong Kong. She earned her BSocSc (Government and Laws) and LLB degrees from the University of Hong Kong and the BCL from the University of Oxford, where she was awarded the Ralph Chiles CBE Prize in Human Rights. She specialises in public law. Her works have appeared in leading international journals, including the International Journal of Constitutional Law, Law Quarterly Review, Legal Studies, and Public Law. She is the awardee of the 2012 Society of Legal Scholars Best Paper Prize, the 2012–2013 University of Hong Kong Research Output Prize, the 2013–2014 Research Grants Council Early Career Award, and the 2017–2018 University of Hong Kong Outstanding Young Researcher Award. Cora is on the General Council of the International Society of Public Law, the Scientific Advisory Board of the International Journal of Constitutional Law, and the editorial boards of Hong Kong Law Journal and Asia-Pacific Journal on Human Rights and the Law. Her research has been funded by competitive grants from the Hong Kong Research Grants Council and the British Academy.

Judicial Deference to the Administration in Israel Margit Cohn

Abstract 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.

1 Introduction Israel is often considered to have the most activist court in the world. Under this understanding, not much judicial deference to the administration should be expected. In this paper I critically assess this understanding from several angles. My first comment however is conceptual: some attention is due to the possible distinction between the terms “deference” and “restraint”. While “deference” is a term of art well established in the administrative law of the US, as reflected in the chapter dedicated to this system, additional, other forms of restraint are found there and in other systems. This distinction is important to the understandings of the different dynamics between courts and administrative decision-makers.

I thank Itamar Ben-David for his research assistance. M. Cohn (*) Henry J. and Fannie Harkavy Chair in Comparative Law, Faculty of Law, The Hebrew University of Jerusalem, Mt. Scopus, Jerusalem, Israel e-mail: [email protected] © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_11

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The article opens, then, with an assessment of the nature of “deference”. A court is “deferent” to the administration when it refrains from or limit its intervention in a challenge to an administrative act (decision, policy, or secondary/delegated legislation), for the reason that the decision-maker is better qualified to decide. Yet, a distinction between “deference” and “restraint” may be made; “deference stricto sensu” is distinct from “restraint,” exercised in a variety of ways, all of which lead to judicial refusal to accept an applicant’s challenge. All of these modalities are evident in the decision-making of Israel’s Supreme Court. Moving to the use of the term “deference” in Israel’s administrative law, I note the absence of an exact translation of the concept, although some similes exist, and then move to a study of deference and restraint in Israel’s judicial decisions concerned with a challenge to an administrative act. This study of the decision-making of the Israeli Supreme Court in the context of first-instance review of the administration shows that doctrines of “deference” or its similes are not central to the court’s decision-making, and also reveals several patterns that challenge the simplistic tagging of the court as activist. First, very few cases cite the term “deference” or exercise a deferent stance. Non-intervention is found in the large majority of cases, yet much of this body of decisions includes some reasoning that is far from deferent, or relies on other modalities of restraint. Offering a background to the subsequent study of judicial stances towards the administration, Sect. 3 provides overviews of the history and political structure of the state, as well as the building-blocks of its legal system. This part ends with an analysis of the main steps of Israel’s “opening up” the potential scope of judicial review of the administration, which has led commentators to label the Supreme Court as highly activist. Section 4 focuses on the court’s de facto reliance on the doctrine of deference in its decision-making. First, 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 do not find “deference” the only, or the main, basis for refraining to interfere. This textual search also enables me to define three theoretical justifications to deference/restraint. The article then offers a qualitative study of four fields of action; I assess the degrees of activism and restraint found in these fields, an exercise that could potentially challenge the myth of Israel’s highly activist court. I end with an assessment of the possible future of deference, relying on two recent judicial decisions that convey opposing possible future developments. The first reasserts the contextual, detailed nature of judicial reasoning prior to judicial denial, the second hints a Chevron-type reasoning, but even then, it retains a focus on context. This latter decision may also be left in the sidelines of Israel’s administrative law jurisprudence: only time will tell.

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2 “Deference”: The Concept 2.1

“Deference” and “Restraint”

First, attention to the possible distinction between “deference” and “restraint” is due. In my view, “deference” in its narrow meaning (deference stricto sensu) is as a judicial reasoning pattern that has an institutional-structural basis: a court “defers” to the decision-maker’s decision due to the latter’s expertise, long-accumulated experience, and democratic legitimacy. Yet judicial restraint may appear in many other patterns or modalities. Consider the following types of decisions, in all of which a challenge to an administrative act or rule fails: (1) A court may summarily deny an application on a threshold ground, such as in the absence of standing or when the issue is considered non-justiciable1; (2) A court may deny an application by relying on the stare decisis doctrine, with or without a ruling that it found no reason to deviate from previous precedents2; (3) A court may supplement its rejection with dicta that direct the authority’s future action or introduce a substantive test for future use. That is, the court’s rejection of applications may not be couched in “deference-speak”. Rather, comments on the proper action that should have been chosen, and the inclusion of detailed lists of relevant considerations—that is, extensive use of rhetoric and dicta—may precede the rejection of an application3;

1 See, e.g., HCJ 40/70 Becker v. Minister of Defence, 24(1) PD 238 (1970) (standing and justiciability); HCJ 8666/99 Temple Mount Faithful v. Attorney General, 54(1) 1999 (2000) (justiciability). Note regarding citations of HCJ decisions. Until 2005, some of the decisions were published in Piskei-Din (PD), a series of volumes; when such published, this reference is cited, with an indication of the year the decision was made. Since, all post-2005 decisions are available online only, through the Nevo website, at https://www.nevo.co.il. the Supreme Court website offers texts of all decisions since 1997 (https://supreme.court.gov.il/Pages/fullsearch.aspx). A good number of English translations of central decisions are available at (https://supreme.court.gov.il/sites/en/ Pages/home.aspx), hereinafter, “Supreme Court website”, at the Israel Law Reports library, at HeinonLine (http://heinonline.org/HOL/Index?collection¼ilawr&set_as_cursor¼clear), (“HeinOnline”), and through the Cardozo Law School Versa project (http://versa.cardozo.yu.edu/ opinions) (“Versa”). 2 See e.g. HCJ 495/12 Izzat v. Minister of Defence (24.9.12) (rejected application to move in and out of the Palestinian authority as students of Bir Zeit University, based on a strong body of precedent regarding the state’s sovereignty to allow entry). 3 See, e.g., HCJ 910/86 Ressler v. Minister of Defence, 42(2) PD 441 (1988), English translation available at HeinOnline (Israel Law Reports) (concerned with blanket exemption from military service to ultra-orthodox Jewish men. ruling that unreasonableness may be found in the future, if the number of exempted ultra-orthodox passes a threshold, not reached at the time of that decision). Note that even decisions to grant the remedy applied for may contain dicta that reflect deference or restraint. These are set aside.

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(4) A court may reject the challenge after conducting a full review of the arguments of both parties. The restraint in such a case will be expressed in the outcome, rather than in the reasoning4; (5) A court may find the challenged act to be flawed, but may deny the applicants the remedy that would usually result from a finding of illegality5; (6) Or, finally, if “deference” is narrowly defined, a court may follow a structuralinstitutional rule under which it will usually defer to the action and/or interpretation of the authorized administrative body.6 The question, then, is whether the term “deference” is best limited to type (6) rejection, or whether the term should be synonymous to all types of restraint, and, thus, antonymous to “judicial activism”. To date, no such distinction has been made in Israel. The absence of the possible distinction between deference and restraint may not singular to Israel’s public law jurisprudence in other systems. In my view, the distinction between deference stricto sensu and other forms of restraint is useful in analyses of the nature of judicial participation in the public decision-sphere: deference (or restraint) on structural grounds carries a “neutral” flavor. Taking this stance, courts may, thus, be considered doubly restrained: not only do they refrain from intervening, they also offer a merits-free justification that lies in its overboard respect to, and trust of the administration. The latter aspect may be marginalized or missing in other cases of restraint: consider, for example, the restraint expressed in types (3) and (5) above. The distinction between deference stricto sensu and other modalities of restraint is not necessarily easy to maintain. All such distinctions are difficult to uphold. Consider more established distinctions, such as the one between “activism” and “restraint”. Should a court be considered “activist” when it upholds well-established

4 See, e.g., HCJ 466/07 Gal’on v. The Attorney General (11 January 2012) (concerned with a challenge to the constitutionality of a statute as well as government policy; majority judges dedicated long and detailed analysis before ruling against the applicant. See further analysis below.). This is indeed the form found in most decisions. The HCJ tends to deliver lengthy decisions that cite the main arguments of the parties and analyse them in detail. 5 This has happened when the HCJ distinguished between questions of legality and the remedy to be granted, often relying on its self-developed doctrine of “relative unlawfulness”. This has happened in at least three types of cases. First, despite the illegality or unreasonableness of an administrative act, the challenged action had already been completed and irreversible, hence the requested remedy was not available (e.g. HCJ 2683/92 Makkabim v. The Building Commission, 48(1) PD 535 (1994); faulty planning of a new town had already been implemented). Secondly, circumstances generated by the applicant herself may justify denial of remedy (decided e.g. in CrimA 4398/99 Harel v. State of Israel, 54(3) PD 637 (2000); despite illegality of an order suspending the applicant’s driving license the order and continued driving until apprehended, only then raising the argument for illegality of the original suspension order). Or, thirdly, general considerations of justice and the implication on broad social interests may lead to denial of the remedy despite the finding of unlawfulness (e.g. HCJ 2758/01 Movement for Quality of Government v. Jerusalem Municipality, 58(4) PD 289 (2004); contract between municipality and a cultural center found flawed for conflict of interests, but considerations of the public interest justified the denial of a remedy). 6 For examples see Sect. 4 below.

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and protected constitutional principles, such as the freedom of speech, or representative democracy, when the government attempts to directly affect such principles? In a similar vein, a court may mention in passing that the administrative body authorized to act is well-equipped to exercise its discretion, and then move to deny the application for other unlinked reasons, such as undue delay on the side of the applicant or lack of standing. Still, as mentioned above, deference strictu senso as a recognized doctrine connotes a stance that has, at least formally, little link with deep, merits-based review; it reflects a court’s self-perception as neutral, or at least enables courts to present themselves as such. As a final note in this definitional exercise, the interaction between “deference” and the “margin of appreciation” doctrine, developed by the European Court of Human Rights and other transnational courts, and deference, deserves further attention. The doctrine is used by domestic courts such as the French Conseil d’Etat, deciding on domestic issues,7 but the main focus of the literature is on its use by transnational courts.8 Under this doctrine, the courts express readiness to accept that different legal systems, even those sharing a transnational umbrella, may reach different solutions to a shared problem. As such, the doctrine prominently applies today to issues that involve the juxtaposition of domestic law with transnational rules. Although both doctrines point at judicial restraint and are based on structuralinstitutional rationales, equating both doctrines is questionable. Here I follow the writing of retired President of the Israel Supreme Court, professor Aharon Barak, who emphasizes that the principles of state sovereignty, democratic legitimacy and comity underlay the margin of appreciation doctrine: sovereignty and comity are not part of the decision-making process in any domestic system. Addressing the similarities and differences between these two principles, and emphasizing that in the domestic field, judges should decide under their own system, Barak clearly rejects the grant of further legitimacy to the deference doctrine by building on a doctrine that is embedded in international and transnational law.9 The remainder of this contribution oscillates between the use of “deference” in Israel, under both its narrow and general meanings.

7

See but two examples: CE No 99536, 7 oct. 1977 (recognizing the margin of appreciation granted to officers under ministry circulars concerned with the marking of examinations, requiring a certain spread of marks); CE No 401043, 21 fév. 2018 (the lower court had properly considered the margin of appreciation granted to a planning body). Both available on Legifrance.gouv.fr (Conseil d’Etat decisions, search term, “marge d’appréciation”). 8 The doctrine’s nature was well-explained and well-established in Handyside (1976). Discussing the British laws of obscene publication, the ECtHR found that “it is not possible to find in the domestic law of the Contracting States a uniform conception of morals. The view taken by their respective laws...varies from time to time and from place to place. . . By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements.” App No 5493/72 Handyside v. the United Kingdom, [1976] ECHR 5, (1976) 1 EHRR 737, (1979) 1 EHRR 737, IHRL 14 (ECHR 1976). On the doctrine see, e.g., Hutchinson (1999); Shany (2005), both focusing on international law only. 9 Barak (2012), pp. 418–421. On a different use of the term see below, text to note 78.

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“Deference” in Hebrew

There is still no exact equivalent in the Hebrew language to the term “deference”: none of the main English-Hebrew dictionaries contain a clear definition of this concept.10 This may not be surprising: the Hebrew language was revived in the early twentieth century. The swift process of modernization of the language of the Bible still left several terms, mostly modern ones, to be transposed onto the ancient language. For some, the lacunae reflect cultural factors. Consider a twin example: until 1995 there was no word in the Hebrew language equivalent to the term “accountability”.11 “Deference,” then, is yet to be accorded a fully recognized dedicated Hebrew term. In legalese, the term has been cited in a few decisions (originally all written and published in Hebrew) in the English language. The closest candidate, still not formed, should be a compound of two terms: restraint (rissun) and respect (kavod, or for those who have tried to assign a specific term, as discussed below, kibbud).12 The most common Hebrew term is rissun, although several judicial decisions have chosen the term kibbud, a term that derives from “respect”. The use of these terms resonates the decades-long debate over the legitimacy of the jurisprudence of the Israeli Supreme Court. For decades now, the struggle has revolved around the opposing concepts of activism and restraint, in a system considered to be marked by an extremely activist court.13 The focus on activism/restraint, then, has marginalized the aspect of respect.

In Alcalay’s dictionary, three terms are offered, best translated as “subservience (due to respect feelings), surrender (to another’s opinion), obedience.” In the Oxford’s student dictionary, “deference” is translated as “respecting someone’s will, accepting with surrender (someone’s opinion).” Neither are incorrect, but they do not offer a term-of-art. (Alcalay 1990; Oxford Students Dictionary 1993). Web-based dictionaries do not assist here: for example, the online translation site, Morfix, combines “responsivity/accession” with “respect”. See http://www.morfix.co.il/deference. 11 The Academy of the Hebrew Language chose the term Akhrayut le’divuakh (literally, responsibility for reporting). This was not universally adopted—even the Academy admitted that another term (Akhrayutiut) seems to have more popularity. See Maor (2010). Note that Maor’s op-ed was published five years after the Academy’s decision). The newer term, Akhrayutiut, is attributed there to Moshe Negbi, probably the best known legal journalist in Israel. A popular web dictionary, Morfix, offers the newer term as a first option, followed by the 1995 one. See http://www.morfix.co. il/accountability. Babylon does worse, with no term of art provided, only a definition that indicates “giving account”. 12 See Sect. 4.1.2 below. 13 See Sect. 3.4 below. 10

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3 Israel’s Political and Legal System: An Overview 3.1

History and Political Structure

The State of Israel is located in the Middle East, at the Eastern edge of the Mediterranean Sea.14 It is a small country, long and narrow in shape, about 470 km (290 miles) in length from north to south and 135 km (85 miles) at its widest point between the Dead Sea and the Mediterranean coast, totaling an area of 18,650–22,072 square kilometres (roughly the size of the State of New Jersey).15 The State borders Lebanon to the north, Syria to the northeast, the West Bank (partially administered by the Palestinian Authority) and Jordan to the east, Egypt to the southwest and the Mediterranean Sea to the west. Currently, the population of Israel exceeds 8.5 Million.16 Of these, roughly 75% are Jewish, 21% Arabs (about 17.7% Muslim, 1.95% Christian, 1.61% Druze) and the rest are members of other groups unspecified by religion.17 The political history of the territory has always been fraught with difficulties. Its importance as a religious center for all three monotheistic religions, as well as its strategic position as a bridge between Europe, Asia and Africa, have shaped its history since the Middle Ages. The territory served as a colonial strongpoint, first for the Ottoman Empire, and following the First World War, was declared a Mandate territory which was part of the British Empire. Unlike other British colonies, it was instated under several international political understandings, including the Balfour Declaration of 1917 regarding the establishment in Palestine of a national home for the Jewish people, but also under competing interests centering on British strategic considerations. A steady stream of Jewish immigrants, since the late 1890s, signified the rising force of Zionism, the Jewish national movement that emerged at that time as part of the greater nationalist awakening across the world, and was to shape the 14

This overview draws on Cohn (2010), pp. 17–39; Navot (2007). See also Zamir and Colombo (1995), pp. 3–4; Maoz (1988). 15 Size within the Green Line is about 18,650 square kilometres; see e.g. http://www.sixdaywar.org/ content/israel.asp. The higher figure includes Jewish settlers in the occupied territories (Central Bureau of Statistics 2017). 16 According to the Israel Central Bureau of Statistics, its population at the end of 2016 was 8,628,600. See Ibid, Table 2.1, retrieved from: http://www.cbs.gov.il/reader/shnaton/templ_ shnaton_e.html?num_tab¼st02_01&CYear¼2017 Population consists of permanent residents— Israeli citizens and permanent residents without Israeli citizenship (including those who had been out of the country less than one year at the time of the estimate). Until 2008, tourists and temporary residents residing in Israel for more than one year (excluding diplomats and UN personnel) were included in the population estimates. Currently, the population estimates include persons listed in the Population Register only. See explanatory notes to Central Bureau of Statistics (CBS), Statistical Abstract of Israel 2017, No. 68, 2017, at http://www.cbs.gov.il/shnaton68/st_eng02.pdf. 17 CBS, Statistical Abstract of Israel 2017, No. 68, Tables 2.1, 2.2. See Ibid, Tables 2.1 and 2.2, retrieved from http://www.cbs.gov.il/reader/shnaton/templ_shnaton_e.html?num_tab¼st02_01& CYear¼2017 and http://www.cbs.gov.il/reader/shnaton/templ_shnaton_e.html?num_tab¼st02_ 02&CYear¼2017.

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future of the territory and the rights of the Jewish people for self-determination. Immigration continued and rose in numbers, on the eve and in the wake of the Second World War; British limitations on entry into Palestine generated illegal entry. The territory was beset by severe conflicts towards the end of the Mandate. First was the ongoing conflict between a strengthening self-organized Jewish population and the opposing Arab Palestinian population; following a shift in British policy that limited further entry of Jewish immigrants, this conflict was supplemented by an organized Jewish rebellion against the British regime. Under the November 1947 Partition decision, the UN voted to create two states, one Arab and one Jewish, designating the city of Jerusalem as a territory directly administered by the United Nations. The unilateral departure of the British and Arab rejection of the decision were followed by the 1948–1949 war, which ended with the declaration of independence of the State of Israel, recognized by the UN in May 1949. The Israeli-Palestinian conflict, largely shaped by those occurrences, remains a central world conflict. The interests of oil, which although almost absent in the territory itself but a central source of power in some of its bordering states, have also played an important role in the history of this conflict, which is far from moving towards resolution. The nation’s 70 years of history has largely revolved around a series of wars and conflicts. The State has never been free from conflict, and the formal declaration of a state of emergency, made in 1948, is still in force.18 The occupation of the West Bank and the Gaza Strip in 1967 created additional serious points of conflict. Peace efforts, continuously initiated by both sides and brokered by international forces, mainly the United States, have had some semi-successful results,19 but these, and the establishment of the Palestinian Authority (1994, under the Oslo Accords), have not led to any form of stability. The Hamas victory in the Gaza Strip (2006), continuing missile attacks against southern and northern Israeli localities, Israeli reprisals and initiatives, all signify the difficulties still standing in the way of achieving some kind of normalization. Initiatives, supported or brokered by the United States, continue. Politically, 1977 marked a watershed, with the victory of the right-wing Likkud party, marking the end of the traditional dominance of the Labour party (and its predecessors), and the emergence of volatile changing coalition arrangements. In tandem, the State’s political economy has moved from reliance on a social18

The most recent extension of the state of emergency was declared by the Knesset on 23 October 2017, effective until 12 August 2018. See Declaration of State of Emergency, Yalkut Ha-Pirsumim 5778, No. 7606, p. 618 (2017). See below regarding the legal impact of the declaration of emergency. Major wars include the War of Independence (1948–1949), the Suez War (1956), the Six Day War (1967), the Yom Kippur War (1973), the Lebanon War (1982), and the Second Lebanon War (2006). 19 These include from the peace treaties with Egypt (1979, following the Camp David Accords, 1978) and the Jordan-Israel Peace Treaty (1994), negotiations and several agreements signed with Palestinian and other Arab representatives (the Madrid and Oslo Accords, 1991–1993; the Wye River Memorandum, 1998; the Camp David Summit, 2000; the Beirut Summit, 2000; the “Road Map”, 2002), Israeli withdrawal from some of the occupied territories (The Sinai Peninsula, Egypt, 1982; Unilateral Disengagement Plan, Gaza Strip, 2005).

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democratic credo to a mixed ideology that supports and advances liberal market economy. Israel is a parliamentary democracy, with legislative, executive and judicial branches operating under the principle of separation of powers to ensure checks and balances within the system. The President, whose duties as the Head of State are largely ceremonial, symbolizes the unity of the State. Elected by the Knesset (Israel’s parliament) for a seven-year term, the president validates laws, accepts the credentials of foreign envoys and pardons prisoners and commutes sentences upon recommendation of the Minister of Justice. The Knesset, Israel’s legislative body, is a 120-member, unicameral parliament which operates in plenary sessions and through standing committees. Its plenary session votes on legislative proposals submitted by the government or by private members and holds general debates. To become law a bill must pass three readings in the Knesset (a preliminary reading is required for private members’ bills). Bills that pass the first reading are further debated in a standing committee, prior to the second reading, during which amendments proposed at the committee and before the plenary are voted upon. A final vote is taken at the third reading. The President, Prime Minister, Knesset speaker and the Minister responsible for the Act sign the bill into law. Knesset debates are conducted in Hebrew. Arab and Druze members may address the House in Arabic (Israel’s second official language). Knesset members, who represent a wide range of political parties, are elected every four years in nationwide elections; the whole country constitutes a single electoral constituency. The number of seats assigned to each party in the Knesset is proportional to its share of the total national vote. Every citizen is entitled to vote from the age of 18 and to be elected to office from the age of 21. Following the elections, the President grants a Knesset member (usually, the head of the largest party) the responsibility of forming a government and presenting, within 28 days, a list of ministers for Knesset approval (extensions are possible under the law).20 Most ministers are assigned a portfolio and head a ministry; others serve without portfolio but may be given responsibility for special fields. The Prime Minister also appoints deputy ministers, usually one deputy minister for each department. Allocation of government ministries follows government coalition agreements. All governments since 1948 have been based on multi-party coalitions as, to date, no single party has received over half of the 120 Knesset seats. The government serves for a period of four years, although its term may be shortened by the resignation or death of the prime minister or by a successful vote of no-confidence in the Knesset. The government is responsible to the Knesset and is subject to its confidence. Its policy-making powers are very broad, and cover all major aspects of the country’s life. The judiciary is entirely independent of the executive and the legislature; although institutionally operating within the Ministry of Justice, its internal

20

The full arrangement is detailed in Basic Law: The Government, §§ 7-10.

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management is in the hands of the judiciary. Judges are appointed by the President of the State on recommendation of a public nominations committee, and serve until their mandatory retirement at age 70. The court system consists three levels: magistrate courts, which deal with civil and minor criminal offenses; district courts, which deal with all criminal and civil cases not within the competence of lower courts; and the Supreme Court, with national jurisdiction, which serves as the highest court of appeal and also sits as a High Court of Justice in petitions brought by persons seeking redress against public authorities. Special courts deal with specific matters such as labor disputes and military justice, and a large number of administrative tribunals decide on tax, health, social security and other administrative issues. Jurisdiction over matters of personal status (marriage and divorce) is exclusively vested in the courts of the various recognized religious communities, with civil jurisdiction granted to district courts only when parties do not belong to a recognized religious community or belong to two religious communities.21 Local government currently includes 76 municipalities, 125 local councils and 54 regional councils.22 Municipal and local councils are elected on the basis of proportional representation; mayors and heads of local councils are chosen by direct vote. The heads of 54 regional councils (each comprising several small settlements) are selected from among the chairpersons of the committees of each community in the region.23

3.2 3.2.1

Legal Structure General

Israel is considered a mixed system of law; as others in this family, its public law belongs to the common law tradition.24 Before the British Mandate period (1922–48), the domestic law of the territory was Ottoman, which was influenced in its later period by continental law. Diminishing remnants of this legislation still remain in force today, most saliently the basic allocation of religious jurisdiction in matters of personal law (mainly marriage and divorce), and some private law matters. The survival of Ottoman law was allowed by the British authorities, who, upon establishment of the British Mandate, retained the continuity of existing law. Some of the Ottoman law remained during the Mandate period, but more importantly, an extensive body of law was supplanted onto the existing, rather unmodernized, legal system. Similar in fashion to other territories and colonies of 21

Palestine Order in Council 1922–1947, Drayton, Laws of Palestine, Rev. Ed. 1933, Vol. III, p. 2569, Articles 51–55, still in force today. The list of recognized religions is provided in Palestine (Amendment) Order in Council, 1939, Palestine Gazette 1939, Supp 2, No 898, p. 459. 22 Central Bureau of Statistics (CBS) (2017). 23 For a short overview see https://www.knesset.gov.il/lexicon/eng/LocalAuthorities_eng.htm. 24 Palmer (2001).

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the British Empire, local legislation, effected through Orders in Council and domestic legislation enacted on their basis, covered most areas of the legal sphere. Legislation also created the territory’s administrative and legal institutions. This extensive body of law regulated, inter alia, in varied areas such as torts, criminal law, corporations, local government, police, public health, press, and energy. This was supplemented by as an extensive body of emergency regulation that gradually accumulated to answer the exigencies of the Second World War and internal conflicts, and were concerned with national security, war powers and the regulation of the economy. In addition, the constitutional-type Palestine Order in Council 1922–1947 provided for the principles of common law and equity to be relied upon in cases of lacunae, and interpretation of legislation and legal terms was to follow British law.25 On the date of independence, the new country of Israel, alike other post-colonial states, Israel formally retained colonial law. This was provided in the State’s first substantive statute, the Law and Administration Ordinance, in section 11: The law which existed in Palestine on the 5th Iyar, 5708 (14th May, 1948) shall remain in force, insofar as there is nothing therein repugnant to this Ordinance or to the other laws which may be enacted by or on behalf of the Provisional Council of State, and subject to such modifications as may result from the establishment of the State and its authorities.26

Primary legislation originating from this period and still in force carries the name ‘Ordinance’ (Pkuda), although all such laws have all been extensively modified by legislation, some of them entirely replaced. Yet the legacy of the Mandate remains central to the legal system. Israel does not have a full written constitution, as explained below. In all other respects, and as in all modern legal systems, Israel’s law comprises the following types of legal rules.

3.2.2

Types of Rules

Constitutional-Type Legislation Israel does not have a single document identified as its formal written constitution. In 1948, on independence of the State, no formal constitution was introduced, although a written constitution was part of the new State’s credo and was embedded in the international consensus embodied in the 1947 UN partition decision. Two years after its inception, Israel postponed the idea of enacting a full formal written constitution. Instead, the Knesset decided to enact, piecemeal, Basic Laws that would eventually become chapters of the Constitution. The first Basic Law, enacted in 1958, related to 25

Article 46, Palestine Order in Council, 1922–1947, above. Abolished in 1980. Section 11, Law and Administration Ordinance, 5708-1948, 1 LSI 7 (for a short period, until the establishment of Israel’s parliament under national elections, primary legislation was still entitled ‘ordinance’). For analysis and discussion see Yadin (1962). 26

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the Knesset (the Israeli Parliament). To date, Israel has fourteen Basic Laws, two of which, enacted in 1992, incorporate some human rights and liberties.27 Briefly, these two Basic Laws define and protect several human rights, including freedom of occupation, dignity, liberty, property, freedom of movement out of the State; they however do not explicitly recognize equality, freedom of speech and freedom of religion, absences largely filled by judicial inclusion through the right to dignity. Both Basic Laws contain a limitation clause that allows a breach of a protected right, largely on the basis of proportionality and accordance with the State’s main values. The Basic Law: Freedom of Occupation also contains an override clause.28 Until 1995, Basic Laws were considered akin to regular statute law. Thus, Basic Laws did not limit the Knesset in its subsequent legislation.29 In its 1995 Mizrachi Bank decision, the Supreme Court recognized the supra-statutory status of the Basic Laws, and further asserted the power of the judiciary to invalidate legislation that contradicted a Basic Law.30 All Basic Laws are published in Sefer Ha-Chukkim (the Book of Laws), a formal series that is part of Reshumot, which comprises all the formal series of publication of legal measures. There is no separate series for Basic Laws.

Primary Legislation Under the name “laws” (Chukkim), primary legislation is now considered subservient to the Basic Laws. In a similar fashion to most parliamentary systems, most laws are initiated by government, and the very few private Bills passed must gain government support before their success.31 Before 1995, the power of the judiciary to invalidate primary legislation was first recognized in cases in which the enactment of a law or its amendment did not follow certain explicit statutory requirements that such legislation required a special majority. This, however, was not found to be a challenge the sovereignty of the Knesset, as the Knesset itself had inserted these requirements.32 Further power of judicial review of legislation was recognized in 1995 in the Mizrachi Bank case, with regard to cases in which a statute contradicted a Basic Law. Since 1995, the Supreme Court

For information on the first eleven Basic Laws see Israel’s Knesset website, https://www.knesset. gov.il/description/eng/eng_mimshal_yesod2.htm. 28 For the texts of the main Basic Laws see https://www.knesset.gov.il/description/eng/eng_ mimshal_yesod1.htm. For an overview see e.g. Navot (2016). 29 For judicial confirmation of this principle see CA (Criminal Appeal) 107/73 Negev Automobile Service Ltd v. State of Israel, 28(1) P.D. 640 (1974). 30 CA (Civil Appeal) 6821/93 United Mizrachi Bank v. Migdal Cooperative Village, 49(5) PD 221 (1995). For a summary and excerpts in English see Omi (1997), p. 764. 31 See further, Navot (2016), pp. 54–58. 32 See HCJ 98/69 Bergman v. Minister of Finance, 23(1) PD 693 (1969) (English translation available through Supreme Court website). Thus, Israel rejected the British principle, under which no parliament could bind its successor. 27

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delivered less than twenty decisions declaring parts, or entire laws, unconstitutional due to a disproportionate breach of a protected human right, and one decision invalidating a statute due to an improper legislation process. This latter decision, delivered in 2017, is the only one to date that has applied a doctrine that allows invalidation of statutes for other reasons than contradiction to the basic laws protecting human rights (or to other basic laws).33 All primary legislation, once formally enacted, is published in Sefer Ha-Chukkim. Official English translations of all legislation enacted until 1989/1990 is available in The Laws of the State of Israel (LSI) series. Government websites provide translations of many central laws. For example, English versions of some important energy legislation is are available at the MNI website.34

Secondary Legislation Enacted under statutory authorization, secondary legislation consists of regulations (takkanot), orders (tsavim) and rules (klalim). All must conform with the parent legislation as well as other valid laws.35 Secondary legislation can be invalidated by courts under highly developed grounds of administrative law (see Sect. 3.3 below). Regulations are published in Sefer Ha-Takkanot (the Book of Regulations), a second series pertaining to Reshumot.36 Notices, appointments, the setting of certain prices and tolls under legislative authority and other types of administrative action that carry some legal effect are published in Yalkut Ha-Pirsumim.37

33

The exact number cited varies according to the commentator’s understanding of what constitutes invalidation. Some lists include three decisions in which the court prohibited re-enaction of statutes that were about to expire: in one such list, the number reaches nineteen, including the decision that invalidated a statute for improper process; see https://yuvalyoaz.com/%D7%A4%D7%A1%D7% A7%D7%99-%D7%93%D7%99%D7%9F-%D7%A9%D7%9C-%D7%91%D7%99%D7%94% D7%9E%D7%A9-%D7%94%D7%A2%D7%9C%D7%99%D7%95%D7%9F-%D7%A9%D7% 91%D7%99%D7%98%D7%9C%D7%95-%D7%97%D7%A7%D7%99%D7%A7%D7%94/ (in Hebrew). For Navot, only a dozen laws had been invalidated (Navot 2016, p. 46). This may be correct if three decisions concerned with three versions of a single law (amended twice) are counted as a single case of invalidation. For the 2017 decision see HCJ 10042/16 Quantinski v. the Knesset (6.8.17). Dicta concerning the possible application of other doctrines, for example the democratic principle, have been made, but to date have not been applied to invalidate statutes. 34 See http://energy.gov.il/English/PublicInfo/Pages/GxmsMniLegislation.aspx. 35 See further Navot (2016), pp. 54–59. 36 This series also includes two sub-series, one dedicated to local authorities’ by laws, which are of secondary level, the second dedicated to tax and customs regulations (the latter is entitled Kovetz Ha-Takkanot, Customs, Purchase Taxes and Compulsory Payment Rates). 37 Other series in Reshumot include Kovetz Ha-Amanot (publishing all signed international agreements); Sefer Ha-Taktziv (publication of the annual budget); and Hatza’ot Chok (Bills that have passed the first reading).

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Emergency Law and Regulations As mentioned above, the State of Israel has been subject to a continuing formal state of emergency since the first declaration made on its independence. Under the 1948 Law and Administration Ordinance, such a declaration would last no longer than one year, but could be periodically renewed, as it has been since. Under such a formal state of emergency, the government is empowered to promulgate emergency regulations that can contradict statute. Such orders expire after three months, unless extended by statute by the Knesset; in this latter case the order gains the status of primary legislation.38 In addition, the system has retained a large portion of the Defence (Emergency) Regulations 1945, enacted by the Mandate authorities to answer unrest and violence in the territory; they remain primary legislation. Other emergency-type statutes address specific aspects and empower the regulation of the economy.39

Tertiary Rules Similar to other modern states, public authorities in Israel act under various types of internal and public-oriented tertiary rules, such as guidelines, rules of conduct, circulars and opinions, that are not based on explicit statutory authorization. Although tertiary rules have no direct legal force, they are still considered under administrative law as clear indications of policy, against which subsequent administrative action is reviewed.40 Under law, authorities are required to enable public access to their written administrative guidelines. Even prior to the enactment of this law, administrative law jurisprudence set a general duty to publish policies and rules of general application, under general principles of fairness and transparency.41

3.3

Judicial Review of Administrative Action

Israel’s administrative law was created in the British image, yet while retaining the conceptual and structural elements of its mother body of law, the doctrines and rules 38 Law and Administration Ordinance, Section 9. Replaced by a similar arrangement in the Basic Law: The Government (enacted 1992), Sections 48–49. For the latest extension to 2018 see http:// m.knesset.gov.il/News/PressReleases/pages/press23.10.17ne.aspx. 39 For an overview see Cohn (1998). 40 See, generally, Dotan (1996). 41 Section 6, Freedom of Information Law, 5759-1998, Sefer Ha-Chukkim 5759, p. 226; see also sections 3–4, Freedom of Information Regulations, 5759-1999, Kovetz Ha-Takkanot 5759, No. 5976, p. 878. For pre-legislation cases see HCJ 5537/91 Efrati v. Ostfeld, 46(3) PD 501; HCJ 4422/92 Ofran v. Israel Lands Administration, 47(3) PD 853.

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of Israel’s administrative law have been dramatically reshaped by an activist court. Article 46 of the Palestine Order in Council, under which domestic law was to be applied in conformity with English law, was formally repealed in 1980, but the gradual process of alienation began much earlier.42 The Israeli courts have also developed new avenues of review that are substantively removed from their origins, despite a remaining affinity to the original structure.43 Review of administrative action is conducted on three levels. First, legality, or the vires of an action is considered. In this context, the system adopts a non-delegation

42

Palestine Order in Council 1922–1947, Drayton, Laws of Palestine, Rev Ed 1933, Vol. III, p. 2569 (domestic law, a mix of Ottoman law, and British colonial laws, was to be “exercised in conformity with the substance of the common law, and the doctrines of equity in force in England, and with the powers vested in and according to the procedure and practice observed by or before Courts of Justice and Justices of the Peace in England”). Repealed by the Foundations of Law, 5740-1980, Sefer Ha-Chukkim No. 978 (31st July, 1980), p. 163; translation available at . On this process see Shachar (1995), pp. 6–7. 43 In its very first years, decades before the adoption of human rights legislation, the High Court of Justice (HCJ) recognized human rights as key elements of the public sphere. This was effected, inter alia, through a judge-made strict rule of legality, under which interference with human rights required explicit statutory authorization and could not rely on a general grant of powers. See HCJ 1/49 Bejerano v. Minister of Police, 2 PD 80 (1949), English translation available through Supreme Court website (administrative action affecting human rights could not rely on a general authorization to act; explicit statutory authorisation that referred to the specific action was required). This requirement is stricter than tests set under international conventions protecting human rights, which generally require that under the clauses “prescribed by law” and “in accordance with law”, authorization to act must be found in an adequately accessible and sufficiently precise/clear and ambiguous legal rule (see, e.g., Sunday Times v. United Kingdom [1979] ECHR 1; the United Nations Siracusa Principles, UN, ECOSOC, UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc. E/CN.4/1984/4 (1984)). The court also gradually expanded its review, first, by rejecting concepts of absolute discretion and ruling that all forms of discretion were amenable to review, secondly, by practically eliminating the threshold grounds of standing and justiciability, thirdly, by introducing a strong version of balancing in human rights contexts, and finally, by creating a new purposive theory of interpretation, under which all statutes embraced general constitutional principles as part of their legislative purposes. For the first development see FH 16/61 Registrar of Companies v. Kardosh, 16 IsrSC 1151 (no absolute discretion, even when statute granted seemingly unfettered discretion); for the second, see, e.g., the series of applications for judicial review regarding blanket exemption from military service to ultra-orthodox Jewish men. By 1986, both justiciability (national security grounds) and standing were gradually abandoned by the court: HCJ 40/70 Becker, note 1 above; HCJ 448/81 Ressler v. Minister of Defence, 36(1) PD 81 (1981); FH 2/82 Ressler v. Minister of Defence, 36(1) PD 708 (1982); HCJ 910/86 Ressler, note 3 above. Balancing tests were adopted early on: see, e.g., HCJ 73/53 Kol Ha’am v. Minister of the Interior 7 P.D. 871 (1953); English translation available through Supreme Court website; HCJ 153/83 Levi v. Southern District Police Commander, 38(2) PD 393 (1984) (freedom of speech); HCJ 153/87 Shakdiel v. Minister of Religious Affairs, 42(2) PD 221 (1988) (freedom of religion). Finally, a substantive transformation of unreasonableness and the subsequent development of proportionality explored below are two additional examples of these far-reaching developments in Israel’s administrative law: see Sect. 3.4 below.

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doctrine, under which authority to act is attached to the individual or function defined in the empowering statute, with a set of rules permitting delegation in certain contexts. For example, if the law grants a licensing authority to the Minister of National Infrastructures or to the Head of the Fuel Authority, which operates within the Ministry of National Infrastructures, the power cannot be transferred or delegated in the absence of authorization, either under the Basic Law: the Government or the specific legislation. Thus, when a regulator is independent or semi-independent, taking over or delegating of authority are possible only if explicitly authorized in the relevant authorizing statute, although this is not uncommon. Further, under a rule established as early as 1949 and long before the legislation of the 1992 human rights Basic Laws, discussed above, interference with a human right cannot be affected without explicit statutory authorization; that is, a provision in primary legislation must expressly authorize the interference with a specifically mentioned right: a general authorization to act does not suffice.44 This rule is much stricter than the rule applied, for example, in application of the limitation clauses found in the European Convention of Human Rights, under which “prescribed by law” or “in accordance with the law” have been interpreted to allow restriction by any rule that is adequately accessible and formulated with sufficient precision.45 The second level of review pertains to proper process. Rules of procedure include requirements to consult and receive recommendations when required or befitting; a duty to hear persons affected prior to the making of an individual decision (no hearing is formally due before the promulgation of secondary legislation); a prohibition to act in a state of conflict of interests; and a general restriction that requires unfettering of the authority. The third level of review, review of discretion, has much expanded its initial form. Earlier on, and following British administrative law, intervention occurred mainly in cases of bad faith, improper purpose, blatant discrimination or extreme cases of unreasonableness. Under the “new” unreasonableness, developed since the late 1980s, the court can brand an administrative measure as “unreasonable” when it did take into account all relevant considerations, but gave excessive weight to one them. Under this revamped doctrine, unreasonableness is still required to be “extreme”, and a variety of decisions could be reached without being found unreasonable, when included within a “zone of reasonableness”, that implies that not only one decision can be made. Despite these refinements that lean towards non-intervention, the new unreasonableness has been used to overrule a variety of decisions that were not classified as “extremely irrational”, as in the case of the classic Wednesbury unreasonableness.46 In addition, proportionality, introduced into the system by the 1992 Basic Laws and applied in their context, has been used, if

44

See HCJ 1/49 Bejerano, note 44 above. Sunday Times v. United Kingdom (1979) 2 EHRR 245. 46 For an earlier formulation see HCJ 680/88 Schnitzer v. the Chief Military Censor, 42(4) PD 617 (1989); English translation available through http://versa.cardozo.yu.edu. For an overview of the ground in Israel see Barak-Erez (2010), pp. 723–769. 45

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sparingly, also in non-human right contexts. The HCJ has also developed several meta-rules that apply to the exercise of administrative power, including reliance on basic principles of law as interpretative tools and part of the parliamentary intent embodied in any statute or government act, and a general requirement for the legislation of ‘primary’, nationwide and longstanding administrative arrangements. Finally, threshold rules, mainly standing and justiciability, have been substantively relaxed. All of these developments, it is argued, have transformed the role of the HCJ, by limiting restraint/deference. More on this in the next section.

3.4

A Tale of Judicial Expansion

For many commentators, Israel’s Supreme Court ranks high, if not at the top, of the judicial activism index.47 Indeed, the substantive developments in Israel’s administrative law since the mid-1980s are credited to the court. Several doctrinal changes opened the scope of review.48 First was the evolution of the traditional ground of unreasonableness, discussed above.49 The most arguedabout cases concern and two decisions from 1993 on the removal from office of high-level politicians indicted for bribery and fraud, government minister Arieh Deri and deputy minister Rephael Pinchasi, both from the Shas Sefardi party. In both cases, the HCJ ruled that non-removal was unreasonable, as it failed to give sufficient weight to the consideration of protecting public trust in the government.50 The second development was the relaxing of standing. The previous requirement that an petitioner show a direct individual interest in the affair challenged in court has been virtually removed. Ressler, a 1988 decision concerning the government’s policy for granting ultra-orthodox blanket exemptions from military service, potentially revolutionized this, and the following discussed element. Since, not only can petitioners file when no individuals can show their personal interest, but all cases involving an argument regarding the threat to the rule of law, or cases that have a substantive public impact, are eligible for application. Thus, most petitions involving highly-publicized and sensitive issues are brought by a variety of civic groups, some of them repeat players—including in the abovementioned Deri and Pinchasi decisions.51

47

See e.g. Dotan (2002); Salzberger (2010), p. 217. Barak-Erez (2009). 49 Ibid., p. 119. 50 HCJ 3094/93 The Movement for Quality in Government in Israel v. State of Israel, 47(5) PD 404 (English translation available through Supreme Court website) (Deri 1993); HCJ 4267/93 Amitai v. The Prime Minister, 47(5) PD 441 (Pinchasi) (both decided on 8.9.93). See also, Dotan (2002), p. 96, and further below. 51 Barak-Erez (2009), p. 119. See also Dotan (2002), pp. 94–97. 48

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In the same context, the doctrine of justiciability (or the political question doctrine, across the Atlantic) underwent a similar relaxation, at least on the declaratory level. Ressler was again the formal starting point, establishing Justice Aharon Barak’s theory of the potential openness of all issues to judicial scrutiny. Since, the sensitivity of an issue, as such, does not infer automatic judicial reticence to enter into review.52 The third development, identified in 2009, is linked with the constitutional transformation of 1992–1995. The protection of human rights, if partial, gave rise to the introduction of a parallel review path, in cases of administrative action that impacted on human rights. In addition, the introduced possibility of invalidation of primary legislation for unconstitutionality has directly influenced the rules regarding the validity of secondary legislation promulgated under such a statute. One of the main grounds for invalidation of statutes has been the application of the proportionality doctrine, one of the conditions of the limitation clauses appended to the protection of the rights in the 1992 Basic Laws. Since then, proportionality has been applied also in review of administrative action that did not breach a human right, but did impact on a previously recognized interest.53 For example, a decision to repeal the recognition of academic degrees granted by a foreign institution, due to evidence of fraudulent practices, was found disproportionate, due to its blanket nature and the absence of individual review of all the students involved.54 These doctrinal transformations have developed alongside additional expansion paths, which at least benefited from these evolved doctrines. Recognition of the potential of review in previously virtually immune fields, such as the internal management of the Knesset, the Attorney General’s discretion to indict and open criminal proceedings and the proper extent of decision-making of a “lame duck” government, are but a few examples.55 The main step forwards here was the potential readiness to hear the merits of many of such cases; this is not to say that all of these petitions were successful. These black-letter accounts have led to contradictory normative assessments. For Dotan, the impact of this extended readiness to intervene, even if it is backed with an overall low level of success, has led to the impossible situation in which interest groups, politicians and political parties tend to bring their political agenda before the court, accruing media attention and general publicity even when they know they are bound to fail.56 This account of the “judicialization of politics,” even

52

Barak-Erez (2009), pp. 119–120; Dotan (2002), pp. 94–95. For both developments see ibid., p. 121. 54 HCJ 3379/03 Mustaki v. Education Ministry (18.3.04). 55 For the earliest decision that marked this readiness in each of these categories see HCJ 652/81 Sarid v. Knesset Chairman, 36(2) PD 197 (1982) (English translation at HeinOnline); HCJ 539/89 Ganor v. the Attorney General, 44(2) PD 458 (1990); HCJ 5167/00 Weiss v. the Prime Minister, PD 55(2) 455 (2001) (English translation at Supreme Court website). Only the second application of the three was successful. For a critical assessment see Dotan (2002). 56 Dotan (2002), pp. 96–98. 53

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“hyperactivism”,57 is challenged by those who minimize the actual impact of the so-called “activism”, showing that the case of extreme non-deference is mainly a myth. For Barak-Erez, for example, the de-facto changes have been modest: courts generally avoid intervention in major policy decisions; while not rejecting for non-justiciability, petitions are rejected for other reasons; and, in fact, the discourse of justiciability has recently reemerged.58 Here, then, an assessment of the myth in 2018 is in place.

4 Israel’s “Activist” Supreme Court and the Demise of Deference and Restraint: A Myth? 4.1 4.1.1

Deference “stricto sensu” in Israel’s Supreme Court Introduction and Methodology

This part assesses the explicit use of the terms “deference”, rissun and kibbud by the Supreme Court sitting as the High Court of Justice (HCJ). As mentioned above, the HCJ was created by the Mandate government as the first and only instance for deciding applications against public bodies. This has changed. Since the 1980s, departments of the District Courts have gradually received jurisdiction over dozens of fields of action of such bodies; in these fields, the Supreme Court operates as an appeal court. I have still retained the focus on the HCJ. Several reasons can justify this methodological choice. First, despite the fact that most run-of-the-mill policy areas are now decided in lower courts, and usually do not reach a fully decided appeal in the higher court, there are several reasons for choosing to consider HCJ decisions only. In its decisions as an appeal court in these fields, the Supreme Court may further limit its remit of review in ways that have little to do with the topic at hand. Furthermore, the fields remaining as first instance are largely those pertaining to “high policy,” areas, in which a decision to defer may be of greater importance. A decision of the Supreme Court as first instance may be the highest likely to explicitly express policy. Finally, the choice of HCJ decisions is the usual technique used in studies of public law, not only in Israel. While none of these reasons is entirely convincing, I have retained this choice for one methodological reason: these decisions represent the decades-long work of the Supreme Court. This chapter presents the results of textual searches of HCJ decisions, found in the Nevo website, the most extensive database of judicial decisions that spans all published and most of the unpublished decisions from the State’s independence

57 58

Ibid. p. 97. Barak-Erez (2009), pp. 122–125, 130–131.

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(some earlier pre-independence decisions are found in this database; these were excluded from the search). The first search conducted identified HCJ decisions that contain one of the exact English words “deference” or “deferent”; the second was a search of HCJ decisions that used the term “rissun” (restraint) or its direct morphologic derivatives; and in the third, I identified the HCJ decisions that used the term “kibbud” (showing respect) in the context of judicial review, with no morphologic derivatives included. The fourth identified those decisions in which both “rissun” and “kibbud” were used. The inclusion of all public law decisions using the English terms was driven by the assumption that in these cases, full awareness of the concept of “deference” is evident; these, especially, may assist in understanding the ways the term was perceived, and employed, by the court. Likewise, the other searches identify the possible exercise of judicial reticence á la Israel. The search for HCJ decisions that explicitly used the terms “rissun” and “kibbud” draws on the same rationale of judicial awareness. In both searches, I limited my findings to those concerned with a review of the administration. Applications challenging the constitutionality of statute law, the legality of inter-parliamentary processes, purely political issues such as the content of a coalition agreement and the like were excluded. I further limited the sample to decisions delivered after 1985, a decision motivated by my wish to focus on the “new HCJ” and its “new administrative law”. Eight HCJ decisions contain the term “kibbud” in our context, and all of these also mentioned “rissun,” a combination that reflects the understanding of “deference” in Israel’s recent jurisprudence. All in all, these searches yielded a good sample of 118 decisions, in which selfawareness of restraint is evident through the text.

4.1.2

“Deference”: Explicit References

Israeli courts are known to extensively cite foreign decisions and other legal sources. The reasons for this continuing practice have little to do with the assumption that this was caused by the paucity of local sources—certainly not in recent decades. More likely, one of the main reasons for this pattern is the tendency of the judiciary to express its belonging to the Western world and its democratic values.59 Hence the importance of references in the context of deference. Some of these citations appear in the original language, almost always English. I therefore begin the textual analysis with references to the English terms “deference” and “deferent,” with or without an attached definition or explanation of the meaning of the term. Here, I consider all eleven relevant decisions that cite this term, although only three were concerned with judicial review of the administration. The first HCJ use of the term “deference” is found in a 1981 decision concerned with a challenge to a Knesset committee decision: to support the court’s argument that deference is a matter of constitutional interpretation, rather than a reflection of

59

See Shachar et al. (1996); Shachar (2008) (both in Hebrew); Navot (2013).

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the restraint owed by courts, the court cited a paragraph from a 1960 book on judicial review in the United States.60 But citing other sources does not offer much by way of theory or normative justification.61 Two of these eleven decisions, Gal’on and Avneri, are the most promising, although these cases were far from being run-ofthe-mill challenges to administrative action: both were mainly concerned with the constitutionality of the authorizing statutes. In Gal’on (2012),62 petitioners challenged the constitutionality of the so-called “family reunion law”—the Citizenship and Entry into Israel (Temporary Order) Law,63 enacted in 2003 for a period of one year and extended yearly since. The Act, legislated under security justifications, denied the grant of citizenship, residence or stay visa in Israel to those previously residing in four enemy states (Iran, Lebanon, Syria and Iraq) or in the Occupied Territories (further license to enter the Territories from the four Arab countries was similarly restricted). The Act provided exceptions to these prohibitions and granted the Minister of Interior discretion to accept such requests for an exception. One of the central implications of this act was the change in the state’s policy of granting residency status to spouses of Israeli and Palestinians whose origin is from beyond the national borders. Following the enactment of the statute, the grant of entry became the exception; as a rule, spouses of Israeli residents, including those residing in the Palestinian Authority or the Occupied Territories, were no longer allowed to enter, hence the informal name of the act. Petitioners argued against the constitutionality of the law (alongside challenges to administrative action under the act). These constitutional challenges relied on the denial of the right to family life, recognized as protected under the human dignity clause in the Basic Law: Human Dignity and Liberty.64

60 HCJ 306/81 Flatto-Sharon v. The Knesset Committee, 34(4) P.D. 118 (1981). Most references below to decisions translated into English rely on the Supreme Court website; translation of decisions still missing in this website and translated elsewhere are linked to the origin, but are not to be considered formal. Two additional decisions that refer to literature only are PPA 4463/94 Golan v. Prisons Service, 50(4) P.D. 136, 161 (1996) (English version available through Supreme Court website); HCJ 2605/05 Academic Center for Law and Business v. Minister of Finance (2009), § 62. 61 Sebelius is the most popular citation, and if found in 4 decisions: HCJ 5113/12 Shlomi Friedman v. The Knesset (5.8.12); HCJ 2311/11 Sabach v. The Knesset (17.9.14); HCJ 5771/12 Liat Moshe v. The Committee for the Approval of Surrogacy (18.9.14); RCA 7204/06 Ehrlich v. Bartal (22.8.12). 62 HCJ 466/07 Gal’on v. The Attorney General (11.1.12). 63 The Citizenship and Entry into Israel Law (Temporary Provision) 5763-2003, recently extended by Government Decision no. 2613, 24 April 2017. 64 The right to a family was such recognized in HCJ 7052/03 Adalah v. Minister of the Interior (14 May 2006, English version of the latter searchable at https://supreme.court.gov.il/sites/en/ Pages/fullsearch.aspx). The court rejected the application by a majority of six against five, citing the term “deference” (to the legislature) twice, without discussing its nature or justification, For analysis of this decision that rejected a challenge to the same law (Adalah) see, e.g. BarakErez (2008).

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In his opinion, Justice Rubinstein reviewed the position of US courts in the context of immigration. Noting that for more than a century, courts in the US have adopted a highly restrained attitude in their review of immigration policy and discretion, Justice Rubinstein added that this comparison was made in order . . . to point at a policy of judicial restraint, based on a doctrine of separation of powers and assignment of roles and responsibilities, and to indicate the degree of caution that should be followed.65

Avneri, a more recent decision (2015), was again concerned with a challenge to the constitutionality of a statute—this time, the Preventing Harm to the State of Israel by Means of Boycott Law, 5771-2011. This Act established calling for boycott as a civil wrong in tort and set potential administrative limitations, such as the inability to participate in government tenders and the non-eligibility for certain benefits.66 All nine Justices found that the provision authorizing courts to award punitive damages in tort claims was unconstitutional, as it disproportionately violated the freedom of speech, protected under the human dignity clause. A majority of five against four Justices upheld the other provisions.67 Moving now to the three decisions that cited the English term “deference” in the context of a challenge to an administrative act or decision, the closest to deferencespeak is Almagor, in which the HCJ rejected an application against the government’s decision to free Palestinian prisoners as part of negotiations between Israel and the Palestinians. Citing a host of precedents that rejected similar applications, President Grunis also referred to the government’s authority in this field: . . . decisions concerning the freeing of prisoners, especially when made in the context of political negotiations, are clearly under the authority and discretion of the Government of Israel, which has the responsibility over the foreign relations and security of the State. . . the government has the relevant tools for decision-making of this type, and holds the responsibility to reach these decisions.68

The term “deference” was not used by President Grunis in this case, but by concurring Justice Rubinstein, who only cited Justice Roberts’ dicta in Sebelius— “[o]ur deference in matters of policy cannot, however, become abdication in matters of law”.69 The other two decisions cannot be considered as expressing deference stricto sensu.70

Gal’on, note 63 above, at § 20 (per Justice Rubinstein). See also id., at § 38 (per Justice Arbel). For an informal English translation of the Act see http://www.acri.org.il/en/wp-content/uploads/ 2011/07/Boycott-Law-Final-Version-ENG-120711.pdf. 67 HCJ 5239/11 Avneri v. The Knesset (2015). 68 HCJ 5413/13 Almagor v. Government of Israel (13.8.13), § 10. 69 Ibid., at § A (per Justice Rubinstein). 70 In Golan, note 61 above, the Supreme Court granted the applicant, a prisoner, the right to publish a personal column in a local paper published in his native town: no deference was in fact practiced, although the term did feature in the decision, in a citation from a book (ibid. § 16, per Justice Mazza). In Izzat n. 2 above, the court couched its decision on precedents, offered dicta that commiserated with the problems faced by all parties, and, while not granting the applicants their 65 66

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As mentioned above, eight HCJ decisions have used both “rissun” and “kibbud”, a double use that seems the closest to the narrow meaning of deference. The results are quite telling: five of these decisions are concerned with the appointment or removal of ministers or high-level government officials, and in one of these the application was successful.71 Only one of them pertains to so-called run-of-the-mill administrative action.72 Kibbud has yet to further penetrate the canon of administrative law; as a synonym for deference stricto sensu, it still has a limited recognition.

4.1.3

Extraction of Three Theoretical Rationales for Deference/ Restraint

The above overview enables me to identify three rationales for the choice of deference as the preferred judicial stance. In addition to some deference-speak, expressed inter alia in Almagor, an entirely different justification can be found in Justice Rivlin’s opinion in Gal’on. Rivlin, who cited the term “deference” seven times and translated it to kibbud, pointed, in addition to an emphasis on the principle of the separation of power, to the strategic use of judicial review: . . . The resources at the disposal of the court, first and foremost the public trust, are precious and limited resources. The court must store them, as much as possible, and refrain from “wasting” as much as possible and appropriate. It needs them on crucial days - in defending

wish to be given a permit, issued an order requiring the establishment of a committee that was to consider the grant of exceptions to the blanket refusal policy. Here, too, the same citation from Sebelius was cited (ibid. § H, per Justice Rubinstein). 71 These are: HCJ 1993/03 The Movement for Quality Government in Israel v. The Prime Minister, 57(6) P.D. 817 (2003), English translation through HeinOnline ([2002–2003] IsrLR 297) (petition concerning, in addition to the same affair, political appointments made by Hanegbi as former Minister of Transport, decided as unethical and tainted by conflict of interest by a Knesset committee); HCJ 8192/04 The Movement for Quality Government in Israel v. The Prime Minister, 59(3) PD 145 (2004) (Petition for removal of Hanegbi, at the time Minister of Internal Affairs in charge of the police, due to criminal investigations against him in the political appointments affair; denied); HCJ 1400/06 The Movement for Quality Government in Israel v. The Prime Minister (6.3.06) (petition for removal of Hanegbi, at the time Minister without portfolio, after a decision to indict was made subject to a hearing; denied); HCJ 8134/11 Asher v. Minister of Finance (29.1.12) (successful application against decision not to appoint the applicant as head of the Israel Tax Authority contrary to the recommendation of the search committee, in the absence of sufficient reasons); HCJ 39015/16 Yossef v. Minister of Finance (10.10.16) (Non-appointment of the applicant as a member of the board of directors of a government-owned corporation, for reasons including a decision to improve gender representation). On this context see generally Sect. 5.4 below. 72 HCJ 7871/07 Raphael v. Minister of Finance (6.2.11) (unsuccessful challenge of regulations that denied war compensation to corporations). The other two decisions concerned a rejection of an application to appoint a full commission of enquiry, rather than a government-appointed one, to review government action in the Second Lebanon War (HCJ 6728/96 Ometz v. the Prime Minister (30.11.06), and a failed challenge to a decision to make a plea-bargain with Israel’s former president, indicted for sexual offences (HCJ 5669/07 Jane Doe v. the Attorney General (6.2.11)).

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human rights of the country’s citizens, first and foremost, its citizens belonging to weakened groups. It needs them to defend unpopular opinions and the right voice them; It needs them to ensure freedom; It needs them to ensure the right to equality. The court needs them when is required to protect the minority, the weak and the impoverished. The court must conserve it strength and force them when it is require requires needed to fill his strength and power unreservedly protect liberty. Kibbud (“deference”) in issues that are at the heart of political activity does not in any way detract from the constitutional scrutiny of the court. Nothing in kibbud can harm constitutional review, it is intended to ensure the resources necessary for its existence. Kibbud does not mean renunciation: it is not the retreat of the mind. On the contrary: it is a condition for strong constitutional refraining. Refraining from honoring the other authorities - the executive branch and the legislative branch - empowers, to a certain extent, those authorities, removing responsibility from them, and sparing them the need to govern and decide - sometimes in unpopular questions.73

Here, then, is an alternative justification for the choice of deference: beyond the precept of the separation of powers, the reticence of courts may be strategic, especially when it is under criticism and threat, in order to preserve its powers for the truly necessary cases, beyond those perceived to belong to policy fields (immigration and national security) that are traditionally regulated without excessive intervention. A third rationale is linked with a distinction between contexts involved with the protection of human rights and other non-rights contexts. References to “deference” are found in Justice Melcer’s opinion in Avneri, but his discussion of deference links to the question whether deference should be considered in the application of the principle of proportionality. This is, then, a discussion of the interface between deference and the protection of rights; deference in policy decisions or in politically sensitive fields was not on the table. Justice Melcer relies on the writing of retired President of the Supreme Court, Professor Aharon Barak, on proportionality.74 In his book, Barak rejects downright deference in human rights contexts75; for Justice Melcer, the deference doctrine can be considered in the context of the application of the second sub-test usually applied in proportionality cases—the question of whether lesser invasive measures could have been adopted to achieve the legitimate aim of the challenged statute (or executive measure),76 but the main point here is that under this third justification of deference—this time a negative one—deference should be lesser in human rights contexts, due to the importance of rights protection in democracies. A possible fourth rationale may thus be gleaned from Justice Melcer’s subsequent consideration of the link between the deference and the “margin of appreciation” doctrines. Above I noted that deference to another government branch within a domestic system should not rely on the latter doctrine, which draws on distinct Gal’on, id., at § 21 (per Justice Rivlin). See also, in the same vein, HCJ 11225/03 Bishara v. The Attorney General, PD 60(4) 287, 336–337 (2006) (per Justice Rivlin); HCJ 6728/96 Ometz, note 73 above, § 11. 74 Barak (2012). 75 Ibid., pp. 396–399. 76 HCJ Avneri, § 57 (per Justice Melcer). 73

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notions of sovereignty and comity. Justice Melcer points elsewhere. Citing supporting literature, he notes that the margin of appreciation doctrine can be applied also in analyses concerning the interface between domestic and international law.77 Yet, even in this context, the “deference” expressed here is to a transnational source of law, and is thus not directly relevant to our exercise.78

5 Judicial Restraint in Israel’s Supreme Court Review of the Administration: A Context-Based Overview 5.1

Introduction

In this chapter I assess all various modalities of judicial non-intervention, be they called “deference” or not. My aim here is also to examine the myth of judicial “hyper-activism”, under which the HCJ is anything but restrained. Here, I offer two overviews. The quantitative study discussed above is further employed to analyze the rate of success of these petitions. Comparison of this rate of success to the general rate of success of public law cases, which could possibly grant an insight into whether the decisions that explicitly refer to these terms lead to lesser or lower rate of success, is not conclusive, since studies of the general rates of success offer varying, if not contradictory, conclusions. I thus move to a qualitative, detailed, analysis of the output of the courts in several fields of administrative action, which leads me to the conclusion that in some fields, early readiness to interfere (that is, less deference) has been subsequently largely replaced with restraint, while administrative action concerning the interference with a protected human right is consistently not judged with restraint/deference. The former result must however be considered under an important tempering factor: early “activist” decisions may have deterred the administration from repeating its earlier action that had been found illegal. It is thus still arguable whether the myth of activism is indeed but a “myth”. This examination focuses on decisions concerned with four fields of action: secondary legislation, human rights (freedom of speech and other rights and freedoms), appointment to and removal from office, and policy (economic and other). Here, I consider both decisions that included terms affiliated with “deference” and decisions that did not. The criterion of choice of decisions is based on saliency: I focus on those decisions that have attracted the public and academic interest or are otherwise representative. I end this part with a repeat consideration of the confusion between “restraint” and “deference”.

HCJ Avneri, § 58 (per Justice Melcer). Of course, the executive may adopt a transnational standard as its base for decision-making or policy, but in this case, too, judicial deference, if expressed, will be directed to the executive decision, rather than to the foreign source. 77 78

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Restraint in the Review of Secondary Legislation

In Lazarovich (decided 1956, long before the “new” HCJ was envisioned), the court voiced its reticence to interfere, explaining that due to the generality and extent of a [secondary] legislative measure, the court will be even more self-restrained than in the context of an administrative measure that applies to an individual, and the well-known judicial tendency to uphold, as much as possible, authorities’ action, expressing trust to them, their motive and actions, would be even stronger in their [administrative] legislation.79

Still, in this case the court did invalidate the challenged regulations, Here, regulations that limited the raising of pigs to certain northern areas (in which non-Jews were a majority) were found to have been promulgated for an improper, irrelevant purpose: while the authorizing statute was concerned with ensuring fair allocation of essential foods and products, the purpose of the regulations was to accommodate the preferences of some of the Jewish religious communities, a purpose that had no link with the statute.80 The principle of restraint/deference in the review of secondary legislation has been reaffirmed since in a series of decisions.81 Further, the courts have emphasized that special restraint will be exercised when regulations and orders require the approval of a Knesset committee, a feature of legislative design that has grown in popularity since. For example, in ACRI (2011),82 a divided court ruled on a challenge to amended regulations, which originally more than trebled the rate paid for a replacement of lost or stolen passports. Arguments relied both on the constitutional level (petitioners argued that effectively, the amendment created a fine that had nothing to do with the purpose of the granted authority, and that it effectively prevented movement out of the country, a right explicitly protected under the Basic Law: Human Dignity and Liberty) and on the administrative law level, essentially due to its blatant unreasonableness. Despite differences in opinion, Justice Danziger’s establishment of the existing rule were not challenged by the other justices: In the context of secondary legislation that has been approved by one of the Knesset’s standing committees, the extent of judicial review is narrower than judicial review over regular secondary legislation. . . yet, narrowing judicial review does not imply absence of

79

HCJ 98/54 Lazarovich v. Food Controller, Jerusalem, 10 PD 40, 48 (1956). Translation by author. 80 Ibid, per Justice Berinsohn. 81 See HCJ 156/75 Dakka v. Ministry of Transport, 30(2) PD 94, 105 (1976) (regulations concerning taxi licensing policy, citing Lazarovich); HCJ 257/89 Hoffman v. Director of the Western Wall, 48 (2) PD 265, 347 (1994) (regulation of prayers in the Western Wall in Jerusalem, application rejected by majority); HCJ 5853/07 Emunah v. the Prime Minister (2007) §5 (per Justice Grunis) (concerned with appointment of minister, overview of the issue in obiter; English translation available through Supreme Court website). 82 HCJ 2651/09 Association for Civil Rights in Israel v. Minister of the Interior (15.6.11).

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review. Secondary legislation, even when approved by a Knesset committee, may be found so extremely unreasonable or fundamental that it would be found invalid.83

The basis of this rule, as mentioned in some of the cases citing it, was that a Knesset committee is in effect a “mini-Knesset”, since its membership is always multi-party.84 Thus, approval of regulations by such a committee enables, if not ensures, a rounded debate that in some respects mirrors the legislative process, and in any case, offers direct parliamentary review and alleviates arguments about the potential abuse of unchecked unilateral executive action. Such was the case in this petition, in Justice Danziger’s view. Here, as in other similar decisions, the success of the petition was inexorably linked with the human right context, discussed below. The rule of restraint is evident in more mundane challenges to the legality of secondary legislation that rely on unreasonableness alone. In all, arguments against secondary legislation resting on unreasonableness alone have been largely unsuccessful.85 The basis for success, mainly linked with the human rights context involved, is further discussed below.

5.3

Human Rights

As in other systems, restraint/deference is materially diluted when human rights are found to be breached. Such was the case before the Basic Laws, and the tendency continues since. In 1949, just a few months after the State’s independence, the HCJ ruled that no limitation on persons wishing to represent clients before the transportation authorities could be set, as there was no legislative backing for such a limitation on their freedom of occupation. Hence the introduction of a super-rule of legality, under which no matter the reasons brought for the exercise of administrative discretion, it could not be exercised if it interfered with liberties recognized as part of the legal system.86 Four years later, the HCJ invalidated a decision to order a one-week closure of a newspaper published by a faction critical of the state of Israel and considered a threat to state security; despite the wording of the authorizing statute, granting discretion to the Minister to order so if “if any matter appearing in a Ibid., §10 (per Justice Danziger). For other iterations of this rule see, e.g., HCJ 491/86 Tel-AvivYaffo Municipality v. Interior Ministry, 41(1) PD 757, 774 (1987); HCJ 9232/01 Noach v. the Attorney General, 57(6) PD 212 (2003), §26 (per Justice Grunis, in the minority) (challenge to regulations permitting, under conditions, force-feeding of geese). English translation available through Supreme Court website. 84 See, e.g., HCJ 2902/11 Association for Children at Risk v. Health Ministry (4.9.15) §53 (per Justice Melcer). 85 For examples of denied petitions see HCJ 6407/06 Doron v. Finance Minister (23.9.07) (regulations concerning war compensation); HCJ 702/81 Minzer v. The Central Committee of the Israel Bar, 36(2) PD 1 (1982). 86 HCJ 1/49 Bejerano, note 44 above. 83

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newspaper is, in the opinion of the [Minister], likely to endanger the public peace”, the court emphasized the importance of free speech and its benefits. It rejected the “bad tendency” historical British test, opting for a test that required a probable likelihood of such danger—a probability test that the respondent hadn’t met.87 Here, again, deference cannot be shown.88 The HCJ’s contribution in creating a relatively human-rights safe environment, well documented in the literature,89 is also found in cases in which petitions wished to limit the freedom of speech; in such cases, restraint was coupled with a positive explicit protection of rights.90 In the post-1992 era, petitions against administrative action viewed as breaching a protected human rights usually follow two paths of challenge: the constitutional and the administrative. All the classical administrative-law grounds of review have remained, with the additional constitutional layer. A similar pattern of rightsprotection remains.91 Again, denial of petitions in this context is not absent. In several cases, the court denied the existence of a right,92 grappled with the threshold doctrines of standing and justiciability, emphasized the special sensitivity of the cases (reasons that were whittled down later),93 or established overriding interests.94

87 HCJ 73/53 Kol Ha’am, note 44 above. The court however rejected the more stringent “clear and present danger” established in the United States. 88 Such deference was in fact exercised by the HCJ a few months earlier, when it rejected an almost identical petition brought by the same newspaper for a similar cause: HCJ 25/53 Kol Ha’am v. Minister of the Interior 7 P.D. 165 (1953). 89 See, e.g., Shapira (1974), pp. 498–508; Israeli and Ehrenfeld (1987). 90 See HCJ 1/81 Shiran v. Israel Broadcasting Authority, 35(3) PD 365, 378 (1981) (petition against the broadcasting of a series on the Holocaust, on the basis that it did not represent the suffering of non-European Jews at the time); HCJ 259/84 M.I.L.N. v. Israel Broadcasting Authority, 38(2) PD 673, 680 (1984) (petition against the broadcasting of a report that showed fraudulent practices of the petitioner); HCJ 399/85 Kahane v. The Governing Body of the Israel Broadcasting Authority, 41 (3) PD 255, 300 (1987) (decision to screen and possibly remove, prior to broadcasting, interviews with the petitioner and his party members, to avoid broadcasting extremely seditious calls against the Arab population). 91 Well-known cases concerned with administrative action (rather than challenges to the constitutionality of statute-law) include HCJ 4541/94 Alice Miller v. Minister of Defence, 49(4) PD 94 (1995) (recognition of the protection of equality under the Basic Law: Human Dignity and Liberty); HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. the Prime Minister, 61(1) PD 1 (2006) (government policy regarding aid to schooling invalidated for almost entire absence of aid to schools in Arab villages); HCJ 2056/04 Beit Sourik Village Council v. the Government of Israel, 58(5) PD 807 (2004) (part of the separation wall between Palestinian and Jewish settlements found disproportionately interfering with Palestinians’ rights). English translations are available through the Supreme Court website. Focus on the constitutional path is the norm, but some discussion of the administrative law path is evident, especially in the first decision. 92 HCJ 87/85 Arjoub v. Commander of IDF Forces in Judea and Samaria, 42(1) PD 353, 360 (1988) (the right to a civil appeal in military court cases). 93 E.g. Hoffman (1994), note 86 above. 94 E.g. Golan (1996), note 61 above.

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Public Ethics: Appointments, Removal and the Criminal Process

In this context, reality is arguably removed from some perceptions of the exceptional activism of the HCJ. Such a pattern is evident in the context of appointment and removal of ministers and other office holder, either indicted for criminal offences or otherwise openly implicated in the criminal process, and decided under the “new” expanded ground of unreasonableness developed since the late-1980.95 Here, earlier decisions showed much less restraint/deference than subsequent decisions made in the same context. The readiness of the court to interfere has, indeed, created a route of interference, based on unreasonableness. This led to the acceptance of a rule that required office holders indicted for offences to step down from office—but in all other cases in which ministers and high level officers were involved, no interference occurred.96 The harbinger was Eisenberg, a petition challenging a decision to appoint Yossi Ginosar, former high-level officer at the Internal Security Service, as the Director General of the Ministry of Housing. Ginosar had been pardoned prior to conviction, after having been indicted for perjury and collusion in the so-called “300 Bus Line” case, which involved the killing of two terrorists caught alive. The court held that the appointment was unreasonable, since insufficient weight was granted to the consideration of the public trust in the civil service.97 In a similar vein, and not more than six months after Eisenberg, the HCJ ordered the Prime Minister to suspend a minister and a vice-minister, both from the same ultra-religious Sephardi political party (Shas), who had both been indicted for offences of fraud and bribery. The reason was once again the insufficient weight granted to the public trust in the civil service.98 These two decisions marked the peak of the “activism” of the HCJ in this context, and attracted scathing critique from political and social avenues: the strongest critique that originated from the Shas party and other ultra-orthodox communities and has not abated since. Against this background, a long string of petitions against the appointment of ministers and high-level officials due to criminal investigations, indictments, and earlier imprisonment for political corruption have all ended with a judicial denial.99 95

For the new unreasonableness see text to note 47 above. For an overview see Barak-Erez (2010), pp. 737–745. 97 HCJ 6163/92 Eisenberg v. Minister of Housing, 47(5) PD 404 (1993), English translation through HeinOnline (11 IsrLRep 19). 98 HCJ 3094/93 Deri 1993, note 51 above; HCJ 4267/93 Pinchasi 1993, note 51 above. 99 See HCJ 2533/97 The Movement for Quality Government in Israel v. Government of Israel, 51 (3) PD 46 (1997) (Challenge to continuing service of Tzachi Hanegbi as Minister, due to tainted and possibly unethical involvement in the appointment of a candidate to the position of Attorney General; denied); HCJ 7367/97 The Movement for Quality Government in Israel v. The Attorney General, 52(4) PD 547 (1998) (petition for removal of MK Pinchasi, the politician involved in the Amitai case above, from his position as chairman of Knesset committee, after having been found guilty; denied); HCJ 1993/03, above note 72; HCJ 8192/04, note 72 above; HCJ 1400/06, note 96

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Petitions challenging lower-range appointments to the civil service have also been denied, although a few were successful. The only successful petitions after 1993 were concerned with appointments for lesser positions.100 The court explicitly explained its differing positions in HCJ Lavi.101 In this case, the petitioner challenged the decision not to appoint him to the office of head of Israel’s Land Authority, despite the support of the relevant minister, due to his denigrating remarks and uttered curses regarding the Arab population in Israel. In her reasoning, President Dorit Beinisch held that, in addition to the consideration of the nature of the fault argued as disqualifying an appointment or a continuing service, . . . the degree of judicial review of decisions on appointment or non-removal of ministers and vice-ministers that are elected public officers holding a political-representative office, may be different in comparison to the degree of judicial review of decisions regarding appointments to professional positions in the civil service. . . In general, there is a reverse relationship between the extent of review of the authority’s discretion. The broader the discretion granted to the administrative authority, the narrower the judicial review. . . as a general rule, the government is held expert with regard to the professional, organizational and managerial qualifications required from a candidate to a high-level position, since it is knowledgeable of the needs of the public sector and the requirements of the position. Yet, the extent of review may expand as far as it concerns the normative aspects involved in the consideration of the substantive suitability of a candidate to a high-level position in the civil service, due to a moral failure in his behaviour or action.102

The last sentence in the above citation seems to be a qualification added to dilute the impact of the previous sentences; the above review of the jurisprudence in this context shows ample evidence of judicial restraint when ministers or other high level political officials were implicated in an application for his or her removal.

72 above; HCJ 5853/07 Emunah – National Religious Women’s Organization v. Prime Minister (6.12.07), English translation through Supreme Court website (petition against appointment to position of minister of a politician convicted of committing an indecent act; denied); HCJ 3095/15 The Movement for Quality Government in Israel v. The Prime Minister (13.8.15) (petition challenging the appointment of Arieh Deri, returning former politician who had served a three year prison sentence that ended about thirteen years earlier denied) (Deri 2015); HCJ 232/16 The Movement for Quality Government in Israel v. The Prime Minister (8.5.16) (petition challenging the appointment of Arieh Deri as Minister of Interior Affairs; rejected) (Deri 2016). On the latter decision see further below. See also Barak-Erez (2010), pp. 740–741. 100 For the successful exceptions see HCJ 7542/05 Portman v. Minister of Transport (11.2.07) (challenge to the appointment as head of transport licensing department in Ministry of Transport, appointee was found guilty of bribery in disciplinary proceedings; successful); HCJ 1262/06 The Movement for Quality Government in Israel v. Shas Party (5.3.06) (petition against continuing membership of the representative of Shas in the General Elections Committee who was convicted of breach of trust, by exploiting his position to receive preferential treatment from an officer in the Ministry of the Interior; successful); HCJ 4921/13 OMETZ v. Mayor of Ramat Hasharon (14.10.13) (two mayors indicted for bribery and fraud ordered to be removed from office, although they could stand for the upcoming elections). 101 HCJ 4646/08 Lavi v. Prime Minister (12.10.08). 102 Id., §§12, 16, 19. Emphases in the original. Translation by author.

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Still, it was the HCJ that established the rule that when indicted for a criminal offence, ministers and other high-level officials must step down, if only until, and if, they are found not guilty. This rule was indeed established through non-deference (and clearly aided by the dilution of standing—consider the identity of most, if not all, main challenges). Its flip side, though, is that when indictment is still a matter for the future, for example in the case of police investigations, and in one case, when the decision to indict is pending on a hearing of the person to be possibly indicted, need not consider their continuance in office.

5.5

Government Policy

Judicial decisions on challenges to government policy that are only loosely, if at all, linked to arguments concerning a breach of human rights, are the best possible source of a pattern of deference-stricto sensu. Here I show that as a general rule, the court has refrained from intervention when challenges to the propriety or reasonableness of a government policy were brought before the HCJ, despite the evolution of the ground of unreasonableness, unless extreme unreasonableness was found. Three general patterns of justification are found in this body of decisions. They are not dissimilar to deference-speak, although a properly-defined doctrine of deference, found in some other systems, most prominently the United States, is yet to be established. First, in some of the decisions that reject challenges to government policy, the court merely repeats the well-established rule regarding the extensive discretion granted to the administration in its policy-making, coupled with an analysis of unreasonableness.103 In others. the term that “the court will not put itself in the shoes of the authority,” proffers an image inherited from the UK.104 Under a third pattern, most closely associated with deference stricto sensu, the HCJ couched its reticence to review with a reference to the expertise of the administration, either summarily, such as by a statement that the court “does not have the tools”,105 or in a more detailed fashion, as in the following case. National Parents’ Leadership (2015) combines the second and third patterns of reasoning. Here, the HCJ rejected a petition challenging the decision of the Ministry of Education to establish infrastructure in schools, which would enable the use of web-based education. The petitioners argued that the introduction of non-ionizing 103

See e.g. HCJ 10541/09 Yuvalim v. The State of Israel (5.1.12) (reform of the water sector); HCJ 1139/07 Bezeq Intl. v. Minister of Communication (5.9.07) (refusal to grant license). 104 For example, HCJ 5931/04 Mazurski v. Education Ministry, 59(3) PD 769 (2004), §16 (per Justice Mazza) (registration of pupils in special high-level class); HCJ 6407/06 Doron, note 86 above (regulations concerning war compensation); HCJ 9443/16 Movement for Quality Government in Israel v. the Attorney General (15.8.17), §24 (pre Justice Vogelman) (decision not to indict a suspect of collaboration in a political corruption scandal). 105 As in HCJ 82/02 Kaplan v. State of Israel, 58(5) PD 901 (2004), § 10.

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electromagnetic radiation into schools would endanger the pupils’ health. Denying the petition, the court repeated a well-established rule, under which “this court does not enter the shoes of the authority, more so when the issue is a decision over professional issues in which the authority enjoys professional knowledge, expertise and experience relevant to the decision-making”.106 Still, in several cases, the HCJ has found the challenged policy extremely unreasonable or otherwise untenable, and hence invalidated it, fully or partially. Some of these concerned high-level policies carrying broad national implications. In New Dialogue Society (2002) the court ruled that decisions regarding the rezoning of some former agricultural lands under a plan that granted preferential rights to the current users, agricultural villages, were extremely unreasonable for insufficiently weighing allocative justice considerations.107 Another successful application, the “natural gas arrangement” case (2016), was decided on the basis of the rule against the self-binding of discretion. The arrangement, made between the government and oil companies regarding the regulation of the newly-found natural gas in the territorial waters of the State, included a government undertaking not to change its policy for a period of ten years after the signing of the agreement. A majority found that clause inconsistent with the rules of administrative law.108 This is not to say that some important government action was similarly dealt with. Petitions regarding privatization and other market reforms, as in the case of the sale of Israel’s refineries under conditions favorable to the purchasing companies, and series of decisions concerned with reform in aviation, communications and other sectors, were serially rejected despite some critical comments made in some of these decisions.109

HCJ 6269/12 National Parents’ Leadership v. Minister of Education (29.4.15), at §16 (per Justice Vogelman); see also HCJ 6274/11 Delek v. Ministry of Finance (26.11.12), §11 (per President Beinisch) (“this court is not an instance deciding instead of the authority in professional issues within its authority; the court does not examine the wisdom or efficiency of the decision; it will not replace the discretion of the authority with its own discretion; and even it if would have decided otherwise had it been in the shoes of the authority, it shall not change the authority’s decision unless it was faulty on the level of legality that justifies intervention”. Rejecting a challenge to a regulatory decision lowering the ceiling of pricing an element of the retail price of petrol. Citing a large number of precedents). These are but examples of a general rule. 107 HCJ 244/00 New Dialogue Society for Democratic Dialogue v. Minister of National Infrastructure, 56(2) PD 25 (2002). 108 HCJ 4374/15 The Movement of Quality Government v. Prime Minister (27.3.16). 109 For the decisions regarding the oil refineries see HCJ 4999/03 Movement for Quality Government in Israel v. the Prime Minister (2006); HCJ 6273/06 Movement for Quality Government in Israel v. the Prime Minister (2007) (in both, the court voiced its “discomfort” with some of the government’s steps, but did not interfere). Decisions concerning aviation include HCJ 10089/01 Arkia v. Transport Minister, 58(4) P.D. 207 (2004); HCJ 900/06 El-Al v. Tourism Minister (2006) (non-intervention in two seemingly opposing policies—the first retaining the privileges of El-Al prior to its sale, despite government commitment to open the market to competition, the second applying the earlier policy and creating competition in the field). 106

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6 The Future of Deference as a Main Version of Restraint: Two Conflicting Recent Decisions The analysis so far has led us to adduce that it would be incorrect to crown “deference” as the central principle motivating Israel’s judiciary in its decisions to refrain from intervention in the context of administrative action. In this chapter I consider the possible future of the doctrine by discussing two conflicting decisions, one that distances itself from deference-speak, the other hinting at a possible version of its adoption.

6.1

Deri (2016)

This case was concerned with the appointment of a past-convicted minister.110 Arieh Deri, who stepped down from office as Minister of the Interior after the HCJ 1993 decision,111 was convicted in 1999 for several counts of bribery and favoritism found to be criminal breaches of trust committed during his service as Vice- and Minister of the Interior between 1984 and 1990. He was sentenced to three years’ imprisonment (following appeal), and the convicting court found moral turpitude in these actions, an element legally crucial in the consideration of the possibility of a post-imprisonment return to politics. Released in 2002, Deri was then found guilty of breach of trust (regarding the grant of about 100,000 Dollars to a voluntary association headed by his brother) and sentenced to three months conditional imprisonment and a small fine. Dedicating his subsequent years to anything but overt political action, Deri returned to formal politics in 2013, and was reset as the head of his party. In 2015, he was first appointed as the Minister of the Economy, a government appointment unsuccessfully challenged in court112; in the following year, his appointment as the Minister of the Interior stood at the center of the decision considered here. Under section 6 of the Basic Law: The Government (in its recent 2001 version), convicted and imprisoned persons, cannot serve as ministers seven years after their release, if moral turpitude was attached to their convictions.113 Applicants argued that the period of seven years was a minimum one, a claim that was adopted by the court. The applicants’ main argument went further: since the

110

Note 100 above. See Deri 1993, note 51 above. 112 Deri (2015), note 100 above. 113 Section 6(c): “If a person was convicted of an offense and sentenced to prison and if seven years have not yet passed since the day he on which he finished serving his period of punishment, or since the handing down of his sentence - whichever was later - shall not be appointed Minister, unless the Chairman of the Central Election Committee states that the circumstances of the offense do not involve moral turpitude.” 111

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“public” crimes (for which three years imprisonment were set) were committed during Deri’s services in the Ministry of the Interior, his appointment as that Minister, even after thirteen years of his release, was manifestly unreasonable, due to the special roles played by the Minister of the Interior both in the criminal sphere and in the context of local government (monitoring and sharing powers with municipalities and local authorities).114 Relying on past decisions, the reasoning of the majority (two out of three justices) followed a principle of balancing. Identifying the relevant considerations involved, again citing a substantial body of precedents, Justice Joubran emphasized that [t]he criminal record of a candidate for public office is undeniably a consideration that the appointing authority must take into consideration in deciding upon an appointment. That duty derives from a public authority’s status as the public’s trustee . . . Nevertheless, it has been said on more than one occasion that a candidate’s criminal record is but one of many factors that the appointing authority must weight in deciding upon an appointment to a public office. It has been held that in evaluating the weight of a criminal record, a number of considerations must be assessed and balanced: (a) the seriousness of the offenses ascribed to the candidate, and their connection to the office he is intended to fill; (b) the nature of the offenses; (c) the duration of the offenses; (d) the period of time that has elapsed since the commission of the offenses, and the public interest in the rehabilitation of offenders; (e) the presence of moral turpitude in the offenses; (f) the candidate’s expression of contrition; (g) the necessity of the candidate for the office. By means of balancing these factors, the Court evaluates whether the candidate’s acts attest to a normative-value flaw in his conduct that would influence his fitness for fulfilling the office for which he is a candidate, and affect public confidence in the civil service. . . . In carrying out the balancing, each consideration must be given its appropriate relative weight, in accordance with the circumstances of each and every case.115

Balancing these considerations, Justice Joubran found that “[a]fter reviewing the balance struck among the various considerations, Deri’s appointment was not “beyond the boundaries of the margin of reasonableness.”116 An additional “mitigating factor” was that “the Knesset specifically ratified Deri’s appointment to the office of Minister of the Interior. That ratification was granted following a debate in the Knesset plenum that treated, inter alia, of Deri’s criminal record, the consequences of his appointment on public confidence in government, and his many years of public works.”117 No less than eight considerations were cited in the decision, which was finalized through a balancing of these considerations. If “deference” is indeed an institutionalbased reasoning, then this is no “deferent” decision.

For the petitioners’ arguments see, e.g., Deri (2016), note 100 above, §§11-12 (per Justice Joubran). 115 Ibid., § 29. 116 Ibid., § 44. 117 Ibid., § 45. 114

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Seligman (2018)

This recent decision may be considered as one that welcomes the adoption of deference stricto sensu, although, even in this decision, the term “deference”, in any of its Hebrew parallels, is not used, nor does the court explicitly refer to Chevron or other sources of the doctrine. This decision, delivered by the Supreme Court on 31 May 2018, is a civil appeal against a district court’s decision regarding the tenability of filing a class action against five Israel insurance companies. The appellants argued that the companies misapplied a circular issued by the regulator of the insurance industry, which, in their view, prohibited insurers to charge the insured an extra fee in case of monthly or otherwise non-lump sum annual payment of the policy in several types of insurance policies. The district court requested the regulator’s opinion, finding the circular vague enough to accommodate several readings; under the regulator’s opinion submitted to the court, the insurance companies were able to add the extra charge. Considering all aspects of the case, including the regulator’s interpretation, the district court granted a permission to proceed with a class action. Appealing against this decision, the insurance companies’ claim against the improbability of the success of the action lay, de facto, on an argument that the agency’s interpretation should have been considered as determinative, hence the low chance of success of the class action. Granting the appeal, Justice Willner considered this argument favorably. Recognizing that there were different views regarding the proper weight to be granted to the interpretative vision of the authorized administrative body, she opted for the following rule: . . . the precedents show that when there is an interpretative ambiguity, and the language of the statute enables various interpretations, the interpretation adopted by the administrative body may – as long as it does not conflict with the language of the rule – tip the scales. Furthermore, the more the normative arrangement concerns a field that requires professional expertise and close and deep acquaintance with the application of the rules, the more the court the court will tend to adopt the interpretation of the administrative body.118

Citing three precedents and the writings of professors of administrative law (both retired Supreme Court Justices),119 the ruling must nevertheless be read in conjunction with the preceding paragraph, in which Justice Willner compares Israel’s rules with that from the US:

CA 7448/16 Seligman v. The Phoenix Insurance Company (31.5.18), § 34. Translation of this, and of the following extract, are the author’s. 119 HCJ 333/68 Factories of Southern Settlements Co. v. Property Tax and Compensation Fund, 23 (1) PD 508 (1969); ACA 3527/96 Axelberd v. Property Tax and Compensation Fund, 52(5) PD 385 (1998); CA 3847/16 Tel Calves v. The State of Israel (11.3.18). The question of whether these decisions fully support this ruling is debated. 118

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In opposition to the American stance, in which the rule supports the adoption of the administrative body when it is a possible interpretation, Israel’s jurisprudence considers each case under its own circumstances.120

Apart from this reference to “the America stance”, the decision does not contain a reference to Chevron, nor does it use the term “deference” or its Hebrew equivalents. Still, some commentators have considered this decision as the harbinger of Chevronlike deference.121 The question of the meaning of this decision, and its implication to future development of a formal doctrine of deference based on Chevron-like considerations continues to be debated.122 More so regarding the future impact of this decision: whether it is to be marginalized or built upon is just as debated.123

7 Conclusion Searching for judicial deference to the administration in Israel, this chapter first considered the nature of “deference” as a distinct doctrine, distinguished by other patterns or restraint reasoning. Deference stricto sensu, a structural mode of restraint reasoning drawing on the separation of powers, democratic legitimacy and the expertise of the administration, is not absent in Israel’s administrative law, but it is certainly not the dominant modality. Two starting points shaped the subsequent discussion. First was the assumption shared by many, that the HCJ is anything but deferent: for some commentators, the

Ibid., § 33. Oren Tamir, “Towards the Americanization of Israel’s Administrative Law? The Strained Revolution of the Selgman Affair – Part I” (8.6.18), available at https://thelegallongmarch. wordpress.com/2018/06/08/%D7%9C%D7%A7%D7%A8%D7%90%D7%AA-%D7%90%D7% 9E%D7%A8%D7%99%D7%A7%D7%A0%D7%99%D7%96%D7%A6%D7%99%D7%94-% D7%A9%D7%9C-%D7%94%D7%9E%D7%A9%D7%A4%D7%98-%D7%94%D7%9E%D7% A0%D7%94%D7%9C%D7%99-%D7%91%D7%99%D7%A9/ (in Hebrew); for a critique see Matan Guttman, “The Dangerous Precedent of the Seligman Affair - the Reasonable Interpretation Sphere and the Adoption of the Chevron rule in Israel’s Administrative Law”, Icon-S-IL Blog (12.6.18), available at https://israeliconstitutionalism.wordpress.com/2018/06/12/%D7%94%D7% AA%D7%A7%D7%93%D7%99%D7%9D-%D7%94%D7%9E%D7%A1%D7%95%D7%9B% D7%9F-%D7%A9%D7%9C-%D7%A4%D7%A8%D7%A9%D7%AA-%D7%96%D7%9C% D7%99%D7%92%D7%9E%D7%9F-%D7%9E%D7%AA%D7%97%D7%9D-%D7%94%D7% A4/ (in Hebrew) (for both, the decision has created a “revolution” in the law of Israel, by adopting the Chevron rule). 122 Compare Tamir and Guttman, ibid. 123 For a skeptic view about future immediate adoption see Oren Tamir, “Towards the Americanization of Israel’s Administrative Law? The Strained Revolution of the Selgman Affair – Part II” (8.6.18), available at https://thelegallongmarch.wordpress.com/2018/06/08/%D7%9C%D7%A7% D7%A8%D7%90%D7%AA-%D7%90%D7%9E%D7%A8%D7%99%D7%A7%D7%A0%D7% 99%D7%96%D7%A6%D7%99%D7%94-%D7%A9%D7%9C-%D7%94%D7%9E%D7%A9% D7%A4%D7%98-%D7%94%D7%9E%D7%A0%D7%94%D7%9C%D7%99-%D7%91%D7% 99%D7%A9-2/. 120 121

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HCJ has been awarded the title of the most activist court in the global West. The second starting point was the absence of a doctrine of “deference” as such: courts have vacillated between discussions of judicial restraint (thus losing the direct reference to the element of respect embedded in the deference doctrine), or decisions that aim to introduce the doctrine under a newly-coined term, kibbud. An assessment of several key decisions led to the identification of four possible justifications, or rationales, to judicial restraint in administrative law. The first is deference-like, the well-established argument based on the separation of powers, under which the executive branch holds the expertise and legitimacy of exercising discretion under statute law, while the judiciary is the lesser expert and, possibly, enjoys less legitimacy in its review of administrative action. The second justification is usually undisclosed: courts usually do not tend to reveal their strategic considerations prior to their decision to engage in review. Justice Rivlin, on the other hand, has been ready to acknowledge that courts will pick their cases to maximize the use of their limited resource of judicial review, thereby limiting its exercise to the more important cases. Justification Three may be considered a reiteration of the latter, but is presented as far from strategic. Under this rationale, deference may be in place in some contexts, but not in cases involving the protection of human rights. Finally, some Justices have been ready to link the deference doctrine with the “margin of appreciation” doctrine in transnational law. This linkage should imply a similarity of rationales in both domestic and international law, which, as Aharon Barak has shown, should not be supported. Assuming that the first three justifications can be cited as factors that trace the proper contours of the doctrine, I moved to an assessment of the role of restraint in the administrative law of Israel. “Restraint-speak” is much more prevalent in the Israeli jurisprudence; as a guiding principle, deference is second in importance. Several conclusions emerged from the qualitative studies. In the context of the protection of human rights, the degree of restraint is the lowest. In challenges to “pure” administrative policy, the HCJ has been relatively restrained, to a degree that questions the tenability of the argument for “hyperactivism”, rendering it more of a myth than a fact. The overview of the HCJ’s treatment of appointments and of removals from office for unethical or criminally investigated administrative action may assist in understanding the basis of this myth. Early decisions, in which a revamped version of the unreasonableness ground of review, were met with surprise, indignation, or strong approval, setting the stage for further reassertion of the myth. The fact that a large number of decisions in this context have been decided without intervention, and that intervention occurred later only in case of lesser important offices, has not deterred the proponents of the myth, used as a tool in the political war against the judiciary. This war continues to rage today. The article ended with a discussion of two recent decisions, the first reasserting the contextual, detailed nature of judicial reasoning of judicial restraint, the second offering a Chevron-type reasoning, but even then, retaining a focus on context. Which of these are likely to rise as a dominant reasoning pattern? Will an alternative doctrine arise? Only time will tell.

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References Alcalay R (1990) The Complete English Hebrew Dictionary, New Enlarged Edition edn. Chemed Books, Massada, Yedioth Ahronot, Tel Aviv Barak A (2012) Proportionality: constitutional rights and their limitations. Cambridge University Press, Cambridge Barak-Erez D (2008) Israel: citizenship and immigration law in the vise of security, nationality, and human rights. ICON 6(1):184–192 Barak-Erez D (2009) Broadening the scope of judicial review in Israel: between activism and restraint. Indian J Const Law 3:118–137 Barak-Erez D (2010) Administrative law, vol II. The Israel Bar Publishing House, Tel Aviv Central Bureau of Statistics (2017) Statistical Abstract of Israel 2017(68). Retrieved from http:// www.cbs.gov.il/shnaton68/e_symbols.pdf Cohn M (1998) ‘Patchwork’ emergency legislation. Mishpatim 29:623–688 Cohn M (2010) Energy law in Israel. Kluwer Law International, Alphen aan den Rijn Dotan Y (1996) Administrative guidance. Sacher Institute, Jerusalem Dotan Y (2002) Judicial accountability in Israel: the High Court of Justice and the phenomenon of judicial hyperactivism. Israel Aff 8(4):87–106 Hutchinson MR (1999) The margin of appreciation doctrine in the European Court of Human Rights. ICLQ 48(3):638–650 Israeli R, Ehrenfeld R (1987) Between the peak and the pit: human rights in Israel. Syracuse J Int Law Comm 13:403–433 Maor R (2010) There is no Hebrew word for accountability. The Jerusalem Post. Retrieved from http://www.jpost.com/Opinion/Op-Ed-Contributors/There-is-no-Hebrew-word-for-accountabil ity (21.12.10) Maoz A (1988) The system of government in Israel. Tel Aviv Univ Stud Law 8:9–57 Navot S (2007) The constitutional law of Israel. Kluwer Law International, Alphen aan den Rijn Navot S (2013) Israel: creating a constitution—the use of foreign precedents by the Supreme Court (1994–2010). In: Groppi T, Ponthoreau MC (eds) The use of foreign precedents by constitutional judges. Hart, Oxford Navot S (2016) Constitutional law in Israel, 2nd edn. Kluwer Law International, Alphen aan den Rijn Omi (1997) Leading decisions of the Supreme Court of Israel and extracts of the judgment. Isr Law Rev 31:754–802 Oxford Students Dictionary for Hebrew Speakers (1993), 2nd edn. Kernerman, Tel Aviv Palmer VV (2001) Mixed jurisdictions worldwide: the third legal family. Cambridge University Press, Cambridge Salzberger EM (2010) Judicial activism in Israel. In: Dickson B (ed) Judicial activism in common law supreme courts. Oxford University Press, Oxford Shachar Y (1995) History and sources of Israeli law. In: Shapira A, De-Witt KC (eds) Introduction to the law of Israel. Kluwer Law International, The Hague Shachar Y (2008) The citation space of the Supreme Court, 1950–2004. HaPraklit 50:29–69 Shachar Y, Harris R, Gross M (1996) Citation practices of Israel’s Supreme Court: quantitative analysis. Mishpatim 27:119–217 Shany Y (2005) Toward a general margin of appreciation doctrine in international law? Eur J Int Law 16(5):907–940 Shapira A (1974) The status of fundamental individual rights in the absence of a written constitution. Isr Law Rev 9:497–511 Yadin U (1962) Reception and rejection of English law in Israel. ICLQ 11:59–72 Zamir I, Colombo S (eds) (1995) The law of Israel: general surveys. Faculty of Law, University of Haifa, Jerusalem

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Margit Cohn (LLB, LLD, Hebrew University of Jerusalem) is the Henry J. and Fannie Harkavy Chair in Comparative Law at the Faculty of Law, Hebrew University of Jerusalem. Prior to her appointment at the Hebrew University Faculty of Law (2006), she was Lecturer in Law at the University of Leicester, UK, and a legal advisor at Israel’s Central Bank. Her teaching and research interests span administrative law, comparative constitutional and administrative law, constitutional theory, law and politics, law and society, legal cultures, judicial review, and regulation. She has visited and taught at various law schools, including Columbia Law School, Centre for Transnational Legal Studies London, Tulane University Law School, Georgetown University, University of Trento, and, recently, University College London. She has published in several prestigious journals, including Oxford Journal of Legal Studies, American Journal of Comparative Law, the International and Comparative Law Quarterly, Public Law, Law and Policy, and Canadian Journal of Law and Jurisprudence. She is currently writing a book on the executive branch, under contract with Oxford University Press.

Judicial Review of Administrative Action in Italy: Beyond Deference? Giacinto della Cananea

Abstract 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.

1 An Intriguing Case Judicial review of administrative action in Italy is an intriguing issue. Although its legal culture has more than two thousands history and a firm tradition of constitutional government existed in the various parts of Italy, with a clear distinction

I wish to thank Michele Graziadei for his comments on an earlier draft. The usual disclaimer applies. G. della Cananea (*) Law School, Bocconi University Milan, Milan, Italy © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_12

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between political institutions (gubernaculum) and judicial authorities ( jurisdictio), as the studies carried out by Gino Gorla masterly showed,1 the weakness of judicial review of administrative action as practiced for some decades of the nineteenth century is at the heart of the political choice—so controversial then and now—to set up administrative courts. Although a part of its legal culture, especially in the first quarter of the Twentieth century, thought that administrative discretion was in itself dangerous and thus should have been eliminated, the courts have followed a more pragmatic approach, seeking to limit and structure the exercise of discretionary powers. Although judicial protection is increasingly effective, partly in response to the impulses coming from supranational courts—the Court of Justice of the European Union and the European Court of Human Rights—and partly in response to the jurisprudence of the Italian Constitutional Court, some politicians have reacted to what they perceived as an excess of judicial activism. It ought to be stated at the outset that this paper proposes a vision of judicial review of administrative action that is in contrast with the strand of thought— perhaps diminishingly important—according to which the existence of administrative courts is a sort of deviation from our constitutional principles. It will be argued that the Constitution does not simply acknowledge their existence, but strengthens their powers in view of a better protection for citizens. Moreover, and more importantly, the paper will argue that, while there is a disagreement on the architecture of judicial review, almost everyone agrees that, functionally, what really matters is the extent to that the courts do and should review the exercise of discretionary powers and that in this respect there are still significant differences between the views of the various courts. The paper is divided into five parts. The first highlights the salient features of the constitutional framework. This will be followed by the delineation of three different periods, based on the nature and intensity of judicial review. Next, there will be a discussion of the main trends of judicial review, which will show the standards and evidence used by the courts, with specific regard to administrative courts. Finally, the contrasting critical remarks about judicial review expressed by the European Court of Human Rights and by some political circles will be considered.

1 See Gorla (1981), p. 581. There is certainly no lack of literature concerning judicial review, but references are limited to the main academic works and to those available in English. For an overview of administrative law, see D. Sorace, Administrative Law, in Lena and Mattei (2002), p. 125. See also, for an account of the legal system, see Cappelletti et al. (1967).

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2 A Constitutional Overview: An Asystematic Administrative Justice? I have referred earlier to the opinion according to which the existence of two separate sets of courts is simply an accident of history if not a perversion of constitutional principles concerning judicial review.2 This is a respectable opinion, but it is important to be aware that there is considerable diversity of views about the nature and scope of administrative law, due to its ‘political’ character. Limits of space do not allow us to consider the different schools of thought. The structure of the argument is, therefore, relatively simplified. First, the strengthened foundation of judicial review is highlighted. Second, it is pointed out that the Constitution does not simply acknowledge the existence of two sets of courts, but even provides for the “exclusive jurisdiction” of administrative courts, albeit in limited fields. The focus of the argument then shifts to a consideration of the structure of administrative justice. Finally, there is a quick comparison between the Italian and the French judicial system in one respect; that is, the resolution of judicial conflicts. The starting point is relatively easy. There is continuity between the current constitutional framework and that established after the political reunification of the country (1861), in the sense that the power to review the acts of all departments of government is separated from the other constitutional powers assigned to the differing branches.3 However, there is discontinuity in a twofold sense. First, though at the beginning of the Twentieth century some scholars raised doubts concerning the flexibility of the constitution (Statuto Albertino, enacted in 1848 and formally valid for one century), judicial review of legislation was not introduced until 1948, when the postwar constitution was strongly influenced by the United States; the Constitutional Court began to work later, in 1956. Secondly, and more importantly for our purposes here, the Constitution recognized the existence of a ‘dualistic’ system of administrative justice. More precisely, the Constitution has acknowledged and confirmed the existence of two distinct types of interests and courts. Some interests are qualified as “legitimate interests” (for example, the interest to obtain a license or to win a competition for obtaining a position in a public body), while other interests (typically the right to property and civil rights) are qualified as “subjective rights” (Article 24). Although some scholars have sought to explain this distinction on an almost metaphysical level, the basis of such distinction is simply the awareness that the protection ensured by the legal order can be and is diversified in view of the existence of both individual and collective interests, and that for the pursuit of the latter public authorities enjoy

2

For this line of reasoning, see Giannini (1964), p. 247 and, more recently, Orsi Battaglini (2005); Ferrara (2014), p. 561. For the opposite view, according to which the administrative judge has protected individual interests, see Mazzamuto (2008). 3 See Article 104 (1), providing that “The Judiciary is a branch that is autonomous and independent of all other powers” (unofficial translation provided by the Senate of the Republic, available at: https://www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf).

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broad discretionary powers. The traditional understanding is that ordinary courts adjudicate disputes concerning rights, while administrative courts adjudicate disputes concerning interests,4 but the former can only disapply an unlawful administrative act, while the latter have the power to quash it. The intrinsic soundness of this choice has been discussed for a long time. Its justification included, according to an eminent scholar, the “good” reputation that administrative courts always had since 1890 and the widespread idea that specialization was necessary.5 Subsequently, the allocation of judicial competence (giurisdizione) has been gradually modified by Parliament. The Constitution allows legislation to entrust administrative courts with an exclusive jurisdiction concerning rights, albeit in ‘particular matters established by law’; “exclusive” means that the jurisdiction of the administrative courts excludes that of ordinary courts, even when there is a dispute concerning a measure affecting a right.6 This clause has been increasingly used, especially after 1990, though the determination of these “particular matters” has proven difficult and the Constitutional Court has often been requested to assess its constitutionality. Included in those fields are, in particular, all disputes concerning access to files, concessions of public ownership, authorizations of public utilities, and the procedures related to public procurements (Article 133 of the Code of administrative trial contains a full list). As a result of this, the Italian administrative judge has a jurisdiction that is similar to the annulment jurisdiction of its French equivalent, the Conseil d’Etat. This is not the only similarity. First, there is a “system” of administrative courts, with lower courts in all the regions and the Council of State as a judge of appeal. Second, there is a similar sub-system, centred on the Court of Auditors, for the jurisdiction concerning public accounts and in particular the liability of civil servants (Article 103 (2)), an aspect to which we will return later, in Sect. 5. Third, the highest ordinary court, the Corte di Cassazione, is not placed in a hierarchical position with regard to these courts. It is, rather, the final arbiter of jurisdictional conflicts between ordinary and administrative courts, including the Council of State and the Court of auditors. This is a distinctive element with regard to the French judicial system, where the Tribunal des conflits is composed of both ordinary and administrative judges and, perhaps, it is one of the reasons of the persistent rivalry between administrative and “ordinary” (this term itself is questionable, in view of the framework laid down by the Constitution) courts. In conclusion, though the choice to keep a dualistic system of judicial review is inevitably debatable, depending on different value judgments and opinions about 4 For further remarks, see Merryman (1966), p. 396 (characterizing a legitimate interest as an “interest in a public law relation”). 5 Miele (1954), p. 425. 6 See Article 103, providing that “The Council of State and the other bodies of judicial administration have jurisdiction over the protection of legitimate rights before the public administration and, in particular matters laid out by law, also of subjective rights” (unofficial translation provided by the Senate of the Republic, available at: https://www.senato.it/documenti/repository/istituzione/ costituzione_inglese.pdf). For further analysis, see Police (2015), p. 34 (available at www.ijpl.eu).

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what is “functionally” preferable, the assertion that administrative justice is asystematic is hardly acceptable. Administrative justice, that we like it or not, has its foundations in the Constitution’s text and structure, as understood by those who drafted it and as interpreted by the Constitutional Court in a long series of judgments. Whether judicial review by administrative courts works fairly and properly is of course another question, which will be considered in two ways, diachronically and synchronically.

3 Judicial Review of Administration: Dynamics of Change The choice of a retrospective may be easily justified: similarly to what Paul Craig has observed with regard to the UK,7 the present attitude of the courts towards judicial review cannot be adequately understood unless some idea is conveyed of the period between the political re-unification of Italy (1861) and the end of the last century. Even a quick retrospective shows clearly the different roles that ordinary and administrative courts have played. Three periods can be distinguished: they concern the years 1865–1890, the years 1890–1999 and the last 20 years, respectively.

3.1

The Age of Blind Deference (1865–1890)

The beginning and the end of the first period were characterized by two opposite political choices. In 1865, few years after the political reunification of Italy, the rulers were preoccupied with dismantling the various systems of administrative justice that existed in the different parts of the country, as well as with defining the boundaries between government and economic and social forces. For their independence from the executive branch, ordinary courts were considered as the best safeguard against undue government interference with private property and free trade. This history is partly similar to that of Belgium and Spain. In particular, available studies show that the choice that Italian reformers did in 1865 followed the Belgian model, in the sense that they suppressed all administrative committees that solved disputes between individuals and public authorities, and left such disputes in the hands of the judiciary, with few exceptions, including those concerning public debt. During this period, however, the scope and intensity of judicial review was very different from the expectation of reformers. Although rooted in an established civil law tradition, the judiciary conceived its role in a very limited way and, consequently, did not simply use deference but even declined jurisdiction in all cases where public authorities enjoyed discretionary powers. This narrow conception of

7

Craig (2013), p. 449.

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judicial review left outside not only many disputes in which State bodies failed to meet the demands of certain individuals and groups, but also many situations in which civil rights were adversely affected by public authorities, including freedom of the press and freedom to protest peacefully. The self-restraint of ordinary courts could not escape criticism and did not. The perceived necessity of a wider scope of judicial review was, in other words, the cause of the creation of a new judicial panel within the Council of State (1889), entrusted with the power to solve disputes concerning legitimate interests, as distinct from subjective rights.8

3.2

Deference by Other Names (1890–1999)

Although the nature of the new panel within the Council of State was controversial, it immediately began to adjudicate disputes, whose number grew from a dozen to some hundreds in the years 1890–1910 and whose legal relevance became increasingly evident, including the dismissal of civil servants on grounds of due process of law, the competence of both State and local authorities and the constitutionality of the latter’s interference with the right of free economic initiative, when public utilities were delivered on a monopolistic basis. This judicial institution differed from the courts that existed in Anglo-American countries.9 However, similarly to the French Council of State, it constituted a convenient vehicle for the diffusion of a more liberal pattern of judicial review during the first decades of the Twentieth century. It ought to be clarified that there was not so much a different attitude, in the sense that some judges preferred more limited, while others opted for more extensive review. There was, rather, a twofold technical difference. First, administrative courts were institutionally charged with the task to render justice to a distinct class of interests, viewed as less intensively protected by the legal order; in particular, there was no compensation for damages. Second, since the beginning they defined and refined new grounds of review, including not only lack of competence but also misuse of power and essential procedural requirements. They thus developed an increasing reluctance to accept standardless adjudication, for example with regard to the issuing of authorizations and licenses, and a heightened attention for the factual elements adduced by the administration. Moreover, they paid attention to process rights. Even under the Fascist regime, there were cases in which the Council of State did not hesitate to quash administrative acts in sensible areas, for example with regard to the dismissal of staff for political reasons, on grounds that there was no evidence of any action contrary to the goals and ideology of the rulers.10

8

For an excellent overview, see Scoca (2009), p. 118 (available at www.ijpl.eu). For a comparison, see Shapiro (1981), p. 126. 10 Early cases can be found in Sandulli and Pasquini (2001): the earlier case on the right to be heard is Chiantera (1895); that concerning disciplinary procedures against civil servants is Ruggiero (1931). 9

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After 1948, those standards were further developed, also in the light of the principles of equality and impartiality.11 Both these principles were further developed at the end of the 1980s, when the Administrative Procedure Act was adopted in 1990. The APA was followed by an important reform of administrative jurisdiction in 1998, which strengthened the review of administrative action impinging on subjective rights and generalized the use of experts as auxiliary of administrative courts. Since this story has often been told, and in much greater detail,12 it suffices to consider its implications for our topic.

3.3

A Diminishing Deference (1999–2018)

In 1999, in a landmark case, the Council of State changed its established policy vis à vis the technical assessments made by public authorities. As is often the case when a révirement takes place, the dispute had a low political profile. It concerned the claim brought by a civil servant against its administration. The applicant argued that he had an illness caused by his administrative activity. The respondent replied that the claim was not substantiated on the basis of objective standards. The lower administrative court endorsed this argument, adding that technical assessments made by the administration escaped judicial review. The Council of State reversed the decision taken by the lower court, on grounds that it was based on a line of reasoning that did no longer correspond to the principles of which the courts had to ensure the respect.13 It began by saying that, in a system based on separation of powers, what is precluded to the administrative judge is only a review of the merits of the choice made by the competent public authority and found support in both a recent ruling of the Corte di cassazione and academic works.14 This, the Council observed, was administrative discretion properly intended, as distinct from assessments that are based either on technical standards (e.g. when the administration must ascertain whether a certain manufact is culturally relevant and is susceptible of being maintained) or on very broad legal concepts. The administrative judge thus emphasized a further distinction, between things than can be opined and things whose opportunity is questionable. In the former case, it argued, it had the power and the duty to ascertain whether exercises of power

11

For further analysis about this period, see Treves (1959), p. 419 ff., especially 432 (for the remark that, comparatively, excess of powers was intended much more broadly than the French concept of détournement de pouvoir). 12 See the special issue of the Italian Journal of Public Law, n. 2/2010 (available at www.ijpl.eu), in particular G. Corso, Administrative procedure: twenty years on, p. 273. 13 Council of State, fourth judicial panel, decision n. 601 of 1999 (available at the website www. giustizia-amministrativa.it). 14 Unlike other courts, Italian ordinary and administrative courts generally refrain from referring to specific academic works, preferring generic expressions such as “new doctrines” or “authoritative views”.

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were correct, while in the latter case it could not review the ways in which power was exercised. The new doctrine was not without practical implications: on the one hand, the administrative judge repeated that it could avail of experts, when necessary; on the other hand, it criticized the use of technical standards by the administration, on grounds that excluding the impact of a higher administrative burden on the employee’s health was in contrast with the facts, as they emerged from the record, and thus illogical. This quick retrospective confirms the conclusion reached earlier. Judicial review by administrative courts may be simply a bad idea, either because it is internally contradictory (in the sense that justice cannot be ‘administrative’) or because it is contrast with other and (allegedly) better ways to ensure the respect of the rule of law. But it is neither an accident of history nor a sort of extraconstitutional or unconstitutional set of arrangements imposed on the nation. Whether these arrangements work well is, of course, another question, which will now be considered.

4 Judicial Review by Administrative Courts The new approach in the evaluation of administrative discretion was soon followed case after case and influenced judicial decisions in a wide range of sectors. Adequate awareness is, however, necessary of the danger that is implicit in undue generalizations on the basis of one or only a few cases. In other words, the persistent differences that characterize judicial review in differing areas of administrative action cannot be neglected. The importance of this remark of methodological nature soon becames evident when considering how judicial review is conceived in some areas of particular significance, including national security, antitrust policy and public employment.

4.1

Deference: Anti-terrorism Measures and Antitrust

In a post-9/11 world it is perhaps unsurprising that one of the policy sectors in which judicial deference to political and administrative discretion is that of anti-terrorism measures.15 After 2001, the courts have been faced with difficult questions concerning primary and secondary legislation adopted either to give effect to the obligations stemming from membership of both the UN and the EU in the context of the common action against transnational terrorism or to cope with the increasing migratory flows. Although these trends often overlap in political discourses, they

15 For further analysis, see della Cananea (2011), p. 195 (available at www.ijpl.eu). For a discussion of the constitutional issues, see Ackermann (2006), p. 475.

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raise different issues and must, therefore, be kept distinct. In this section there will be discussion of the former in two respects: the nature of the measures that can be taken by the executive branch and the type of judicial review concerning them. In addition to the freezing of the assets of persons involved in the commission or funding of terrorist acts, the Italian legal order provides their expulsion. A distinction must be made, in this respect, between judicial and administrative measures. There is, first, the expulsion of persons involved in terrorist actions, which is decided by a criminal court after a trial and with the respect of due process requirements. There is, second, the administrative expulsion, which often takes place when the requirements for a preventive judicial measure are not met, for example when such measure is refused by a court of law. That being the case, it is the Minister of internal affairs that decides to expel the suspect terrorist (legislative decree n. 286 of 1998). This measure is regarded as being a manifestation of a high discretionary power, subject only to a formal review carried out by a “judge of peace” on the police order that gives execution to the ministerial decree.16 As a consequence, its reviewability before administrative courts is limited and, even if the courts accept to engage in a review of the contested measure, their effects are not automatically suspended. The intensity of review can be considered in the context of what is probably the landmark case, concerning the expulsion of a self-proclaimed imam, a national of Seneghal who was married to an Italian citizen, in 2005. Following police investigation alleging that the suspect terrorist was seeking to promote the ideology of ‘holy war’, he was expelled in few days. The lower administrative court quashed the ministerial decree on the grounds that it was not based on adequate evidence of the existence of the factual elements requested by legislation for an expulsion. For the lower court, there was only a presumption of a serious “danger for national security”, without any adequate evidence (the documentation included press articles with the suspect’s views on various issues). On appeal, the Council of State reversed that ruling. It began by noting that existing legislation differed from previous norms, because the power to expel could be exercised not only for ensuring the respect of public order but also with a view to national security. The court added that, since the power to expel was assigned to a member of the Council of ministers, there “was no doubt that it was a manifestation of high administrative discretion” and that the “latitude of such discretion” implied its limited reviewability on grounds of law. Judicial review was thus limited to an external check on alleged misuse of power on three grounds: a manifestly wrong appreciation of facts that are essential for the decision, the lack of adequate reasons and the arbitrariness of the contested measure.17 The administrative judge thus reiterated its established doctrine (that of the second of the three periods described earlier) according to which, unlike actes de

16

Honorary judges were abolished some decades after political reunification. They were re-introduced in 1995, with limits of age and a four-year mandate, renewable once. 17 Council of State, sixth judicial panel, decision n. 88 of 2006 (available at the website www. giustizia-amministrativa.it).

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government, that are not subject to judicial review,18 the acts or measures that are adopted in the exercise of the executive’s discretion are subject to limits: first, they must be necessary or expedient in view of the public interests recognized by legislation, that is public order and national security; second, some minimum requirements of procedural due process must be respected, including the giving reasons requirement; third, a somewhat generic standard of reasonableness must be respected; fourth, judicial review must be provided, though after the applicant has been expelled from the country. Whether these standards, considered as a whole, secure meaningful protection for individuals’ fundamental rights (in our example, the person expelled was married to an Italian national and had children) or whether there was a sort of inevitable reduction of such protection in the years that followed 2001 is another question, that should be seen in the light of the ECHR. We will return later to this. Meanwhile, it is interesting to consider whether similar standards are used in other areas and, if so, why. For example, when reviewing antitrust decisions, administrative courts tend to recognize a good margin of appreciation to the authority, whilst keeping an eye on procedural due process and reasonableness. In a case concerning anti-competitive practices, the Council of State endorsed the antitrust authority’s view that, though the latter has a burden of proof with regard to the existence of an illicit agreement, this obligation is satisfied if the agency provides “serious, precise and univocal clues”. It added that, once the authority had demonstrated the existence of the agreement, more precisely there was no need to give evidence of the parallel conducts taken by the firms.19 While this shows a certain deference, it must be pointed out that the underlying reason is not so much the existence of an overriding public interest, such as national security, but the technical expertise of the agency. It is, in other words, a manifestation of government by experts.

4.2

Toward a Full Jurisdiction Standard

In contrast with the decisions just mentioned, there are decisions that adopted a more interventionist attitude or a more intense review. They concern, for example, public employment and other types of antitrust measures. The legal regulation of public employees has undergone deep changes. One century ago, the relationship between the State and its employees was conceptualized in terms of subjection and this was one of the reasons why in 1924 the Council

18

Already at the end of the 1950s G. Treves, Judicial Review in Italian Administrative Law, cit. at 6, p. 431, raised doubts as to whether judicial review of acts of State was “still barred as in the past”. Recent judicial interpretation narrows the traditional doctrine of the “Acte de gouvernement”. 19 Council of State, sixth judicial panel, decision n. 4017 of 2006 (available at the website www. giustizia-amministrativa.it).

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of State was entrusted with the power to solve all disputes concerning the relationships between the State and public employees. However, since the first years of its jurisprudence, the administrative judge did not hesitate to quash disciplinary sanctions and other measures adversely affecting employees on grounds of procedural due process of law. Since 1992, these legal relationships have been transformed, first, because of the shift from a unilateral to a contractual arrangement between the parties and, secondly and consequently, because most of the disputes have been transferred to labour courts, a shift that several observers have criticized from the viewpoint of the safeguards for employees, especially after the adoption of a sort of spoils-system between 1998 and 2001.20 Space does not permit to cover all the grounds. My intent is to seek to identify the trends in the law from the angle of the intensity of judicial review, with particular regard to the employees who were not affected by recent legislative changes, such as judges. Consider, for example, a recent dispute concerning the choice of the public accounts’ prosecutor in a northern region of Italy. Historically, the decision-making authority (a council composed by both judges elected by their colleagues and lay members appointed by Parliament) enjoyed a highly discretionary power, although there were procedural constraints on exercises of power (e.g. the giving reasons requirement) and their respect was subject to judicial review by administrative courts. More recently, the courts have developed a number of techniques for introducing into the employment relationship higher standards or transparency and rationality. At the end of 2015, the council considered three applications for that post of public prosecutor and eventually choose one of them, affirming that he had a wider and more diversified experience. Another applicant challenged that decision, claiming that it was unlawful. Whilst confirming the traditional view according to which the council enjoyed discretionary powers, the lower administrative court sitting in Rome held that such discretion was not unlimited. As a result, if the employer had not accurately or capriciously exercised its discretion, that would have been a breach of the principles that govern administrative discretion. It thus found in the secondary and tertiary rules by which the council was bound a manifestation of the more general principles according to which the employer should act reasonably and give not just reasons, but adequate reasons for its choices. Eventually, it found that both those principles had been infringed and quashed the council’s decision.21 These developments represent a move away from the former position of the courts that, in view of a high degree of discretion, only ‘extreme’ procedural impropriety or unfairness and blatant unreasonableness could lead them to annul the measures contested by individuals. An even more evident shift characterizes another type of review that is carried out by administrative courts with regard to economic sanctions; that is, the so-called jurisdiction on the merit. This type of

20

For further analysis, see Mattei (2007), p. 81. Administrative court for the Region Lazio, decision n. 1731 of 2018 (available at the website www.giustizia-amministrativa.it). 21

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jurisdiction is not new, having been provided by legislation since 1889. However, its importance has grown under recent legislation. Article 134 of the Code of administrative trial (legislative decree n. 104 of 2010),22 in particular, assigns to administrative courts a full jurisdiction with regard to electoral disputes concerning local and regional authorities and pecuniary sanctions. In both cases, administrative courts must not consider only the legitimacy, but also the merits of administrative acts; that is, their adequacy, opportuneness and proportionality. Concretely, this means that the judge is empowered to substitute its decision, for example, to that which proclaimed a certain candidate as the winner of a local election. It can also redefine the amount of the economic sanctions issued by agencies. Consider, for example, a recent case that has culminated in a ruling by the European Court of Human Rights. The antitrust authority (AGCM) issued a sanction of 6 million euros to a firm working in the medical field and both the lower administrative court and the appeal court rejected the applicant’s action against it. The applicant then sued Italy before the European Court, contesting both the competence of the antitrust authority to issue sanctions and the review carried out by administrative courts.23 The Court confirmed its settled case-law according to which administrative sanctions can be punitive in nature. However, the Court found that Article 6 (1) ECHR, the due process clause, was not infringed because administrative courts did not limit their review to the respect of the duties of legality and fairness, but carried out a full review with regard to the proportionality of the sanction and were able to revise it. Interestingly, it qualified this review as being carried out by “organes judiciaires de pleine jurisdiction”.24

22 Another area for which this type of jurisdiction is provided is that concerning the authorizations for movies. An unofficial translation in both English and French is available on the website of the Council of State (https://www.giustizia-amministrativa.it/cdsintra/cdsintra/Codiceamministrativo/ index.html). For further analysis, see Silvestri (2016), p. 69. 23 Italy is a member of the Council of Europe since its creation. It ratified the ECHR since 1955. More recently, after the constitutional revision of 2001, the Italian Constitutional Court has held that the ECHR is binding on State and regional statutes: see the judgments n. 348 and 349 of 2007 (available at www.cortecostituzionale.it). For further remarks, see Mirate (2009), p. 89. See also Keller and Stone Sweet (2008). 24 The European Court’s ruling concerns the case Menarini Diagnostics v. Italy (recourse n. 43509/ 08). But see also the dissenting opinion of Justice Pinto de Albuquerque (expressing concern about the persistent deference of the courts vis à vis independent regulatory agencies). For a quick comment, see the opinion of professor Police in Italian Antitrust Review, 2015, p. 148. Interestingly, this case was referred to by the EU Commission in its reply in the dispute before the European Court Justice in Case C-501/11 P, Schindler Holding and others v. Commission. On the influence played by the ECJ, see Eliantonio (2008).

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283

Standards and Evidence

What this somewhat cursory analysis shows is, first, that there is no single standard for the exercise of judicial review of administration and, second, that a development concerning evidence has emerged. Instead of a single standard, there is a range of standards which the courts use, depending on the nature of the collective or public interests which administrative departments and agencies seek to protect and promote and the circumstances in which they act. These standards range from the traditional self-restraint in cases concerning national security or certain economic circumstances to the full jurisdiction that is carried out when economic sanctions are imposed on business, where a fully-fledged proportionality test is used, at the end of which the administrative court may substitute its assessment to that of the agency; that is, a derogation from the traditional doctrine of separation of powers. In between are the repercussions of the duties of legality, fairness and propriety; that is, the duty not to exercise a power contrary to the goal set by primary and secondary rules, the duty to act impartially, and the duty not to act unreasonably. Although the term “deference” is almost never used, there is a variety of doctrines that support judicial self-restraint, including the existence of “highly discretionary” decisions of public administrators and the resulting need that courts do not go beyond a “weak” or “external” judicial review. On the other side of the continuum, while the obligation to exercise power in order to effectuate the purpose for which it was conferred is a traditional corollary of the principle of legality (as codified by Article of the Administrative Procedure Act of 1990),25 the giving reasons requirement has been reformulated. Initially, it was a purely procedural constraint on exercises of power, in the sense that, for the reviewing court, it sufficed that the administration had stated its reasons for a decision adversely affecting someone. Subsequently, this procedural requirement was converted into a sort of substantive requirement, to the extent that the administrative judge began to require the agency to provide not simply reasons, but “adequate” or even “sound” reasons. With regard to evidence, the basic tenet is still that the courts should substitute judgment on factual issues, as a consequence of the established doctrine of separations of powers (in its Continental variant). But what is at issue is the extent to which the courts should, and do, either review facts or apply general concepts. From the first point of view, the rule is still that findings of fact, if supported by evidence, must be regarded as being conclusive, in the sense that the administrative judge will not engage in a de novo review. As a result of this, if for example the peripheral unit of the Ministry of cultural property declares that a certain castle has historical or artistic

Article 1 (1) of the APA provides that “Administrative action shall pursue the objectives established by law and shall be founded on criteria of economy of action, effectiveness, impartiality, publicity and transparency” (unofficial translation published by the IJPL, available at http://www. ijpl.eu/assets/files/pdf/leggi/Law%20no%20241-1990%20-%20for%20publication%20-%2025. 03.2011.pdf). For further remarks on the concept of legitimacy, see Ruffert (2010), p. 59.

25

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importance, that finding is regarded as being conclusive if supported by evidence. But, precisely for this reason, if the circumstances of fact that are adduced by the administrative department or agency are uncertain, because the administrative record does not support them, then the courts should, and generally do, review those findings, also in the light of the legislative requirement that reasons are given on the basis of the elements of fact and law that have emerged in the course of the administrative procedure. The other issue concerns the scope of review of administrative application of legal concepts to undisputed or established facts. A caveat is necessary: the law-fact distinction, clear in principle, tends to blur in real world. That said, when legislation entrusts an agency with discretionary powers in view of its technical expertise, administrative courts tend to refrain from discussing the agency’s interpretation of general concepts such as ‘serious breach of the rules’ if, again, it has kept an adequate record of its findings and the decision is consistent with the precedents (within misuse of power, there is a particular symptom of illegality; that is, “manifest unjustice”). The same applies when the administrative justice must assure that the tariffs for the supply of water grant providers with the “full coverage of the costs incurred”, as distinct from the previous concept of the “adequate return” on capital. Again, this rule is not without exception, when economic sanctions are issued: that being the case, it is precisely because the courts engage in a stringent control about the proportionality of sanctions that their review has been regarded by the European Court of Human Rights as being not in contrast with the obligations that stem from Article 6 (1) ECHR. However, this type of review should not be, and is not, generalized. In particular, when Parliament has given an agency the authority to develop rules based upon its expert knowledge and experience, for example with regard to the standards and tariffs that are issued in the field of regulated public utilities, hardly do the courts contest the content of those standards and tariffs.26 Similarly, in a recent case concerning the limitation of the use of cars and the rise of the cost of authorizations to use them within the centre of Rome, on appeal, the Council of State has reversed the lower court’s ruling favourable to the applicants, on grounds that the local authority’s technical choices were neither “abnorm” nor unrelated with the objective and legitimate purpose of decreasing the number of cars circulating in an area that has a particular cultural value and that has been characterized by an increased pollution.27

26

Council of State, sixth judicial panel, decision n. 2481 of 2017 (available at the website www. giustizia-amministrativa.it). 27 Council of State, fifth judicial panel, decision n. 825 of 2009 (available at the website www. giustizia-amministrativa.it) (reversing TAR Lazio, third panel, decision n. 7702 of 2007).

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285

Summary

The present law may be summarized as follows. How satisfactory it is, instead, is another question, which will be considered later. First, administrative courts will review any error of law and will, in general, no longer exclude errors of fact (provided that it is relevant) from the scope of their review. When an error has been made, the court will normally substitute its view for the public authority that issued the contested act or measure. Second, the intensity of review will vary depending on the type of public authority or body that is under review, as well as to the nature of the interests that are at stake. Concretely, if the court thinks that an overriding public interest so requires, it will only intervene if the exercise of discretionary powers is regarded as being irrational or unreasonable. That not being the case, the court will use a proportionality test. There is still another, limited but significant, range of disputes in which the court will carry out a review on the merits of the contested decision.

5 A Quick Look at the ‘Other’ Judges of the Administration At this stage of our analysis, it is easier to compare the standards defined and refined by administrative courts with those followed by ordinary courts. It can be helpful, moreover, to say few words about the decisions taken by the Court of auditors in its judicial capacity.28

5.1

Judicial Review by Ordinary Courts

The point was made earlier that it is helpful to displace the debate over monism and dualism, by focusing on the scope and intensity of judicial review. In this respect the propensity of ordinary courts to keep a weak form of judicial review becomes significant for our purposes. Consider, again, antitrust litigation. As observed earlier, although administrative courts tend to show a certain deference towards the knowledge and experience of the antitrust authority, they are well equipped for examining whether it respects due process rights, as well as whether its findings of facts are accurate and reasonable and they increasingly use such powers. As a result of this, the administrative judge often engages in a review about the technical standards use to assess elements of fact, especially if they lead to the issuing of sanctions. A different approach emerges from the case-law of ordinary courts, in particular what is often regarded as the leading 28 Space precludes the analysis of the role of the Constitutional Court, though it is increasingly important: for analysis, see Barsotti et al. (2016).

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case, a ruling issued by the most important panel of the Corte di cassazione, Italy’s highest civil court. The bone of contention was the notion of relevant market used by the antitrust authority. The Corte di cassazione asserted that, if there is plurality of technical views about the same facts, the assessment made by the agency cannot be contested by the courts, which must limit their review to the consistency and logicity of the agency’s decision, as well as to the adequacy of the reasons it has stated.29 Unlike less recent cases, where the highest civil court tended to use the label “technical assessments” when it sees fit to restrict review, in the last years it has at least admitted that some sort of ‘external’ judicial review ought to be carried out. However, the court’s instruments are still based on the traditional doctrine of reasonableness, while administrative courts have embraced the scrutiny of proportionality that is increasingly used by higher jurisdictions in many parts of the world.30 What is even less satisfactory is the courts’ persistent reluctance to ensure the protection of other individual rights against government interference. Consider the right to property. For a long period of time, the Corte di Cassazione reiterated its questionable doctrine according to which, although Article 42 of the Constitution only allowed expropriation within the limits provided by legislation, other “takings” were not unconstitutional. The demise of this doctrine, after several rulings of the European Court of Human Rights (including Carbonara and Belvedere Alberghiera), is to be welcomed because it was arbitrary and uncertain in its application. The difficulty in accepting that a contested practice could be regarded as being equivalent to a legislative framework was the root cause of the problem. It was, with all due respect, a disservice to the cause of justice. But the difficulty in abandoning the old manner to balance individual and collective interests still emerges in some recent cases, for example in a recent dispute concerning the taking of private property in view of the construction of a dam.31 First, once again, the highest civil court did not engage in a thorough review of the purpose for which the taking, as distinct from a formal expropriation, was decided by the public authority. Secondly, and consequently, although the court itself found that the reasons adduced by the authority were “succinct” and very concise (“scarne”), it was satisfied with them. Finally, it confirmed its settled doctrine according to which the taking for reasons of urgence can only be contested for lack of this necessary requisite. It refrained from considering whether in itself this kind of taking is compatible with the safeguards that derive from the ECHR, as well as whether the findings of fact effectuated in the past were still adequate in view of the achievement of the public goal that justified the sacrifice of individual rights.

29

Corte di cassazione, sezioni unite, decision n. 1013 of 2004. See also, for criticism, Travi (2016), p. 611. 30 For comparative analysis, see Stone Sweet and Mathews (2008), p. 68. 31 Corte di cassazione, sezioni unite, judgment n. 10362 of 2009. For further analysis, see Manganaro (2005) (available at www.ius-publicum.com).

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There are three more general remarks that can be made. First, the standard of review adopted by the court in a case that clearly falls within the scope of the ECHR is of central importance. In contrast with the established doctrine of European courts, the Corte di Cassazione refrains from checking whether the decision maker provided a sound justification for a measure that has a strong impact on the right. It embraces, in other words, a weak concept of procedural justice. Second, the principle of proportionality could require the reviewing court to assess the balance of interests struck by the decision maker, not merely whether it was within the range of reasonable decisions. It is important to remember, in this respect, that under the Convention the proper intensity of review is determined by the twin requirements that any limitation of the right is necessary in a democratic society and that it is proportionate to the legitimate aim being pursued by the decision maker. The stringency of judicial scrutiny is, therefore, different and lower.32 Finally, it remains to be seen whether the court does substitute judgment on certain issues (findings of fact or general concepts).

5.2

The Liability of Civil Servants

Mention was made earlier of the jurisdiction of the Court of auditors. The rule of law requires that officials be bound by the rules that are laid down by representative institutions, no less than others members of society. These are problems for every society. The Italian Constitution adheres to a principle common to liberal democracies, by establishing that all government officials “shall be directly responsible . . . for acts committed in violation of rights” and that, in such cases, liability shall extend to the State and other public bodies (Article 28).33 In this way, the legal system refuses any immunity and seeks to remedy every significant wrong, in order to protect individuals. But there is another side of the coin; that is, how to protect collective interests and particularly public finances from governmental wrongdoing. Coherently with tradition, the Constitution assigns this jurisdiction not to ordinary courts, but the Courts of auditors, in its judicial capacity (Article 103). This form of liability has several and interesting distinctive features, including the threshold (e.g. malice or serious fault), the standards of good administration, and the “equitative” powers of the judge. But what matters more, for our purposes here, is the compromise that has been reached between administrative discretion, on the one hand, and accountability and liability, on the other hand. The early 1990s saw the most dramatically expanded judicially sanctioned official and government liability.

32

For a similar remark about the UK, see Craig (2005), p. 569. For further analysis, see Falcon and Cortese (2011) (available at www.ius-publicum.com) (highlighting the limitations to which liability of public authorities is subject); Clarich (2008), p. 228 (arguing that the general principles of liability apply to public authorities, but there are derogations and particular rules). 33

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As a reaction, Parliament approved a new provision implementing the constitutional provision. It clarified that the Court of auditors’ jurisdiction is “limited to the facts and omissions” and does not affect discretionary choices, which cannot be challenged (Article 1, Act n. 20 of 1994). The least that can be said is that such provision can be interpreted in different ways. The Court interpreted it in an evolutionary way. In earlier decades it had considered mainly, if not only, whether the conduct of administrative bodies deviated for the purposes for which lawmakers had conferred powers on them, typically if they spent public money for themselves instead of using them for public welfare. Subsequently, as the Administrative Procedure Act of 1990 codified the general standards of effectiveness and economicity,34 the Court of auditors begun to consider whether the actions taken by civil servants are functional to the protection and promotion of collective interests, in the sense that there must be coherence between goals and means. The border erected by legislation between the efficacious discharge of policy by using public money, which is constitutionally subject to checks, and the discretionary choices, which are not reviewable in the merits, thus tended to blur. However, when the discontents of this partial revirement brought an action before the Corte di cassazione, it rejected their claim on the grounds that the policy followed by the Court of auditors is coherent with the principle of reasonableness.35 Three elements of this jurisprudence deserve attention. First, the decision delineating the scope and consequences of governmental liability inevitably implies a balancing of interests, in the sense that they can protect the public treasury and exert a deterring function, but also discourage government officials from taking decisions. There is evidence that this unintended consequence of deterrence is not merely theoretical. Second, similarly to the Council of State, the Court of auditors has interpreted the Constitution in order to elaborate a set of standards of good administration and, in this respect, has often filled the gaps to render legislation more coherent with those standards. This activity is not unknown, but is generally undertheorized, especially from the standpoint of traditional legal positivism. Finally, it is apparent from the case-law that the courts, in their attempt to ensure legal accountability, have gradually revised the border between the exercises of discretion that are subject to review and the “political” choices that are not susceptible of being reviewed by the courts.

34

For further analysis, see Chiti (2006). Corte di cassazione, sezioni unite, decision n. 6820 of 2071. See also the Court of auditors’ decision on appeal, n. 296 of 2015 (available at www.corteconti.it). 35

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6 Contrasting Views It can be helpful, at the end of this analysis of the evolving relationship between administrative discretion and judicial review, to briefly consider two opposite critical views. The first comes from the recent case-law of the European Court of Human Rights, while the second comes from political institutions.

6.1

Inadequacies of Judicial Review from the Viewpoint of the ECHR

A good example of the critical view expressed by the European Court of Human Rights can be found in its recent ruling in Placì.36 The applicant claimed that, during the period in which he had been subject to conscription (then compulsory), he had been subjected to sanctions and punishments that had caused him permanent psychological diseases. He then sued the State for damages. Both the lower and the higher administrative courts rejected his claim, on grounds that, in the exercise of judicial review of legitimacy of administrative action, they were unable to assess the reports elaborated by the State’s medical boards, unless they were unrelated to the relevant facts or contradictory. Whilst recognizing—under his “margin of appreciation” doctrine—that the State, each State, has the power to determine the standards of health and fitness for potential conscripts,37 the Strasbourg Court observed that national courts had found inaccuracies in the reports produced by the State’s medical boards. More importantly for our purposes here, the Court noted that: the Supreme Administrative Court (“CS”) had considered that, in its limited powers of judicial review of administrative acts, it could not examine the merits of that report.38

It found that this limited review was all the more inadequate, because it left medical boards as the sole source of authority to decide on the merits. It thus concluded that the applicant had not been afforded a fair hearing before an impartial tribunal in the sense and for the purposes of Article 6 (1) ECHR.39 More generally, the European Court has set out a new framework in order to strengthen the rule of law. First, from the standpoint of the fundamental rights recognized and protected by the ECHR, the traditional national distinction between subjective rights and legitimate interests is simply irrelevant. What matters is simply whether exercises of power impinge on fundamental rights, including that to a fair trial. Secondly, and consequently, national courts (ordinary and administrative) are requested to carry out an effective review of contested decisions. This review is not, 36

Eur. Ct. H. R., Placì v. Italy, application n. 48754/11 (2014). Id., § 50. 38 Id., § 64. 39 Id., § 79. 37

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however, unlimited. Indeed, while the Court constantly affirmed that both questions of law and questions of fact must be subject to judicial review, it recognizes that when a purely “political” discretion is exercised, this justifies a restraint by the courts. This judicial policy is closer to the standards followed by administrative courts, which increasingly accept to engage in a review of findings of fact as well as of the application of general concepts, than to that which is still followed by ordinary courts.

6.2

Political Reactions to (Perceived) Judicial Activism

While supranational courts call for a more objective and intense review, there has been a political reaction to what has been perceived as an excessive judicial activism. This reaction, which has coincided with periods of acute constitutional and political conflict, has taken different forms and arguments. The forms include explicit criticism on the media, legislative proposals and even proposals aiming at amending the relevant constitutional provisions.40 As regards the arguments, the attack on judicial review has proceeded on three main fronts. There is, first, a general argument against judicial review. Critics argue that it is illegitimate, regardless of the outcome that it generates, because of its antimajoritarian (non-democratic) nature. As a consequence of this, there have been proposals aiming at preventive the courts as such (both administrative and ordinary) from using any sort of “creative interpretation”. There is, second, the institutional argument against administrative courts that has been elaborated by the strand of thought that was mentioned initially. Having lost the main battle, the proponents of a monistic system of administrative justice generally chastise administrative courts for the alleged deviation from the principle of equality and the encroachment of advisory and judicial functions within the Council of State (this is a real problem, which is exacerbated by the other tasks that the members of this institution have within the political and administrative system). From this point of view, regardless of the outcome that administrative courts generate, their existence is illegitimate, because it is in contrast with the institutional framework of a well-ordered liberal and democratic society in that it has different courts for disputes involving the State and other public bodies. There is, third, the argument that focuses on administrative effectiveness. Critics argue that administrative courts, especially by using interim measures, take important off the hands of elected or professional administrators. This argument has been frequently used, for example by former President of the Council of ministers Romano Prodi with regard to the field of public procurements, where so many decisions taken by administrations have been quashed, though an external observer

40 For further remarks, see Cartabia (2018) (available at https://www.echr.coe.int/Documents/ Speech_20180126_Cartabia_JY_ENG.pdf).

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may wonder whether this is simply a manifestation of the low quality of those decisions.41 Similar criticism has been aroused by some decisions annulling the outcome of contested elections in both regional and local government; the irony is in this case the argument that no court should ever contrast the will of the people is used when the (administrative) court seeks to ensure that the will of the people is accurately considered. Whatever the intrinsic soundness and feasibility of these arguments, it should be noted, on the one hand, that while some concern what the courts do, others focus on their existence; on the other hand, that these arguments have supported two types of measures, including the revision of standards of review and the suppression of administrative courts. An example of the first type of reaction concerns the jurisdiction of the Courts of auditors on the liability of those who manage public money. Clearly, expanding the scope of judicial review is a desirable social objective, but it can have a negative impact on the performance of public policies. Moreover, a requirement that government officials compensate the State and other public bodies for their wrongful conduct can to some extent deter them from making decisions, however beneficial and justified such requirement may be. These remarks can be helpful to make sense, together with more instrumental explanations (in terms of self-interest), of the political reaction to what has been perceived as an excessive judicial activism by the Court. Other proposals, more radical in nature, seek to suppress administrative courts. A proposal of this type was discussed in the context of a controversial design of constitutional reform 20 years ago. Although such constitutional reform was unsuccessful, it should not be overlooked, because it can give a sense of the critical views hold by some political circles about the discharge of administrative justice.

7 Conclusion The starting point of this paper was that the relationship between administrative discretion and judicial review is problematic, because it reflects differing visions about the role and the tasks of public law in a modern society. A retrospective analysis has confirmed that the Italian legal order has been characterized by contrasting political choices, of constitutional character. A synchronic analysis has showed that there is not a single standard, but a variety of standards, which evolve with a different pace. Recent developments provide some basis for cautious optimism about the courts’ willingness to ensure a more effective judicial protection, also on the impulse of supranational courts. However, the standards followed by administrative and ordinary courts differ. Moreover, the capacity of agencies to positively adapt their conduct to the new and more demanding standards remains

41

R. Prodi, Il TAR va abolito, in Il Mattino, 11 June 2013.

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doubtful and certain political circles are likely to continue to encourage agencies to tolerate some degree of official misconduct, if necessary by trying to revise legislative provisions. 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.

References Books Barsotti V, Cartabia M, Carozza P, Simoncini A (2016) Italian constitutional justice in global context. Oxford Cappelletti M, Merryman JH, Perillo JM (1967) The Italian legal system: an introduction. Stanford Chiti MP (ed) (2006) General principles of administrative action. Bologna Craig P (2005) Administrative law, 5th edn. London, p 569 Eliantonio M (2008) Europeanisation of administrative justice. The influence of the ECJ’s case law in Italy, Germany and England. The Hague Falcon G, Cortese F (2011) Civil liability of public administration. Jurisdiction and process. Available at www.ius-publicum.com Keller H, Stone Sweet A (2008) A Europe of rights: the impact of the ECHR on national legal systems. Oxford Lena J, Mattei U (eds) (2002) Introduction to Italian law. The Hague Manganaro F (2005) The right of property in the Italian legal system and in the ECHR: a conflict to be resolved. In IUS publicum network. Available at www.ius-publicum.com Mazzamuto M (2008) Il riparto di giurisdizione. Apologia del diritto amministrativo e del suo giudice. Napoli Ruffert M (ed) (2010) Legitimacy in European administrative law_reform and reconstruction. The Hague Sandulli A, Pasquini G (eds) (2001) Le grandi decisioni del Consiglio di Stato. Milano Shapiro M (1981) Courts. A comparative and political analysis. Chicago

Journal Articles and Book Chapters Ackermann B (2006) Terrorism and the constitutional order. Fordham Law Rev 75:475 Cartabia M (2018) The authority of the judiciary. Separation of powers and judicial independence. Paper presented at the seminar organized by the European Court of Human Rights, 26 January 2018. Available at https://www.echr.coe.int/Documents/Speech_20180126_Cartabia_JY_ ENG.pdf Clarich M (2008) Government liability: a preliminary assessment. In: Bell J, Bradley AW (eds) Government liability: a comparative study. London, p 228 Craig P (2013) Judicial review of questions of law. In: Rose-Ackerman S, Lindseth PL (eds) Comparative administrative law, 2nd edn. Cheltenham, p 449 della Cananea G (2011) Administrative due process of law in liberal democracies: a post-9/11 world. Ital J Public Law 3:195. Available at www.ijpl.eu Ferrara L (2014) Attualità del giudice amministrativo e unificazione delle giurisdizioni: annotazioni brevi. In: Diritto pubblico, p 561

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Giannini MS (1964) Discorso generale sulla giustizia amministrativa (III). In: Rivista di diritto processuale, p 247 Gorla G (1981) I grandi tribunali italiani fra i secoli 16 e 19 : un capitolo incompiuto della storia politico-giuridica in Italia (1969). In: Id., Diritto comparato e diritto comune europeo. Milano, p 581 Mattei P (2007) Italian democracy under threat? The spoils system in historical perspective. In: Page E (ed) From the active to the enabling state. London, p 81 Merryman JH (1966) The Italian Style II: law. Stanford Law Rev 18:396 Miele G (1954) Italian administrative law. Int Comp Law Q 3:425 Mirate ZS (2009) A new status for the ECHR in Italy: the Italian Constitutional Court and the new ‘conventional’ review on national laws. Eur Public Law 15:89 Orsi Battaglini A (2005) Alla ricerca dello Stato di diritto. Per una giustizia non amministrativa. Milano Police A (2015) Administrative justice in Italy: myths and reality. Ital J Public Law:34. Available at www.ijpl.eu Scoca FG (2009) Administrative justice in Italy: origins and evolution. Ital J Public Law:118. Available at www.ijpl.eu Silvestri E (2016) Administrative justice in Italy. BRICS Law J:69 Stone Sweet A, Mathews J (2008) Proportionality balancing and global constitutionalism. Columbia J Transnatl Law:68 Travi A (2016) L’eccesso di potere fra diritto amministrativo e tutela giurisdizionale. In: Scritti dedicati a Maurizio Converso. Roma, p 611 Treves G (1959) Judicial review in Italian administrative law. Univ Chicago Law Rev 419 ff., especially 432

Giacinto della Cananea is Professor of Law at the Law School of the Bocconi University (Milan), after teaching in various Italian Universities (Urbino, Naples “Federico II” and Rome “Tor Vergata”), as well as at the Duke Law School, the Yale Law School and Science-Po Paris. He was awarded in July 2016 an advanced grant by the European Research Council for a comparative research on “The Common Core of European Administrative Laws”, for a period of 5 years. In June 2018, he received the first Prize in the “Altiero Spinelli Outreach Prize”, for ReNEUAL’s “Model Rules” on EU administrative procedures. His last monograph is Due Process of Law beyond the State (OUP, 2017). His last edited book is the Research Handbook of European Administrative Law (co-authored with Carol Harlow and Paivi Leino; Hart, 2017). Since 2009, he is co-editor of Italian Journal of Public Law.

Deference to the Administration in Judicial Review in Japan Norikazu Kawagishi

Abstract 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.

N. Kawagishi (*) Waseda University, Faculty of Political Science and Economics, Tokyo, Japan e-mail: [email protected] © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_13

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1 Introduction 1.1

The General Legal Framework of Administrative Activities

Separation of powers has been operational in principle since the Constitution of Japan became effective on May 3, 1947.1 The Diet is granted legislative power, the Cabinet is vested with executive power, and the Supreme Court and lower courts are given judicial power (arts. 41, 65, and 76). The Constitution has also provided for parliamentarianism. The Prime Minister is a member of the Diet, and the Cabinet is composed of the Prime Minister as its head and other Ministers of State, a majority of whom must be members of the Diet (art. 67 para. 1, art. 66 para. 1, and art. 68 para. 1). The Cabinet, in the exercise of executive power, is collectively responsible to the Diet (art. 66 para. 3). The House of Representatives, the lower house, may pass a resolution of no confidence or reject a confidence resolution, and as a measure for coping with that, the Cabinet may dissolve the House of Representatives within ten days (art. 69). The Cabinet, in addition to other general administrative functions, performs such functions as administering the law faithfully, conducting affairs of state, managing foreign affairs, concluding treaties with the Diet’s approval, administering the civil service in accordance with standards established by law, preparing the budget and presenting it to the Diet, enacting Cabinet orders in order to execute the provisions of the Constitution and of the law, and deciding on general amnesty, special amnesty, commutation of punishment, reprieve, and restoration of rights (art. 73). The Prime Minister, representing the Cabinet, submits bills, reports on general national affairs and foreign relations to the Diet, and exercises control and supervision over various administrative branches (art. 72). As is the case with parliamentary government,

1

This Constitution superseded the Constitution of the Empire of Japan of 1889, which had provided the legal foundation for the modernization that was understood to be imperative to avoid the colonization of Japan, which had just reopened its borders to the world after an interval of over two hundred years. The old Constitution declared the Emperor’s sovereignty: “The Emperor is the head of the Empire, combining in Himself the rights of sovereignty, and exercises them, according to the provisions of the present Constitution” (art. 4). While the Imperial Diet (Parliament) gave only consent to the Emperor, who possessed the legislative power (art. 5), the courts embodied the judicature in the name of the Emperor (Art. 57). The old Constitution failed to stipulate a Prime Minister or even a Cabinet, for its founders deliberately denied parliamentarianism due to their preference for a transcendental cabinet that was supposed to be independent of the Imperial Diet and political parties. The constitutional principle was that the minsters of the state respectively gave advice to the Emperor and were responsible for it (art. 55 para. 1), although its constitutional operation later opened up to quasi-parliamentarian practices. Without appointment and removal power, which belonged to the Emperor alone as one of his prerogatives (art. 10), the prime minister was considered only primus inter pares. The Emperor also determined “the organization of the different branches of the administration, and salaries of all civil and military officers” (art. 10). For the old Constitution, see e.g., Ito (1906), and Minobe (1934), pp. 1–155.

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therefore, legislative and executive powers in Japan are generally interlocked and exercised harmoniously. On the other hand, the judiciary experienced significant reformation with the constitutional changes of 1947, bringing a considerable expansion of judicial power. The composition of courts changed from a European continental system to an AngloAmerican system.2 In the old constitutional regime (the Constitution of the Empire of Japan, arts. 57 and 61), under the influence of the ideas of German law, the judicial court heard only civil and criminal cases (Saibansho Kosei Ho (Court Organization Act), art. 2), and administrative cases had to be presented to an administrative court that belonged to a system of administrative organs. The old administrative court was situated exclusively in Tokyo, the capital of Japan, as both the first instance and the last resort. Judgments of the administrative court were not eligible for retrial (Gyosei Saiban Ho (Administrative Justice Act), art. 19). Standing to sue against any allegedly illegal measure of the administrative authorities was narrowly defined in the Administrative Justice Act (art. 15). In sharp contrast, the postwar and current constitution spurned having an extraordinary tribunal system in general and granting final judicial power to administrative organs. All judicial power has been vested instead in judicial courts (art. 76). Thus, judicial courts are now entitled to hear administrative as well as civil and criminal cases. In addition to this expansion of judicial power, the court has enjoyed much greater self-autonomy than the old court ever had. The court has also been vested with constitutional review power.3 This institution of constitutional review in Japan is concrete, like the U.S. system, rather than abstract, as is the case in Germany. The Supreme Court is the court of last resort, with power to determine the constitutionality of any law, order, regulation or official act (art. 81). The Supreme Court thus functions as a constitutional court as well as a final court of errors. In short, to materialize the liberal democratization of society according to the postwar promise, the current Japanese Constitution has fortified the judiciary: an expansion of judicial power over administrative cases; a strengthening of judicial independence; and a conception of constitutional rights with judicial review. The judiciary is commonly understood to hold the power to decide legal disputes.4 According to the Court Act, “Courts shall, except as specifically provided for in the Constitution of Japan, decide all legal disputes, and have such other powers as

2

The Japanese legal system itself is understood to belong to the civil law tradition. Legal codes, not judicial precedents, are considered the main source of law. However, legal codes are usually sufficiently abstract to allow judges to have a considerable degree of leeway when interpreting them. Japanese judges also tend to highly value relevant judicial precedents in their dealings with cases. 3 Judicial review was not expressed clearly under the old constitutional regime. Although it was agreed that the court might review the propriety of procedural aspects of statutes, it was unclear whether the court could review the substance of statutes. The court itself denied it had the power to substantially review legislation (Taishin-in, July 11, 1913, Keiroku 19: 790). See Miyasawa (1973), p. 36. 4 See, e.g., Ashibe (2015), pp. 338–341; Sato (2011), p. 581; Hasebe (2016), p. 407.

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are specifically provided for by law” (art. 3 para. 1). The Supreme Court has interpreted legal disputes as disputes that “relate to the existence of concrete rights and duties or legal relations between the parties” and that “can be finally settled by the application of law” (Wooden Mandala Case, Supreme Court Judgment, April 7, 1981, Minshu 35-10-1369). One of the internal limits of judicial power is considered to concern administrative free discretionary actions. Once certain administrative actions are regarded as belonging to free discretion, the judiciary is understood to lose the chance to check such administrative actions. Administrative agencies can, on the other hand, act freely within their discretionary powers. When even administrative discretionary actions are conducted beyond the bounds of a discretionary power or by an abuse of such power, however, judicial courts can review these actions and find them unlawful (Administrative Case Litigation Act, art. 30).5 Judicial review over administrative actions has been regulated basically by the Administrative Case Litigation Act (Act No. 139 of May 16, 1962) (art. 1).6 Administrative case litigation as used in this Act is divided into actions for the judicial review of administrative dispositions, public-law-related actions, citizen actions, and interagency actions (art. 2). While the former two are subjective actions in which private legal interests or legal status are at issue, the latter two belong to objective actions in which correction of an act conducted by an administrative agency that is inconsistent with laws is sought, and a dispute between administrative agencies is to be solved (arts. 3-6). These citizen actions and interagency actions are generally understood as exceptions to the “legal disputes” provided for in Article 3 of the Court Act, which judicial power is intrinsically extended to. They are special actions that specific legal provisions allow the court to exercise powers to decide. Among them, an action for the judicial review of an administrative disposition is largely considered to be the core of judicial control over the administration. This means an action to appeal against the exercise of public authority by an administrative agency, divided into several subcategories: action for the revocation of the original administrative disposition; action for the revocation of an administrative disposition on appeal; action for the declaration of nullity; action for the declaration of the illegality of inaction; mandamus action; and action for an injunctive order (art. 3). Actions for the revocation of the original administrative disposition in particular have been much discussed with regard to judicial intervention in the administrative process. Another important type of litigation against the administration is government torts liability action.7 The State Redress Act (Act No. 125 of October 27, 1947) was established for the purpose of implementing the constitutional provision that “Every

5

For a general view of the relation between administration and the judiciary, see, e.g., Sowa (2011). For the issues and discussions of the Administrative Case Litigation Act, see, e.g., Shiono (2013), pp. 64–285; Uga (2018), pp. 92–404. 7 For the issues and discussions of the State Redress Act, see, e.g., Shiono (2013), pp. 286–355; Uga (2018), pp. 405–498. 6

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person may sue for redress as provided by law from the State or a public entity, in case he has suffered damage through the illegal act of any public official” (art. 17). Government torts liability is defined as follows: When a public officer who exercises the public authority of the State or of a public entity has, in the course of his/her duties, unlawfully inflicted damage on another person intentionally or negligently, the State or public entity shall assume the responsibility to compensate therefor” (State Redress Act, art. 1). This is understood as the special provision of civil torts liability (Civil Code, art. 709). It aims to control ex post facto administrative agencies by finding their actions illegal and awarding damages to the plaintiff.

1.2

Judicial Review Over the Administration in General

Judicial deference to the administration may take a number of forms. Technicalities may matter. Narrow settings of standing may, for instance, deprive the court of the chance to control administrative actions, and the court itself may interpret them in a restrictive way. Requirements such as conformity to disposition, standing to sue, and standing in the narrow sense have to be met for initiating actions for the revocation of the original administrative disposition in the Administrative Case Litigation Act. The Supreme Court, for example, ended an action for the revocation of the administrative disposition to withdraw the designation of a forest reserve, recognizing that the plaintiffs had lost standing due to the construction of a dam, because the dam would function as an alternative means of preventing floods and ensuring a supply of drinking water, as well as providing water for irrigation, for which the forest reserve all served. It was planned for the forest reserve to be utilized as the Self-Defense Forces’ Nike-Hercules missile base. In the first instance the district court had interpreted the requirement of standing expansively and held substantively that the Self-Defense Forces were unconstitutional. The Supreme Court’s negative judgment on the level of requirements of actions, which led to the construction of the missile base, was the result of judicial deference to the administrative policy choice (Naganuma Nike Missile Base Case, Supreme Court Judgment, September 9, 1982, Minshu 36-9-1679). However, judicial deference to the administration has been largely discussed in 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, as we will see below, 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

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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. The Cabinet and various administrative branches have taken the lead in realizing administrative demands and public welfare in contemporary democracy. By justifying the ideal of the welfare state, the constitutional scheme has authorized the government to deal legitimately with people’s economic and social issues, as well as to carry out traditional tasks like maintaining political order. To achieve regulatory and welfare purposes, administrative agencies have been allowed to exert more or less their discretionary powers as authorized by a specific statute. It is understood that there are no ground rules of discretion per se, but an individual delegation law is necessary for administrative agencies to carry out discretion. To respond to constantly increasing administrative needs, administrative agencies tend to be required to take actions with more and more discretionary powers. There exists an essentially serious contradiction, however, because administration by law has been regarded as one of the most important principles of administrative law. To allow administrative agencies to exercise free discretion traditionally meant the creation of a vacuum beyond legal, thus judicial, control. Reconciliation has had to be explored between actual demands and the fundamental principle of the legal state in contemporary settings. This report will first describe the framework of argument concerning judicial control over administrative discretionary actions in Japan. An overview of the standards the court has adopted in reviewing the abusive exertion of administrative powers will be followed by a general analysis of modes of judicial review over administrative actions. This report will discuss the mode of review of the process of decision-making, which has recently been commonly used in judicial examination. It will further provide an overview of the areas where administrative discretion has been commonly recognized. Finally, a number of issues will be mentioned that warrant further discussion and make clear a need to be solved in contemporary Japan.

2 The Framework of Discussion on Administrative Discretion and Judicial Review 2.1

A Historical Overview

Japanese scholarship on administrative law has regarded the principle of administration by law as one of the most important principles of all. Discretion on the part of administrative agencies has been considered an exception to that principle. In this

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discretionary area, administrative agencies may act freely on their policy or administrative judgments.8 It has traditionally been important to distinguish between legally fettered dispositions and discretionary dispositions. When a statute provides for the requirements and effects of an administrative action in clear and unambiguous terms, its legally fettered nature is obvious. An administrative action is easily identified as discretionary, on the other hand, when a statute clearly adopts the terms of free policy or administrative judgments for the requirements and effects of the administrative action. The real question, however, is how to respond to many provisions of statutes categorized somewhere between the two. That is when a statute provides for the requirements and effects of an administrative action by using indefinite concepts such as directions necessary to prevent a mode of conduct that is likely to cause harm to public policy. Traditional scholarship has understood that such indefinite concepts for the requirements and effects of an administrative action do not allow an administrative agency a free hand, but their meaning ought to be objectively determined from the purpose and gist of the statute. When an administrative agency recognizes or conducts action that contravenes this objective standard, the recognition or conduct is considered not just a discretion inappropriate for the purpose but actually illegal. Traditional scholarship has attempted to control administrative actions by appealing to an originally supposed objective standard even when legal provisions seem to authorize free discretion. The concept of controlled discretion has been acknowledged, which is separate from the concept of free discretion that indicates administrative actions left to purely policy or administrative judgments on the part of an administrative agency. Administrative actions are thus distinguished into three categories: legally fettered, controlled discretionary, and free discretionary. The last category alone was regarded as entirely beyond adjudicative control, while the first and second are subject to such control in one way or another. To somehow contain the range beyond the principle of administration by law, traditional scholarship tried to place limitations on free discretion that is understood to be beyond legal control. It argued that an administrative action becomes illegal if it was made beyond the bounds of the administrative agency’s discretionary power or through an abuse of such power. General principles of law such as equality and proportionality are employed for the demarcation of the bounds of discretion and the recognition of its abuse. The judiciary adopted the same approach to free discretionary actions by administrative agencies. This scholarly and judicial interpretation has resulted in legislation. Since 1962, the principles of ultra vires and abuse of discretionary powers have been a statutory provision (Administrative Case Litigation Act, art. 30). Judiciary courts may review administrative actions even based on 8 For the discussions of administrative discretion and its judicial control, see, e.g., Tanaka (1974), pp. 116–120; Shiono (2015), pp. 137–154; Harada (2012), pp. 146–155; Fujita (2013), pp. 96–125, on which Part II of this report mainly relies; Uga (2017), pp. 324–337; Ohashi (2016), pp. 200–216; Watari (2002), pp. 32–46, 292–323; Yamamoto (2006), Yamamoto (2012), pp. 218–310; Fukazawa (2013), pp. 353–369; Hashimoto (2008); Sakakibara (2013); Murakami (2013); Takahashi (2013); Yamashita (2013); Toyoshima (2013); Shimoyama (2013); Watanabe (2013a).

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policy or administrative judgments to search for abusive and excessive discretion. Thus, administrative actions are now subject to judicial control in any case.

2.2

The Functional Approach

The distinction between free and controlled discretion well shows the functional rather than definitional nature of this analysis. As we saw, the analysis presupposes that objective standards essentially exist in even the indefinite concepts used for providing for administrative actions to find discretionary actions abusive or excessive. It may be also said, however, that such objective standards are in fact merely what the judiciary judges to be so. The judiciary simply substitutes its own judgment for an administrative agency’s judgment on public welfare. If that is the case, the issue may then be not what constitutes public good by statute, but whether the court should in a given case be regarded as more appropriate for making a judgment on an issue than an administrative agency. The question may in the end come down to being more procedural than substantive in character. This understanding of relativity in the category reflects an interpretive attitude in which the necessity of judicial control of a given administrative action may be determined from the functional and purposive perspective. The distinction is at first made between controlled discretion and free discretion. Once this relativity is accepted as a matter of the prioritized distribution of power to make a more suitable judgment for the public good, however, the relativity may intrude on the very distinction between legally fettered administrative actions and discretionary actions. When an administrative action belonging to the former needs specialized and technical judgments on the part of an administrative agency, then it might be reasonable to consider that the judiciary should defer to the agency’s judgment instead of replacing it with its own. The result of this reasoning would be that even legally fettered administrative actions, which have been previously regarded as fully controlled by the judiciary, may now in some cases be subject to less exact review, with the judiciary respecting judgments based on administrative specialties. The conceptual distinction among the three administrative actions—legally fettered, legally controlled discretionary, and free discretionary—could then become substantially blurred when trying to recognize, through the distinction, whether to intervene judicially or maintain a hands-off approach regarding the outcome of the administrative decision-making process from the functional and purposive perspectives. The actual issue is eventually whether, to make a proper judgment on the part of the judiciary, allegation and proof in adversary proceedings are sufficient or the special knowledge and skills that administrative agencies have are required. Along this line of thought, the Tokyo District Court in 1963 rendered innovative decisions in three cases consecutively where the issue turned out to be a new approach to judicial control over administrative discretionary actions. One of the cases was about the disposition of taxation in corporation tax, which is traditionally regarded as a typical example of a legally fettered administrative action. In a court

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action for the revocation of the administrative disposition, the Tokyo District Court reviewed only the procedural aspect of the taxation, which meant that the court paid attention to fact-finding and the procedures of the administrative agency in the taxation process, but took no notice of the actual amount of tax assessment (Tokyo District Court Judgment, October 30, 1963 Reishu 14-10-1766). This approach may lead the judiciary to withdraw from a substantive review of administrative actions even with clear statutory foundations to intervene. The other two decisions, meanwhile, show this approach may lead in the opposite direction. These cases were both related to a licensure of operators of the road transportation business in the Road Transportation Act. Because granting of this licensure was traditionally understood as a type of privilege for public corporations, it had, without specific statutory provisions, undoubtedly been classified into a free discretionary administrative action, situated outside of judicial control. The court, however, emphasized the procedural guarantee of people’s rights by appealing to articles 13 and 31 of the Constitution of Japan and argued that administrative actions must be conducted in accordance with the idea of fair procedure. To avoid suspicion of an administrative agency’s arbitrariness in fact-finding, the court required the administrative agencies to follow procedural steps such as a previous notice of standards of screening and fair hearings based on such notice or a proper consultative measure referring to the Transport Council as a consultative body. The Tokyo District Court held that the lack of such procedural steps made the administrative dispositions illegal, and it thus revoked them in both cases (Tokyo District Court Judgments, September 18, 1963 Reishu 14-9-1666; December 25, 1963 Reishu 14-12-2255). The court here, in contrast to the first case, did intervene in free discretionary administrative actions from a procedural perspective, despite the absence of any particular statutory basis. This new approach acted to fortify judicial review of administrative actions without even touching on their substantive content. Academic responses to this approach varied. From the traditional point of view, one may be skeptical of either any judicial control of free discretionary judgments by administrative agencies or no judicial interference even with legally fettered actions. However, this approach has been generally welcomed because the conceptualization of administration has largely changed in a contemporary democracy where the diversified and tangled interests of the parties concerned must be properly arranged according to administrative initiatives. In such circumstances, the process of administration should not necessarily remain the same as the classical one of mere implementation of statute, but include policy-making toward realization of the public good as well. A judiciary on a less democratic foundation should abstain from policing in terms of its substance the administrative process so recognized. Rather, administrative actions should be judicially controlled only from the perspective of whether they satisfy various procedural requirements.

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The Contemporary Baseline of Discussion

The trend this approach shows has been more or less widely shared in administrative law scholarship. Even given that there exists the accepted relativity, it is understood that the distinction in administrative actions between the legally fettered and the free discretionary is a convenient starting point for considering the nature of an administrative action and the degree of judicial control. The question of which criteria to apply to identify a category of administrative actions used to be studiously debated: whether one should pay due attention to the words of statutory provisions or the nature of administrative actions. The thesis of concentrating on the nature of administrative actions has been more influential because priority has been placed on the actual validity of legal interpretation over the formality of logical consistency in Japanese scholarship on administrative law. Minobe Tatsukichi’s thesis of three principles based on the nature of administrative actions have usually been referred to as a category identification criterion: (1) when an administrative action infringes on the rights of people or imposes duties on people, even though a statute seems clearly to allow for utterly free discretion, it should always be interpreted as legally fettered or controlled discretionary action; (2) when an administrative action newly establishes rights for people or bestows benefits on them, except where an unambiguous statutory provision is available, it should basically be interpreted as a free discretionary action; (3) when an administrative action has nothing directly to do with the rights and duties of people, unless a special regulation is legally provided for, it should be basically interpreted as a free discretionary action.9 Because, as we saw above, the practical and functional approach has been commonly accepted, this thesis of three principles has once again been nothing but a starting point for discussion. In considering the nature of a given administrative action, the main current trend has undertaken projects to find an appropriate pattern for distributing role suitability between administrative agencies and the judiciary. Such a project may point toward more articulation of administrative discretion than before. The traditional position has limited its discussion of discretion to requirements and effects. The new direction has extended its analysis to include various elements and stages of the conduct of administrative action by administrative agencies. At the present moment, it is generally understood that when they make a decision, administrative agencies may make discretionary judgments on various elements such as fact-finding; how the facts found are applicable to legal requirements (findings of requirements); choice of a procedure; choice of an action: what disposition is chosen and whether the chosen disposition is made or not; and choice of timing; when is the chosen disposition made?10 More minutely, administrative discretion may be made in the following patterns. Discretion concerning requirements may be split into something like the following 9

Minobe (1929), pp. 152–153. See Shiono (2015), pp. 138–139.

10

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elements: whether there exist specific facts; what the requirements a statute provides for mean; and whether the facts concerned really meet the requirements the statute provides for. The process of decision-making on the part of an administrative agency may also include these elements: what kind of procedure should be taken; whether the procedure was followed; what kind of matter the agency considered; and whether the agency considered the matter. The discretion concerning effects may also be broken down: what kind of disposition was made; when the disposition was made; and whether the disposition was made. In a given case, an administrative agency may make a discretionary judgment of these individual elements, some of which may be under heightened judicial control and others of which may be apt to be adapted to specialty and technicality and therefore more leniently reviewed by the judiciary.11

3 Modes of Judicial Review Over Administrative Actions After the Administrative Case Litigation Act of 1962 was established, as we already saw, even an administrative disposition based on discretion may become unlawful when made beyond the bounds of an administrative agency’s discretionary power or through an abuse of such power and may thus be revoked by the judiciary. Administrative discretionary actions have therefore not escaped from judicial scrutiny but are reviewed in a manner different from that in which legally fettered actions are reviewed. That is to say, there are generally two modes of judicial review over administrative actions: (a) review by the method of replacing an administrative judgment with its own; (b) review of going beyond the bounds of or abusing of discretionary powers.12 When it reviews an administrative agency’s exercise of the power to make a disposition, in the former review (a), the judiciary may first form its own independent judgment from the outset as it takes the same position as the administrative agency did. The judiciary then contrasts its own judgment with that of the administrative agency. If the two outcomes are the same, the judiciary concludes that the administrative action is legal. If they are different, however, the judiciary may hold the administrative action to be illegal, substituting its own decision for that of the agency. This type of review is understood to be more suitable for examining the nondiscretionary actions of administrative agencies. Legally controlled discretionary actions are also apt to be had under this review. This review pays attention to the outcome of reasoning. In adopting this review, the judiciary may consider that the instruments the judicial process is institutionally associated with could well serve to solve the specific pending dispute.

11 12

See Fujita (2013), pp. 115–116. See Sakakibara (2013), pp. 4–5.

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On the other hand, the latter mode of review, (b), is regarded as a mode of reviewing free discretionary actions. This latter mode further divides into two categories: review in the light of socially accepted views, (c), and review of the process of decision-making, (d).13 In the first of the latter modes of review, (c), the judiciary may revoke an administrative disposition only when it is evident that the decision made by an administrative agency significantly lacks appropriateness in the light of socially accepted views. This is apt to be used for the minimum review by which the judiciary tends to show maximum deference to the judgment an administrative agency has made.14 Unlike the previous two modes, which evaluate the outcome of administrative actions, the second of the latter modes (d), tries to pay heed to the process in which an administrative agency has made a decision on discretionary matters in a given case. The judiciary may only double-check the decision-making process on the part of an administrative agency while presupposing it exerts its discretionary powers. Because the norm of conduct for administrative agencies and the norm of controlling administrative discretion for the judiciary are grasped in a unified mode, this review may theoretically also be applicable to legally fettered actions. However, this process-oriented review is now commonly shared for the judicial attempt to control with some degree of intensity free discretionary actions on the part of an administrative agency. This mode of review of the administrative decision-making process will be discussed in more detail below. Here, the three typical modes of judicial review will be represented. The first mode of review, (a), is well represented in the following Supreme Court judgment. Issuing the abovementioned certification is itself an action of confirming the objective fact . . . which is presently or was previously definite as to whether or not the claimant is afflicted with Minamata disease as an objective phenomenon, and it is inappropriate to leave it to the discretion of the administrative agency concerned to make a determination on this point due to its nature. Also . . . it is inappropriate to interpret the subject matter of review by the administrative agency concerned particularly narrowly. Consequently, it is appropriate to construe that a judicial review and determination to be made as to whether or not the determination made by the administrative agency concerned is appropriate should not be made through the approach explained in the judgment in prior instance, that is, from the perspective of whether or not there is something unreasonable, in light of the latest level of medicine, with the 1977 Standards for Determination, which were applied by the administrative agency concerned when making its determination, or whether or not there was any error or omission that must not be overlooked in the process of research, deliberation or determination conducted by the Council for Certification of Pollution-related Health Damage and therefore there was something unreasonable with the determination made by the administrative agency concerned on the basis of said Council’s determination; rather, said judicial review and determination should be made through the approach wherein the court makes a comprehensive examination of the circumstances concerned and the relevant evidence on a case-by-case basis and in light of the rule of thumb, and reviews matters such as whether or not there is any individual causal relationship between individual specific symptoms and the causative substance, thereby making an individual and specific

13 14

See Sakakibara (2013), p. 5; Uga (2017), p. 333. See Sakakibara (2013), and Takagi (2014).

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determination as to whether or not the claimant is afflicted with Minamata disease. (Designation of the Minamata Disease Case, Supreme Court Judgment, April 16, 2013, Minshu 67-4-115)

The second example is representative of the most lenient review: a review from socially accepted views, (c). If an administrative agency adopts rules for the exercise of its discretionary power, such rules are intended to ensure the appropriateness of the decisions of the agency, and therefore, even if a decision were made in contradiction to such rules, in principle, it may generate the problem of appropriateness of the decision, but the decision is not as a matter of course, against the law. Instances where the decision becomes unlawful are limited to cases where the decision was made in excess of the discretionary power granted by law or where there was an abuse of discretion. Only in such cases may the court annul the decision. Article 30 of the Law on Administrative Litigation makes this rule clear. However, since the reason, purpose, and scope of discretion granted by law to an administrative agency differ, and circumstances in which the decision is found unlawful for excess or abuse of discretion vary, each kind of decision has to be examined individually. As far as the decision of the Minister of Justice concerning the existence of a “reasonable ground to acknowledge that the renewal of the period of sojourn is appropriate” is concerned, in the light of the nature of the discretionary power of the Minister as referred to above, it should be regarded as unlawful as excess or abuse of discretion only when it totally lacks factual basis or when it is evident that it significantly lacks appropriateness in the light of socially accepted views. Therefore, the court, when examining and deciding the legality of the above-cited decision of the Minister of Justice, assuming that the decision has been made as an exercise of the discretionary power of the Minister of Justice, must examine whether the factual basis for the decision was totally missing or not, such as in cases where there was an error in the material fact which served as a basis of the decision, or whether it is evident that the decision significantly lacks appropriateness in the light of socially accepted views such as in cases where the assessment of facts was evidently unreasonable. It is reasonable to conclude that only when this is answered in the affirmative, can the decision be found to be in excess of discretion or abuse of discretion and therefore unlawful. (Ronald Allan McLean Case, Supreme Court Judgment, October 4, 1978, Minshu 32-7-1223)

The process-oriented review, the third category, is divided into three subcategories: review of reasonableness of process, formal review, and substantive review.15 The first one is review of reasonableness in the decision-making process, (d-1). When the court examines and makes a determination on a dispute in an action filed to seek revocation of an administrative disposition to grant permission for the installation of reactors, in which the point in dispute is the appropriateness of the defendant administrative agency’s assessment on the safety of the reactor facilities, the court should focus on whether or not there are unreasonable aspects in the assessment that the defendant administrative agency has made on the basis of the expert technical investigation, deliberation and assessment by the Atomic Energy Commission or the Reactor Safety Examination Committee; if, in light of the current science and technology standards, it is found that there are unreasonable aspects in the specific examination criteria employed in that investigation and deliberation, or there are errors or omissions that cannot be overlooked in the investigation, deliberation or assessment process through which the Atomic Energy Commission or the Reactor Safety Examination Committee assessed the relevant reactor facilities to be in

15

See Murakami (2013), pp. 10–13.

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conformity with said specific examination criteria, and the defendant administrative agency is deemed to have relied on these factors when making its assessment, the defendant administrative agency’s assessment should be held to encompass unreasonable aspects, and therefore the administrative disposition to grant permission for the installation of reactors that has been issued based on that assessment should be considered to be illegal. (Ikata Nuclear Power Plant Case, Supreme Court Judgment, October 29, 1992, Minshu 46-7-1174)

The Court paid attention to the reasonableness of the discretionary decisionmaking process on the part of an administrative agency. The second subcategory is the mode of formally reviewing matters considered, (d-2). The measures taken by the Appellant who, without distinguishing the refusal to participate in kendo practice for reasons of religious faith from refusal to attend for unjustifiable reasons, without considering possible alternative measures notwithstanding it is not impossible to offer alternative activities, just resting on the evaluation by the teacher-in-charge and others who did not accredit the said student in P.E., handed down a disposition to retain the student in the same class for another year and furthermore, handed down a disposition to dismiss the student from school, without regard to the main grounds for unsuccessful accreditation and the overall school record of the said student, concluding that it fell under “If an individual has an inferior level of academic ability and is not expected to accomplish his/her studies” set forth in the School Rules pursuant to the Regulations on Promotion, Etc., and the Bylaw on Dismissal because the said student was subjected to being retained in the same class for two consecutive years, fails to take into account the matters to be considered, or obviously falls short of rationally evaluating the facts under consideration; hence, this Court arrives at the ruling that the Appellant handed down dispositions that are lacking in appropriateness compared with the view commonly accepted in society and that are illegal beyond the scope of discretionary authority. (Kendo Refusal Case, Supreme Court Judgment, March 8, 1996, Minshu 50-3-469)

In this case, the Supreme Court combined review from socially accepted views with a formal review of matters considered. A more substantive review of this manner is the following, (d-3). “When the court reviewed appropriateness of the manager’s judgment on whether or not to permit the use of a school facility of a public school for purposes other than its original purpose, according to the Supreme Court, the court should consider, on the assumption that the manager has made the judgment by exercising his discretionary power, whether or not the manager has chosen factors for judgment or made a judgment in an unreasonable manner, and only when the manager’s judgment is not supported by material facts or seems extremely inappropriate according to generally accepted ideas, the court may find the manager’s judgment as going beyond the bounds of discretionary power or constituting an abuse of such power and therefore illegal. In the specific circumstances, the Court has reviewed the process of decision-making on the part of the manager. “Where an employees’ association composed of teachers of public elementary and junior high schools applied for permission for the use of school facilities of a municipal junior high school as venues for the educational study meeting that the association hosted, and then the municipal board of education made a disposition to reject the application on the grounds that the use was likely to cause turmoil at the Junior High School, as well as the surrounding schools and areas, and have adverse effects on elementary school children and students from an educational viewpoint, thereby hindering school education, the disposition of rejection should, given the following facts, be determined as going beyond the bounds of discretionary power: (i) educational study meetings can be regarded not only as the association’s labor movements but also as teachers’ self-training activities; (ii) school facilities had been used as

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venues for all educational study meetings, except one, until the 48th meeting preceding the meeting in dispute; (iii) there was no specific move of right-wing organizations to obstruct the meeting for which the association applied for permission, and the meeting was scheduled on Saturday and Sunday when school was closed; (iv) although the leaflets on educational study meetings and other publications issued by the association contained statements that criticize the official course guidelines, etc., all these statements were written with abstract terms and it cannot be construed that these statements would have become main issues of discussion to the extent that the function of the meeting as a self-training activity would be subordinated; (v) it cannot be denied that there would be a significant difference in terms of convenience for subject-focused sectional sessions of the meeting between the case where school facilities are used and the case where other public facilities are used; (vi) after the principal of the school concerned gave oral consent based on the conclusion at the teachers’ meeting that there was no problem in issuing permission for use, the municipal board of education quoted the past obstruction incidents as examples and instructed the principal not to permit the use, and as a result, the principal made the disposition of rejection.” (Kure Junior High School Case, February 7, 2006, Minshu 60-2-401)

The Court has thus emphasized that the manager’s disposition of rejection was “obviously unreasonable in evaluating the factors concerned, because, for example, it was made by giving so much weight to the factors that should not have been considered important.” “At the same time,” the Court has further said, “the disposition of rejection failed to sufficiently evaluate a factor that should be given much importance. As a result, it became extremely inappropriate from the viewpoint of generally accepted ideas.” The Supreme Court has here combined a review from socially accepted views with a review of the decision-making process to control the exercise of administrative discretionary power.16

4 Standards the Court May Adopt When It Reviews Administrative Actions The mode of review by replacing an administrative judgment is generally understood to be the most rigorous in this judicial review and the mode of review in the light of socially accepted views as the most lenient, while the mode of review of the decision-making process takes its place somewhere between the two, while fluctuating depending on the degree of intensity the judiciary adopts in a specific case. When the court reviews abuse of discretionary actions, the following standards have been applied according to various situations.17

16 Since this judgment, the Supreme Court has often utilized the review mode combining a review from socially accepted views with a review of the decision-making process of administrative discretionary power. See Yamamoto (2016), p. 2. 17 See, e.g., Shiono (2015), pp. 147–149; Uga (2017), pp. 330–332; Ohashi (2016), pp. 210–214; Hitomi (2018), pp. 114–116.

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Errors in Finding Facts

A case of mistaken identity in the action of disciplining a student is a typical example (Supreme Court Judgment, July 30, 1954, Minshu 8-7-1463). The Supreme Court has held that an administrative discretionary decision forms abuse of power and thus becomes unlawful if “the factual basis for the decision was totally missing” “such as in cases where there was an error in the material fact which served as a basis of the decision” (Ronald Allan McLean Case, Supreme Court Judgment, October 4, 1978, Minshu 32-7-1223).

4.2

Purpose Violation or Injustice of Motive

When an administrative action is made with no relation to the purpose or motive provided for by a statute that authorizes an agency to conduct it, the action will be recognized as abusive and thus become unlawful. A disposition concerning the status of public servants is made for maintaining the efficiency of public service and securing its proper operation and is thus different from a disciplinary disposition. The Supreme Court has held that the disposition of demotion was abusive and unlawful when the principal of a public elementary school was demoted to the position of teacher according to the provision of the Local Public Service Act with the motive of punishment (Status Demotion Case, Supreme Court Judgment, September 14, 1973, Minshu 27-8-925). When a prefecture and town established a children’s playground and approved it as a child welfare facility in order to prevent a business corporation from opening an adult entertainment establishment, the Supreme Court held that this approval of a child welfare facility was a serious abuse of administrative power because of injustice of motive (Supreme Court Judgment, May 26, 1978, Minshu 32-3-689).

4.3 4.3.1

Contravention of the General Principle of Law Contravention of the Equality Principle

Even a free discretionary action may not allow an administrative agency to treat a specific individual with discrimination and cause a disadvantage to him/her without any justifiable reason (Supreme Court Judgment, June 24, 1955, Minshu 9-7-930).

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Contravention of the Proportionality Principle

The Supreme Court has affirmed a violation of the proportionality principle in cases of disciplinary action against public officials. Public school teachers who did not comply with official orders issued by the principals of the schools to require them to stand facing the Hinomaru (the national flag) and sing Kimigayo (the national anthem) during the singing of the national anthem in ceremonies such as a graduation ceremony18 and failed to stand during the singing of the national anthem suffered a reduction in pay or were suspended after they were reprimanded for their conduct. In this context, the Supreme Court has already held that the choice of reprimand is constitutional (Supreme Court Judgments, May 30, June 6, June 14, and June 21, 2011, Minshu 65-4-1780; 65-4-2148; Hanji 2123-35). But it has also held that imposing disciplinary action beyond reprimand under the given circumstances is too heavy in terms of the balance between the necessity of maintaining discipline and order in school and the content of disadvantage (Supreme Court Judgments, January 16, 2012, Hanji 2147-127; 2147-139).

4.3.3

Contravention of the Good Faith Principle

A discretionary action may become abusive when such action is considered in the light of the concrete sequence of events and comes to be understood as being against the principle of good faith (Supreme Court Judgment, July 2, 1996, Hanji 1578-51). It is true that the above standards are applicable to legally fettered actions as well. But reviewing the process of decision-making is considered more suitable for examining discretionary actions.

5 Review of the Administrative Decision-Making Process As we have already seen, the third mode, (d), is a process-oriented manner of judicial review. This process-oriented mode of judicial review is now extensively used for controlling administrative discretionary actions. It may be divided into three subcategories: review of reasonableness in the decision-making process, (d-1); formal review of matters considered, (d-2); and substantive review of matters considered, (d-3).19 The court may review rationality or errors and omissions in the process of administrative decision-making, (d-1) (Ikata Nuclear Power Plant Case, Supreme

There is serious doubt about the appropriateness of the current national flag and anthem under the post-World War II constitutional regime, as they have not changed since the old constitutional regime, in which the Emperor was sovereign. The National Flag and National Anthem Act was established without much national debate in 1999. 19 See Murakami (2013), pp. 10–12. 18

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Court Judgment, October 29, 1992, Minshu 46-7-1174; Ienaga Screening School Textbooks First Case, Supreme Court Judgment, March 16, 1993, Minshu 47-53483). The court also tends to focus on the appropriateness of a process of decisionmaking by administrative agencies that is conceptualized separately from the outcome of discretionary judgments. The court often gives heed to matters and elements considered or ignored by the administrative agency in the process, including cases in which the agency has eventually failed to take an action. When it makes a decision, the agency may not have considered what it should have considered, or conversely, may have considered what it should not have considered. In this form of review, the court may take a serious view of the omissions of what should be considered and the considerations of other matters that should not have been essentially considered and then conclude that the administrative action is unlawful. The inappropriateness of the decision-making process may thus be constituted by the error of the administrative agency to have failed to consider what should have been considered and to have considered what should not have been considered (the formal review of matters considered, (d-2) (Status Demotion Case, Supreme Court Judgment, September 14, 1973, Minshu 27-8-925)). The court may further evaluate the weight of matters and elements that the agency has given in the process of consideration. The court may in that examination find the errors in placing more weight on matters that should have been of little importance or underestimating matters that should have been given more weight in the given circumstances and then held that the overstep and abuse of discretionary power have rendered the administrative action unlawful. In this substantial form of the process, the court review may recognize the errors of no fulfillment of consideration on the part of the administrative agency (the substantive review of matters considered, (d-3) (Kure Junior High School Case, February 7, 2006, Minshu 60-2-401)). The areas where the Supreme Court has applied this mode of reviewing the administrative decision-making process have extended to those such as public service acts (the Status Demotion Case, Supreme Court Judgment, September 14, 1973, Minshu 27-8-925); business regulations acts (Ikata Nuclear Power Plant Case, Supreme Court Judgment, October 29, 1992, Minshu 46-7-1174); education law (Ienaga Screening School Textbooks First Case, Supreme Court Judgment, March 16, 1993, Minshu 47-5-3483; Kendo Refusal Case, Supreme Court Judgment, March 8, 1996, Minshu 50-3-469); public domain law (Kure Junior High School Case, February 7, 2006, Minshu 60-2-401); procurement law (Designated Bidding Case, Supreme Court Judgment, October 26, 2006, Hanji 1953-122); land law, city law (Odakyu Case, Supreme Court Judgment, November 2, 2006, Minshu 60-93249); and social welfare acts (the Abolishment of Old-Age Additional Grants Case, Supreme Court Judgment, November 24, 1989, Minshu 43-10-1169).20 This review has targeted mostly administrative dispositions, but also administrative plans and

20

See Murakami (2013), p. 13.

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administrative orders.21 This review tends to be used with a narrow range of administrative discretion, but has recently covered a wider range of discretion. A salient feature of this mode of judicial review, as we already saw, lies in examining the process of decision-making in which an administrative action was made. Since the mode of review from socially accepted ideas and this process-based review have different focus points in reviewing administrative actions, they coexist in theory when a specific administrative action is under judicial scrutiny. The Supreme Court has actually made use of the two types of review in one case where control of discretion was at issue. This mode of review focuses on only the process of decision-making by an administrative agency, not the outcome of that process. Unlike the mode of reviewing outcomes of administrative actions in which the contents are eventually held unlawful, therefore, the same actions may be made through a more appropriate process of decision-making, either a more reasonable process, (d-1), or taking more appropriately matters considered, (d-2), or weighting more appropriately matters considered, (d-3), even if administrative actions are revoked due to errors in the process of making a decision.22 This process-oriented review is adopted to scrutinize various administrative actions with different ranges of discretion.

6 The Areas in Which Administrative Discretion Is Often Recognized and Judicial Review Administrative discretion is usually endorsed when the specialist knowledge and skills of administrative agencies are necessarily highly respected to achieve administrative ends. There are several areas in which judicial deference to administrative decision-making is specially required and actually recognized.

6.1

Education

Disciplinary action by schools against students is widely understood as belonging to a principal’s discretion. According to the Supreme Court, the judgment of principals is important because they are well versed in the actual conditions within the school and are directly in charge of school management. The Court has usually resorted to the following reasoning. It should be left to the rational, educational discretion of principals whether to take disciplinary action against a student, and, if so, what kind of disciplinary disposition is to be taken. When it comes to examining the propriety 21 22

See Yamamoto (2016), pp. 15–23. See Murakami (2013), pp. 13–14.

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of such a disposition, the Court should not discuss the relevant disposition in terms of propriety, severity, and the like by determining whether or not the relevant disposition should have been handed down from the principal’s standpoint and comparing the findings from such a determination with the relevant disposition; rather, they ought to judge it illegal provided a disposition taken through the exercise of discretionary authority by the principal is found to have no foundation in fact or to be lacking in appropriateness compared with the view commonly accepted in society, and taken beyond the scope of discretionary authority or by way of abusing discretionary authority. Actual dispositions taken against students by principals are unlikely to be unlawful under this formula (Supreme Court Judgment, July 30, 1954, Minshu 8-7-1463). Even in a case possibly concerning the freedom of political expression of students at a private university, the Court rejected a constitutional argument because no governmental relationship was involved, and it recognized the broad discretionary judgment of the president of a university (Showa Women’s College Case, Supreme Court Judgment, July 19, 1974, Minshu 28-5-790). The Kendo Refusal Case was thus exceptional in that, as we have already seen, the Court reviewed the process of making a decision and found in the student’s favor, therefore concluding that the administrative dispositions were unlawful. In its reasoning, the Court considered that because dismissal of students from the school is the most serious measure of discipline, “the disposition should be chosen only if it is deemed unavoidable to expel the relevant student from school from the educational viewpoint, and in determining the requirements therefor, utmost care should be taken involving yet more prudence than when other types of disposition are chosen.” The Court may place weight on the serious reason behind the student’s refusal to participate in kendo practice, closely related to the core of his faith. Even though the Court never mentioned the student’s freedom of religion directly, religious freedom may be understood to have mattered when the Court reviewed the decision-making process by the principal (Kendo Refusal Case, Supreme Court Judgment, March 8, 1996, Minshu 50-3-469).

6.2

Matters Related to Public Officials

Matters related to the status of public officials also depend on a wide range of administrative discretion. The case of the status of public officials has already been mentioned. Disciplinary actions are usually reviewed in the light of socially accepted views. Administrators of disciplinary action may have discretionary power to decide whether and what kind of disciplinary action should be taken in taking into account various factors. The reasoning the Court has adopted is basically the same as in school-related disciplinary cases. The administrators’ judgment should be respected because they are well versed in the actual conditions within the office on a daily basis and are in charge of supervising subordinate officials. In assuming the exercise of the wide discretion of administrators, the Court has usually examined it with the view

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commonly accepted in society (Kobe Customs Case, December 20, 1977, Minshu 31-7-1101). As we saw earlier, the Supreme Court has sometimes appealed to the principle of proportionality to control discretionary judgment in disciplinary actions. This approach might have been adopted because the disciplinary actions essentially derived from the official order to stand and sing Kimigayo (the national anthem) could somewhat indirectly constrain an individual’s freedom of thought and conscience, although the official order is deemed to be permissibly necessary and reasonable. The Court may scrutinize discretionary disciplinary actions with special caution and has prevented excessive discipline (Supreme Court Judgment, January 16, 2012, Hanji 2147-127).

6.3

Areas of Immigration Control and Diplomacy

The Supreme Court has reviewed administrative discretion with more intensity than it would apply from the perspective of socially accepted views in a case where the Minister of Foreign Affairs refused to issue a passport because there were reasonable grounds for the Minister to find that the person was likely to take an action that would cause significant and direct harm to national interests and the security of Japan (Hoashi Kei Case, September 10, 1958, Minshu 12-13-1969). In sharp contrast, the Court has adopted the review of discretionary actions with socially accepted views in cases concerning immigration control for foreigners. The McLean Case is a typical example of the loosest degree of judicial review (Supreme Court Judgment, October 4, 1978, Minshu 32-7-1223). The Court has admitted a wide range of discretionary judgment for the Minister of Justice because the Minister, “when deciding whether the renewal of the period of sojourn should be allowed or not, must consider not only the appropriateness of the application by the foreign national in question, the entire behavior of the foreign national, political, economic and social circumstances within Japan as well as the international situation, diplomatic relations, international comity and other circumstances from the viewpoint of the maintenance of public security and good morals in Japan, ensurance of health and hygiene, stability of the labor market and other interest of the state which are the purpose of immigration control and regulation of sojourn of foreign nationals, and make a timely and accurate decision.” The different degree of intensity of review may derive from a distinction in the protection of constitutional rights. While constitutional freedom to go abroad may exist for Japanese citizens, foreigners are generally understood to have no constitutional right to enter Japan. In addition, diplomatic matters are understood to fall under a wide range of administrative discretion. The Supreme Court has adopted the political question doctrine in the case of disputing a violation of the Special Criminal Law enacted in consequence of the Administrative Agreement under Article III of the Security Treaty between Japan and the United States of America (Sunakawa Case, Supreme Court Judgment, December 16, 1959, Keishu 13-13-32259); and in the case of

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disputing the validity of the dissolution of the House of Representatives (Tomabeji Case, Supreme Court Judgment, June 8, 1960, Minshu 14-7-1206). Evidence of wide administrative discretion can be found in the provision of the Act on Access to Information Held by Administrative Organs (Act No. 42 of May 14, 1999). The Act has set exceptions to disclosure in this area, including “Information for which there are reasonable grounds for the head of an Administrative Organ to find that disclosure is likely to cause harm to national security, cause damage to the relationship of mutual trust with another country or an international organization, or cause a disadvantage in negotiations with another country or an international organization” (art. 5 (iii)). In this formula, the court has little chance to intervene in administrative decisions.

6.4

Area of Treatment of Inmates and Detainees

It is necessary to strike a balance between achieving the appropriate management and administration of penal detention facilities and providing adequate treatment of inmates and detainees with respect to their human rights and in accordance with their respective circumstances. The freedoms of inmates and detainees may be to a certain degree restricted for the essential purpose of physical restraint. The Supreme Court has justified the restriction of the pre-judgment freedom of detainees to read newspapers for the purpose of maintaining discipline and order after resorting to the constitutionally limited interpretation of the fairly broad provisions of the Prison Law and the Prison Law Enforcement Order. Under circumstances in which detainees involved in public safety cases have very frequently committed violent actions against discipline and order in the detention house, the Court has held, the decision made by the head of the detention house to delete all articles in the newspapers available in the detention house that addressed the hijack case, which was committed by students belonging to the Red Army, cannot be deemed illegal. To reach this conclusion, the Court reviewed the discretionary judgment of the head of the detention house to a less rigorous degree. Issues such as “whether or not there is a high likelihood that trouble would occur to the extent that should not be left unsolved for the purpose of maintaining prison discipline and order if the reading of newspapers or books were permitted, and the contents and degree of the restriction measure to prevent such trouble, should largely depend on a discretionary decision made on a case-by-case basis by the head of the prison, who is well versed in the actual conditions within the prison and directly in charge of prison management.” Considering the specific circumstances, the Court has reasoned, reasonable grounds can be found for the determination made by the head of the detention house, and the determination cannot be deemed to go beyond the bounds of the discretion allowed to the head in deciding the content and degree of necessary restriction or constitute an abuse of such discretion (Deletion of Newspaper’s Articles on the Yodo-go Hijack Incident Case, Supreme Court Judgment, June 22, 1983, Minshu 37-5-793). Although freedom of expression is relevant in this case, it may be a decisive element

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that the subjects of the freedom were detainees in a penal institution who were situated largely differently from ordinary citizens. The Supreme Court has, however, held unlawful the determination by the head of a prison based on a provision of the Prison Law to prohibit a detainee from sending a letter because the head failed to consider the detainee’s inclinations and behavior and the managerial situation and maintenance of public order of the prison. The Court said that the head of the prison also failed to consider that under the specific circumstances, there was a risk of causing disruption of discipline and order in the prison by sending the letter and of hindering adequate pursuance of correctional treatment for the sentenced person by sending the letter, and so on. The Court outlined the many factors the head had failed to consider (Supreme Court Judgment, March 23, 2006, Hanji 1929-37). The Court may here understand the discretionary authority to be narrow.

6.5

Areas Where Reference to Specialist Knowledge and Skills Is Especially Required

There actually exists a necessity to respect institutional judgments by specialists of science and technology because judges are generally laypersons in the field. Administrative dispositions to grant permission for the installation of reactors are a typical representative of these areas. In the Ikata Nuclear Power Plant Case, the Supreme Court has recognized a wide discretion in administrative judgment. When the court examines and makes a determination on a dispute in an action filed to seek revocation of an administrative disposition to grant permission for the installation of reactors, in which the point in dispute is the appropriateness of the defendant administrative agency’s assessment on the safety of the reactor facilities, the court should focus on whether or not there are unreasonable aspects in the assessment that the defendant administrative agency has made on the basis of the expert technical investigation, deliberation and assessment by the Atomic Energy Commission or the Reactor Safety Examination Committee; if, in light of the current science and technology standards, it is found that there are unreasonable aspects in the specific examination criteria employed in that investigation and deliberation, or there are errors or omissions that cannot be overlooked in the investigation, deliberation or assessment process through which the Atomic Energy Commission or the Reactor Safety Examination Committee assessed the relevant reactor facilities to be in conformity with said specific examination criteria, and the defendant administrative agency is deemed to have relied on these factors when making its assessment, the defendant administrative agency's assessment should be held to encompass unreasonable aspects, and therefore the administrative disposition to grant permission for the installation of reactors that has been issued based on that assessment should be considered to be illegal.

This “errors that cannot be overlooked” standard of judicial review derives from the Court’s recognition that “[i]t is appropriate to construe that the purpose of this provision is to, in consideration of such [deliberate] characteristics of the examination on the safety of reactor facilities . . ., leave the issue of conformity to the criteria provided in these items to the reasonable assessment to be made by the Prime

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Minister while respecting the opinion based on scientific, expert technical knowledge of the Atomic Energy Commission, which consists of persons with knowledge and experience in the relevant specialized fields” (Ikata Nuclear Power Plant Case, Supreme Court Judgment, October 29, 1992, Minshu 46-7-1174). Even in the case concerning a nuclear plant where a sodium leakage accident occurred, the Court has further showed high deference to specialized knowledge and experience in the field of nuclear technology. “Determination on what matters are included in the scope of matters concerning safety of the basic design of a nuclear plant which should be subjected to the safety examination for granting permission for the establishment of a nuclear reactor should be regarded to constitute the determination on the compliance with the standards set forth in [the article] of the Law concerning the Regulations of Nuclear Material Substances, Nuclear Fuel Substances and Nuclear Reactors, and the competent minister is authorized to make a reasonable judgment on it, while giving due consideration to opinions of the Nuclear Safety Commission based on scientific and technical knowledge.” The Court has adopted the “errors that cannot be overlooked” standard and held that it cannot be said that there were errors that could not be overlooked in the investigation and deliberation and the determination process in the safety examination (Fast Breeder Reactor Monju Case, Supreme Court Judgment, May 30, 2005, Minshu 59-4-671). This standard of “errors that cannot be overlooked” was also applied to the disposition by the Minister of Education in the system of screening school textbooks based on the School Education Act (art. 51, art 21 para.1). Screening and judgment regarding the Authorization under these statutes is conducted and made from various perspectives such as whether or not the content of the textbook submitted upon application is academically accurate, whether or not it is neutral and fair, whether or not it is appropriate for achieving the goals, etc., of the relevant subject, and whether or not it is suited to the stage of physical and mental development of students. As these actions thus involve a technical judgment on academic and educational matters, they should be, due to the nature of the matters, left to the reasonable discretion of the Minister of Education. Consequently, it is appropriate to construe that in cases where, in the course of making decisions (including provision of the Council’s opinions) regarding whether to accept or reject the textbook or whether conditions should be imposed, and if so, what conditions should be imposed, when having the textbook pass the screening, the Textbook Authorization Research Council has made an error that cannot be ignored regarding the understanding of the content of the descriptions in the draft or the circumstances surrounding academic views or education at the time of screening for authorization based on which defects are indicated, or the assessment of the textbook as being in violation of the Former Authorization Standards, and where the Minister of Education is deemed to have made a decision based on the Council’s erroneous report, the minister’s decision is deemed to be beyond the scope of his/her discretion and therefore illegal under the State Redress Act. (Ienaga Screening of School Textbooks First Case, Supreme Court Judgment, March 16, 1993, Minshu 47-5-3483)

As a result, the Supreme Court has in this case held that “it may be possible to affirm its conclusion that the Council’s opinions cannot be deemed to contain an error that cannot be ignored” and that “it cannot be said that the Minister of Education, when making the decisions on authorization in question, went beyond

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the scope of his/her discretion” and that the Minister “went beyond the scope of his/her discretion in violation of the principle of equality and the principle of consistency” as well. However, the Supreme Court has in fact admitted that “in the process of giving the opinion for amendment to the effect that the draft description in question should be deleted in whole by reason that it was too early to address the matter in a textbook, the Minister of Education made a considerable error in understanding the circumstances surrounding academic views at the time of the Examination and judging the draft description to be in violation of the Old Examination Standards, and went beyond the bounds of his/her discretionary power illegally” (Ienaga Screening of School Textbooks Third Case, Supreme Court Judgment, August 29, 1997, Minshu 51-7-2921).

6.6

Administrative Inaction: The Failure to Exert Administrative Discretionary Power

Statutes authorize administrative agencies to exercise their discretionary power to take proper measures to respond to various needs in specific circumstances. The exercise of discretionary power should be thus neither excessive nor too little. To allow administrative discretion has been traditionally understood as the complete freedom of agencies to act or not. An administrative agency was thus considered under no obligation to act with discretion of effects. In this understanding, administrative inaction would never become unlawful. However, a gradual change has been recognized in academic circles toward an interpretation that even inaction with discretion of effects could sometimes lead to administrative abuse and thus unlawfulness. There are two major explanations. One is called the theory of discretion contraction. Discretion of effects should be understood as equipped with a certain range of action, the range varying according to the situation. At some point, administrative discretion may contract to zero, and an agency would thus have to act. This situation would make administrative inaction unlawful. Another is named the theory of negative abuse of discretionary power. Administrative inaction that is significantly unreasonable could constitute being in excess of discretion or abuse of discretion and therefore unlawful. The Supreme Court has recognized the possible unlawfulness of administrative inaction with significant unreasonableness. It has held that administrative inaction would not be unlawful unless in light of the tenor and purpose to authorize governors and others to make a supervisory disposition their inaction is found to be significantly unreasonable (Supreme Court Judgment, November 24, 1989, Minshu 43-10-1169).

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Administrative Legislation

The enactment of the Administrative Procedure Act (Act No. 88 of November 12, 1993) has provided the judiciary with a footing for intervening in administrative discretionary decisions and intensifying the degree of its scrutiny. The Act has established this “by providing for common rules concerning procedures for dispositions, administrative guidance and notifications, and procedures for establishing Administrative Orders to improve fairness and transparency . . . with regard to administrative operations, and thereby to promote the protection of the rights and interests of the public” (art.1). It has ordered administrative discretion in a procedural perspective so that administrative agencies are now “to establish review standards” and “must endeavor to establish disposition standards” that are “as concrete as possible in light of the nature of the particular permission, etc., in question” or “of the particular Adverse Disposition in question” and that they have to endure to make both standards available to the public (arts. 5 and 12). Thanks to this Act, a court may examine the reasonableness of the review or disposition standards administrative agencies have established and made public and of their application to actual cases. The court may also evaluate the reasonableness of the outcomes of the decisionmaking process in which administrative agencies have applied or failed to apply the standards. What used to be understood as a matter of propriety and beyond judicial reach has now become a legal issue the court may well adjudicate. In the case of seeking revocation of an administrative disposition to suspend a business, the Supreme Court has in fact examined the nonapplication of already established administrative standards as part of controlling the decision-making process by using the Administrative Procedure Act. In light of the wording, purpose and other aspects of the provisions of the Administrative Procedure Act as mentioned above, the disposition standards that are to be established and made public under Article 12, paragraph (1) of said Act should be considered to be established and made public not merely for promoting the administrative agencies’ convenience in administrative operations but also for ensuring fairness and transparency in the process of determining an adverse disposition and contributing to protection of the rights and interest of the person to be subject to such disposition. Consequently, in cases where the disposition standards that an administrative agency has established and made public under said paragraph provide for adverse treatment, that is, raising the grade of a subsequent disposition to a person on the grounds that the person has received an earlier disposition, if the administrative agency treats a person in a manner inconsistent with what is provided for in the disposition standards, such treatment would be considered to go beyond the bounds of the administrative agency’s discretion or constitute abuse of such discretion, unless there are special circumstances where treating said person in such a manner should be judged to be appropriate from the perspective of meeting the requirement of fair and equal treatment in the exercise of discretion and protecting the confidence of the person subject to the disposition toward the content of the standards. In this meaning, the administrative agency is bound to exercise its discretion in accordance with the disposition standards when rendering the subsequent disposition, and if a person who has received a disposition is later to be subject to another disposition, the grade of the subsequent disposition may be raised as prescribed in the disposition standards, unless there are such special circumstances as mentioned above. (Supreme Court Judgment, March 3, 2015, Minshu 69-2-143)

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The administrative process includes the establishment of administrative orders implementing statutes or as delegated legislation. The recent development of scholarship in administrative law has extended discussion on discretion to establishing administrative orders. Judicial control of the decision-making process on the part of an administrative agency may cover discretionary judgments of administrative rulemaking. The Supreme Court had indeed reviewed the process of decision-making in revising the Standards for Public Assistance (the Abolishment of Old-Age Additional Grants) under the Public Assistance Act (Public Notice of the Ministry of Health and Welfare No. 158 of 1963). Based on the specific facts, the Court has held that the Minister of Health, Labour and Welfare should not be considered to have overstepped the scope of his discretionary power or abused such power when making judgments that provided a basis for the revision (Abolishment of Old-Age Additional Grants Case, Supreme Court Judgment, February 28, 2012, Minshu 66-31240).

7 Conclusion As we have seen, there are three types of judicial review over administrative actions: replacement of judicial judgment with administrative judgment, (a); reviewing administrative actions from the viewpoint of socially accepted ideas, (c); and reviewing the process of decision-making, particularly the demonstration of the exercise of administrative discretionary power, (d). While the first type of judicial review is connected to tightened control over legally fettered administrative actions, the second and third types of judicial review anyway presuppose administrative discretion. The second type is generally understood as a loose review of the judiciary, whereas the third type is believed to be a judicial tool used for closely examining discretionary actions. As Supreme Court judgments have clearly shown, however, they are not exclusive to each other. The judiciary may examine both the outcome the second type pays attention to and the process the third type analyzes. Although the process-oriented review has become prevalent, the court may resort to different modes of review when it examines the administrative decision-making process: review of reasonableness in the decision-making process, (d-1); formal review of matters considered, (d-2); and substantive review of matters considered, (d-3). It is necessary to clarify when or in what cases the court tends to adopt which specific mode of review. It may be said that it is one thing for the judiciary to follow the particular decision-making process and examine whether there are errors and omissions in the investigations and considerations in the process, but it is another for it to examine whether matters considered turn out to be matters that should not have been considered or matters that were excessively considered, or, conversely, whether matters that were not considered turn out to be matters that should have been duly considered. It is necessary, furthermore, to articulate standards to differentiate which mode of review should be adopted. Several elements may be relevant: the availability of advisory councils of specialists in a given field, the desirability of decision-

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making in the judicial process, the appropriateness of revoking original judgments and remanding them to administrative agencies with judicial opinions, procedural aspects of the administrative decision-making, and so on. Because review of the decision-making process coexists with scrutiny of different degrees of intensity, moreover, it is pivotal to identify with which degree of intensity the court may scrutinize the administrative decision-making process in particular cases. Lenient, intermediate, or vigorous judicial review may depend on a judicial evaluation of how reasonable the administrative process was, how much weight should be placed on the matters considered, and so on.23 In connection with this, another important issue of the judicial control of administrative discretion is to clarify which factors should be considered or ignored and how seriously the factors considered should be taken in a particular case. It is said that pursuing a process-oriented review more thoroughly tends to approach the replacement review and that there is a fear that a free area based on administrative discretion might thus disappear.24 When the court evaluates the process of decisionmaking, autonomous administrative judgments may be undermined by resorting to general principles like equality and proportionality too greatly, without their commonly shared meanings.25 The judiciary often places a reservation on general interpreting standards, such as by pointing out “unless there are special circumstances,” and it may thus be important to make definite the “special circumstances” in a specific case that an administrative agency must consider in its decisionmaking.26 The next step may therefore include the articulation of functions of constitutional and legal norms in the process of decision-making. The role constitutional rights may play in judging administrative discretion should also be made clear. One general assumption is as follows: If constitutional rights are involved in administrative actions, judicial review will intensify. But the actual degree of judicial review has not necessarily corresponded with this assumption. It is necessary to clarify how constitutional rights influence administrative discretionary judgment and how the judiciary may examine the process of administrative decision-making on matters relevant to constitutional rights.27 As for judicial deference to administrative expertise, the appropriateness of a lenient review has been a particularly serious issue since the Fukushima First Nuclear Plant disaster following the Great East Japan Earthquake of March 2011. The government, the nuclear industry, academia, and the judiciary have all lost

23 See, e.g., Kawakami (2006), pp. 11–13; Miura (2008), Tsuneoka (2008), Sakakibara (2013), pp. 6–8; Murakami (2013), pp. 14–15; Yamamoto (2016), pp. 10–11; Uga (2017), p. 333. 24 See Kawakami (2006), pp. 15–16; Yamamoto (2016), p. 12. 25 See Yamamoto (2006), p. 15; Takagi (2010), p. 2077; Takahashi (2013), and Yamamoto (2016), p. 11. 26 See Yamamoto (2016), pp. 22–23. 27 See, e.g., Shishido (2009), Nagata (2013), Watanabe (2013b), Yamamoto (2016), pp. 11–13; Sakakibara (2018).

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popular confidence because together they seem to have consciously or unconsciously promoted the myth of the safety of nuclear power plants. The political, administrative, and judicial processes should be wholly reevaluated from the perspective of what has been done in this area. A more proper mode of judicial review is being earnestly sought over this area in this complicated and diversified society to harmonize judicial intervention founded on the idea of justice and administrative actions based on the specialized knowledge, experience, and skills that are necessary to realize policies for the public welfare. To create and implement them, administrative agencies should make the most of the information that has accumulated in their hands in a state that is required to take care of the social and economic issues of its people. It is administrative agencies that should and can realistically take initiatives in such policy realization. An appropriate degree of intensity of judicial review over administrative discretionary actions may eventually depend on conceptualizing a proper division of the roles the judiciary and administrative agencies should play in a liberal democracy. In Japan, the judiciary has traditionally played a minimal role in realizing liberal democratic values,28 while administrative agencies have overwhelmingly led public policies with the dominant political party and business circles. The traditional policy of making people submit but not be informed still tends, intentionally or unintentionally, to have an influence on the administrative decision-making process in particular and the political process in general. Gradual changes have been recognized, to be sure, through legislative responses such as the enactment of the Administrative Procedure Act in 1993, establishment of the Act on Access to Information Held by Administrative Organs in 1999, revision of the Administrative Case Litigation Act in 2004, and the entire amendment of the Administrative Complaint Review Act in 2014. It is necessary, however, to reconsider a judicial role in materializing the public welfare in this complicated and diversified society. This comprehensive reform can be expected to face serious difficulties. But the presence of transparency in the administrative decision-making process may at least enhance their accountability to the citizenry. Pursuing transparency may well fall under the range of the work of the judiciary. In this respect a more elaborate mode of judicial examination would make the process of administrative discretionary actions more transparent, accountable, and articulate.

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Tsuneoka T (2008) Sairyo ken koshi ni kakaru gyosei tetsuduki no igi (Significances of administrative procedure regarding exercise of discretionary powers). In: Isobe T et al (eds) Gyoseiho no shinkoso II Gyosei sayo, gyosei tetsuduki, gyosei jyoho ho (New conceptions of administrative law II Laws of administrative operation, administrative procedure, and administrative information). Yuhikaku, Tokyo, pp 235–267 Uga K (2017) Gyosei ho gaisetsu I Gyosei ho soron (Administrative law text, vol. 1, General theories), 6th edn. Yuhikaku, Tokyo Uga K (2018) Gyosei ho gaisetsu II Gyosei kyusai ho (Administrative law text, vol. 2 Administrative remedy law), 6th edn. Yuhikaku, Tokyo Watanabe S (2013a) Jitsumuka kara mita gyosei sairyo (Administrative discretion from the viewpoint of a legal practitioner). Horitsu jiho 85(2):41–47 Watanabe Y (2013b) Kenpo jo no kenri to gyosei sairyo shinsa (Constitutional rights and judicial review of administrative discretion). In: Hasebe Y et al (eds) Gendai rikkenshugi no shoso (Various phases of modern constitutionalism) vol 1. Yuhikaku, Tokyo, pp 325–366 Watari T (2002) Koeki to gyosei sairyo (The public interest and administrative discretion). Kobundo, Tokyo Yamamoto R (2006) Nihon ni okeru sairyoron no henyo (Transformation of theories of discretion in Japan). Hanrei jiho 1933:11–22 Yamamoto R (2012) Hanrei kara tankyu suru gyosei ho (Administrative law explored through judicial precedents). Yuhikaku, Tokyo Yamamoto R (2016) Gyosei sairyo no handan katei tosei (Judicial review of arguments for administrative discretionary decisions). Gyosei ho kenkyu (Rev Adm Law) 14(2016):1–24 Yamashita R (2013) Sairyo kijun no sairyosei to sairyo kiritsusei (The discretionary and regulatory nature of standards of discretion). Horitsu jiho 85(2):22–28

Norikazu Kawagishi is Professor of Constitutional Law at the Faculty of Political Science & Economics and Law School of Waseda University. He received his B.A and M.A. from Waseda University and LL.M. and J.S.D. from Yale University. His research interests mainly concern freedom of expression, the judiciary and judicial review, constitutionalism, and comparative constitutional law. His publications include “The Judiciary” and “Freedom of the Press,” in Max Planck Encyclopedia of Comparative Constitutional Law, Oxford University Press on line; “Toward a More Responsive Judiciary: Courts and Judicial Power in Japan,” in Asian Courts in Context, Cambridge University Press, 2014; “The Japanese Supreme Court: An Introduction,” National Taiwan University Law Review, Vol. 8 March 2013; “The Birth of Judicial Review in Japan,” International Journal of Constitutional Law, vol.5 April, 2007; Chusyaku Nihonkoku Kenpo, dainikan (Japanese Constitutional Law Annotated, Vol.2) (co-authored), Yuhikaku, 2017; “Riberaru demokurashi to saibansho: ikenshinsa no kasseika nimukete (Liberal Democracy and Courts: Toward Revitalized Judicial Review)” in Kenpo no Songen: Okudaira kenpogaku no keisho to tenkai (The Dignity of Constitutionalism: Themes from the Constitutional Philosophy of Yasuhiro Okudaira), Nihonhyoronsha, 2017; Kenpo (Constitutional Law) (co-authored), 4th edition, Serin Shoin, 2016; Rikkenshugi no Seijikeizaigaku (Political Economy of Constitutionalism) (ed.), Toyokeizai Shinposha, 2008.

Deference to the Administration in Judicial Review: The Case of the Netherlands Tom Barkhuysen and Michiel L. van Emmerik

Abstract 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.

1 Introduction 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. If the court engages in an

The text of this contribution was finalized on 30 October 2018. This contribution will also be published in: L.P.W. van Vliet (eds.), Netherlands Reports to the Twentieth International Congress of Comparative Law, Fukuoka 2018, Wolf Legal Publishers: Oisterwijk 2018, pp. 23–35 and was also presented at the Conference on Judicial Review in the Administrative State at Tilburg University on 19 January 2018 and will be published in the conference book under the same title. T. Barkhuysen (*) · M. L. van Emmerik Leiden University, Leiden, The Netherlands e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_14

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in-depth, intensive review, it may be accused of wrongly encroaching on the administration’s territory and thus failing to observe the division of duties desired under constitutional law—in doing so, it would usurp the function of the administration. On the other hand, if it acts with restraint, it may be accused of offering inadequate legal protection. Thus, the development of this doctrine reflects a continuous search for a proper balance. In the Netherlands, additional factors include the structure of the system of legal protection, the influence of the European Convention on Human Rights (ECHR) and the law of the European Union (EU law), as will become clear in this contribution. 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? Consequently, another important aspect of the judiciary’s role—its relationship with the legislature and legislation—will not be addressed.1 Still, the legislature does have a key role in determining the judiciary’s position in relation to the administration. After all, when powers are being conferred to administrative bodies, it is often the legislature that defines the scope those bodies have to exercise the powers in question. For example, the legislature may confer policy-making discretion on an administrative body, meaning that this body itself may, in principle, decide whether or not to make use of a particular power. Or, it may confer assessment discretion, enabling the administrative body itself to determine whether a jurisdiction requirement has been met,2 for instance in cases where the existence of a ‘threat to public order’ is a prerequisite for the use of a certain power. For our discussion of ‘deference’, we have opted for a chronological approach that is preceded by a brief outline of the development of the system of legal protection against the government in the Netherlands. The following topics will be addressed in sequence: an introduction to the Dutch system of legal protection against the government (Sect. 2), the development of the doctrine on the basis of the 1949 Supreme Court judgment in Doetinchem (Sect. 3), the requirements for judicial legal protection against government decisions set in 1985 by the European Court of Human Rights in Benthem (Sect. 4), the General Administrative Law Act as the green light for further development of the doctrine with harmonising effect on various subareas of administrative law (Sect. 5), and the conclusion, with an outlook for the future (Sect. 6). It should be noted at the outset that this is an outline discussion.

1

See in this regard Uzman (2010), pp. 423–468. Cf. Van Angeren et al. (2014). Klap (2014) draws a distinction between various vague standards: those that entail a weighing of interests, those that demand an evaluation of future events, those that require specific expertise and those with a supranational character, as well as combinations thereof. 2

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2 The Dutch Context: The System of Legal Protection Against the Government3 In the Netherlands, the early twentieth century was marked by debate on the issue of who could best offer legal protection: the administration or the judiciary. In 1905, Minister of Justice Loeff submitted legislative proposals aimed at introducing a general administrative law Act. These proposals met with fierce opposition, notably from the famous constitutional law scholar Struycken. In his classic essay ‘Administratie of rechter?’ [Administration or Judiciary?],4 he argued that the control of administrative actions by an independent judiciary was fairly pointless. In this ‘modern’ time of parliamentary democracy, primary control of the administration had to be exercised by Parliament, not by a judge appointed for life. Moreover, he was of the opinion that the judiciary could not control administrative actions in an in-depth manner, asserting that the court lacked the expertise to do so. Due to the many, broad discretionary powers at the administration’s disposal, a review based ‘on the law’ would have little significance. After all, the law attached few specific requirements to those discretionary powers which decisions had to satisfy. If the court were to review beyond the law, it would encroach on the duties of the administration and disrupt the separation of powers. ‘The court may not usurp the function of the administration.’ In Struycken’s view, society would be better off if the actions of administrative bodies were to be reviewed by the administration itself, in the form of an administrative appeal. Such an appeal involves the dispute being resolved by the administration itself, often by a higher administrative body. Conversely, Loeff took the view that the administration should not be responsible for approving its own actions. Rather, in a state under the rule of law, the administration had to be subject to control by an independent judiciary. In order to strengthen that independence, he proposed increasing judges’ salaries and bringing jurisdiction under the ordinary court (and not a separate administrative court). To date, this discussion has not resulted in the Netherlands making a choice of principle between an administrative appeal and an independent judiciary. This means that the debate regarding the division of duties between the administration and the judiciary is long-standing and still ongoing, and that general administrative adjudication did not get off the ground until a relatively late stage. As regards individual Acts, Parliament did venture to take the step of appointing a special administrative court as the competent adjudicating body as regards certain types of decision, but the step towards an administrative court that could rule on all administrative decisions was only taken at a late stage (and has still not been taken completely). Although a few special administrative law tribunals were established as from around 1900, administrative appeal (legal protection within the administrative pillar) remained an important form of legal protection.

3 4

Parts of this section have been extracted from Barkhuysen et al. (2014b). Struycken (1910).

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Appeal to the Crown was a special form of administrative appeal, which ultimately involved the dispute being resolved by Royal Decree (signed by the King and countersigned by a Minister). Appeal to the Crown was applied in many different types of dispute, including environmental disputes. The Council of State played a key role in appeals to the Crown, because the entire process took place before the Administrative Dispute Department of the Council of State. While the Crown had the power to depart from the Council of State’s advice, it did so only sporadically. Furthermore, there were additional conditions attached to this so-called ‘contrarian approach’. These matters were regulated in legislation such as the Administrative Decisions Appeal Act (Wet Beroep administratieve beschikkingen). Compared with other European countries, the appeal to the Crown formed an exceptional remedy. The Netherlands was firmly convinced that an appeal to the Crown offered a unique and valuable form of legal protection. However, as evident from the Benthem case (to be discussed below in Sect. 3), the Netherlands was ultimately corrected on this point by the European Court of Human Rights. And so, the Dutch system of administrative adjudication developed step by step. In the beginning, the main rule was legal protection by the administration. However, over the course of time it became increasingly common to set up and appoint adjudicating tribunals that were competent to adjudicate on particular legislation, resulting in a system of numerous special adjudicating tribunals. A few tribunals were allocated so many duties that they became large, guiding courts. The Appeals Tribunals adjudicated on many areas of social security law. Subsequently, citizens could appeal to the Central Appeal Tribunal, a tribunal that also acquired public service jurisdiction and that has now existed for over a century. After the Second World War, the Trade and Industry Appeals Tribunal was established to deal with economic administrative law. In due course, this tribunal also acquired an important function as appeal court. In tax disputes, the competent court is traditionally the ordinary court (the tax divisions at the District Courts, Courts of Appeal and the Supreme Court). With the implementation of the Administrative Decisions (Appeals) Act (Wet administratieve rechtspraak overheidsbeschikkingen) in 1976, the Council of State was designated as the ‘general’ administrative court. As a result, in addition to the appeal to the Crown, the Council of State also acquired a process in which it was to act as a court, and thus did have jurisdiction to render the final judgment in a dispute. If a citizen could not submit his decision to a special administrative court, the Council of State’s Jurisdiction Division heard the appeal as the general administrative court. This court was thus presented with all manner of disputes, regarding decisions by, for instance, the Municipal Executive, Provincial Executive and the Minister. The civil court has continued to play a supplemental role in this fragmented system. In the early twentieth century, the Supreme Court held that the State, provinces, municipalities, water authorities, etc., as (public law) legal entities, could act unlawfully (Article 6:162 of the Dutch Civil Code). The civil court has jurisdiction to take cognisance of proceedings based on unlawful act in the absence

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of a judicial process under administrative law with sufficient safeguards.5 If there was a judicial process under administrative law in which the citizen could present his complaint regarding unlawful act, the civil court acknowledged that it had no role to play and declared the citizen’s claim inadmissible. If the citizen could not avail himself of the administrative court (because, for example, his litigation did not concern a ‘decision’), the civil court took on the case. In this way, the civil court began to provide supplementary legal protection, and case law emerged on the division of duties between the civil and administrative courts. And, with all the different judicial processes and case law on the allocation of jurisdiction, a varied patchwork of forms of legal protection against the government arose. Notably, in light of all of the above, the Netherlands does not have any constitutional court. Indeed, the courts are prohibited from assessing primary legislation against the Constitution. However, this is largely compensated by the fact that the courts—more specifically, all courts regardless of their position in the judicial structure—can and must assess against convention provisions such as those from the ECHR and EU law.6 For more than a decade now, administrative adjudication in the Netherlands has been increasingly focused on final dispute resolution.7 As a rule, the court can no longer limit itself to merely annulling an administrative decision; it must use all available means to resolve the dispute as definitively as possible. For example, administrative courts are increasingly inclined to consider whether a new decision by the administration is still necessary. If that is the case, the courts attempt to elaborate on what the parties will have to do after the judgment, before the administration renders a new decision replacing the annulled decision. This, too, means looking for a proper balance between definitive judicial dispute resolution on the one hand and respecting administrative discretion (in terms of policy-making and assessment) on the other. In the Explanatory Memorandum to the article in the General Administrative Law Act that urges the court to resolve the dispute before it as definitively as possible (Article 8:41a of that Act), consideration is also given to the limits of constitutional law in this regard. It states that the court will settle the case and does not have to confine itself to annulment and referral to the administrative body: “if and in so far as its constitutional position and the available information permit this.”8 Here too, then, in a sense it concerns an issue in the area of deference.

5

Cf. Supreme Court 31 December 1915, NJ 1916, p. 407 (Guldemond-Noordwijkerhout). See further Uzman et al. (2010). 7 See, in particular, Polak et al. (2014). 8 Kamerstukken [Parliamentary Documents] II 2009/10, 32450, no. 3, p. 55. 6

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3 The Development of the Doctrine on the Basis of the Supreme Court Judgment in Doetinchem Having sketched the context of the Dutch system of legal protection against the government, we can now focus in more detail on the development of the doctrine of deference. Before 1949, there was no clarity in Dutch case law regarding the issue of whether, and if so to what extent, a court is entitled to review the administration’s policy choices. Some argued that courts should not be permitted to concern themselves with this area at all due to their respective constitutional positions and that legal protection in this respect would only be possible within the administrative pillar (administrative appeal). Others took the view that the court—being independent from the administration—should indeed be able to play a role. This in fact echoes the old discussion between Loeff and Struycken as described above. In a case prompted by a housing requisition by a municipality based on an emergency law designed to solve the most acute housing shortage after the Second World War, the Supreme Court got the opportunity to clarify the matter. A mentally ill married couple was confronted with such a requisition for the billeting of their house. They lodged an objection to this before the court, based on their mental vulnerability. The municipality defended itself with the argument that the legislature had given it full discretion to requisition a house and that such a decision was deemed to be efficient. The couple argued that in their case, partly in view of their special position, the decision would have entirely disproportionate effects. The lower courts found for the couple and accepted that there had been abuse of the law in the case in hand. The municipality appealed to the Supreme Court, taking the position that, in making such a finding, the lower courts had wrongly encroached on its discretionary policy-making powers. The Supreme Court overruled the judgments of the lower courts and introduced the arbitrariness formula. This means that the court must respect the administration’s discretionary powers in terms of its policy-making and assessment, and permits the court to intervene only if there is an “arbitrary act”. According to the Supreme Court, this is the case if “the requisitioning authority, when weighing the relevant interests, could not reasonably have arrived at a requisition, and no weighing of those interests must therefore be deemed to have been made.”9 Thus, loosely translated, the Supreme Court held that the court is not permitted to intervene if it itself is of the opinion that a decision is not reasonable or is disproportionate, but may only do so if a reasonable man could never have reached the decision in question. The background to this approach is the relationship between the judiciary, the legislature and the administration, in which the judiciary is considered to have the least democratic legitimacy. Incidentally, the Supreme Court ultimately decided in this case that the prohibition against arbitrariness had not been infringed and thus found for the municipality.

9

Supreme Court 25 February 1949, NJ 1949/558 (Doetinchem housing requisition).

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The origin of this approach is not absolutely certain. However, it is assumed that the Supreme Court partly drew its inspiration from the English Wednesbury case law that began in 1948.10 In Wednesbury, the English court introduced a test of reasonableness with regard to administrative decisions. Based on the Doetinchem-judgment, it subsequently became established case law of the civil courts and the administrative courts11 that courts must perform a limited review of government decisions if the issue at hand is whether the administration made a policy choice that is legally acceptable when weighing the relevant interests, or has correctly interpreted vague standards.12

4 Intermezzo: The European Court of Human Rights Demands Judicial Legal Protection Against Government Decisions in Benthem As stated, the Netherlands was firmly convinced that an appeal to the Crown referred to in Sect. 2 offered a unique and valuable form of legal protection. Mr. Benthem contested this and lodged a complaint with the European Court of Human Rights to the effect that the Crown was not an independent and impartial tribunal established by law within the meaning of Article 6 ECHR. The European Court of Human Rights found in favour of Benthem in 1985.13 That was a remarkable judgment in two respects. Firstly, it transpired that a dispute regarding an environmental permit (in those days a ‘Nuisance Act Licence’, fell within the concept of ‘civil rights and obligations’ from Article 6 ECHR. Whether the national system qualifies a certain act as coming under ‘administrative law’ or ‘private law’ is thus not decisive. The European Court of Human Rights gave its own interpretation to the concept ‘civil rights and obligations’, resulting in administrative law largely falling under the safeguard of Article 6 ECHR. Consequently, a form of independent and impartial administration of justice in accordance with Article 6 ECHR had to be introduced to deal with the acts of administrative bodies. Secondly, it emerged that the Dutch appeal to the Crown did not meet the European requirements for independent and impartial administration of justice, because the Crown is part of the administration.

10 Associated Provincial Picture Ltd. v Wednesbury Corp. [1948] 1 K.B. 223. Cf. Groenewegen (2014). 11 Council of State’s Jurisdiction Division, 23 October 1979, AB 1980/198 (St. Bavo). 12 Cf. Van Wijk et al. (2014), pp. 332–337; De Waard (2016); Schlössels and Zijlstra (2017), pp. 374–375. 13 European Court of Human Rights 23 October 1985, AB 1986/1, annotated by E.M.H. Hirsch Ballin, NJ 1986, 102, annotated by EAA (Benthem t. Nederland); see also Barkhuysen and van Emmerik (2016), AB-Klassiek [Classic Judgments in Administrative Law] 2016/8, Deventer: Kluwer.

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Following this judgment, the appeal to the Crown was abolished and appeal to the independent (administrative) court was ultimately made available in all cases. It may be concluded that the Benthem judgment profoundly changed legal protection against the government in the Netherlands. This judgment also offers a safeguard against the judicial control of administrative actions being abolished or restricted once again. The fact that this is necessary became evident, for example, from the proposals made by a working group of administrators who opposed the juridification of public administration.14 Since then, there have been increasing calls for restriction of judicial control, in particular with regard to infrastructural projects that are said to suffer too much delay as a result of this control.15 However, thanks to Benthem, it is established that this control must be maintained and that solutions for any resulting problems must be sought within that framework.16 A committee that considered the future of legal protection against the government, commissioned by the Administrative Law Association (Vereniging voor Bestuursrecht) fully endorsed this principle and made proposals for enhancing this legal protection within the Benthem preconditions. They paid a great deal of attention in this regard to improving the dispute resolution capacity of administrative procedural law and argued that the court itself should more often resolve the matter, whether or not after the administration has been given the opportunity via a so-called administrative loop to rectify any shortcomings in a decision.17 This report formed the prelude to the amendments to administrative procedural law that have meanwhile been implemented. As the appeal to the Crown in fact performed outstandingly in terms of its dispute resolution capacity, it proved a source of inspiration for the report and the amendments. However, it must be avoided that the administrative court is in fact increasingly forced to usurp the administration’s function. However, the Strasbourg case law also offers a safeguard in this respect, with Albert Benthem as a ‘standard bearer’.

5 The General Administrative Law Act As the Green Light for Further Development of the Doctrine with Harmonising Effect on Various Subareas of Administrative Law With the implementation of the General Administrative Law Act in 1994, the Supreme Court’s adoption of limited judicial review in Doetinchem came briefly under scrutiny once again. That was triggered by the codification of the principle of

14

Bestuur in geding [Judging the Administration], Haarlem 1997. Cf. Koeman (2008), no. 4. 16 Cf. van Angeren (2009), pp. 1–11. 17 Administrative Law Association Committee on Legal Protection 2004. 15

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proportionality in Article 3:4(2) of the General Administrative Law Act, which provides that “the adverse consequences of a decision for one or more interested parties may not be disproportionate to the objects to be served by the decision”. The District Court of Roermond construed this to mean a standard directed to the court whereby it had to review itself the proportionality of the decision placed before it, for the grant of consent for the construction of a store. According to the District Court, the new Article 3:4(2) of the General Administrative Law Act was intended to break with the established case law on limited review. However, the Administrative Jurisdiction Division immediately corrected this on appeal in 1996: “this provision, directed to the administration, was not intended by the legislature to intensify judicial review (. . .)” and “(. . .) the aim was to prompt restraint by the court when reviewing the weighing of interests by the administration”. And furthermore: “the District Court should have limited itself to the question of whether the weighing of the relevant interests was so disproportionate that it must be concluded that the appellants (...) could not reasonably have come to the decision to grant the exemption requested.”18 In other words, a return to Doetinchem, albeit with an exception, by reason of Article 6 ECHR, for punitive administrative sanctions on which the court itself is required to rule without restraint on proportionality.19 As regards punitive administrative sanctions, the Administrative Jurisdiction Division held as follows: “Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which applies to the imposition of a penalty such as the once concerned here, entails that the court must review, without restraint, whether the penalty imposed by the Minister in the specific case is in accordance with the principle of proportionality.”20 Another period then commenced in which this line of case law encountered relatively little resistance and in which the administrative court made particular efforts not to encroach on the administration’s territory in situations involving discretionary powers with regard to policy-making and assessment. This approach even gained an additional (theoretical) basis in the literature.21 Remarkably, in environmental-law matters the Administrative Jurisdiction Division of the Council of State still performed a full review up to 1998. This was a legacy from the time of the appeal to the Crown, a form of administrative appeal to a higher administrative body where the problem with constitutional relationships that was encountered by the independent court did not apply. Even after the abolition of this appeal to the Crown as a result of the Benthem judgment discussed above, and appeal to the administrative court was made available in environmental disputes, the 18

Administrative Jurisdiction Division of the Council of State, AB [Judgments in Administrative Law] 1997/93, AB-Klassiek [Classic Judgments in Administrative Law] 2016/22, annotated by B.W.N. de Waard (Deventer: Kluwer 2016) (Maxis and Praxis). 19 Administrative Jurisdiction Division of the Council of State, 4 June 1996, JB 1997/172, (Huisman/APK). See further M.L. van Emmerik and Saris (2014). 20 Administrative Jurisdiction Division 27 January 2010, AB [Judgments in Administrative Law] 2010/48, annotated by O.J.D.M.L. Jansen. 21 By Daalder and Schreuder-Vlasblom (2000), pp. 214–221.

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practice of intensive review remained guiding for quite some time. Until that time the Administrative Jurisdiction Division effectively determined what was in the interest of a good living environment, which was at odds with the practice in other legal areas such as planning and zoning law. The Administrative Jurisdiction Division finally put an end to this untenable special position in a judgment that was dubbed Die Wende by analogy with the developments in Germany around the fall of the Berlin Wall.22 The Division held: “The respondent has a certain assessment discretion, which is limited, inter alia, by what ensues from the most recent generally accepted environmental insights”. The judicial review of the acts or omissions of supervisory authorities under administrative law is restrained in accordance with the points outlined above as well. According to the Supreme Court, bearing in mind the extensive discretionary powers in terms of its policy-making and assessment that are vested in those supervisory authorities, and given the risk in question and the circumstances of which the supervisory authority was aware, the question to be answered by the court is whether the supervisory authority could reasonably have adopted the policy as regards control and supervision (in the event of general supervisory failures), or could have arrived at the acts in question (in the event of specific supervisory failures). According to the Supreme Court, courts must conduct a limited review of such matters, with due observance of all interests, the circumstances at the time in question and the knowledge at that time. In other words, it is not about determining in hindsight whether a different decision would have been better.23

6 Conclusion, with an Outlook for the Future: After Harmonisation, Moving Towards Differentiation and a Greater Focus on Proportionality, but with Limits Due to the Specific Expertise of the Administration 6.1

Moving Towards Differentiation and a Focus on Proportionality

It is only in recent years that this established case law has been seriously called into question once again, but this time the arguments seem to resonate more than before. It has been argued that, based on the requirement of effective legal protection, it is necessary for the administrative court to conduct a more intensive review, certainly

22

Administrative Jurisdiction Division of the Council of State, 21 April 1998, AB [Judgments in Administrative Law] 1998/199, annotated by G. Jurgens (Die Wende). See on this topic Leemans (2008). 23 Cf. Supreme Court 13 October 2006, ECLI:NL:HR:2006:AW2077 (Vie d’Or); Supreme Court 21 November 2014, ECLI:NL:HR:2014:3349 (AFM-DSB); Supreme Court 2 June 2017, ECLI:NL: HR:2017:987 (Zalco).

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when fundamental rights are at issue.24 A court that exercises too much restraint would also create the risk of an administration devoid of responsibility and lax in its exercise of due care in the knowledge that the court allows much leeway. These signals have been cautiously picked up in the case law, but only as regards non-punitive administrative sanctions with a major impact, such as in the context of integrity screening that could lead to the refusal and/or withdrawal of permits.25 In addition, reference may be made to a judgment of the Administrative Jurisdiction Division regarding a decision on the maximum amount of natural gas to be extracted in Noord-Nederland, which decision was taken by the Minister on the basis of a discretionary power. In view of the possible earthquake risks and the associated dangers for residents, the Division intensified its review in comparison with previous judgments. It did so primarily by giving additional focus to the proportionality and proper substantiation of the decision.26 Under the influence of the ECHR and EU law (the Procedure Directive), immigration law has seen review intensify as well. The Administrative Jurisdiction Division held as follows: “It follows from the above that the administrative review of the State Secretary’s position regarding the credibility of an account of the reasons for requesting asylum has a mixed character if a foreign national’s account of the reasons for requesting asylum rests partly on statements and suppositions that are not substantiated with evidence. Most aspects and elements of a decision can be reviewed by the administrative court in terms of whether the State Secretary correctly took the position he adopted. If the State Secretary has decisionmaking discretion on aspects and elements of a decision, specifically when assessing the credibility of a foreign national’s statements and suppositions that are not substantiated with evidence, the administrative court will have to review whether the State Secretary did not wrongly take the position that the account of the reasons for requesting asylum lacked credibility, albeit that in that case too the administrative court must review the care taken in and reasons given for the decision-making of the State Secretary when exercising that decision-making discretion. Consequently, the judicial review of a position of the State Secretary regarding the credibility of an account of the reasons for requesting asylum will be more intensive than before the entry into force of Article 46(3) of the Procedure Directive.”27 However, for the time being there has not been a fundamental change of course across the full spectrum of administrative law. Such change may be at hand, though: Hirsch Ballin—former President of the Administrative Jurisdiction Division— received much support for his preliminary advice, issued as a publication of the Administrative Law Association, entitled ‘Dynamiek in de bestuursrechtspraak’ 24

Barkhuysen et al. (2014a). Administrative Jurisdiction Division of the Council of State, 25 April 2012, AB [Judgments in Administrative Law] 2012/207 (Public Administration (Probity Screening) Act [Wet bevordering integriteitsbeoordelingen door het openbaar bestuur]. 26 Administrative Jurisdiction Division of the Council of State, 18 November 2015, AB [Judgments in Administrative Law] 2016/82, annotated by Bröring & Brouwer. 27 Administrative Jurisdiction Division of the Council of State, 13 April 2016, AB [Judgments in Administrative Law] 2016/195, annotated by M. Reneman. 25

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[Dynamics in Administrative Adjudication], which he defended in 2015 and in which he pleaded for a more active role for the administrative court in a broad sense. Hirsch Ballin advocated abandoning the Doetinchem approach whereby discretionary powers conferred in terms of its policy-making and assessment automatically imply limited discretion by the court. Instead, he propounded a more balanced approach in which the intensity of the review is determined by considering the nature of the legal relationship and the weight of the relevant interests (including fundamental rights) of the parties involved. In his view, contemporary changes in constitutional relationships—particularly the insufficient democratic legitimacy of the administration as a result of the reticent, sometimes careless legislature, as well as the need for an administrative court that solves those disputes and keeps the legislature on its toes—require the judicial attitude to be adjusted accordingly. Otherwise, the administration actually operates too much within a ‘legal lacuna’, according to Hirsch Ballin. In the debate with Hirsch Ballin, Polak (the then President of the Administrative Jurisdiction Division) stated that the present formulation of limited discretion may require amendment in light of these points. Hirsch Ballin’s oral arguments, which were revolutionary in a sense, deserve to be followed-up. In so far as possible, administrative courts should have to render their own ruling on the question of whether a decision is reasonable and proportionate. Furthermore, it is important to ensure that this does not only take place in a semantic sense. The administrative court will have to actually understand the substance of a dispute before rendering its own ruling and definitively resolving the dispute. In this way, an important boost is given to the quality of administrative adjudication in terms of workmanship, justice and effectiveness, thus increasing its legitimacy. As for the intensity of review, a tailored approach will be required, depending on the interests involved, and the assessment of proportionality will become more prominent. Depending on the circumstances of the case, a proper balance must thus be found between the respect that the court should have for the administration’s discretionary powers in terms of policy and assessment on the one hand, and the interest of the interested parties in not having their interests affected to a disproportionate degree on the other.28 Inspiration may be drawn in this respect from EU law, in which there has been a differentiated approach regarding the intensity of review for quite some time. Determining intensity is not a matter of ‘all or nothing’ (full review or limited review) but entails a tailored approach depending on the nature of the legal relationship and the weight of the relevant interests of the parties involved.29 Reference may be made once more at this point to a new issue in the area of deference, namely where the limits lie as regards the administrative court’s power,

28 Cf. Administrative Jurisdiction Division of the Council of State, 26 October 2016, AB [Judgments in Administrative Law] 2016/447, annotated by Bröring (proportionality of the application of policy rules). 29 Cf. Gerards (2007), pp. 73–113; Ortlep and Zorg (2016), pp. 1–18. See further, in the vein of comparative law, Ranchordás and de Waard (2016).

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once a decision has been annulled, to settle the dispute itself without referring the matter back to the administration. In this respect, too, the limits relate to the constitutional position of the administration and the judiciary. But here, too, it is noticeable that in recent years the judiciary has become more inclined to deem itself able to do so.30 The advisory opinion of Advocate General Widdershoven in the so called Purmerend-case (that also deals with liquified petroleum gas) is a further step in this direction. This opinion argues that a more intensive review of generally binding regulations is necessary to provide effective legal protection. According to this conclusion the intensity of the review should depend on the (personal) impact of the application of the regulation at hand. Especially when fundamental rights are at stake there is less room for deference.31 Also within the area of the EU free movement of services based on the Services Directive, recent case law has led to a stricter review.32 A higher level of scrutiny is thus required when restricting the free movement of services. Important to consider is the broad interpretation of the concept of “services” used by the CJEU when determining the scope of the Directive, also extending to, for example, the restriction of retail trade through municipal zoning plans. This case law has been elicited by the Administrative Judicial Division of the Council of State with a request for a preliminary ruling concerning the Appingedam case.33 Any such restrictions have to be non-discriminatory, necessary (meaning justifiable on the ground of an overriding reason relating to the public interest) and proportional (meaning the measures are suitable for securing the attainment of the objective pursued, they do not go beyond what is necessary to attain that objective and that this objective cannot be attained through other, less restrictive measures with the same result). These conditions go beyond what was previously required under Dutch law and this ruling is expected to also have a consequential effect outside of environmental and planning law.

6.2

But with Limits, Due to the Necessary Expertise

At the same time, there is another reason why—apart from the constitutional position of the judiciary and its tenuous democratic legitimacy—it may be necessary to exercise restraint in judicial review: namely, where the court lacks sufficient expertise. The ever-increasing complexity of the administration’s duties is reflected in

30

Cf. Verheij (2013). ECLI:NL:RVS:2017:3557. Cf. de Poorter and Capkurt (2017). A request for a preliminary ruling from the CJEU has been made by the the Administrative Jurisdiction Division of the Council of State. 32 Court of Justice of the European Union 30 January 2018, ECLI:EU:C:2018:44. 33 Administrative Jurisdiction Division of the Council of State 20 June 2018, ECLI:NL: RVS:2018:2062. 31

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growing professionalisation within government, and it is becoming more and more difficult for the judiciary to keep abreast of these developments.34 These matters also have implications for the extensive case law of the European Court of Human Rights on ‘full jurisdiction’, which is also highly relevant for Dutch legal practice in this respect. Based on this right of ‘full jurisdiction’ acknowledged in the case law of the European Court of Human Rights (referred to as ‘organe judiciaire de pleine juridiction’ in the judgments (also) rendered in French), the national court must have jurisdiction to examine all issues of fact and of law that are relevant to the dispute. In this respect, expressly no distinction is drawn between questions of law and questions of fact, both of which may be equally crucial to the outcome of the dispute.35 The court must be able to form its own opinion on both issues, and must not automatically rely on their valuation by other authorities (in particular the administration), let alone be bound by such. For example, in the Dutch Terra Woningen case, the European Court of Human Rights held that the fact that the subdistrict court in the case in hand had not formed an opinion of its own regarding possible soil pollution but had relied solely on the decision of the Provincial Executive in this regard was contrary to this aspect of the law on access to a tribunal from Article 6 ECHR.36 According to the case law of the European Court of Human Rights, this right to ‘full jurisdiction’ forms an essential characteristic of the right of access to a tribunal from Article 6(1) ECHR and applies to all proceedings falling within the scope of Article 6 ECHR, in other words to all proceedings that entail the determination of civil rights and obligations or of any criminal charge. While the court is thus not permitted to blindly follow the administrative decision, in the case law the question often concerns the extent to which the court may rely on the decision of the administration. Although restrictions on judicial control of the administrative finding of fact may be at odds with Article 6 ECHR,37 they are not automatically impermissible.38 There does have to be a convincing ground that justifies such restrictions, such as the nature of the substantive area of law and the administrative discretion associated with it, and the specialised nature of the finding of fact. It is important in this respect that the administrative finding of fact took place 34

Scheltema (2015), pp. 803–818. See, for example, European Court of Human Rights 23 June 1981, NJ 1982/602 (Le Compte, Van Leuven & De Meyere v Belgium), par. 51. The following passages are partially extracted from Barkhuysen and van Emmerik (2017). 36 European Court of Human Rights 17 December 1996, NJCM-Bulletin 1997, p. 617 et seq., annotated by M.L.W.M. Viering (Terra Woningen BV v the Netherlands). See also, for example, European Court of Human Rights 13 February 2003, AB [Judgments in Administrative Law] 2004/ 52, annotated by B.W.N. de Waard (Chevrol v France). 37 Widdershoven et al. (2001), p. 37. Cf. Barkhuysen et al. (2007), p. 104 and the case law there cited. 38 See, in particular, European Court of Human Rights 22 November 1995, Series A. vol. 335A (Bryan v United Kingdom), and for confirmation of the Bryan line: European Court of Human Rights 7 November 2000, AB [Judgments in Administrative Law] 2003/25, annotated by L.F.M. Verhey (Kingsley v United Kingdom), confirmed in European Court of Human Rights 28 May 2002 (judgment of the Grand Chamber). 35

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in—quasi-judicial—specialist administrative preparatory proceedings with sufficient safeguards.39 Therefore, the restrictions on judicial control of the administrative finding of fact must in any case never be so far-reaching that the court relies entirely on the decision of the administration. After all, that would mean in fact that the interested party would have no access to the court on that point. In the context of the judicial proceedings, it must be possible to conduct a debate regarding the correctness of the administrative finding of fact and the manner in which it was reached. As evident from the case law of the European Court of Human Rights, the complete exclusion of such is unacceptable.40 Pursuant to the right to a fair trial protected by Article 6 ECHR, the court will have to take an active approach as regards calling witnesses who can shed light on the crucial facts for the resolution of the dispute.41 In addition, the court cannot automatically rely on an expert engaged by the administrative body. It must attempt to restore the balance (in the context of the ‘equality of arms’) between the parties in some other way, for example by enabling the interested party to enter expert evidence to the contrary, or, if that is not possible for financial or other reasons, by engaging an expert itself.42 In this way, the court can keep a ‘finger in the pie’ as regards the specialised finding of fact by the administration and safeguard the principle of equality of arms between the parties as required by Article 6 ECHR. Thus, the division of duties between the administration and the court as regards findings of fact for which a certain expertise is required also involves the search for a good balance and an approach that is tailored to the situation. Here, too, there seems to be a growing inclination amongst the judiciary to take a more active role than in the past, particularly under the influence of EU law and the ECHR. In view of all these dynamics, it may be concluded that, for the Netherlands in any event, the decision to put the doctrine of deference on the agenda was a fortunate one.

References Barkhuysen T, Van Emmerik ML (2016) AB-Klassiek [Classic judgments in administrative law]. Kluwer, Deventer

39 European Court of Human Rights 22 November 1995, Series A vol. 335-A (Bryan v United Kingdom); Widdershoven et al. (2001), pp. 34–38. 40 Cf. Schuurmans (2005), pp. 290–292; Kuipers (1996), pp. 97–112. See the judgments European Court of Human Rights 17 December 1996, NJCM-Bulletin 1997, p. 617 et seq., annotated by M.L.W.M. Viering (Terra Woningen BV v the Netherlands) and European Court of Human Rights 13 February 2003, AB [Judgments in Administrative Law] 2004/52, annotated by B.W.N. de Waard (Chevrol v France). 41 European Court of Human Rights 15 March 2016, AB [Judgments in Administrative Law] 2016/ 132, annotated by T. Barkhuysen & M.L. van Emmerik (Gillissen v the Netherlands). 42 European Court of Human Rights 8 October 2015, AB [Judgments in Administrative Law] 2016/ 167, annotated by T. Barkhuysen & M.L. van Emmerik (Korosec v Slovenia).

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Barkhuysen T, van Emmerik ML (2017) Europese grondrechten en het Nederlandse bestuursrecht. De betekenis van het EVRM en het EU-Grondrechtenhandvest [Fundamental European Rights and Dutch Administrative Law. The significance of the ECHR and the EU charter of fundamental rights]. Kluwer, Deventer Barkhuysen T, Damen LJA, De Graaf KJ, Marseille AT, Den Ouden W, Schuurmans YE, Tollenaar A (2007) Feitenvaststelling in beroep, (derde evaluatie van de Awb) [Fact finding on appeal (Third Evaluation of the General Administrative Law Act)]. Boom Juridische Uitgevers, The Hague Barkhuysen T, Van Emmerik ML, Van Ettekoven BJ, Mul V, Stijnen R, De Werd MFJM (2014a) Adequate rechtsbescherming bij grondrechtenbeperkend overheidsingrijpen [Adequate legal protection regarding Government Intervention restricting fundamental rights]. Kluwer, Deventer Barkhuysen T, De Kruif C, Schuurmans YE, Den Ouden W (2014b) Bestuursrecht in het Awb-tijdperk [Administrative Law in the era of the General Administrative Law Act]. Kluwer, Deventer Daalder EJ, Schreuder-Vlasblom M (2000) Balanceren boven nul [Balancing above zero]. NTB [Dutch J Admin Law] 4:214–221 De Poorter JCA, Capkurt F (2017) Rechterlijke toetsing van algemeen verbindende voorschriften [Judicial review of generally binding regulations]. NTB [Dutch J Admin Law] 10:1–15 De Waard BWN (2016) Leerstukken van bestuursprocesrecht [Principles of administrative procedural law]. Wolters Kluwer, Deventer Gerards JH (2007) Het evenredigheidsbeginsel van art. 3:4 lid 2 Awb en het Europese recht [The principle of proportionality from Article 3:4(2) of the General Administrative Law Act and European Law]. In: Barkhuysen T et al (eds) Europees recht effectueren [Effectuating European law]. Kluwer, Alphen aan den Rijn, pp 73–113 Groenewegen FT (2014) De intensiteit van de rechterlijke toets in Engelse Judicial Review procedures. In: Klap AP, Groenwegen FT, Van Angeren JR (eds) Toetsing aan vage normen door de bestuursrechter in het Nederlandse, Duitse, Engelse en Franse recht: preadvies voor de Nederlandse Vereniging voor Rechtsvergelijking. Wolf Legal Publishers, Oisterwijk Klap AP (2014) Rechterlijke toetsing aan vage normen in Nederland en Duitsland. In: Klap AP, Groenwegen FT, Van Angeren JR (eds) Toetsing aan vage normen in het Nederlandse, Duitse en Franse recht: preadvies voor de Nederlandse Vereniging voor Rechtsvergelijking. Wolf Legal Publishers, Oisterwijk Koeman NSJ (2008) Versnelling in het bestuursprocesrecht [Acceleration in Administrative Procedural Law]. M en R [Environ Law] 35:227–230 Kuipers AJ (1996) Het recht op ‘full jurisdiction’ [The right to full jurisdiction]. In: Vucsán RL (ed) De Awb-mens: boeman of underdog? [The General Administrative Law Act Man: Bogeyman or Underdog?]. Damen bundle. Ars Aequi Libri, Nijmegen Leemans TC (2008) De toetsing door de bestuursrechter in milieugeschillen [Review by the Administrative Court in environmental disputes]. (diss. Leiden). Boom Juridische Uitgevers, The Hague Ortlep R, Zorg W (2016) Marginale rechterlijke toetsing onder druk: een voortgaande tred vooruit? [Limited review under pressure: continuous steps forward?]. In: Ortlep et al (eds) De rechter onder vuur [The Court under fire]. Wolf, Oisterwijk, pp 1–18 Polak JEM, de Moor-Van Vugt A, Schlössels RJN, Verheij N, Widdershoven RJGM (2014) VAR-Commissie rechtsbescherming, De toekomst van de rechtsbescherming tegen de overheid, Van toetsing naar geschilbeslechting [Administrative Law Association Committee on legal protection, the future of legal protection against the Government]. Boom Juridische Uitgevers, The Hague Ranchordás S, De Waard BWN (eds) (2016) The judge and the proportionate use of discretion, a comparative study. Routledge, Abingdon

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Scheltema M (2015) De Hoge Raad en het algemeen belang [The Supreme Court and the public interest]. In: Schlössels RJN et al (eds) De burgerlijke rechter in het publiekrecht [The Civil Court in Public Law]. Kluwer, Deventer, pp 803–818 Schlössels RJN, Zijlstra SE (2017) Bestuursrecht in de sociale rechtsstaat [Administrative Law in the Social State under the rule of law]. Kluwer, Deventer Schuurmans YE (2005) Bewijslastverdeling in het bestuursrecht, Zorgvuldigheid en bewijsvoering bij beschikkingen [Division of the Burden of proof in Administrative Law, due care and the provision of evidence in respect of decisions]. (diss. VU). Kluwer, Deventer Struycken AH (1910) Administratie of rechter [Administration or judiciary]. Gouda Quint, Arnhem Uzman J, Barkhuysen T, Van Emmerik ML (2010) The Dutch Supreme Court: a reluctant positive legislator? In: Van Erp S, Van Vliet L (eds) Netherlands Reports to the Eighteenth International Congress of comparative law. Intersentia, Antwerpen, pp 423–468 Van Angeren JAM (2009) Mensenrechten en onafhankelijke bestuursrechtspraak [Human Rights and Independent administrative adjudication]. In: Barkhuysen T, Van Emmerik ML, Loof JP (eds) Geschakeld recht [Linked law]. Kluwer, Alphen aan den Rijn Van Angeren JR, Groenewegen FT, Klap AP (2014) Toetsing aan vage normen in het Nederlandse, Duitse en Franse recht: preadvies voor de Nederlandse Vereniging voor Rechtsvergelijking. [Review against vague standards in Dutch, English and French law: preliminary advice Netherlands Association for the Judiciary]. Wolf Legal Publishers, Oisterwijk Van Emmerik ML, Saris CM (2014) Evenredige bestuurlijke boetes [Proportionate administrative penalties], (Preliminary advice VAR). Boom, The Hague Van Wijk HD, Konijnenbelt W, Van Male R (2014) Hoofdstukken van bestuursrecht [Chapters on administrative law]. Kluwer, Deventer Verheij N (2013) Van grensrechter naar geschilbeslechter, een evolutie in de Nederlandse bestuursrechtspraak (preadvies voor de Vereniging voor de Vergelijkende Studie van het recht van België en Nederland) [From Linesman to dispute adjudicator, an evolution in Dutch Administrative Jurisdiction (preliminary advice for the Association for the comparative study of the law of Belgium and the Netherlands)]. Boom, The Hague Widdershoven RJGM, Willemsen PA, Schlössels RJN, Stroink FAM, Ten Berge JBJM, Bok AJ, Voermans WJM, De Waard BWN (2001) Algemeen bestuursrecht 2001: hoger beroep [General Administrative Law 2001: appeal]. Bju, The Hague

Tom Barkhuysen is an Amsterdam, the Netherlands, based lawyer and partner at Stibbe and acts for companies, developers and public bodies, such as municipalities, provinces, education and other public institutions, representing them in negotiations and before the Dutch and European courts. He holds a part-time professorship in constitutional and administrative law at Leiden University. His expertise includes general administrative law, financial public law, compliance and sanctions, planning and zoning, environmental law, expropriation, governmental liability, public access to governmental documents, public transport and aviation. Furthermore, he specialises in public law litigation, fundamental human rights, state aid, European administrative law and education law. In addition he publishes and teaches on several administrative law issues. He is a member of the Executive Board of the Dutch Administrative Law Association and the Board of Editors of the Netherlands Law Journal (Nederlands Juristenblad). Michiel L. van Emmerik graduated at the University of Amsterdam with degrees in Dutch Law (1989) and International Law (1990). In April 2005, he was appointed Associate Professor of Constitutional and Administrative Law at Leiden University. His research and teaching focuses are mainly on the interaction between International and European Law (European Union and European Convention on Human Rights), and Dutch Constitutional and Administrative Law. In 1997 he defended his PhD dissertation at Leiden University on Compensation for Violations of Human Rights (especially the ECHR). From 1999 to 2005 he was employed with the Constitutional and Legislative Affairs Division, Ministry of the Interior, The Hague. In 2007 he was appointed deputy

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judge, first at the Amsterdam District Court and since 2011 at the District Court Midden-Nederland (section administrative law). From January until April 2012 he was visiting professor at the Hastings College of the Law, University of California in San Francisco. He is a contributor to the Netherlands Law Journal (Nederlands Juristenblad) and a member of the Editorial Board of the Dutch Constitutional Law Review.

The “Dreadful Truth” and Transparent Fictions: Deference in New Zealand Administrative Law W. John Hopkins

Abstract “Deference” as a term is not recognised in New Zealand judicial review and significant opposition exists to its use. The reasons for this are rooted in the “transparent fiction” of ultra vires which remains the justification for judicial review. The continued reliance upon the notion of the courts as the determinator of the law leaves little space for the recognition of areas in which the executive has such authority. However, the absence of deference as a term does not mean that the concept does not exist. In fact, it hides in plain sight, woven through the various grounds for review that are recognised in New Zealand. This is particularly true with the expansion of reasonableness as a ground and the drift towards “contextual” review. However, lacking clear recognition and structure, the exercise of deference in New Zealand is haphazard. Despite the efforts of lower courts and the work of some academics to develop models to provide structure to this “variable intensity” approach, the opposition of the Supreme Court means that the application of deference remains open to the discretion of individual judges. Nevertheless, evidence already exists of a degree of structure being applied around variable intensity review. This chapter argues that by recognising such variability as deference, and applying a structural overlay such as Taggart’s “rainbow” model, alongside suitable signposts for users, the current confusing muddle could be clarified.

1 Introduction In 2009 the then Chief Justice of New Zealand, Sian Elias, described deference as “a dreadful word”.1 This perhaps sums up the view of the New Zealand senior judiciary to a term which has never found favour in New Zealand jurisprudence. Yet, despite

1

Ye v Minister of Immigration [2010] 1 NZLR 104 at 11.

W. J. Hopkins (*) Law School, University of Canterbury, Christchurch, New Zealand e-mail: [email protected] © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_15

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opposition to the term, the concept is an integral, if under recognised, part of New Zealand public law. Unless one wishes to advocate that judicial review of all governmental decisions is appropriate, it could hardly be otherwise. The alternative position, which has its advocates,2 would lead to a potentially untenable level of unrestrained judicial intervention, not to mention risking a tidal wave of applications. Such internally consistent, but perhaps slightly unrealistic, approaches to the operation of judicial review have generally found less favour than more pragmatic academic approaches.3 In reality judges need to show some level of respect to executive decisions given the limits of judicial knowledge, as well as to ensure that the government is able to function. The question is not whether such “deference” should exist but rather how it should be manifested. Deference as a legal term is generally shunned in New Zealand and a less functional analysis of the New Zealand system of judicial review might conclude that it thus has no place in its jurisprudence. Such a superficial and formalist view would be fundamentally wrong. In fact, although deference is rarely mentioned specifically, the concept of judicial restraint that it describes is present across the New Zealand system of judicial review and throughout administrative law.4 Although rarely using the term “deference”, common in the United States and Canada, New Zealand judges still utilise a variety of mechanisms to achieve the same function, i.e. exercising judicial restraint in the review of some executive action and an acceptance of a “discretionary space” for the executive. The ways in which the concept operates, however, are complex, multi-faceted and often covert. The lack of explicit reference to deference means that, as in some of the other jurisdictions examined in this volume, finding these elements is something of a detective story, although one that has been traversed several times in New Zealand academia.5 In fact, despite protestations to the contrary, few legal academics in New Zealand would deny the existence of the concept in some form and some even utilise the term.6 Nevertheless, the judiciary’s reluctance to embrace the term itself has serious consequences in New Zealand as it represents a wider reticence on the part of the New Zealand Supreme Court, in particular, to address the burgeoning issue of unstructured judicial discretion. As will be explored below, the expansion in judicial review in New Zealand in the post-war period (and particularly since the 1960s) has led to an extensive (and expanding) jurisdiction for judges to review executive action. However, increasingly this has occurred without corresponding developments to structure and provide

2

Allan (2004), p. 289. Taggart (2008), pp. 423–482. 4 The author wishes to emphasise that judicial review is one aspect of a much wider “system” of New Zealand administrative law which encompasses significant non-judicial elements. Prime amongst these are the Ombudsman. These also exhibit forms of deference but are beyond the scope of the present study. 5 See for example, Taggart at 3 above and Hunt (2009), p. 99. 6 See for example Taylor (2014), p. 101. 3

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certainty around judicial actions in the field. In the post-1980s drive towards “contextualism” led by Justice Cooke, many judges seem reluctant to accept any structural limits to their own jurisdiction epitomised perhaps by the recognition of the “innominate ground” by then President Cooke in the early 1990s.7 This approach could be flippantly summed up as “trust me, I’m a judge”. However, if unstructured discretion is unacceptable for a democratically accountable executive branch (however weak such mechanisms are in reality), it is difficult to understand why it is deemed acceptable for an unaccountable judicial branch. If ever Juvenal’s famous aphorism8 is appropriate, then it is in this example. However, although contextualism is prominent at present, at least amongst the highest levels of the judiciary in New Zealand, it does not have the field to itself. In practice, judges of both the High Court and Appeal Court remain wedded to more structured concepts of judicial restraint. These are based both on the traditional grounds of review model as well as a more recent and explicitly deferential intensity of review approach.9 In the following pages New Zealand’s current, confusing, situation and its consequences are explored. However, before we turn to New Zealand’s particular approach to the deference issue, we must first understand why the current situation arose and why deference is so controversial in the New Zealand model. Such an analysis requires reference to the genesis of New Zealand’s “system” of judicial review. This, of course, lies not in New Zealand itself but, as in most former colonies and Dominions of the British Empire, in the institutions and constitutional history of the United Kingdom. Although the judiciary in Aotearoa New Zealand has developed a distinct form of judicial review and, by extension, deference, the shadow of its English legal heritage is a long one.

2 The Constitutional Context New Zealand’s system of Administrative Law, like its legal system generally, is a legal transplant from England.10 It is therefore a Common Law system, which utilises a strong system of precedent, underpinned by a Westminster model of Parliamentary Sovereignty, a fused Executive and Legislature and an independent, generalist, judiciary. Although New Zealand has been an independent nation-state since 1947, the formal legal connections with its formal colonial master continued until 2004 with the establishment of the Supreme Court of New Zealand as the final court of

7

Thames Valley Electric Power Board v NZFP Pulp & Paper Ltd [1994] 2 NZLR 641 (CA). Quis custodiet ipsos custodes? (who watches the watchers). 9 See Knight (2018). 10 English Laws Act 1858. 8

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appeal.11 Until this point, the UK’s Judicial Committee of the Privy Council (JCPC), based in London, had remained the final court of Appeal in all matters aside from those relating to the New Zealand Bill of Rights Act.12 Even today a few legacy cases are still heard by the JCPC due to their genesis in the pre-Supreme Court era. In addition to this formal link, New Zealand has remained heavily influenced by decisions of the superior English courts throughout this period, something that continues to this day, particularly in the field of public law. In more recent times the influence has waned somewhat but the strength of English influence on New Zealand law was so heavy at its height that English decisions of the superior courts were often applied in a manner which made them appear as binding precedent rather than merely persuasive. Today New Zealand judges are more circumspect in applying English decisions but, in the public law field in particular, many older principles are still cited back to their English roots.13 In addition, superior English Courts are still heavily cited despite the significant differences between the UK’s constitutional context and that of contemporary New Zealand. This strong English legal influence is complemented by New Zealand’s place as part of the Common Law “family” of Westminster based legal systems and much of its Public Law has seen significant influence from other Westminster models, particularly Canada and Australia. Unlike every other former British Colony or Dominion, New Zealand operates under a “pure” Westminster system of Parliamentary sovereignty without a “written” or codified constitution. For this reason, many constitutional matters often find themselves before the courts cloaked in administrative clothes. As a result, matters of jurisdiction are controversial, particularly in a country where the doctrine of Parliamentary Sovereignty remains unrestrained. Unlike the UK, where such notions of Parliamentary supremacy have been questioned through the advent of the European Union; the European Convention of Human Rights and a quasi-federal model of devolution (as well as historically by the Anglo-Scottish Treaty of Union which created the United Kingdom), New Zealand has experienced few challenges to the concept. In fact it could be argued that the continued acceptance of this extreme version of the doctrine has been a convenient defence against recognising the foundational document of the Aotearoa New Zealand (the Treaty of Waitangi/Te Tiriti o Waitangi) as supreme law. In any event, Parliamentary statute remains the highest form of law in New Zealand and judicial dalliance with areas perceived as truly political has led to strong language by incumbent governments (and often the opposition), occasionally backed by a direct legislative response.14

11

Supreme Court Act 2003. Lange v Atkinson [2000] 1 NZLR 257. 13 The Wednesbury unreasonable test, which is central to much of the following discussion is a just one example of many where the original English case is usually cited rather than a New Zealand judgment that has incorporated the principle. 14 For example, in response to the New Zealand’s appeal court’s decision in Ngati Apa v AttorneyGeneral [2003] 3 NZLR 643 which recognised the possibility Maori customary ownership over 12

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The combination of parliamentary sovereignty, a unitary state, a uni-cameral legislature, a (primarily) two-party political system and the lack of a written (or codified) constitution has led to a highly centralised, executive friendly model of government, once famously described by a former Prime Minister (and legal academic) as an “executive paradise” and an example of “un-bridled power”.15 To some extent, this power was bridled by a series of reforms that began in the 1980s and reached their apogee in the 1990s, with the introduction of a statute-based Bill of Rights Act (1990) and proportional representation (using the German MixedMember Proportional model) in 1996.16 Since the latter constitutional change, no single party has held power alone, although the governing coalition holds extensive executive power during its period of office. In practice, one of the larger parties (Labour or National) has always dominated these coalitions and, at times, their power has pushed the limits of Palmer’s “bridle” (particularly when they are in power thanks to client parties, as was the case with the National Party during the period 2011–2017).

3 The New Zealand “System” of Judicial Review As one would expect from a Westminster constitutional system, which has developed in accordance with the Diceyian conception of the Rule of Law, there is no distinct “system” of administrative law in New Zealand. Although a system of judicial review has developed through judicial activism, there is neither an administrative code (or judiciary) as in the French tradition, nor an Administrative Procedure Act (or equivalent) as seen in the United States. Instead, all administrative cases are heard in the generalist courts with the principles of judicial review being found almost exclusively in case law. The only significant exceptions to this rule are around procedure and remedies, elements of which were codified in 1974 through statute.17 This early codification also saw an explicit extension of judicial review jurisdiction to include all public matters undertaken by both the executive and other bodies regulated by statute, including companies and other non-government bodies.18 Although New Zealand was one of the first Common Law countries to codify the process of judicial review, it has not followed England’s later example of creating an

parts of the foreshore and seabed, the New Zealand government introduced the Foreshore and Seabed Act 2004 to extinguish these rights. 15 Palmer and Palmer (2004). 16 New Zealand Bill of Rights Act 1990, Electoral Act 1993. 17 The Judicial Review Procedure Act 2016 replaced and simplified Part I of the 1972 Judicature Amendment Act. There have been no substantive changes to the original Act. Judicial review of non-statutory functions (including organisations regulated by statute), remain the realm of the Common Law and are covered by the High Court rules and the Declaratory Judgments Act. The practical difference between the two processes is minimal. 18 Judicial Review Procedure Act 2016.

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“Administrative Court” within the jurisdiction of the High Court. In fact, such is the commitment to judicial generalism in New Zealand that informal specialism is strongly discouraged, despite the fact that individual judges privately have such preferences. It is notable, for example, that, despite this enforced generalisation, the same High Court judges often appear in the judicial review literature and have their cases cited in this field. As in the UK, administrative law, as a concept, received little attention in New Zealand until the post-1945 period and the advent of the social state. Prior to this, and again following the English model, administrative law, if it was recognised at all, was defined by a strict interpretation of the Rule of Law which saw the court’s role as ensuring the narrow based legality of executive actions and nothing more. This ultra vires approach was exemplified by the seminal English case of Entick v Carrington,19 whereby the Kings Messengers were ruled to have trespassed due to the lack of legal authority for entering Carrington’s property. A more recent New Zealand example was seen in Fitzgerald v Muldoon,20 where the then Prime Minister’s instructions to state officials concerning changes to the state pension scheme were ruled to have no legal force as they were unauthorised by the statute concerned. The statute itself authorised and required the relevant payments. Only when a statute had been amended or repealed could the instructions be actioned. This traditional “red light” view left an extensive space for executive discretion within the bounds of ultra vires legality policed by the courts.21

4 The Difficulty of Deference: Justification for Judicial Review in New Zealand The extent of executive power in New Zealand, coupled with the post-war enlargement of the state, led to the development of a more expansive approach to judicial review in New Zealand led, at first, by the actions of the superior English courts. Starting with the groundbreaking case of Anisminic, the New Zealand courts followed the lead of their English (and UK) cousins and developed a more expansive and invasive form of judicial review, entirely based upon court-based principles.22 However, such developments eschewed direct reference to deference. The reason for this is that the approach of the courts in the UK and New Zealand to their judicial review role is fundamentally different from that of their US (and increasingly Canadian) cousins. This difference in approach means that explicit recognition of a concept of deference as developed in the US would risk undermining the very

19

[1765] EWHC KB J98. [1976] 2 NZLR 615 (SC). 21 While equally introducing unhelpful legalistic limits on the operation of the social state. See Harlow and Rawlings (2009). 22 [1969] 2 AC 147 (HC). 20

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justification for the development of judicial review in the UK and, by extension, New Zealand. In New Zealand, following the UK example, judicial review is based upon the judicial fiction of illegality (ultra vires). Courts are the only arbiter of statutes and the common law and their judgment is the “correct” one.23 Theoretically at least, no discretion applies to administrative agencies and others in this regard. The New Zealand model of the separation of powers therefore leaves no room for judicial deference where the law is concerned. The basis of judicial review is related to this formalist legal argument. In expanding the concept of review to cover matters that were within the jurisdiction of the decision maker, the House of Lords had done so by relying upon their role as the arbiters of the law. Decisions that utilised irrelevant considerations, improper purposes or were unreasonable moved such decisions into the realm of illegality and thus within the jurisdiction of the courts.24 This approach accepts no challenge to the role of the courts as the only interpreter of the law. Most importantly, neither can it do so, if such a role for the court in the review of administrative action is to be constitutionally justified. According to the justification for the development of judicial review adopted in New Zealand and outlined above, there is no scope for the recognition of an explicit concept of deference without challenging the underlying judicial review jurisdiction of the courts themselves. However such a justification is, of course, a legal fiction. In reality, courts in New Zealand (following the UK lead), by entering into questions of what were the correct considerations for the decision maker to take into account, are clearly, at the very least, structuring the discretionary decisions of administrators rather than just “interpreting the law”. Nevertheless, to admit this threatens to undermine the justification for judicial development of intervention in administrative matters where no such justification exists at the constitutional level. Over time, such an explicit rejection of deference as a concept in the UK has been deemed less necessary as the courts have settled into their modern role in the field of administrative law.25 However, this partial acceptance of the concept of deference in the UK has not been followed by the New Zealand courts. As the tide of judicial review has come ever inward, New Zealand has increasingly loosed its moorings from its UK harbour and now plots a very different, and at times more interventionist, course in the field of administrative law. Perhaps as a result of this, antipathy towards the idea of deference remains particularly strong. This has been coupled with a rise of “contextualism” in New Zealand judicial review which focusses on the facts of the individual case to determine the extent of review required. This combination has left judicial review without a clear set of rules as to when courts should intervene and when they should not. This approach has now

23

Joseph (2014), p. 878. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HC). 25 International Transport Roth GmbH v Home Secretary [2002] EWCA Civ 158. 24

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reached such heights that the “rules” around judicial intervention are, at best, confusing and, at worst, “a muddle”.26 The following pages attempt to make some sense of this confusion. However, it is the belief of this author that, for NZ to return to a semblance of order in this field will require the courts to address the issue of deference much more clearly and more explicitly than they currently do (whatever the exact choice of words used). This is required to ensure both that officials have greater certainty as to what is expected of them and that individuals have a clearer idea of what constitutes a reviewable error (and thus their likelihood of success should they undertake a judicial challenge). Judicial Review is an expensive business in New Zealand and with the significant risk that costs can be awarded against an unsuccessful plaintiff, such uncertainty is a serious barrier to individuals accessing it as a remedy. The longer term risk is that, unless the judiciary restores a degree of order to the exercise of judicial discretion in administrative decision making, Parliament may intervene to do so.

5 Statutory Deference New Zealand courts have explicitly and repeatedly stated that no deference to the executive is due when the matter is one of enacted law. This is a direct contrast to the classic US approach to deference, as epitomised in Chevron, whereby a degree of deference is owed to executive decision making around relevant statutes.27 Examples abound of courts rejecting this approach when it has been broached with them. Hammond J rather succinctly explained the traditional view of the New Zealand judiciary in Lab Tests: courts do not defer to anything or anybody: the job of the courts is to decide what is lawful and what is not.28

However, despite protestations to the contrary, there is some evidence that, even here, the New Zealand courts have operated somewhat differently in practice, at least in limited circumstances. In Levi Strauss, for example, the High Court accepted that in the case of Trade Marks, some consideration of the view of the appropriate agency was relevant.29 A similar approach was taken in the case of Lamb Packers Fielding Ltd v Manawatu-Wanganui Regional Council [2004] NZRMA 178, however it was made clear that although of some relevance it was far from determinative: The parties accept the interpretation of a statutory document such as the Regulations by the administration can be a guide, although not determinative, to the interpretation of the Regulations

26

Knight (2010), p. 432. Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc. 467 U.S. 837. 28 Lab Tests Auckland Ltd. v Auckland District Health Board [2009] 1 NZLR 776 at 380. 29 Levi Strauss and Co v Kimbyr Investments Ltd [1994] 1 NZLR 332 (HC). 27

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In this case, however, both parties accepted this view. In addition, recognising some relevance for an agency’s interpretation of a regulation is a long way from the type of approach taken by the US courts in the Chevron case and its antecedents. Knight has also recognised a further version of statutory deference in the way courts have chosen to interpret statutes in a way sympathetic to the approach of the agency concerned. Courts can thus retain their traditional role as “interpreters of the written law and expounders of the common law”30 yet, in practice, show a degree of deference to the agency concerned. In the Unison litigation, the judgment of the court was undertaken on orthodox grounds of statutory interpretation, however, the broad interpretation chosen by the court provided the Commerce Commission with significant policy latitude (as the Commission desired) to address issues around electricity lines companies. The fact that the New Zealand judiciary holds jealously to its role as sole determinator of both statute and common law does not preclude it from exercising its power in a way that shows deference to executive decision makers.

6 Deference and the Traditional Heads of Review Outside strict statutory review cases, where the New Zealand courts proclaim their lack of deference from almost every rooftop, yet still in practice show at least a degree of what in other jurisdictions would be classified as deference to the executive, things get even more complicated.31 This has been made more so by the rise of “contextualism” in the wake of the drive by Justice Cooke to expand the nature of judicial review and promote its instinctual nature. Such unstructured approaches to judicial review raise obvious and serious questions as to how such review should be conducted. Although disliked by Justice Cooke himself, and still distrusted by some in the senior judiciary, academics, and increasingly judges, have resorted to the idea of a “variable intensity of review” model to provide some overall justification to the development of an approach to judicial review where “context is everything”.32 Although most evident in the vexed area of merits review, such a “variable intensity” method of applying deferential principles is evident throughout New Zealand’s administrative law. Building on the UK cases of Wednesbury and later GCHQ, the grounds for judicial review in New Zealand have traditionally been classified under the three heads of “illegality, irrationality and procedural impropriety”.33 More recent and

30

Bulk Gas Users Group v Attorney General [1983] NZLR 129 (CA) at 133. Smith (2011), p. 539. 32 R (on the application of Daly) v Secretary of State for the Home Department [2001] 2 AC 532 (HL), para 28. 33 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) [GCHQ] at 410. 31

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perhaps more helpful New Zealand commentary has described these grounds as the why, what and how questions of judicial review.34 Of these, the why and how grounds are non-controversial, although, as we shall see, the “what” question has spawned something of its own publishing industry. Nevertheless, although these grounds are without notable controversy and align closely with the original mantra of judicial review in New Zealand (that it concerns only the procedures not the merits),35 these traditional grounds also encompass the possibility, and indeed the practice, of deference or “variable intensity review”.36 Despite the commonly held fiction that procedures are universally applied in judicial review cases, in practice this is clearly not the case. One particular example of this is in the application of natural justice. In New Zealand this principle is problematic outside the confines of judicial and quasi-judicial decision making. Although there is a general presumption that the court-based principles of natural justice should apply to decision making in New Zealand, the exact nature of their application is riven with flexibility. In Furnell v Whangarei High Schools Board, (although decided by the Judicial Committee of the Privy Council) the leading judgment stated that, in the absence of a statement to the contrary, “the intention must have been to create a code that was fair”.37 These words, perhaps unconsciously, seem to echo the nineteenth century English decision of Cooper that in these examples the courts will “make good the omissions of the legislature”.38 The recent Saxmere case confirmed this assumption, were it ever in doubt. “[F] undamental rights to a hearing by an independent and impartial court and . . . [the] observance of principles of natural justice” are to be assumed in all cases of administrative decision making.39 However, in practice these principles are a rebuttable presumption, not an unrestricted right.40 This has been observed in a number of local government cases.41 In Goulden, for example, the procedures undertaken by the Wellington City Council in disciplining a Councillor were “eminently reasonable . . . and very much within her province as mayor”.42 Equally in Whakatane District Council v Bay of Plenty Regional Council, the High Court ruled that the novel approach taken by the council to the decision in question was acceptable as, although the framework of the procedures were laid out in the statute, “the form it takes is left to the local

34

See Taylor (2014). See for example State Services Commission (2002) The Judge over my Shoulder, State Services Commission, Wellington. Chief Constable of the North Wales Police v Evans [1982] 1WLR 1155 (HL) at 1165. 36 Knight (2010). 37 [1973] 2 NZLR 705 (PC) at 725. 38 Cooper v Wandworth Board of Works (1863) 14 CB (NS) 180. 39 Saxmere Co Ltd v Wool Board [2010] 1 NZLR 35. 40 T Flaxman Ltd v Franklin County Council [1979] 2 NZLR 690 (SC). 41 Knight (2010), p. 419. 42 Justice Goddard, Goulden v Wellington City Council [2006] 3 NZLR 244 (HC). 35

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authority’s discretion”.43 Although, in this case, the Supreme Court felt that the latitude awarded was too great.44 Questions around illegality or “why” questions also exhibit a degree of “variable intensity”, particularly around the factual basis of the inquiry. In some cases the courts have demanded detailed evidence to support decisions although there has been significant disagreement between the Supreme Court and the lower courts (both Appellate and High Court) as to the level of deference to be afforded to the decision maker in individual cases.45 However, in many cases, the courts have shown significant latitude in allowing decision making bodies to define their own relevant facts. This has been particularly prominent when the decision maker has been a Minister46 but other examples abound. The court’s deferential approach was perhaps best summarised by Justice McGechan in TVNZ Ltd v Ministry of Agriculture and Fisheries: The Authority, with its powers as a Commission of Inquiry, was entitled to gather information from any source it saw fit as to topics properly under consideration, subject only to requirements of natural justice which are not in issue. The Authority could consult the Encyclopaedia Britannica or the Women’s Weekly if it so desired.47

The bottom line in all these cases is that courts vary the intensity of judicial review as regards both decision making procedures and whether the inputs into those procedures cross the bounds of legality. There is thus clear variability in application of these time worn principles depending upon the specific context of the decision. The underlying issue is therefore not whether deference should be shown but how (or should) the nature of variability and the level of deference be determined in a particular case.

7 Variable Intensity Review and Reasonableness If the above, more traditional, examples begin to expose the transparent fiction that deference is absent from the New Zealand law, then it is in the final of Lord Diplock’s three grounds of review that the fiction becomes glaringly obvious. “Irrationality” or (Wednesbury) “Unreasonableness” has long been the unruly sibling to the relatively staid and uncontroversial principles of illegality and procedural impropriety. For a long time in New Zealand (as in the UK), the concept of reasonableness was far more popular in the pages of academic literature and the lecture halls of universities than in practice of judges. While students felt obliged to 43

Whakatane District Council v Bay of Plenty Regional Council [2009] 3 NZLR 799 (HC). Whakatane District Council v Bay of Plenty Regional Council [2010] NZCA 346. 45 McGrath v Accident Compensation Corporation [2011] NZSC 77. 46 Osborne v Chief Executive of the Ministry of Social Development [2010] 1 NZLR 559 (HC). 47 TVNZ Ltd v Ministry of Agriculture and Fisheries HC Wellington AP89/95 13th February 1997 at 32, as quoted in Smith (2011), p. 871. 44

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argue unreasonableness in every judicial review problem question, and one suspects every lawyer in every judicial review case felt that they should do the same, such actions were not related to the likelihood of success. Rather they reflected a belief that, in judicial review at least, you should throw every argument at the offending decision and hope that some of the reasoning saw favour with the judge. Despite its popularity, the examination of substance in judicial review proceedings remained rare and “what” questions rarely succeeded without the support of less controversial grounds of review. “Unreasonableness” was something of a makeweight to tip the balance when other grounds were evident. Given the strict requirements of the Wednesbury test that was also adopted in New Zealand, there would be few, if any, examples of administrative decision making that would pass muster on procedural grounds and expanded illegality grounds only to fail this final test. It was, and is, an extraordinarily high bar to rule a decision “so absurd that no sensible person could ever dream that it lay within the powers of the authority”.48 These days are long gone and judicial review in New Zealand has seen a lowering of the bar around the concept of “Wednesbury” reasonableness with the introduction of number of alternative tests to be applied to the substance of decisions. This process has been far from uniform, however, and different judges have applied personal tests to assessing the legality of particular decisions outside the traditional grounds explored above. It is here that the concept of “deference”, if not the term, has been most evident and perhaps most inconsistently applied in the New Zealand practice of judicial review. The various approaches to “variability of intensity” around the “reasonableness” of decisions have exposed a lack of structure and coherence towards when and how to apply judicial scrutiny to executive actions. The various terms and tests used by the judiciary have included “substantive unfairness”, “disproportionality” and “anxious scrutiny” among many others. Some particular approaches have found favour in the decisions of particular judges. For example, Justice Hammond, who was educated in the United States was particularly swayed by the “hard look” doctrine favoured by US administrative law. Ironically, the variety of approaches to application of judicial deference as a concept have not been clarified by a Supreme Court which appears to remain convinced by the merits of contextualism. The clearest evidence of the confusion surrounding the development of substantive merits review is the lack of agreement amongst academics as to the grounds for review that are actually applied. Perhaps the most well-known general public law text recognises ten such approaches,49 while the leading practitioner’s guide provides around 20.50 At the other end of the scale, the leading specialist academic judicial review text only classifies two of them while regarding the other definitions

48

Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. Joseph (2014). 50 Smith (2011). 49

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as “unhelpful”, preferring instead to retreat to the safety of “contextualism” to explain the variety of approaches.51 The result, either way, is confusion. However, although it is fair to say that most would agree on the existence of the current confused situation, there is sharp disagreement amongst commentators as to its acceptability. Joseph, and to a lesser extent Taylor, seem relatively sanguine about the current lack of structure around judicial restraint or intervention, instead repeating the mantra of “contextualism” as a means of explaining and justifying the evident inconsistencies. Joseph goes as far as writing favourably about a “sniff” test which applies when the decision is poor. Legal structuring, in his eyes, occurs when judges have recognised that the decision is “a bit whiffy” and thus must reverse engineer a reason for its review.52 In contrast to this rather complacent and uncritical view of judicial review, and the role of the judiciary within government, the late Michael Taggart stood out as a strident opponent to this approach. In his view, unstructured judicial discretion was no better than unstructured discretion in other parts of government. Knight and others have advocated similar views, which would perhaps be regarded as orthodox in UK legal academia.53 This current author is strongly in this latter camp. It is the argument made in this chapter that the starting point for resolving the current chaos must be recognition that the application of the various intensities and tests of review are deference by any other name. Since the earliest formal recognition of the “variable intensity” review in Lovelock,54 the question has been how should various levels of intensity apply? Despite the protestations of some judges and academics that rules should be avoided, as all is context, it is clear that some commonalities can already be detected within the examples of variable intensity review. At one end of the scale, local government and elected bodies deserve a light touch, at least according to the views of Hammond J in Conley v Hamilton City, who suggested that “a court should be very slow to intervene, or adopt a high intensity of review” when reviewing decisions of local authorities involving choices which are “distinctly ones of social policy”.55 Deference is also owed to commercial decision making, although the courts have been clear that such decisions are not beyond judicial review entirely.56 Nevertheless, the intensity of review applied would see such decisions reviewed only on the grounds of bad faith, improper purpose or strict Wednesbury unreasonableness although purely commercial operations, without a public focus, would fall outside of the scope of judicial review entirely.57

51

Taylor (2014). Joseph (2014), p. 868. 53 Knight (2010). See for example Craig (2012). 54 Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA) at 403. 55 Knight (2010), p. 423. 56 Mercury Energy v Electricity Corporation of NZ Ltd [1994] 2 NZLR 385. 57 New Zealand Stock Exchange v Listed Companies Association Inc [1984] 1 NZLR 699 (CA). 52

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Similarly, limited forms of review have also been applied to prosecutorial discretion58 and to the administration of health care schemes within a set level of funding.59 Political questions, even when there is a legal context as in Curtis v Minister of Defence, will equally find the courts defining their jurisdiction narrowly to avoid hearing the merits of the case in question.60 At the other end of the spectrum we can see the application of high levels of intensity when the matters in play are held to be dealing with rights, particularly as defined in the New Zealand Bill of Rights Act. In these areas, the courts feel comfortable in applying stricter requirements to decisions. Equally, when the issues at play concern particular Common Law “rights” such as property,61 there is evidence that the courts will also push the limits of their scrutiny role.62 These examples all show a continuum of deference, without speaking its name. The problem is that such a situation leaves the law unclear and lacking the certainty that the Rule of Law requires. It is to the attempts to give coherence to the reality of deference in New Zealand that we now finally turn.

8 Providing Structure to Deference in NZ: Taggart’s Rainbow As already mentioned above, although many of the text book authors in New Zealand seem untroubled by the New Zealand courts’ un-structured use of discretion in their use of “variable intensity review” deference, by no means all have accepted the current “muddle”.63 Chief amongst these sceptics, swimming stalwartly against the judicial tide, was the late Professor Taggart who, in his 2008 article “Proportionality, Defence, Wednesbury” provided a schema by which the courts in fact operate their “variable intensity review” in practice.64 Taggart’s “Rainbow”, which he originally introduced in the mid-2000s,65 has attracted a number of academic acolytes, with the work of Knight in particular providing a strong argument for introducing structured judicial discretion around deference (or “vigilance and restraint”) across the Common Law world.66 However, the reception from the senior judiciary in New Zealand remains muted. Although many High Court judges

58

Taylor (2014), p. 44. Healthcare of NZ Ltd v Capital and Coast District Health Board [2012] NZHC 3417. Taylor (2014), p. 97. 60 [2002] 2 NZLR 744 (CA). 61 Property rights are excluded from the New Zealand Bill of Rights Act. 62 Taggart (2008), p. 466. 63 Knight (2010). 64 Taggart (2008). 65 Taggart (2006), p. 75. 66 Knight (2018). 59

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have embraced the idea, perhaps because they are the judges most faced with judicial review challenges, the Supreme Court in particular has expressed doubt and even disdain in relation to attempts to clarify the exercise of variable review and “deference”.67 Nevertheless, practice will out, and it is the view of this author that a rainbow of review is already in operation, with high levels of deference at one end and lower at the other, whether or not senior judges wish to recognise it. Taggart’s rainbow placed the New Zealand judiciary’s approach to deference along a continuum which stretched from two extremes. At one end is extreme “merits” review, so long denied in New Zealand through the fiction of “ultra vires”, whereby courts will show little deference for the executive decision-maker’s original decision. Such cases will be those concerning the most fundamental of human rights, whether recognised in statute68 or through the Common Law.69 At the other extreme are areas in which the courts will decline jurisdiction and rule the matter non-justiciable, due to the lack of legal context or other factors, such as the political nature of the decision. However, this continuum, according to Taggart, is not smooth. There is an important distinction at the mid-way point between the two extremes. Deference, according to his model, is at its lowest point at the extreme end of the rights end of the rainbow and increases as the rights at issue decrease in their fundamental nature or impact. However, such deference is tempered by the principle of proportionality which will be applied to ensure that any rights infringed are proportionate to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”70 On the other hand, the other half of the rainbow (classified as Public Wrongs in Taggart’s scheme) has no need for proportionality to be applied. When rights are not in play there is nothing for proportionality to hold to (there is nothing to be proportionate about) and thus deference to the decision maker increases. Here the limits on the decision maker are the traditional “procedural and legal” grounds of review, plus the safety net of Wednesbury unreasonableness.71 In this scheme, the nature of rights obviously become crucial as this could shift the distinction between “rights” and “legal wrongs” significantly.72 All approaches to judicial review (and thus deference) can be placed somewhere on this continuum. What is currently missing is a series of signposts and guidance along the rainbow to both structure the exercise of judicial deference and clarify its use for the users of the administrative system. The explicit adoption of such a scheme would provide a degree of coherence and a framework around which the application of deference as practically applied in New Zealand could be discussed. Such

67

Knight (2010), p. 8. New Zealand Bill of Rights Act 1990. 69 Cooke in Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 (CA) at 398. 70 New Zealand Bill of Rights Act, s5. 71 Taggart (2008), p. 31. 72 For example the Right to Good Administration as recognised in the European Union (Article 41, Charter of Fundamental Rights of the EU). Due process clauses could have the same effect. 68

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recognition of a structured approach would also introduce a level of clarity into the current confused state of affairs.

9 Conclusion The fact that deference in New Zealand remains the “dreadful word” that dare not speak its name, at least in the view of the former Chief Justice, does not change the fact that the concept is integral to the operation of judicial review in New Zealand. It could hardly be otherwise and attempts to “see no evil” do not change the fact that the “evil” exists. Deference is thus nowhere and everywhere within the New Zealand model of judicial review. It is nowhere if one searches for the term in the case law (or almost nowhere), or applies the Chevron style approach developed in the United States and now accepted in Canada (and explored elsewhere in this volume). However, if one applies a functional approach to the topic, as one must in such a comparative study, it is almost everywhere, threaded through the practice of judicial review in everything from statutory interpretation to the review of pure administrative discretion. Such practice is, in reality, accepted by most in the judiciary, if reluctantly, through the acceptance of “variable intensity review”. However, the general acceptance amongst the judiciary that the intensity of review varies has not been accompanied by a consensus on how such deference should be structured nor that such clarity is even necessary. According to one recently retired Supreme Court justice, “you either feel driven to interfere or you don’t, and that will depend on what sort of a right it is and what the whole shebang is.” In a system where a constitutional court has elected authority and clear constitutional place to stand then such extensive judicial discretion may be deemed acceptable.73 In New Zealand, where neither exists, it is difficult to see how it can be. Apologists for this state of affairs deem this extreme “contextualism” as acceptable and regard it merely as part of the “tapestry” of the law,74 but the law is not art, it is life. It is all very well for the judicial and academic elite to “experiment” with the variable intensity models and accept that judges must “interfere where they must”, driven by some sort of inherent judicial nose for a bad decision, but those affected by such actions may be less understanding. The current approach to deference is confusing and becoming more so as the Supreme Court refuses to provide some structure to how the rainbow operates. Some academics will do their best to provide some clarity by fossicking through the wreckage and providing a degree of guidance to the level of deference that is likely to be applied to a particular case but, as anyone who teaches in this field knows, such attempts need to be constantly caveated with the fact that the mantra of “contextualism” dominates and thus one can never be sure how the court will 73 74

For example in the case of the Parliamentary appointed German Federal Constitutional Court. Joseph (2014), p. 870.

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approach a particular decision. At the heart of this confusion lies the inability or unwillingness of the New Zealand judiciary to embrace the “d” word. For as long as deference is denied by the judiciary, through the fiction of ultra vires, judicial review in New Zealand will remain a confusing tool, unused by the most deserving, unwilling and unable to risk the uncertainty of the judiciary’s unstructured discretion. Instead, those with resources (and the desperate without them) will “take a punt” on the roulette wheel of “contextualism” and sometimes win. This situation will remain until the Supreme Court accepts that the (welcome) expansion of judicial intervention brings with it a responsibility on the part of the senior judiciary to structure its use. This must begin with a clear acceptance that deference exists and is an acceptable part of the judicial review process. Such moves may not find favour with some judges who favour the discretion that the “contextual” approach provides the judiciary but such clarity is unlikely to be opposed by the officials and individuals who interact with administrative law in their daily lives. Unless the New Zealand Supreme Court develops such tools to structure judicial discretion and deference independently, it may find that, one day, Parliament will do it for them. Acknowledgement The author wishes to thank Ms Rachel Chuah for her research assistance during this project.

References Allan TRS (2004) Common law reason and the limits of deference. In: Dyzenhaus D (ed) The unity of public law. Hart Publishing, Oxford, p 289 Craig PP (2012) Administrative law, 7th edn. Sweet & Maxwell, London Harlow C, Rawlings R (2009) Law and administration. Cambridge University Press, Cambridge Hunt M (2009) In: Dyzenhaus D, Hunt M, Huscroft G (eds) Against bifurcation. Hart Publishing, Oxford, p 99 Joseph PA (2014) Constitutional and administrative law in New Zealand, 4th edn. ThomsonReuters, Wellington, p 878 Knight D (2010) Mapping the rainbow of review: recognising variable intensity. N Z Law Rev:393–432 Knight D (2018) Vigilance and restraint in the common law of judicial review. Cambridge University Press, Cambridge Palmer G, Palmer M (2004) Bridled power: New Zealand’s Constitutional and Government, 4th edn. Oxford University Press, Melbourne Smith M (2011) The New Zealand judicial review handbook. Thomson Reuters, Wellington Taggart M (2006) Administrative law. N Z Law Rev 11:75 Taggart M (2008) Proportionality, deference, Wednesbury. N Z Law Rev:423–482 Taylor G (2014) Judicial review: a New Zealand perspective, 3rd edn. LexisNexis, Wellington

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W. John Hopkins Professor Hopkins is a comparative public lawyer and scholar of international governance at School of Law of University of Canterbury, Christchurch, New Zealand. Within these broad fields, his published work primarily focusses on administrative justice, multi-level governance (with particular reference to the European Union and the Pacific) and disaster law. Much of his recent research focusses on the connection between domestic and international public law and the growth and control of executive power, particularly in the context of disasters. He is a former New Zealand Fulbright Scholar (at Georgetown University) and has held a number of visiting positions, most recently at Central European University, Budapest, Hungary and the University of Oxford, UK.

Deference to the Public Administration in Judicial Review: A Polish Perspective Zbigniew Kmieciak and Joanna Wegner

Abstract 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.

1 Introduction: A Historical Review In Poland judicial review has been created in accordance with the Austrian model, adopted in the second half of the nineteenth century, with a cassation rule based on the criterion of legality. This concept was chosen as a legislative model after

Z. Kmieciak (*) · J. Wegner (*) University of Łódź, Faculty of Law and Administration, Department of Administrative Procedure, Łódź, Poland e-mail: [email protected]; [email protected] © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_16

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Poland’s regaining independence by the end of the World War I in 1918. The loss of Poland’s statehood in 1795 when Russia, Austria and Prussia divided Poland among themselves, military weak at that time, prevented the development of autonomous state institutions. The idea of judicial review appeared in the provisions of the Constitution of the Duchy of Warsaw on July 22, 1807 for the first time. It was transferred to Poland directly from France.1 Diversification of legal structures in Poland’s annexed lands caused difficulties in creating a coherent legal system after regaining the independence. One of the postulates of the Polish legal thought was to establish judicial review. It was expressed in the provisions of the Constitution adopted on March 17, 1921. At the same time, it was decided in the Constitution that the judicial review was to be conducted on the basis of the criterion of legality. This included examining the legality of administrative acts (unilateral acts of power directed to an individually designated entity, outside the organizational or business dependence).2 The justification for the adoption of the Austrian judicial review model was the prospect of using the jurisprudence of the Administrative Tribunal (Verwaltungsgerichtshof) in Vienna and a possibility of filling judicial positions with the current Polish native-judges of that court.3 The Austrian law assumed one-step judicial review of administrative decisions. A complaint was provided for the party having legal interest, after having used the administrative course of the instance (a previous appeal to the higher administrative authority). The administrative court, in which the professional judges were ruling, had exclusively cassation powers. The choice of the Austrian model was also dictated by some fear of establishing too complete judicial control which was closer to the model of German or French law. The Act on the Supreme Administrative Tribunal of 3 August 19224 established the Supreme Administrative Tribunal as a one-step court composed of professional judges. Under the provisions of the Constitution the law stipulated that the provincial administrative courts would be set up with some participation of citizens. This promise was not fully performed. To some extent this assumption was fulfilled by the maintenance of the administrative courts in the former Prussian territory, which were the remnants of the former legal regime. In the remaining part of the country the instances of the administrative courts were not introduced. The subject of the complaint could be administrative acts defined as ordinances and rulings of the public authority, except for cases resolved in discretion, but only within the limits granted to such discretion power, as well as cases of public offices appointments, matters concerning representation of the country before foreign states and disciplinary matters. The complaint could be made after having used the available administrative proceedings appeals. The Tribunal had only cassation powers. If the decision was illegal, the Tribunal was entitled to repeal the contested

1

See Piątek and Skoczylas (2016), p. 7. Official Journal of the Republic of Poland (O. J.) of 1921, No 44, item 267. 3 Krawczyk (2017), p. 28. 4 Consolidated text—O. J. of 1926, No 68, item 400. 2

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decision. Then the case was returned to the administrative organ. The Tribunal was not equipped with any instruments typical of substantive adjudication. The administrative body was bound by the legal assessment contained in the judgment of this court. Judgments were made in a form of sentences issued by the composition of five or nine persons after a public hearing, exceptionally held in camera. Further amendments to the Law on the Supreme Administrative Tribunal led to the reduction in the size of the court compositions.5 Administrative court judges had all the attributes of judicial independence while ruling. The solutions of the 1922 Act were largely reproduced in the decree of the President of the Republic of Poland with the effect of the Act on the Supreme Administrative Tribunal of 27 October 1932.6 In this act, the concept of instances of court-administrative proceedings was not sustained. The negation of this idea was petrified by the provisions of the Constitution of 23 April 1935.7 In Article 70 (1b) of this act the judicial review was reserved exclusively for the Supreme Administrative Tribunal. The outbreak of World War II interrupted the development of judicial review for several decades. Undeniable Poland’s contribution to the fight against Germany and millions of human sacrifices did not prevent Poland from losing its sovereignty. As a result of the arrangements agreed between the United States, the Soviet Union and the United Kingdom in Yalta and Potsdam in 1945, Poland was placed in the Soviet sphere of influence with the totalitarian regime. It assumed uniformity of the state power, excluding judicial review characteristic of the tripartite separation of powers principle. This control was not provided in the provisions of the Stalinist Constitution of 1952 imposed on Poland. At the time, the superfluity of this kind of the institution was emphasized, pointing out as indicated in the Soviet legal thought, that it could be successfully replaced by a fictitious or apparent prosecutorial control over the socialist rule of law. The reactivation of administrative judiciary took place in Poland only in 1980 in connection with the ratification of the International Convention on Civil and Political Rights.8 Pursuant to Article 14 of this act, “In the determination of any criminal charge against them, or of their rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”. In the Act on the Supreme Administrative Court and on the Amendment to the Act—Code of Administrative Procedure of 31 January 1980, the basic assumptions of the model adopted in the interwar period were retained.9 At that time, the Supreme Administrative Court was established as a one-instance court, whose cognizance was initially defined narrowly. The complaint was admissible only about the basic type of administrative acts, designated as administrative

5

See Malec (1999), pp. 182–183. O. J. of 1932, No 94, item 806. 7 O. J. of 1935, No 30, item 227. 8 O. J. of 1977, No 38, item 167 and 168. See also Kmieciak (1997), pp. 234–238. 9 O. J. of 1980, No 4, item 8. 6

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decisions and this, in strictly categorized cases and about inactivity of administrative bodies (failure to act in these cases within the prescribed time limit). However, unlike the pre-war regulations, decisions based on administrative discretion were not formally excluded from the Supreme Administrative Court cognizance. As before, the complaint could only be made after having used the administrative appeal. Dealing with the complaint the Supreme Administrative Court had only cassation powers. It could dismiss a complaint, annul a contested decision or declare it null and void (with the ex tunc effect)—in case of particularly serious substantive defects. As a result of the hearing of a complaint about the failure to act, the court might oblige the authority to issue a decision within a specified time limit. The administrative body was bound by the legal assessment contained in the judgment. There were only professional judges in the Supreme Administrative Court, and judicial supervision over its case law was exercised by the Supreme Court, which inter alia heard extraordinary appeals against the Supreme Administrative Court’s decisions. The limitation of the judicial review to complaints about administrative decisions gave rise to a natural and completely understandable tendency for broadly understanding the concept of the administrative decision in the judicial case law. Thanks to this, the court has extended its jurisdiction to a wider range of issues, undoubtedly contributing to strengthening the guarantee of protection of individual rights and freedoms. The Supreme Administrative Court consistently continued this case law also after the collapse of the totalitarian system in 1989. A significant change in the judicial review formula took place with the Act on the Supreme Administrative Court of 11 May 199510 coming into force. There was no more enumeration of the cases in which a complaint about administrative decisions was admissible. It was replaced by a general clause. Under Article 16 (1) of the Act of the Supreme Administrative Court a complaint about certain incidental acts issued during the administrative procedure (orders) was also admissible as well as other acts or activities in the field of public administration concerning the finding, recognizing or granting of a right or an obligation resulting from the provisions of law, local enactments issued by local governmental authorities and acts of supervision over activities of local governmental authorities. The Supreme Administrative Court also heard complaints against the administration which had failed to act. The court resolved jurisdictional disputes and answered legal questions addressed by local boards of appeal. There were several exemptions from the judicial review including disciplinary matters, organizational and business subordination and superiority issues, visas and permits for foreigners’ stay as well as patent applications as recognized by the Board of Appeal at the Patent Office. The judicial review was still carried out on the basis of legality. The court’s competence was mainly cassation. To a limited extent, it was given a possibility of substantive adjudication. In cases of complaints about an act or an activity of public administration concerning the finding, recognizing or granting a right or an 10

O. J. of 1995, No 74, item 368.

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obligation resulting from the provisions of law, the court may, at the request of the complainant, adjudicate on whether such a right or an obligation exists. The court used this competence very rarely. The administrative authorities remained bound by the judgment. The further extension of the judicial review took place in 2004 within the framework of the reform adapting the system of it to the constitutional requirements, primarily in the context of the implementation of the principle of two instances. Under Article 175 (1) of the Constitution, the justice is exercised by the Supreme Court, the common courts, the administrative courts and the military courts. Two-instance court proceedings in all matters, including administrative ones, are stipulated by Article 176 (1) of the Constitution. The issues of the administrative justice are regulated explicitly in Article 184 of the Constitution. It states that “the Supreme Administrative Court and other administrative courts shall exercise, to the extent specified by the statute, control over the performance of the public administration. Such control shall also extend to judgments on conformity to resolutions of the local governmental organs and to normative acts of territorial organs of the governmental administration”. Since January 1, 2004, 16 provincial administrative courts have been operating in Poland as courts of first instance. The court of appeal is the Supreme Administrative Court. The legal remedy available for a verdict of a provincial administrative court is a formalized cassation appeal with the mandatory representation by an attorney. Under the provisions of the Act—Law on Proceedings before Administrative Courts of 30 August 2002,11 the scope of the judicial review was broadly defined. The subject of the review are all administrative activities with a few exceptions concerning the issue of consular visas, matters of superiority and subordination within the administration, business subordination, appointment to positions in administration, unless they result from the provisions of law. Administrative courts also hear complaints about inactivity or excessive length of administration proceedings and resolve jurisdictional disputes between administrative organs. They judge basing on the legality criterion. By 2015, apart from a few exceptions, the administrative courts had exercised only cassation powers.12 Firstly, these included—in the cases of complaints about other than administrative decisions and provisions of acts or acts in the field of public administration concerning the rights or obligations resulting from the provisions of the law—a possibility of recognizing in the judgment the right or the obligation resulting from the provisions of law. Secondly, a similar solution was provided in a situation of a default of an administrative court judgment in case of such a complaint. After the change in the Law on Proceedings before Administrative Courts in 2015, the scope of the jurisdiction was extended by a possibility of specifying a manner of settling the matter within the deadline set by the court if the complaint

11

O. J. of 2017, item 1369. Act on Amendment to the Act—Law on Procedure before Administrative Courts of 9 April 2015 (O. J. of 2015, item 658). 12

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about the decision or order was taken into account due to qualified violation of the substantive law (violation, which influenced the outcome of the case or justified the sanction of nullity). In case of not fulfilling the judgment, the court may, at the request of the claimant, adjudicate on whether there exist or not a right or obligation. This is, however, not possible in case of decisions based on discretionary administration power. The judgment whose content is existence of an obligation or right may also be issued in the case of failure to act, if this is allowed by the nature of the case and non-litigious circumstances of its factual and legal status. It should be added that not all administrative matters in the material sense are adjudicated by organizationally separated administrative courts. Under Article 1 of the Code of Civil Procedure in 1985 social insurance cases were submitted to the jurisdiction of common courts—regional courts, departments of labour and social security.13 These cases are treated in the Polish legal system as civil cases in formal terms. The role of the Polish judicial review, which was reactivated in 1980, is not comparable to the one in countries free from the experience of the totalitarian system. The historical and political conditions mentioned above caused the Supreme Administrative Court to guard rights and freedoms of the individual since the beginning of its operation by setting boundaries of administrative interference in this sphere. Especially in the earlier case-law of the Supreme Administrative Court, it was clear that the aim was to limit and stop activities of the public authority. It is difficult to find approval for administration’s choices resulting from political motives, extra-legal ones. By virtue of its authority, the one-instance Supreme Administrative Court tried to extend the scope of its control and increase its detail. Now, after the political and structural changes that followed the “Law and Justice” party win in the 2015 parliamentary elections, the opposite tendencies can be observed, as discussed later in this study.

2 Concept and Its Adoption So far, not many studies have been devoted to the concept of deference in the native literature. It is difficult to find a consistent and universally accepted definition of the concept. Divergences can be observed even in some translations of this idea into Polish.14 It is usually considered against the background of a foreign science, primarily American one.15 It is often combined with a postulate of efficiency in judging by the administrative courts.

13

By the Act on Amendment to the Act—Code of Civil Procedure of 18 April 1985 (O. J. of 1985, No 20, item 86). 14 The differences in meaning resulting from the translation of the word deference were noticed inter alia by Stawecki (2014), p. 350 et seq. 15 Bernatt (2015), p. 39 et seq.

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Polish Context

In the Polish legal system neither doctrine nor jurisprudence has worked out its own concept of judicial review which could be considered equivalent to the doctrine of deference. It seems that causes of this may be sought in the above mentioned historical and political determinants of the creation and subsequently the development of the judicial review in Poland. On the other hand, to some extent, the idea of deference finds its counterpart in the exercise of its functions by the Constitutional Tribunal. It was set up to adjudicate on conformity of law to the Constitution. The Constitutional Tribunal sometimes refers to the concept of freedom of the legislator in creating the law which obliges the Tribunal to deprive a provision of the binding force only in the scope of its application in which it turns out to be incompatible with the Constitution.16 The concept of judicial restraint in the course of controlling the hierarchical conformity of legal norms can also be applied by the usage of the so-called delay clause assuming the legislator’s deadline to bring about the constitutionality of the law before the unconstitutional norm is eliminated from the system.17

2.2

Recent Development of Administrative Justice

Until recently, Polish administrative courts had had in principle only cassation powers. Only in 2015 that they were equipped with broader powers of substantive adjudication. It is worth noting that this type of adjudication was available to the common courts exercising the judicial review over the administration of social security. Application of the legality criterion basically eliminates a possibility for the administrative court to formulate a different judgment (based on purpose or equity criterion) and at the same time explicitly limits the permissible interference of the court with the sphere reserved to the executive power. In some cases, however, the fixing of the border is complicated, especially when the legislator uses underdetermined expressions, administrative discretion or when the legislator provides the administration with certain legislative powers. It may be assumed that, in these situations, the judicial review is not only about examining the legality of the administration functioning, but also about the reconstruction of the scope of

Cf. Judgment of the Constitutional Tribunal of 25 July 2006, file No K 30/04, Orzecznictwo Trybunału Konstytucyjnego. Zbiór Urzędowy (OTK ZU) 2006, No 7/A, item 86 and judgment of 20 April 2004, file No K 45/02, OTK ZU 2004, No 4/A, item 30. 17 Cf. Judgment of the Constitutional Tribunal of 16 Feb. 2010, file No P 16/09, OTK ZU 2010, No 2/A, item 12. This opinion was shared in the administrative courts case law, cf. e.g. judgment of the Supreme Administrative Court of 9 April 2015, file No II OSK 2907/14, www.orzeczenia.nsa.gov. pl and case law presented there. 16

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activities left to its exclusive and free competence. This may express a practical aspect of the deference idea in the national system. Such adjudications can be observed first of all in cases where the administrative court controls the legality of local acts, in particular the local land development plans. The notion of planning authority, which was formed in the doctrine and jurisprudence, means a sphere in which the administrative court competence is limited or even excluded if the municipality has not abused its power.18 The decision on such planning is left in principle to the exclusive competence of the municipal council. It consists in “independently shaping the way of regional planning subject to the planning authority, provided that it operates within limits of and under the law and does not abuse that power”.19 In the administrative courts case law, it is assumed that the restrained attitude while controlling the legality of the local land development plan should be taken into account particularly when a change to the plan was introduced. In one of the rulings of the Supreme Administrative Court, it was assumed that “the changes to the contested plan do not detract the administrative court from the right to hear a complaint but require some consideration and restraint in the application of the norms allowing the court to repeal such a plan”. As far as the institution of administrative discretion is concerned, the administrative courts are also reserved in interfering with a decision of the administrative authority. This is primarily about the matter of awarding the entity a tax relief. There has been created an adjudication line, which assumed freedom of administration to choose legal consequences of some facts set for the relief decision, as long as the body did not commit a procedural error. This approach, however, was subject to criticism based on arguments stemming from the essence of the competence of the administrative court, established to exercise full control over the legality of administration activities and arising from the postulate of effectiveness of the administrative courts’ adjudication. It is also now noted that the administrative courts formulate views different from traditional ones i.e. allowing some control based on the substantive grounds of discretionary decisions.20 Taking a restrained attitude by an administrative court may favour the use of underdetermined expressions by the legislator. However, in national administrative courts case-law, it was assumed that in each case they should be filled in with the content relevant to the case, and this procedure is subject to the judicial review.21

18

See Article 15 (1–4) and Article 28 (1–2) of the Act on Planning and Land Development of 27 March 2003 (consolidated text—O. J. of 2017, item 1073). 19 Judgment of the Supreme Administrative Court of 17 November 2016, file No II OSK 311/15, www.orzeczenia.nsa.gov.pl. 20 Kmieciak and Wegner-Kowalska (2016), pp. 17–32 and presented the case law, especially judgments of the Supreme Administrative Court of 25 February 2014, file No II FSK 666/12, LEX No 1450361 and of 11 May 2012, file No II FSK 2228/10, LEX No 1166128. 21 Cf. Judgment of the Supreme Court of 18 November 1993, file No III ARN 49/93, Orzecznictwo Sądu Najwyższego. Izba Cywilna 1994, No 9, item. 181and judgment of the Supreme Administrative Court of 7 February 2008, file No II GSK 354/07, www.orzeczenia.nsa.gov.pl.

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Constitutional Ground

The idea of deference can be supported by the constitutional principles, above all the principle of the separation of powers or the rule of judicial review, which in Poland is based on the criterion of legality.22 Under Article 10 of the Polish Constitution the state system is based on Montesquieu’s idea of checks and balances of the legislative power, the executive power and the judicial power. In the literature and in the jurisprudence of the Polish Constitutional Tribunal, it was assumed that the three powers should function in relative equilibrium. Each of these authorities should have the competence of its essence. Neither of the authorities should encroach on another sphere without sufficient justification and at the same time “compensation”. From the deference perspective, the principle of balancing the powers, defined as “the influence of the authorities on one another, the complementarity of their functions” seems to be the most important. It is expressed in “the cooperation of the authorities with each other, their mutual control, and possibilities of a dialogue between them”.23 The legality criterion of judicial review adopted in Article 1 § 2 of the Act—Law on Administrative Courts’ System of 25 July 200224 should ensure the balance between the executive and judicial powers. As far as the judicial power is concerned, Article 177 of the Constitution adopted the principle of presumption of the common court competence. At the same time, with respect to the judicial review, this presumption was broken up in favour of the jurisdiction of administrative courts.25 The scope of the administrative courts’ jurisdiction is determined by Article 3 § 2 of the Law on Proceedings before Administrative Courts. The review of the activity of public administration by the administrative courts embraces adjudicating on complaints about: (1) administrative decisions, (2) orders made in administrative proceedings, which are subject to an interlocutory appeal or those concluding the proceedings, as well as orders resolving the case in its merit, (3) orders made in enforcement proceedings and proceedings to secure claims which are subject to an interlocutory appeal, with the exclusion of the orders of a creditor on the inadmissibility of an allegation made and orders dealing with the position of a creditor on the allegation made; (4) acts or actions other than the acts or actions referred to in subparagraphs 1–3, falling within the scope of public administration and relating to the rights or obligations arising from the provisions of law, (5) written interpretations of tax law provided in individual cases, (6) local enactments issued by local governmental authorities and territorial agencies of governmental administration, (7) enactments issued by units of local government and their associations, other than 22

See Skoczylas (2011), pp. 396–399 and Kmieciak (2013), p. 135 et seq. Judgment of the Constitutional Tribunal of 15 January 2009, file No K 45/07, OTK ZU 2009, No 1/A, item 3. 24 O. J. of 2016, item 1066. 25 Resolution of 7 justices of the Supreme Administrative Court of 8 November 1999, file No OPS 12/99, Orzecznictwo Naczelnego Sądu Administracyjnego 2000, No 2, item 47. 23

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those specified in subparagraph 6, in respect of public administration matters, (8) acts of supervision over activities of local governmental authorities, (9) lack of action or excessive length of proceedings, protracted conduct of proceedings in the cases referred to in subparagraphs 1–6. What is more, administrative courts resolve jurisdictional disputes between local governmental authorities and between selfgovernmental appellate boards and adjudication in other cases, if a separate statute provides so.

2.4

In the Context of the European Union

When referring the concept of deference to the EU law, it is appropriate to indicate cases in which the national court as the European court exercising the judicial review remains restrained in relation to the administration implementing a specific EU policy. In this regard, deference should be combined with the aim of ensuring high effectiveness of EU policies. It can be assumed that the more freedom the court will leave to the administration exercising the EU law, the more effective the achievement of EU goals will be. Such “deference situations” can be seen in cases whose subject of the judicial review includes the allocation of EU funds for the implementation of various support programs for specific economic and agricultural sectors. The judicial review is determined in these matters by identifying and respecting the aims of the EU law.26 In these cases, administrative courts have raised an argument, referring to the US case law and science assuming high professionalism of civil servants, specialized in dealing with a particular category of cases. Namely, when exercising the judicial review of applications for co-financing of specific EU-funded projects, the judgment is based on the provisions stating the principles of granting them, i.e. transparency, honesty and impartiality.27 The court does not, however, refer to substantive arguments of the application for co-financing, which belongs to specialized experts.28

26 Cf. Judgment of the Supreme Administrative Court of 15 February 2017, file No II GSK 1518/15, www.orzeczenia.nsa.gov.pl. 27 Cf. e.g. Article 37 (1) of the Act on the Principles of Implementation of the Cohesion Policy Programmes, Financed under the 2014–2020 Financial Perspective of 11 July 2014 (O. J. of 2016, item 217). 28 It was so adopted in e.g. judgment of the Supreme Administrative Court of 28 March 2017, file No II GSK 366/17 or in the judgment of the Provincial Administrative Court in Poznań of 26 October 2016, file No III SA/Po 973/16, www.orzeczenia.nsa.gov.pl.

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3 The Practice of Judicial Review and the Power of the Courts The relatively short period of functioning of the judicial review reactivated in 1980, and on the other hand, the tendency to depart from the purely cassation model, observed for some time, have not led in Poland to the development of the idea of deference within the meaning of the term applied in the world literature. Lack of enthusiasm for this idea can be explained by the tendency to strengthen the judicial power against the executive power, observed from the turn of the twentieth and twenty-first century. This is a completely understandable reaction to the decadeslong lack of administrative justice (1939–1980). Of course, it can be argued that certain elements of the doctrine of deference lie within the very premise of the cassation type judgment. This, however, is in our opinion too simplistic and methodologically incorrect point of view. The political and systemic transformations that followed the parliamentary elections in 2015 won by the “Law and Justice” party placed the Polish courts in a very difficult situation. In 2016 the ruling party pushed through amendments to the legislation that made the Constitutional Tribunal a puppet institution that issues rulings obeying the dictates of the executive power, and strictly speaking, of the president of the ruling party. In 2017, they made efforts to subordinate the Supreme Court, the common courts and, consequently, the administrative courts to the executive power. In face of the coup on the independence of the courts and judges, speaking in Poland about the deference doctrine is at least inappropriate, and is rather a grim joke. The problem now is the preservation of the real power that the Polish Constitution has guaranteed to the courts, including the maintenance of relations between the judicial and the executive powers that had existed until the 2015 parliamentary elections. The essence of the deference doctrine assumes, after all, the proper exercising of judicial power with the respect to generally accepted principles of rationality, proportionality, efficiency and purposefulness of administration under conditions of complete independence and separation of powers. Failure to meet these two conditions makes the discussion of the analysed idea pointless. The imbalance of the powers that took place in Poland after 2015 inevitably resulted in the limitation of the jurisdiction of administrative courts, including the Supreme Administrative Court. Breaking with the established tradition of settling doubts as for the admissibility of the judicial protection of individuals’ rights and freedoms in favour of a complainant, the courts found it inappropriate to hear complaints of not publishing the judgments of the Constitutional Tribunal by the prime minister or the joining of the museums into a single institution by the Minister of Culture and National Heritage.29 See especially the order of the Supreme Administrative Court of 25 April 2017, file No I OSK 126/17, Monitor Prawniczy 2017, No 13, pp. 712–715, with the note by Z. Kmieciak and the order of this Court of 5 April 2017, file No II OZ 299/17, Orzecznictwo Sądów Polskich 2017, No 9, pp.

29

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The Difficulty of Application of Deference Doctrine

The deference doctrine was successfully developed under the conditions of real separation and balance of various segments of public power (legislative, executive and judicial) and it is not adequate in authoritarian systems, including those that implement the “an elected dictatorship” concept. In reference to the terminology used many years ago by Lord Hailsham, also known as Quintin McGarel Hogg, the second Viscount Hailsham of St Marylebone (1907–2001),30 this term was introduced into the scientific literature by A.R. Brewer-Carías.31 It faithfully reflects the situation that has existed in Poland for several years; the absolute dominance of the centre of the party power, located de facto outside the governmental structures. This domination resulted in fulfilment of the law-making function on the basis of purely automatic adoption, due to parliamentary members’ being bound by the parliamentary party’s discipline, of bills prepared by a narrow group of trusted people, in haste (sometimes at night) and unexpectedly, without any substantive debate or considering the opposition’s opinion. This practice led in a short time to a drastic imbalance of the powers and a kind of dislocation of their functions. For these reasons, it is difficult to expect to apply in Poland some jurisprudence achievements of the states, in which the deference doctrine in different forms has been applied. The present invoking of this doctrine could at best provide an excuse for undermining the authority and limiting the powers of the administrative courts and, consequently, to their greater dependence on the executive power. So, developing in Poland the deference doctrine is, at least in the close future, highly risky. We must remember historical roots of the phenomenon of stopping the courts from encroaching on the power of the extraordinary prerogative or on the rights of certain subjects, completely excluded from any forms of control (monarchs, heads of state, special status bodies).32

3.2

Deference and the Balance of Powers

As already stated, the doctrine of deference has not reached a more in-depth and systematic arrangement in the Polish case law. Paradoxically, in recent years, many 78–85, with the note by Z. Kmieciak. See also consideration conducted by Chróścielewski (2017), p. 96 et seq. and Kmieciak (2018), pp. 131–140. 30 He held many public positions, inter alia that of the minister in a few governments of the Conservative Party, he was also a member of the House of Lords and for over a decade he held the office of the Lord Chancellor as his father had one. It is worth adding that the phrase that Hailsham was using in his speeches in media at the end of the 1960s and in the 1970s of the last century was borrowed from a name created one century earlier in another part of Europe for the need of description of Giuseppe Garibaldi’s doctrine. 31 See Brewer-Carias (2001), p. 534. 32 See Zoller (2008), pp. 92–95.

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legislative and executive efforts have sought to limit the role of courts and to significantly weaken their systemic position. The intentions of these actions well reflect the arguments presented in the application of the group of “Law and Justice” members of 27 July 2015 (file number Twn 2/15), corrected by the letter of 17 August of that year, for declaring the provisions of Articles 145 § 3, 145a and 188 of the Law on the Procedure before Administrative Courts incompatible with the Constitution. According to the applicants, the specified provisions, namely Article 1 point 37, 38 and 55 of the Act Amending the Law on the Procedure before Administrative Courts of 9 April 2015, “violate the systemic balance of the executive power and the judicial power” and “create a dangerous precedent of an unacceptable transfer of exclusive rights and competence of the administrative organ to the judicial power”. In their opinion, “the transposition of specific power (competence) into an authority to the detriment of another kind of authority [. . .] will strengthen this kind of authority too much, it might even happen to the detriment of the guarantee of the civil freedoms”. Unfortunately, the applicants did not attempt to clarify how the guarantees of civil rights would be damaged by providing a model of judicial review more effective than cassation, allowing for faster and more reliable protection of claimants’ interest together with reduction proceedings costs. They also hardly touched the core of the judicial review of administrative activity, with a conclusion based on textbooks that the judicial review is based on the comparison between the actual state with the postulated one “without a possibility of taking direct measures of substantive influence”. It cannot therefore be surprising that according to the applicants, adding to Article 145 the provision marked as § 3, “the eternal element of the democratic system of the state which is the principle of separation of powers, in this case of the executive power and the judicial power, faded completely”. Another part of the application expressly acknowledges that providing the administrative courts with the competence of exercising the control over the administrative organs precludes “thorough merit decisions on how to complete the administrative procedure”. It should be noted that the ruling about discontinuing the administrative proceedings in case of repealing a decision or order pursuant to Article 145 § 3 shortens the way to achieve the result desired by the complainant, and although it is a manifestation of discharging the administrative organ from exercising its competence, it does not appear to be a “purely substantive decision” but purely procedural one. Its adoption, because of the objectlessness of the proceedings, eliminates—without the need for further involvement of the body—the state of lis pendens, and thus has a technical dimension in the sense of drawing the procedural consequences of the assessment about the legality of the contested act.33 The manifestation of satisfying requirements generally identified as the doctrine of deference is the administrative courts’ respect for administrative freedom of interpretation of ambiguous legal terms such as “important considerations”, “interest 33

Kmieciak (2015), pp. 21–22.

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of the state security” or “the public good”. The courts, however, control whether the competent authorities have crossed the limits of such freedom, using in particular a test of rationality, proportionality or equal treatment. As a rule, the courts do not enter the sphere of freedom associated with exercising the discretionary powers (the choice of one from multiple legally authorized options of actions). In the case of “a margin of a decision”, the courts always investigate the administration’s compliance with the applicable procedural rules, including the provisions of the Code of Administrative Procedure.34 This means that Polish courts avoid interference with the matter of creating and implementing the administrative policy, which obviously promotes the cassation model of adjudication.

4 Conclusion Summing up the briefly presented considerations, it could be said that the current problem in Poland is not that much to provide the necessary restraint of the courts against the controlled executive power, but to restrain this executive power and the legislature against the courts. The events of the recent years give no rise to optimism and justify the statement that the doctrine of deference retains its meaning only in conditions of mature, free from degeneration or deformation liberal democracy and respecting the standards of the Rule of Law.35 The Polish experience also allows us to formulate the thesis 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. The analyses of the development concerning the doctrine of deference allows to formulate more general conclusions essential from the point of comparative law. It is undeniable that this doctrine has become meaningful and popular in the systems where the ordinary courts control administration (the US and other systems of common law). In countries where specialized administrative jurisdiction has appeared especially with competences to adjudicate on the basis of merit, the

34

Consolidated text—O. J. of 2017, item 1257. As for contravention of this standards in Poland see Garlicki (2016), p. 3 et seq., Zajadło (2016), pp. 20, 36–39, and Kmieciak (2016), pp. 31–33. See also: (1) opinions on the Act on the Public Prosecutor’s Office as amended, and on the Draft Act Amending the Act on the National Council of the Judiciary, on the Draft Act Amending the Act on the Supreme Court proposed by the President of Poland, and on the Act on the Organisation of Ordinary Courts—adopted by European Commission for Democracy through Law (Venice Commission) at its 113-th Plenary Session, Venice, 8–9 December 2017 (www.venice.coe.int), (2) Letter of Formal Notice to Poland regarding the Polish law on the Supreme Court—sent by the European Commission, Brussels 2 July 2018/Rule of Law: Commission launches infringement procedure to protect the independence of the Polish Supreme Court (http://europa.eu/rapid/press-release_IP-18-4341_en.htm).

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doctrine of deference has weaker foundations. The hypothesis may be stated that tradition and cultural background of individual legal systems is the factor that has determined the estimation of value of the indicated doctrine and its practical usability.

References Bernatt M (2015) Kontrola sądowa nad interpretacją prawa dokonaną przez organy władzy wykonawczej (perspektywa amerykańska), Państwo i Prawo No 6 Brewer-Carias AR (2001) Études de droit public comparé. Bruxelles Chróścielewski W (2017) Zakres jurysdykcji sądów administracyjnych. In: Kmieciak Z (ed) Polskie sądownictwo administracyjne – zarys systemu. Warszawa Garlicki L (2016) Niekonstytucyjność: formy, skutki, procedury, Państwo i Prawo, No 9 Kmieciak Z (1997) Postępowanie administracyjne w świetle standardów europejskich. Warszawa Kmieciak Z (2013) The efficiency of administrative courts (in the light of European and Polish experiences). Comparative Law Review. Nicolaus Copernicus University in Toruń, No 15 Kmieciak Z (2015) O merytorycznym orzekaniu przez sądy administracyjne raz jeszcze, Gdańskie Studia Prawnicze. Przegląd Orzecznictwa, No 4 Kmieciak Z (2016) O pojęciu rządów prawa, Państwo i Prawo No 9 Kmieciak Z (2018) Glosa do postanowienia Naczelnego Sądu Administracyjnego z dnia 7 grudnia 2017 r., I OSK 857/17, Orzecznictwo Sądów Polskich, No 5 Kmieciak Z, Wegner-Kowalska J (2016) O ułomności formuły sądowej kontroli uznania administracyjnego, Przegląd Prawa Publicznego 2016, No 5 Krawczyk A (2017) Ewolucja, ustrój i podstawowe założenia funkcjonowania sądownictwa administracyjnego w Polsce. In: Kmieciak Z (ed) Polskie sądownictwo administracyjne – zarys systemu. Warszawa Malec D (1999) Najwyższy Trybunał Administracyjny 1922 – 1939 w świetle własnego orzecznictwa. Warszawa – Kraków Piątek W, Skoczylas A (2016) Sądowa kontrola administracji. In: Hauser R, Niewiadomski Z, Wróbel A (eds) System prawa administracyjnego, vol 10. Warszawa Skoczylas A (2011) Administrative proceedings and judicial review of administration. In: Dajczak W, Szwarc A, Wiliński P (eds) Handbook of Polish law. Warszawa – Bielsko-Biała Stawecki T (2014) Dyskusje wokół aktywizmu i pasywizmu sądów konstytucyjnych jako spór o wykładnię konstytucji. In: Stawecki T, Winczorek P (eds) Wykładnia konstytucji. Inspiracje, teorie, argumenty. Warszawa Zajadło J (2016) Nieposłuszeństwo sędziowskie, Państwo i Prawo, No 1 Zoller E (2008) Introduction to public law: a comparative study. Leiden

Zbigniew Kmieciak PhD, is a Full Professor of Administrative Law and Procedure, Head of the Department of Administrative Procedure, University of Łódź, and a retired justice of the Supreme Administrative Court. Author of about three hundred scientific publications and many legal expert opinions prepared for the needs of the legislative process and practice. He led the expert team for the reform of the law on administrative proceedings in the years 2012–2016. The result of the team’s work was the fundamental modernization of the Polish Code of Administrative Procedure in 2017. Joanna Wegner PhD, is an Associate Professor, Department of Administrative Procedure, University of Łódź, judge of the Regional Administrative Court in Warsaw, and former attorney. He was member of the expert team for the reform of the law on administrative proceedings in the years 2012–2016 which work resulted in the fundamental modernization of the Polish Code of Administrative Procedure in 2017.

‘The Notion of a Subjective or Unfettered Discretion is Contrary to the Rule of Law’: Judicial Review of Administrative Action in Singapore Eugene K. B. Tan

Abstract 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”.

1 Introduction Founded in 1819 by Sir Stamford Raffles of the British East India Company, Singapore’s legal system has its roots in English common law and practice. Since attaining self-government from Britain in 1959 and independence from Malaysia in 1965, Singapore has developed an autochthonous political and legal system that is relevant and unique to its political, social and economic circumstances. This chapter is an updated version of an article originally published in (2017) 29 Singapore Academy of Law Journal 800. Republished with permission. E. K. B. Tan (*) School of Law, Singapore Management University, Singapore, Singapore e-mail: [email protected] © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_17

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Modelled on the Westminster system, the Government comprises the Legislature, Executive and Judiciary. The Legislature is made up of Parliament and the elected president. The Executive is made up of the president and the Cabinet, which is responsible for the general direction of the Government and accountable to Parliament. The Judiciary comprises the Supreme Court and the State Courts. The Supreme Court is made up of the Court of Appeal and the High Court, and hears both civil and criminal matters. The State Courts comprises the District Courts, Magistrates’ Courts, specialised courts such as the Family Court, Juvenile Court, Coroner’s Court, Small Claims Tribunals. With independence, there has been a gradual—and increasing—movement towards developing an autochthonous legal system. The guiding principle is that the adoption of any legal practice or norm must be compatible with Singapore’s cultural, social and economic requirements. In this regard, the economic success of Singapore can be attributed, amongst others, to the wisdom of its leadership, its use of laws and the legal system to build a new society and to entrench its economic survival while ensuring that the legal system is attuned to the needs and demands of the international community. The separation of powers among the executive, the legislature and the judiciary is provided for in Singapore’s Constitution.1 The separation of powers doctrine has been judicially recognised in Singapore.2 The Singapore Constitution of Singapore is based on the Westminster model and “[a]ll Constitutions based on the Westminster model incorporate the principle of Separation of Powers as part of their constitutional structure”.3 Singapore’s unicameral Parliament is an essential part of Singapore government and politics and burnishes, at a formalistic level, with democratic credentials. Singapore’s parliamentary system today maintains but trappings of its colonial legacy. Even though the Westminster heritage is often cited to project democratic ideals and norms, the adaptation of political institutions and processes is seen as being necessary for Singapore’s political survival and prosperity. There is no sentimental attachment to its Westminster roots. This dovetails with the abiding belief in the “Singapore way”: A model of development that is coterminous with her history, societal values, and development objectives, in contradistinction to prevailing Western norms. In judicial review, courts encounter and often recognise their own limits— whether stemming from the concerns of institutional competence, the delegation of powers and the lack of a democratic mandate. As such, courts endeavour to accord the appropriate level of deference to the findings, value judgments and decisions of the decision-makers and rule-makers—be it the Legislature or the Executive. In administrative law, a court has to assess its institutional competence to deal with a particular issue, and show restraint where its competence is limited and afford

1

Constitution of the Republic of Singapore (1999 Reprint), Arts 23, 38 and 93. Mohammad Faizal bin Sabtu v PP [2012] 4 SLR 947. 3 Ibid., at p. 957. 2

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the political branches the requisite “margin of appreciation” for their administrative actions. In constitutional law, although the focus is on ensuring that constitutional rights are given effect to, judicial deference is demonstrated in the strong presumption of constitutionality accorded to legislation enacted by the Legislature. These principles are judicially recognised in Singapore and the cases unequivocally demonstrate that the Judiciary’s proper role in the constitutional system is crucial but limited. Unsurprisingly, curial deference is a crucial aspect of the separation of powers, which itself is fundamental to the rule of law. Deference embraces “a range of judicial techniques which have the effect of increasing decision-makers’ latitude” (Elliot 2010, p. 268). These include concepts like justiciability and intensity of review. But deference is, of course, laden with tension given the competing, if not conflicting, considerations. They include the imperative to protect the rights of an individual, especially the fundamental liberties guaranteed under the Singapore Constitution, and to afford the Government sufficient latitude to exercise its earned democratic mandate to further governmental objectives without unnecessary interference from the courts. Lord Hoffman said it well when he noted that deference with “its overtones of servility, or perhaps gracious concession, are appropriate to describe what is happening”.4 Whether it is in the realm of constitutional law or administrative law, 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”.5 The Legislature and Executive do not possess the unfettered power or discretion to legislate and to make policy and exercise executive powers in any manner they like. Governmental powers cannot run afoul of the constitution, as the supreme law of the land, and legislation. Hence, it is not a question of whether there should be curial deference. Instead, the more prominent questions revolve around when and how much the courts ought to defer to primary decision-makers. Too much deference by the Judiciary to the political branches could result in individual rights being ridden roughshod over. Too little deference, on the other hand, could result in the courts overreaching, potentially generating constitutional chaos.6 In either case, notwithstanding the Judiciary’s lack of accountability to the popular will, the Judiciary could be abdicating its fundamental constitutional duty. Ultimately, the thoughtful recognition and principled application of deference do not undermine the Judiciary’s legitimacy and authority. Instead, such institutional humility is a cornerstone of rights adjudication and enhances the Judiciary’s role

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R (Pro-Life Alliance) v British Broadcasting Corp [2004] 1 AC 185 at [76]. Wee Chong Jin CJ in Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525 at [86]. Article 93 of the Constitution is commonly cited to support the Judiciary’s power of judicial review. 6 For the view that judicial review may not effectively serve to further redistributive politics or abet the diffusion of power, see Hirschl (2007). 5

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as a counter-majoritarian check in a constitutional system of government. This sensitivity is central to justiciability and the intensity of review as manifestations of responsible curial deference. This chapter examines the evolution 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. Does this mean that rights protection is compromised or even sacrificed at the altar of governmental autonomy? This need not be the inevitable outcome where the separation of powers is assiduously observed and the purpose and objective of judicial review is alive to the political, socio-cultural, and economic context and realities. How judicial review is practised should also reflect the socio-political culture, norms and values of the community (Chan 2010a; Thio 2011). As such, not to consider the social-political setting of Singapore and any changes to it might result in an inadequate understanding of the Judiciary’s approach towards judicial review. This chapter, which focuses on judicial review in administrative law, proceeds as follows. In Sect. 2, the contours of curial deference in Singapore are outlined. Curial deference is largely similar in tenor to other common law jurisdictions although recent jurisprudence point to a nascent autochthonous development. Where judicial review in Singapore differs is its emphasis on the green-light approach in facilitating good governance. Sections 3 and 4 respectively examine justiciability and the intensity of review, the related “engines” of judicial review that involve calibrating the appropriate level of curial deference. The jurisprudence is evolving towards a nuanced and robust approach in which a categorical approach towards justiciability is eschewed. Instead, the focus of the courts is on the true nature of the question raised for adjudication. Similarly, judicial scrutiny of the governmental action adopts varying intensities of review, rather than a uniform intensity, more consciously taking into account the rights of the individual vis-à-vis the interests of the Government. The issue of the standard of review reflecting the appropriate level of deference to interpretations of the law by primary decision-makers is considered in Sect. 5. Any movement towards granting the Executive more interpretive autonomy will have to balance the inherent polycentric nature of such matters, and the courts’ institutional competence and democratic legitimacy against the role of the courts in Singapore’s system of constitutional government, especially given the sharp edge that judicial review potentially is. Section 6 concludes.

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2 Overview of Deference and the Green-Light Approach to Judicial Review Curial deference and judicial independence are intimately connected. The independence of the courts empowers them to determine when and how to defer to the competence of the other branches of government. In a 2010 article, Chan Sek Keong CJ (as his Honour then was) described the role of the Judiciary in a democracy and the centrality of judicial independence in its execution of its constitutional duties as such (Chan 2010b): In a democracy with a form of representative government (based on the doctrine of separation of powers), the Judiciary is one of three arms of government, co-equal in status, and vested with the power, among others, to check the Legislature and the Executive in their exercise of powers vested in them by law and the constitution of the State . . . The Judiciary acts as an impartial referee to decide what conduct is permissible or not permissible under applicable rules of conduct, whether the rules have been infringed or not infringed, and to provide the remedies for such infringements. To fulfill these functions, the Judiciary has to be independent of the other two arms of government. A Judiciary that is not independent would not be able to fulfill such a role, and would provide a weak foundation for democracy and its associated attribute (i.e., the rule of law) to flourish. Conversely, the Judiciary requires the existence of the rule of law for continuous independence. There cannot be the rule of law without an independent Judiciary, and vice versa, but with both, there will be security, law and order, and stability, which are requisites for progress and the protection of political and civil rights.

As Lord Hoffman of the UK House of Lords observed, “[i]ndependence makes the court more suited to deciding some kinds of questions and being elected makes the legislature more suited to deciding others”.7 How decision-making powers are allocated is often spelt out in a constitution, legislation, and/or based on conventions, and subjected to established principles of law. The Singapore courts have consistently acknowledged the doctrine of curial deference, even if in giving effect to it bore different emphasis in different periods since independence. The Court of Appeal recently had the opportunity to consider the doctrine in Tan Seet Eng v Attorney-General8 (“Tan Seet Eng”), where the apex court captured very well the Judiciary’s attitude and approach towards curial deference. Put broadly, the court stated that deference was a flexible doctrine, which was not antithetical to the court reviewing executive action. This entails the court assessing its institutional competence to deal with a particular issue, and to show restraint where its competence is limited. Like in other common law jurisdictions, the basis of the doctrine in Singapore can be justified on grounds of institutional competence and democratic intent. Institutional competence revolves around questions of which branch is best placed due to its expertise and experience, its role and function in the constitutional framework of powers. Thus, the Executive has more expertise in matters relating to governance 7 8

R (Pro-Life Alliance) v British Broadcasting Corp [2004] 1 AC 185 at [76]. [2016] 1 SLR 779, especially at [90]–[106]. A more detailed discussion of the case follows.

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and public policy. Comprising primarily of elected legislators, the Legislature is not only the highest law-making body; it is also the primary political forum for regular and robust debates (Tan 2015). As such, it is well placed to determine which policy options are in society’s best interests, especially on contentious and divisive issues of the day, and to be held accountable for the choices made (or not made). Democratic accountability certainly features prominently in making such a determination in issues of societal importance. This is also aligned with the democratic intent: which branch is empowered by the constitution to execute a specific governmental function. As Attorney-General V K Rajah (as he then was) noted (Rajah 2016: [26]): The statutory framework is crucial because it is the anchor point for gauging the legality of governmental action in any given situation. The statutory framework is also a disciplining force, because neither the executive nor the court can stray outside its boundaries. This allows for greater certainty and predictability.

In Singapore’s context, the doctrine of curial deference also has to be contextualised against the “cultural substratum” that emphasises “communitarian over individualist values”, including “notions such as dialogue, tolerance, compromise and placing the community above self”. These values “have modulated the court’s approach in ensuring that the rule of law rules” (Menon 2016: [24]) and is heavily influenced by the courts playing a supporting role in good governance (Tan 2000, 2013). In 2010, then Chan CJ noted, extra-judicially, that the Judiciary plays a “supporting role by articulating clear rules and principles by which the Government may abide by and conform to the rule of law” (Chan 2010a, p. 480). He asked whether a perspective that views “the courts being locked in an adversarial or combative relationship with the Executive and functioning as a check on administrative power” was appropriate for Singapore.9 For Chan CJ, courts do not serve as the “first line of defence against administrative abuse of powers”.10 Instead, they serve a facilitative function in developing good administrative practices even as it adjudicates in judicial review applications. This attitude of a collaborative approach towards governance stems from the premise that good governance also requires each branch to check itself (intrabranch), in addition to a robust set of systemic checks and balances (inter-branch). Again, Chan CJ put it well, “[j]udicial review deals with bad governance but not bad government. General elections deal with bad government” (Chan 2010a: [6]).11 Secondly, while judicial review is an end in itself, it should also be a means to an end. In dealing with unlawful governmental action, judicial review can and should encourage good administrative practices and governance such that the Government, through upholding high standards of public administration and policy, can better abide by the rule of law. Chan Sek Keong, “Judicial review - from angst to empathy” 22 SAcLJ 469 (2010) at [29]. Ibid. 11 Further, at [29], Chan added: “[i]n other words, seek good government through the political process and public avenues rather than redress bad government through the courts”. 9

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The curial reply to Chan CJ’s question on the true nature of the court’s role in judicial review in Singapore was given in Jeyaretnam Kenneth Andrew v AttorneyGeneral,12 where the Court of Appeal made the first judicial cognisance of the “redlight” and “green-light” approaches in public law.13 In the red-light approach, courts are “locked in an adversarial or combative relationship with the Executive and functioning as a check on administrative power” (Chan 2010a: [29]). In contrast, the green-light approach conceives of the courts’ adjudicatory role in public law as one where “public administration is not principally about stopping bad administrative practices but encouraging good ones”.14 However, this binary categorisation of the curial role in judicial review runs the risk of being simplistic, if not misleading. A court motivated by a green-light approach is not going to act differently from any other court where the administrative action complained of is unlawful or unconstitutional or when a legislative provision is unconstitutional. Thus, the Court of Appeal in Tan Seet Eng noted the Judiciary’s “specific responsibility” as one of “pronouncing on the legality of government actions”.15 Tan Seet Eng affirms the green-light approach even though the court found against the Government and set aside the Minister’s detention order under the Criminal Law (Temporary Provisions) Act16 (“CLTPA”). The Court of Appeal adopted a more restrictive reading of the Executive’s scope of power and utilised a more intensive scrutiny of the Executive’s decision. Much as the apex court’s interpretation of the relevant law in question reined in the Minister’s power to detain, it did not intrude into the merits of the case by not making a determination whether the applicant was a threat to public order in Singapore. Instead, the court was very much focused on whether there were deficiencies in the grounds stated in the detention order. This approach advocates and promotes a higher standard of public administration while simultaneously discouraging executive complacency and overreach. This is consistent with the green-light approach of encouraging better administration by requiring that the Government give complete reasons for any detention, rather than the Judiciary being primarily concerned with checking the Government’s power to detain under the CLTPA. Notwithstanding the less deferential judicial posture, the case did not point to antagonistic relations between the Judiciary and the political branches of government. Individual rights were accorded due recognition and administrative autonomy was not undermined. The facilitative effect can be observed in the re-arrest order that

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[2014] 1 SLR 345. This traffic lights metaphor is taken from Harlow and Rawlings (2009, pp. 22–48). In Jeyaretnam Kenneth Andrew v Attorney-General, the Court of Appeal did not appear to differentiate between judicial review in administrative law and constitutional law. 14 Jeyaretnam Kenneth Andrew v Attorney-General [2014] 1 SLR 345 at [48]–[49]. 15 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [90]. 16 Cap 67, 2000 Rev Ed. 13

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was issued to Tan Seet Eng about a week after his release. The new detention order corrected the deficiencies in its predecessor and also specified the extent of the alleged match-fixing activities within Singapore.17 The green-light approach resonates with and is consistent with the duty and responsibility of the Confucian junzi (“君子”), where it is presumed that the people in government are honourable men and women who carry themselves with a high level of moral probity (Shared Values White Paper 1991: [41]). What drives this dual approach (ensuring legality and promoting good governance) to judicial review as Sundaresh Menon CJ put it, is (Menon 2016: [29]): [T]he belief that a court which is respected by the other branches of government can effectively shape the debate and ensure the legality of government actions by setting out its concerns openly and potentially obviating a binary clash between the Judiciary and the Executive.

With this judicial attitude in mind, the Singapore courts have manifested and given effect to appropriate curial deference through the application of concepts of justiciability and, more recently, varying intensities of review.

3 Justiciability Justiciability is concerned with whether a court has the jurisdiction to look into the matter.18 Scrutiny, on the other hand, is concerned with the intensity of review in a judicial review. Whether a matter is justiciable and the level of scrutiny to be adopted in any case pivot on the degree of curial deference (Kavanagh 2010, p. 241). Generally, courts recognise provinces of executive decision-making that are immune from judicial review.19 They include matters of “high policy” such as the dissolution of Parliament, the conduct of foreign affairs, and issues of national security.20 However, this does not mean that such issues are entirely non-justiciable. Rather, the court’s approach was limited to objectively determining whether there was evidence that the decision made was, for example, based on considerations of national security.21 The default position was one of greater deference when the decision being reviewed was policy-laden or security-based.22

Ministry of Home Affairs, “MHA Statement on Detention of Dan Tan Seet Eng” (5 December 2015) (accessed 18 May 2017). 18 Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR(R) 453 at [91]. 19 Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR(R) 453 at [95]. 20 Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR(R) 453 at [96]. 21 Chan Hiang Leng Colin v Minister for Information and the Arts [1996] 1 SLR(R) 304 at [30]. 22 R v Minister of Defence, ex parte Smith [1996] 1 QB 517, per Sir Thomas Bingham at 556. 17

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Hence, in Re Wong Sin Yee,23 which involved a judicial review of the decision to detain under the CLTPA, the High Court emphasised that the judicial process was “unsuitable for reaching decisions on national security,” and this extended to questions on “public safety, peace and good order” under the CLTPA.24 Relying on the Minister’s satisfaction that Wong was such a threat, the court held that it was in no position to find that the Minister’s exercise of discretion was irrational in the Wednesbury sense.25 Instead of inquiring into the grounds of detention to determine whether the detention order showed how the applicant’s acts had prejudiced the “public safety, peace and good order” of Singapore, the court was primarily focused on whether there was evidence of the ministerial satisfaction but not the basis of the satisfaction.26 The light-touch review adopted corresponded to a greater degree of deference where policy-laden decisions were concerned (Le Seur 2005, p. 39). A nuanced and more rigorous approach was taken in Lee Hsien Loong v Review Publishing Co Ltd27 (“Review Publishing”). One of the issues was whether an international treaty between Singapore and the People’s Republic of China applied in the Hong Kong Special Administrative Region. Menon JC (as his Honour then was) stated the general principle that issues of “high policy” and interpretation of international treaties, which have been expressly delegated to the Executive, are generally immune from judicial review. However, in an important caveat, judicial intervention is required in situations where the “courts are able to isolate a pure question of law from what may generally appear to be a non-justiciable area”.28 A rigid “hands-off” approach where the courts refrained from reviewing decisions once they were found to be “high policy” was rejected. Menon JC also provided the following guiding principles on justiciability: (a) Justiciability depends on the subject matter in question, not on the source of the power. (b) Due to their lack of institutional capacity, courts should refrain from reviewing cases that involve balancing of “various competing policy considerations”. (c) Courts should refrain from decisions which may potentially embarrass or fetter discretion of other branches of government. (d) When deciding on justiciability, courts have to consider their constitutional legitimacy in reviewing that decision. In Tan Seet Eng, the court affirmed Review Publishing by not assuming “a highly rigid and categorical approach” in determining whether a matter was justiciable. It

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[2007] 4 SLR(R) 676. Re Wong Sin Yee [2007] 4 SLR(R) 676 at [46]. 25 On Wednesbury irrationality, see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223. 26 The applicant had asserted that s 30 of the Criminal Law (Temporary Provisions) Act (Cap 67, 2000 Rev Ed) did not apply to criminal activities outside Singapore. 27 [2007] 2 SLR(R) 453. 28 Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR(R) 453 at [98]. 24

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also emphasised that the mere label of “high policy” was insufficient to constitute a bar to judicial review of the decision. Similarly, in Yong Vui Kong v AttorneyGeneral, had the issue in question been one on the procedure of the clemency process, then it would have been found to be justiciable (but whether clemency was correctly granted or denied was not justiciable).29 In short, the Singapore courts eschew a strict categorisation of what is justiciable and what is not is. A subject-matter area, prima facie non-justiciable, could still be justiciable depending on the legal issue raised.30 To reiterate, Menon CJ in Tan Seet Eng put it as such: “[T]he degree and extent of scrutiny that is applied by a court engaged in judicial review will be sensitive to the true nature of the question raised”.31 In Review Publishing, Menon JC found that the issue in question was reviewable since it was not concerned with whether the Executive had the power to sign the treaty (which is non-reviewable) but the legal effect of the alreadyconcluded treaty.32 In the above cases, although the statements of principles on the question of justiciability are important and nuanced, they did not break new ground. They can be traced to the seminal case of Chng Suan Tze v Minister for Home Affairs,33 which concerned detention orders under s 8(1)(a) of the Internal Security Act34 (“ISA”). In Chng Suan Tze, then Wee Chong Jin CJ asserted that unfettered discretion was contrary to the rule of law, and the starting point in any judicial inquiry was that of the inherent justiciability of executive decisions unless rendered unjusticiable according to commonly accepted principles.35 Citing the leading House of Lords case of Council of Civil Service Unions v Minister for the Civil Service,36 Wee CJ stated that where a decision fell under the umbrella of national security or other commonly accepted non-justiciable areas, they did not necessarily constitute an absolute bar to judicial review. Rather, justiciability can be used to isolate certain decisions from further scrutiny in the event of judicial review.37 Furthermore, the Court of Appeal declined to use the subjective test applied in Lee Mau Seng v Minister for Home Affairs38 and instead opted for the objective test for reviews of exercise of discretion.39 A subjective inquiry would practically render the court being “bound to accept whatever was put before it”.40 Earlier in the 29

Yong Vui Kong v Attorney-General [2011] 2 SLR 1189 at [63]. Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR(R) 453 at [98]. 31 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [105]. Emphasis added. 32 Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR(R) 453 at [100]. 33 Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525. 34 Cap 143, 1985 Rev Ed. 35 Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525 at [86]. 36 [1985] AC 374. 37 Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525 at [94]. 38 [1971–1973] SLR(R) 135. 39 Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525 at [55]. 40 Chng Suan Tze v Minister for Home Affairs [1988] 2 SLR(R) 525 at [55]. 30

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judgment, on the question of the sufficiency of evidence needed to prove the President’s satisfaction under s 8(1) of the ISA, the court stressed its authority to “determine whether the matters relied on by the Executive in the exercise of discretion can be said to fall within the scope of s 8 of the ISA”. On an objective inquiry, the appeal was granted as the respondents had not proven the President’s satisfaction. Even in the event that certain elements of a decision were non-reviewable, the court would not take a hands-off approach to the decision, but would instead scrutinise whether the decision was made according to the procedures and boundaries set by the law. Soon after the judgment in Chng Suan Tze was handed down, Parliament legislatively overruled the decision by promptly amending the Constitution and the ISA,41 reinstating the law prior to Chng Suan Tze. Did the response of the political branches to Chng Suan Tze contribute to the perception that the courts tended to adopt a more deferential approach in delimiting the scope of executive power post-Chng Suan Tze? Adopting a literal approach in the statutory interpretation on the scope of the executive power, the courts appeared contented to refer almost exclusively to the express limits provided for in the enabling statute. In Chan Hiang Leng Colin v Public Prosecutor42 (“Chan Hiang Leng Colin”) in relation to the boundaries of ministerial discretion under s 3(1) of the Undesirable Publications Act,43 a literal interpretation of the provision “confers a discretion on the Minister to order the prohibition of a publication if he is of the opinion that the importation, sale or circulation of that publication would be contrary to public interest”. Although the ambit of the provision was noticeably broad, no attempt was made to consider what the appropriate confines of the scope of ministerial power were, such as the nature of publications intended to fall within the ambit of the Act. In Re Wong Sin Yee,44 discussed earlier, the applicant was alleged to have trafficked drugs from Malaysia to Taiwan and China. He was detained under the CLTPA. As to whether there was illegality in the applicant’s detention, the court stated that45: [T]he Minister had asserted that the applicant had been involved in criminal activities and that it was in the interests of public safety, peace and good order that he be detained. As for whether the alleged activities endangered public safety, peace and good order, it was pointed out by . . . Chng Suan Tze . . . ‘[i]t hardly needs any emphasis that the judicial process is unsuitable for reaching decisions on national security’. The same . . . applies to questions of public safety, peace and good order . . .

Although the applicant’s alleged criminal activities took place abroad, the court did not address the question of whether the alleged activities did indeed endanger

41

Constitution of the Republic of Singapore (Amendment) Act 1989 (Act 1 of 1989). Chan Hiang Leng Colin v Public Prosecutor [1994] 3 SLR(R) 209. 43 Cap 338, 1985 Rev Ed. 44 [2007] 4 SLR(R) 676. 45 Re Wong Sin Yee [2007] 4 SLR(R) 676 at [46]. 42

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public safety, peace and good order in Singapore. The court in Re Wong Sin Yee treated the boundaries of ministerial discretion afforded by s 30(a) of the CLTPA to be broad: The Minister of Home Affairs, with the Public Prosecutor’s consent, is permitted to detain, without trial, a person who is “associated with activities of a criminal nature . . . in the interests of public safety, peace and good order”. Like in Chan Hiang Leng Colin, no attempt was made to consider the appropriate confines of ministerial power in the statutory provision in question. This contrasts with the recent decision of the Court of Appeal in Tan Seet Eng, which also concerned s 30 of the CLTPA. The applicant was the alleged leader of a global match-fixing syndicate. The grounds of detention alleged that he had recruited runners in Singapore, directed agents and runners from Singapore to assist in matchfixing activities, and financed and directed match-fixing activities overseas.46 He applied for an order to review his detention on the grounds of illegality, irrationality and procedural impropriety. The application was dismissed at first instance by the High Court.47 Upon appeal, the apex court quashed the detention order. It found that the written grounds of detention did not fall within the scope of s 30 of the CLTPA as there was nothing in the detention order that indicated that the applicant’s activities posed a threat to public safety, peace and good order within Singapore.48 Therefore, the Minister had acted beyond the scope of his powers in detaining the applicant.49 The apex court in Tan Seet Eng demonstrated a robust and less deferential approach in reviewing the exercise of a draconian discretionary power. For instance, and in contrast to Re Wong Sin Yee, the court closely scrutinised the grounds of detention put forward by the Minister. Second, it rejected the submission that there was no limit on the types of criminal activities that the CLTPA could cover.50 Instead, the Court of Appeal confined the law to “activities of a criminal nature” that involved the use of violence or the threat of reprisals to prevent witnesses from testifying, such that the normal criminal process is rendered inadequate,51 were of a sufficiently serious nature,52 and harm is caused to the peace, safety and order within Singapore.53 It also rejected the contention that the Minister possessed the discretionary power to widen the scope of the CLTPA even without a parliamentary mandate.54

46

Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [8]. Tan Seet Eng v Attorney-General [2015] 2 SLR 453 at [31]–[35]. 48 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [146]–[147]. 49 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [148]. 50 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [133]–[134]. 51 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [117]. 52 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [119]. 53 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [120]. 54 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [133]–[134]. 47

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The court’s interpretation was derived from a careful analysis of the parliamentary debates on the CLTPA, which Parliament has to renew every five years.55 By identifying these unifying characteristics of the types of criminal activities that the CLTPA covered, the court was unambiguously defining the scope of ministerial discretion under the CLTPA. In adopting a narrower interpretation than would have been required on a plain reading of s 30 of the CLTPA, the court was effectively imposing fetters on ministerial discretion to ensure that it kept to the legal limits of the power to detain without trial under the CLTPA. In its supervisory role, and fully cognisant of the distinction between review and appeal, Menon CJ also emphasised that the court was not to look into the evidential sufficiency of the factual allegations justifying the detention,56 and that only the reasons given in the grounds of detention could be used to justify the detention.57 This points to the court’s requirement of stringent standards of procedural probity to be adhered to in the Executive’s decision-making process. This narrow interpretation of the legislative provision, accompanied by a more intensive scrutiny of the exercise of “potentially draconian power” vested in the Executive by the CLTPA, highlights the court recognising that the public interest in public safety, peace and good order in Singapore had to be balanced against the protection of individual liberty. The court observed the interests of public safety, peace and order envisaged “a wide spectrum of scenarios”, including “relatively minor offences”.58 Permitting unbridled discretion on the part of the Executive could have potentially undesirable consequences for individual rights and the rule of law. The rule of law does not require decision-makers to be deprived of all discretion; only that discretion must not be unconstrained so as to be potentially arbitrary. The Court of Appeal in Tan Seet Eng demonstrated that the courts are prepared, in appropriate cases, to render narrow interpretations of broadly-worded statutes.59 This approach of a restrictive interpretation points towards the Judiciary’s will to impose limits on draconian statutes. The apex court’s judgment had the hallmarks of a judicial dialogue with the political branches. Menon CJ had prefaced the court’s analysis of the CLTPA with deliberate emphases on the court’s power to “pronounce authoritatively and conclusively on the meaning of the Constitution and all other laws”,60 including the scope of discretion conferred by legislation.61 The message was clear: Curial deference 55

Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [107]–[128]. Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [64], [128] and [147]. 57 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [130]–[131] and [147]. 58 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [74]. 59 Tan Seet Eng v Attorney-General [2015] 2 SLR 453 at [31]–[35]. In contrast, the High Court’s decision in Tan Seet Eng reflected the prior position where it noted that s 30 of the CLTPA did not specify any particular category of criminal activity, and concluded that the provision did not restrict its scope to any specific type of criminal activity. 60 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [90]. 61 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [97]–[98] and [134]. In making no fewer than eight such references in the judgment, including in the opening paragraph, the Court of Appeal 56

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notwithstanding, the Judiciary will not shy away from interpreting the boundaries of executive discretion restrictively where appropriate, such as when a person’s liberty, guaranteed under Art 9 of the Constitution, is at stake. Even then, the court consciously avoided engaging in a merits review into whether the evidence provided by the Minister to establish that Tan Seet Eng was a threat under the CLTPA was true. Instead the court approached it from a simple ultra vires perspective. That is, whether the grounds for the applicant’s detention brought the appellant within the limits of the CLTPA. This framed the subject matter as an issue of procedure, and not one of determining what “public order, peace and security” or “high policy” required. Thus, it was a justiciable issue as it fell within the ground of illegality.62 Tan Seet Eng also preserves the principles laid out in Review Publishing on the courts refraining from engaging in a review on matters due to a lack of institutional capacity. The court turned only to the grounds of detention raised in the detention order by the Minister but not the actual evidence itself.63 Given the dynamic interplay between deference and justiciability, a strict categorisation of what is justiciable and what is not would suggest the courts being over-deferential. While there are commonly accepted areas that are prima facie not justiciable, the courts need to embark on a further enquiry to determine what is the true nature of the question raised. Review Publishing and Tan Seet Eng clarify that even within traditional categories of non-justiciable issues, questions of “legality” could arise.64 But where the question raised involves “issues of policy or security or . . . polycentric political considerations”, the court lacks the institutional competence to review them.65 Deference has to be accorded to the decision-maker in full measure in such an instance. Thus, in preventive detention cases involving the ISA or CLTPA, even as the courts will require the Executive to show that the detention is indeed based on national security or public peace, security and good order, “the evidentiary basis for

was highlighting the court’s exclusive responsibility to ensure that state power is exercised within the prescribed legal limits. 62 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [128]. The court’s adoption of the “traditional test”, rather than the “probable cause test”, underscores a less deferential approach. Under the probable cause test, which the Court of Appeal applied in Kamal Jit Singh v Minister for Home Affairs [1992] 3 SLR(R) 352, the Executive is only obliged to demonstrate compliance with the Criminal Law (Temporary Provisions) Act (Cap 67, 2000 Rev Ed)’s procedural requirements. The applicant bears the burden of showing probable cause that his detention was unlawful. In contrast, under the traditional test, the court “closely scrutinizes the grounds put forward by the Minister” within “the usual ambit of judicial review, namely, illegality, irrationality and procedural impropriety”: see Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [63] and [66]. 63 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [131]. 64 Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR(R) 453 at [98]. Then Menon JC illustrated it as such: “where what appears to raise a question of international law in fact bears on the application of domestic law, that is something the courts may well find justiciable”. 65 [2016] 1 SLR 779 at [92].

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the detention is not scrutinised by the courts”.66 Whether a decision concerning a “high policy” area is justiciable depends on whether there are reviewable elements, which can be isolated from other “non-reviewable” elements in that particular decision. Having examined the issue of non-justiciability, which involves the insulation of some, if not all, elements of an executive decision from judicial review, it is appropriate to examine how the court’s approach with regard to the intensity of review of a decision that is being impugned accords with curial deference.

4 Judicial Scrutiny and Varying Intensities of Review At times, the Judiciary’s constitutional role as a counter-majoritarian check on the exercise of power by the elected Government may conflict with its lack of expertise to adjudicate on certain matters of public policy (Chan 2010b; Allan 2006, p. 695). Ultimately, the requisite intensity of review (and its corresponding degree of deference) is context-dependent and sensitive to the true nature of the question raised. In Tan Seet Eng, the Court of Appeal clarified that, as the context requires, different intensities of review are to be adopted in judicial review. That curial deference is not a static concept having a one-size-fits-all approach is another valuable theme from Tan Seet Eng. Menon CJ contrasted deference, where the court varied the intensity of scrutiny, with unjusticiability, where the court would completely refuse to review.67 Intensity of review and degree of deference are two sides of the same coin. Where a greater intensity of review is adopted, that correspondingly means a lesser degree of deference is accorded. A calibrated approach, applying varying intensities of review depending on the subject matter at hand, is the watchword. We can conceive of intensity of review as being akin to a sliding scale in which determining where a subject matter in question lies on the spectrum entails a balancing exercise (Craig 2010, p. 287). On the other hand, if the question raised is justiciable, the courts will have to calibrate the appropriate level of deference as it scrutinises the administrative action sought to be impugned. This judicial enquiry process entails that the court consider its institutional competence in order to determine the correct level of scrutiny. This is where deference plays a prominent role. There are two facets to the executive action/ decision—“legality” and the “merits”—where the matter is justiciable. In judicial review in administrative law, the court’s supervisory role requires that it regards the “merits” of a decision as effectively non-justiciable. This is the court’s manifesting

66 67

[2016] 1 SLR 779 at [128]. Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [105].

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deference to the institutional competence of the decision-maker as well as the institutional mandate entrusted to the Executive by the Legislature.68 In contrast, where the “legality” of an administrative decision is in question, the issue centres more on the appropriate level of deference to be given to the Executive. As courts are not suited nor empowered to adjudicate on polycentric matters, courts have accorded greater latitude to the Executive and how the decision-maker went about making the decision.69 The application of a varied intensity of review is very much aligned with the level of deference accorded to the primary decision-maker; the two are not antithetical (Kavanagh 2010, p. 241). Tan Seet Eng marks a nuanced shift in the Judiciary’s approach in reviewing polycentric decisions.70 The Court of Appeal rejected a blanket rule preventing scrutiny and held that even matters of “high policy” were open to judicial review.71 This coheres with Review Publishing, where the court held that “the intensity of judicial review will depend upon the context in which the issue arises and upon common sense”.72 However, the court also clarified that this did not mean that it would engage in a merits review; judicial deference was to be applied flexibly in varying degrees depending on the context.73 Compared to Re Wong Sin Yee, this higher level of scrutiny is located within the context of the traditional tests of illegality, irrationality and impropriety.74 Limited institutional competence logically warrants a greater degree of judicial deference. This means that even though a matter is justiciable, a greater degree of deference is likely to be exercised in reviewing such matters. It is apposite to note that polycentricity is a matter of degree, as Lon Fuller himself had conceded (Fuller 1978–1979, p. 397), and that many issues the courts face are polycentric in nature, such as tax law (King 2008). This reminds us that polycentricity, when invoked, requires a careful consideration as to the degree of curial restraint required, rather than a default position that polycentric questions are excluded from adjudication. In this regard, it is helpful to recognise that polycentricity pertains to issues rather than

68

In Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [97], the court emphasised the important distinction between the legality and merits of a decision: [W]hile it is one thing to say that the court must not substitute its view as to the way in which the discretion that is vested in the Minister should be exercised, it is quite another to say that the Minister’s exercise of discretion may not be scrutinised by the court at all . . . 69 70

Vellama d/o Marie Muthu v Attorney-General [2013] 4 SLR 1 at [85]. Lon Fuller (1978–1979) had likened a polycentric problem to a spider’s web: A pull on one strand will distribute tensions throughout the web as a whole. Doubling the original pull will, in all likelihood, not simply double each of the resulting tensions but rather create a different complicated pattern [especially] if the double pull caused one or more of the weaker strands to snap . . .

71

Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [106]. Lee Hsien Loong v Review Publishing Co Ltd [2007] 2 SLR(R) 453 at [98]. 73 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [105]. 74 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [128]. 72

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areas of law, warranting against a categorical approach in a court’s intensity of review. In Tan Seet Eng, the court had examined the Minister’s grounds for detaining the applicant75 and explained why they were insufficient to bring the applicant’s detention within the ambit of the CLTPA.76 The CLTPA applied to specified criminal activities having a prejudicial effect on the “public safety, peace and good order” of Singapore.77 Activities not amounting to threats in Singapore simply did not pass legal muster. Tan Seet Eng suggests that mere compliance with procedural requirements set out in the plain reading of the CLTPA is insufficient for a detention to be found lawful. The detention order further had to be consistent with the raison d’être of the CLTPA: The Minister had the responsibility of ensuring that the grounds of detention and the facts produced justified the need for detention under the CLTPA. The court stated that it was “incumbent on the Minister to state all the grounds relied on as justifying the detention”,78 and that it was not the role of the courts to “fill in any gaps in the narrative of the facts by surmise or supposition”.79 This signifies a more exacting standard requiring the nexus between the grounds of decision and the scope of power to be made explicitly by the decision-maker. Applying the above principles to the facts, the court found that there was no suggestion that the activities harmed public safety and order in Singapore, or that witnesses were being intimidated from testifying.80 The apex court was not persuaded by the mere conceivability that other activities behind match-fixing could have had an impact on public security in Singapore.81 Hence, the court held that the appellant’s detention was unlawful for being beyond the scope of the Minister’s power.82 In so doing, the court had unequivocally dispelled any notion that its function was confined to a mere clerical verification of procedural compliance, and pre-empted intimations that the Judiciary was overreaching its constitutional role by scrutinising the grounds of decision. A significant feature of Tan Seet Eng in the protection of fundamental liberties was the court’s consideration of the consequences of the detention order on the liberty of the individual.83 To sufficiently affirm the rights of the individual, the courts will have to calibrate downwards the degree of judicial deference afforded to the decision-maker and apply an upward calibration of the intensity of review.84 This

75

Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [131]. Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [147]. 77 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [137]. 78 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [130]. 79 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [131] and [147]. 80 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [146]. 81 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [147]. 82 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [148]. 83 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [96]. 84 Past cases involving the legality of the detention orders under the Criminal Law (Temporary Provisions) Act (Cap 67, 2000 Rev Ed) did not appear to explicitly consider the implications of 76

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will often be manifested in the rigour of the questions the courts pose to the decisionmakers. Thus, in Tan Seet Eng, the court’s scrutiny went beyond determining whether the authorities strictly complied with the statutory procedure, but also “implied” requirements within. In this regard, the court considered, inter alia, (a) whether the Minister had set down “all grounds relied on as justifying the detention”85 and (b) what type of serious crimes that Parliament had intended for the CLTPA to cover.86 The less deferential approach in the appropriate cases suggest that the court will not be easily satisfied by cursory answers to questions that point to a lack of exacting regard and attention to what the exercise of discretionary power requires. In pre-Tan Seet Eng cases, the courts tended to work from the presupposition that administrative discretion sought to be impugned was intra vires, before proceeding to examine if there is any patent indication that the decision-maker had exceeded his power.87 Again, this increased demand for the court’s satisfaction resulting from an application of a varied intensity of review seeks to balance the rights of the individual and the public interests the Government sought to protect. Tan Seet Eng demonstrates that curial deference is a flexible doctrine and that it is not antithetical to judicial scrutiny of executive action, even those typically regarded as being unjusticiable. This dynamic and nuanced conception of deference requires a court to assess its institutional competence to deal with a particular issue; where its competence is limited, the court is to exercise the requisite level restraint.

5 Judicial Deference on Interpretations of Law: A New Standard of Review? As justiciability and judicial scrutiny are similar doctrines, there will be some areas of overlap.88 It is trite that the relationship and the boundary between judicial and political decision-making is one fraught with complexity as the co-equal branches of government negotiate the inherent constitutional tension between the administrative state’s democratic legitimacy and the Judiciary’s role in public law to control public

detention orders on individuals. See, e.g., Re Wong Sin Yee [2007] 4 SLR(R) 676, Shamm bin Sulong v Minister for Home Affairs [1996] 2 SLR(R) 350 and Kamal Jit Singh v Minister for Home Affairs [1992] 3 SLR(R) 352. 85 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [131]. 86 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [147]. 87 Cf Tan Seet Eng v Attorney-General [2016] 1 SLR 779, the Court of Appeal subjected the written grounds of detention to rigorous scrutiny to determine if the decision-maker had acted within his scope of discretion in the first place. This divergence in approach is arguably subtle but important. 88 Tan Seet Eng v Attorney-General [2016] 1 SLR 779 at [105].

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power (Diplock 1979; Sumption 2011). De Smith’s Judicial Review (2007) put it aptly89: The question of the appropriate measure of deference, respect, restraint, latitude or discretionary area of judgment (to use some of the terms variously employed) which the courts should grant the primary decision-maker is one of the most complex in all of public law and goes to the heart of the principle of the separation of powers. This is because there is often a fine line between assessment of the merits of the decision (evaluation of fact and policy) and the assessment of whether the principles of ‘just administrative action’ have been met. The former questions are normally matters for the primary decision-maker, but the latter are within the appropriate capacity of the courts to decide. [emphasis in original]

As the administrative state encounters regulatory frameworks that are growing in complexity, there will be more occasions in which the Legislature would entrust interpretations of law to administrative decision-makers. For instance, in complex areas in science and technology, should the courts accord greater deference to the specialised administrative agency in matters of fact finding? Thus, the capacity of the courts to adjudicate on whether the principles of “just administrative action” have been met may not be all that abundantly clear whether one looks at it in terms of institutional competence or democratic legitimacy. Then Attorney-General Rajah (2016) had flagged the issue of the standard of review that should be applied to interpretations of law as Singapore’s judicial review landscape develops and matures. In essence, the issue here is whether there should be a bifurcated approach (viz, the correctness standard and the reasonableness standard) towards administrative decision-makers’ interpretations of law that is recognised in Canada and the US. The current English and Singaporean approach towards reviewing interpretations of law is that there can only be one correct interpretation (the correctness standard) on the basis that judges are constitutionally responsible for ensuring that any exercise of state power is carried out within legal limits.90 On the other hand, under the reasonableness standard, a reviewing court enquires into “the existence of justification, transparency and intelligibility within the decision-making process” and “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.91 In

89

Lord Woolf et al, De Smith’s Judicial Review (Sweet & Maxwell, 6th Ed, 2007) at para 11-004. Pearlman v Keepers of Harrow School [1979] QB 56 at 70, per Lord Denning. But the UK position is also evolving in light of the tribunal system put in place by the UK’s Tribunals, Courts and Enforcement Act 2007 (c 15), creating a two-tier system of administrative adjudication comprising specialised tribunals and the courts. The UK Supreme Court in R (Cart) v Upper Tribunal [2012] 1 AC 663 held that even though some tribunal decisions can be judicially reviewed, the courts would only do so where some important point of principle or practice is involved, or that there was some other compelling reason for the court to undertake judicial review. See also Daly (2011) where he argues that the general presumption that the resolution of questions of law is a matter for the courts should be jettisoned especially where the Legislature had intended to delegate the resolution of many questions of law to administrators and where courts lack institutional competence to resolve those questions of law. 91 Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47]. 90

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particular, the question of law at issue relates to the interpretation of the administrative decision-maker’s home statute or a statute closely connected to its function. In addition, the reasonableness standard applies where the question of law also raises issues of fact, discretion or policy, or involves inextricably intertwined legal and factual issues.92 As Rajah AG noted, leaving legal interpretation to an administrative official seem to go against our long-standing understanding of the law and policy distinction as well as the court’s ability to determine the extent of a decision-maker’s jurisdiction as conferred by legislation. He further observed that, “judicial deference to administrative interpretation should not be equated to judicial abstention. Even when deference is warranted, the court still plays a significant role because the question of law is simply recast as an inquiry into whether the administrative decisionmaker’s interpretation is reasonable” (Rajah 2016: [40]). He argued that this position could be supported on the grounds of institutional competence and democratic legitimacy, the usual basis for curial deference. In the former, an administrative decision-maker (Rajah 2016: [41]): [C]ould be more familiar with the purposes of its constitutive statute and its underlying policies and principles than a reviewing court. It may also possess special expertise that makes it well suited to interpret legislative provisions that turn on technical or economic considerations. If so, Parliament could have intended for the administrative decision-maker to interpret the legislation. [references omitted]

This is particularly the case where the executive agency has superior fact-finding resources and abilities, functional expertise and coordinative competency with regard to the legal issue in question. To be clear, this justification is grounded more on pragmatic considerations rather than possessing constitutional force. For the consideration of democratic legitimacy, the process of statutory interpretation may often require a selection from reasonable alternatives by reference to policy considerations, or require the use of political judgment. Given that legislatures often enact laws with open-textured language, it is arguable that the Judiciary should defer to administrative interpretation because it is less accountable to the electorate and the judicial process ill-suited to resolve polycentric issues. In Chevron USA Inc v National Resources Defence Council, Stevens J reiterated this democratic argument93:

92

Smith v Alliance Pipeline [2011] 1 SCR 160 at [26]. A similar approach is found in the influential US Supreme Court decision of Chevron USA Inc v National Resources Defence Council 467 US 837 (1984) (“Chevron”). Attorney-General V K Rajah summarised the Chevron approach as such: At the first stage, the court considers whether Congress has addressed the interpretive problem at issue. If so, the court will apply a correctness standard to implement Congress’s intent. If not, the court will proceed to the second stage to determine whether the administrative decision-maker’s interpretation is reasonable. If it is, the court must defer to that interpretation.

93

467 US 837 at 865–866 (1984).

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Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges’ personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration’s views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices -- resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the agency charged with the administration of the statute in light of everyday realities.

VK Rajah AG highlighted a significant disadvantage of using a blanket standard of review: The distinctions between questions of law, fact, inferences of fact and application may not be so clear. Furthermore, when a court characterises an issue as a question of law (which requires the application of the correctness standard of review), “any further analysis as to the extent of the power delegated by Parliament to an administrative decision-maker, as well as considerations of institutional competence and democratic legitimacy, are stymied” (Rajah 2016: [44]). Recognising more than one standard of review would require judges “to consider the balance between rule of law requirements, institutional competence and democratic legitimacy in deciding whether to defer to an administrative interpretation and “to articulate why they have chosen to apply one standard instead of another”.94 More to the point, in allowing or deferring to reasonable administrative interpretations to stand, judges are giving effect to the constitutional separation of powers and Parliament’s intent as manifested in the statutory scheme of the legislation in question, often enabling the executive agency to resolve any ambiguity in the statute. The role of the courts then, vis-à-vis the question of law, is whether the Executive has acted intra vires and its resolution of the legal ambiguity is reasonable. Considering the growing administrative state, characterised by flexible, reflexive executive rulemaking having to adapt to rapidly changing circumstances being increasingly the rule rather than the exception, our conception and understanding of judicial deference must take into account the reality of broad delegation of discretionary power to the Executive. That there is one “correct” meaning of a statute in fulfilling its statutory purpose is also fast becoming untenable in law and in policy. Looking at how technical and esoteric subsidiary legislation can be, often involving the allocation of finite resources, and the polycentric considerations that administrative decision-makers need to take into account, judicial deference will have to evolve innovatively and this is where foreign approaches can be fruitfully considered. Furthermore, in an age of technological disruption, we can expect public service agencies to embrace intelligent and self-learning technologies, advanced analytics and predictive modelling to aid them in policymaking and in the decision-making process.

94 Ibid. This is also aligned with what Etienne Mureinik (1994) had described as the movement from a “culture of authority” to a “culture of justification”. See also Dyzenhaus (1997).

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This move towards interpretive autonomy in the realm of executive decisionmaking and its implementation, however, cannot result in their being insulated from the vicissitudes of judicial review. Curial deference will continue to play a key part in the court’s review of a specialised statutory scheme (including its functions and legislative clarity) and the criterion for the divide between substitution of judgment and reasonableness review. Any claims of specialised knowledge or expertise must be rigorously tested. Moreover, any argument for curial deference in such instances cannot be based on a rigid application of categorical considerations such as institutional capacities, authoritative procedures or legislative mandates. Trevor R S Allan reminds us to be sceptical of the demands for curial deference, especially in the application and enforcement of rights. He cautioned against elevating deference to “the status of an independent doctrinal requirement” since that confuses analysis by requiring judges to “surrender their independence of judgment in the face of superior expertise, or superior democratic authority, or the inexorable demands of an unambiguous text”. Hence, surrendering curial judgment is inconsistent with the rigorous scrutiny of governmental action that the protection of human rights requires (Allan 2006). Ultimately, the litmus test of any doctrine of curial deference has to uphold the supremacy of reason and not sacrifice it to mere expediency, premised exclusively on a set of general criteria that is made out to be determinative and conclusive. How soon such a legal development would arise in Singapore is anyone’s guess. When it does, it remains an open question how much interpretive weight the Singapore courts will put on an executive agency’s conclusion on an issue of law and what test of review would be applied in such an instance. But what is clear is that such a development is one the courts will encounter in the fullness of time, and the need for an even more sophisticated and nuanced curial deference will come to the fore. The rule of law will require that.

6 Conclusion [C]onfrontation [between the Judiciary and the Executive] may be inevitable and then, the Judiciary must stand firm as the last line of defence. Judicial review is the sharp edge that keeps government action within the form and substance of the law . . . (Menon 2016: [30])

In Taking Rights Seriously, Ronald Dworkin (1992) drew the well-known dichotomy between principle and policy. Principle interrogates moral rights against the State. Policy engages choice-sensitive, utilitarian considerations for and of the public good. The former is for the courts, and the latter is for the Legislature to determine. Bright-line distinctions between what is policy and what is principle are sometimes

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not easily drawn. This is why curial deference is very much the “operating system” of judicial review.95 Justiciability, intensity of review, and the standard of review are the engines of deference. Curial deference is bad when it is either excessive or inadequate. But it is altogether a different thing when deference is accorded in due measure. After all, curial deference recognises the court’s finite and fallible nature. What is often not appreciated is that the deference regime is not confined to the Judiciary alone. Deference by the Executive and Legislature, not just deference by the Judiciary, is also critical in any constitutional system of government. For deference to promote good governance requires the acknowledgement that each branch of the Government has different and unique institutional competencies, democratic authority and legitimacy. In a sense, there is a hierarchy which brings with it clear power differentials. But this hierarchy operates within a context—hierarchy is domain specific. In questions of law, the hierarchy is one where the Judiciary is at the top. In matters of government and politics, the Executive and the Legislature will be pegged above the Judiciary in such areas of human endeavour. This hierarchy can enhance democracy itself. But hierarchies are not cast in stone; they evolve in response to the changing human condition and circumstance. A thriving hierarchy is one that is responsive to and allows for changes over time in order to avoid situations of inadequate or unjust accumulations of power. On the other hand, there is a need to avoid “hierarchical drift” in which a branch of government, especially the political branches, wields disproportionate legal power enabling them to extend their power beyond a specific legitimate domain to other illegitimate domains.96 The late US Supreme Court judge Antonin Scalia had described curial deference as “the mealy-mouthed word” that does “not necessarily meaning anything more than considering those views with attentiveness and profound respect, before we reject them” (Scalia 1989, p. 514).97 In contrast, Singapore courts have been accused of being overly deferential to the political branches of government (cf. Thio and Chong 2012).98 However, with Tan Seet Eng, the apex court signals a subtle shift towards a more assertive approach to judicial review that is better aligned with the foundation of constitutional supremacy in our system of government. The political branches have

In computing, the operating system, or “OS”, is the program that controls and manages the hardware and other software such as apps on a computer, laptop, smartphone, smartwatch, etc. 96 This brief reflection on hierarchies in the exercise of governmental power was sparked by the views in Stephen C Angle et al, “In Defence of Hierarchy” Aeon (22 March 2017) (accessed 23 March 2017). 97 In one study, the deference regime of the US Supreme Court was found to be theoretically complex and unpredictable in practice: see Eskridge and Baer (2008). Cf the view that judges have not lost their “cloak of neutrality” even where they refuse to defer to an administrator’s expertise: Osorio and O’Leary (2017). 98 On the waxing and waning developments in Singapore public law, see Thio and Tan (2009) and Neo (2017). 95

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also responded admirably (rather than defensively), recognising the value of judicial review in the furtherance of rule of law and their deference to curial wisdom on the legality of governmental actions. Following the Court of Appeal’s ruling in Tan Seet Eng, the Ministry of Home Affairs reviewed the detention orders of three other detainees and revoked them.99 Menon CJ (2016: [35]) noted this development extrajudicially: The commitment of the Executive to comply with and abide by the law as pronounced by the judiciary is critical to the rule of law and good governance. The release of the three other detainees apparently did not rest on any application they had made but on the Minister’s review of the position in the light of our decision. In the final analysis, the robustness of a nation’s rule of law framework depends greatly on how the other branches view the judiciary and whether it in turn is able and willing to act honestly, competently and independently.

Judicial review in Singapore is well on its way to developing its own autochthonous jurisprudence, one that has the elements of convergence with other common law jurisdictions but also divergence to ensure that the law serves the needs of a rapidly changing Singapore, and not bound by the strictures of doctrinal dogmatism. Neither has the Singapore Judiciary aspired towards making its approach of curial deference as a “model” of others. It may well be that the Singapore courts believe that in a democracy, most areas of governance should be left to the people’s elected representatives. That, over time, people decide on the type of legislation (and constitution as well) that they so desire. This will almost certainly be felt in the courts over an extended period of time. In a sense, the court is very much a manifestation of the society itself. To be sure, the court will have to play its role as the counter-majoritarian check and vanguard against executive excesses and lawlessness. The Singapore Judiciary, I would argue, sees itself as playing an educative role vis-à-vis the political branches of government on the virtues of rule of law and self-governance and how they sustain good governance. In turn, virtuous governance is a close-run thing and judicial review a cornerstone of a system of laws and of government that have durable legitimacy and the moral claim to obedience by the governed and the government alike. Within the growing corpus of jurisprudence on judicial review, the bottom line for any doctrine of deference—whether general or inchoate—is the sine qua non of upholding curial judgment and reasoning grounded in principle and policy. This buttresses the role of the courts in protecting the individual from unfettered public power.

Ministry of Home Affairs, “MHA Statement on Three Members of Match-fixing Syndicate Released from Detention and Placed on Police Supervision Orders” (18 January 2016) .

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References Allan TRS (2006) Human rights and judicial review: a critique of ‘due deference’. Camb Law J 65 (3):671 Chan SK (2010a) Judicial review – from angst to empathy. SAcLJ 22:469 Chan SK (2010b) Securing and maintaining the independence of the court in judicial proceedings. SAcLJ 22:229 Craig P (2010) Proportionality, rationality and review. N Z Law Rev:265 Daly P (2011) Deference on questions of law. Mod Law Rev 74:694 Diplock L (1979) Judicial control of government. [1979] MLJ cxl Dworkin R (1992) Taking rights seriously. Harvard University Press, Cambridge Dyzenhaus D (1997) The politics of deference: judicial review and democracy. In: Taggart M (ed) The province of administrative law. Oxford University Press, Oxford Elliot M (2010) Proportionality and deference: the importance of a structured approach. In: Forsyth C et al (eds) Effective judicial review: a cornerstone of good governance. Oxford University Press, Oxford Eskridge WN Jr, Baer LE (2008) The continuum of deference: supreme court treatment of agency statutory interpretations from Chevron to Hamdan. Geo LJ 96:1083 Fuller L (1978–1979) The forms and limits of adjudication. Harv Law Rev 92:353 Harlow C, Rawlings R (2009) Law and administration, 3rd edn. Cambridge University Press, Cambridge Hirschl R (2007) Towards juristocracy: the origins and consequences of the new constitutionalism. Harvard University Press, Cambridge Kavanagh A (2010) Defending deference in public law and constitutional theory. Law Q Rev 126:222 King JA (2008) The pervasiveness of polycentricity. Public Law:101 Le Seur A (2005) The rise and ruin of unreasonableness. Judicial Rev 10:32 Menon S (2016) The rule of law: the path to exceptionalism. SAcLJ 28:413 Mureinik E (1994) A bridge to where? Introducing the interim bill of rights. S Afr J Hum Rights 10:31 Neo JL (ed) (2017) Constitutional interpretation in Singapore: theory and practice. Routledge, London Osorio A, O’Leary R (2017) The impact of courts on public management: new insights from the legal literature. Adm Soc 49:658 Rajah VK (2016) Judicial review – politics, policy and the separation of powers (guest lecture at the Singapore Management University Constitutional and Administrative Law course), 24 March 2016 Scalia A (1989) Judicial deference to administrative interpretations of law. Duke Law J 3:511 Singapore, Shared Values (White Paper, Cm 1, 1991) Sumption J (2011) Judicial and political decision-making: the uncertain boundary. Judicial Rev:301 Tan EKB (2000) Laws and values in governance: The Singapore Way. Hong Kong LJ 30:92 Tan EKB (2013) Autochthonous constitutional design in post-colonial Singapore: intimations of Confucianism and the Leviathan in Entrenching Dominant Government. Yonsei LJ 4:273 Tan EKB (2015) The legislature. In: Chan GKY, Lee JTT (eds) The legal system of Singapore: institutions, principles and practices. LexisNexis, Singapore Thio LA (2011) The theory and practice of judicial review of administrative action in Singapore: trends and perspectives. In: Yeo TM, Tjio H, Tang HW (gen eds) SAL conference 2011 developments in Singapore law between 2006 and 2010: trends and perspectives Thio LA, Chong DGS (2012) The Chan court and constitutional adjudication – ‘A sea change into something rich and strange?’. In: Chao HT et al (eds) The law in his hands: a tribute to Chief Justice Chan Sek Keong. Academy Publishing, Singapore Thio LA, Tan KYL (eds) (2009) Evolution of a revolution: forty years of the Singapore. Routledge, London

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Eugene K. B. Tan is associate professor of law and Lee Kong Chian Fellow at the School of Law, Singapore Management University (SMU). An advocate and solicitor of the Supreme Court of Singapore, Eugene was educated at the National University of Singapore, London School of Economics and Political Science, and Stanford University where he was a Fulbright Fellow. Eugene’s inter-disciplinary research interests include constitutional and administrative law, law and public policy, the regulation of ethnic conflict, and the government and politics of Singapore. He has published in various edited volumes and peer-reviewed journals, including Journal of Church and State, Israel Law Review, The China Quarterly, Ethnic and Racial Studies, Ethnopolitics, Law and Policy, Singapore Year Book of International Law, Hong Kong Law Journal, Citizenship Studies, Terrorism and Political Violence, Intersections: Gender and Sexuality in Asia and the Pacific, Yonsei Law Journal, Singapore Law Review, Asian Journal of Business Ethics, Australian Journal of Asian Law, Journal of Asian Business.

Full Judicial Review or Administrative Discretion? A Swedish Perspective on Deference to the Administration Henrik Wenander

Abstract 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.

1 Introduction Deference to the administration in judicial review is not an established concept in Swedish administrative law. Rather, discussions about the scope that courts have to assess the findings of administrative authorities use the concept of discretion (skön) (Strömberg and Lundell 2018, p. 66). However, given the forms of judicial review in administrative courts available under Swedish law as described in the following,

H. Wenander (*) Faculty of Law, Lund University, Lund, Sweden e-mail: [email protected] © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_18

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discussions of administrative discretion have been limited. This in turn relates to the constitutional role of public administration, as it has developed in Swedish legal history. As a background to the presentation of Swedish law, it may be worthwhile to briefly consider the traditional categorization of Swedish law into a legal family. Zweigert and Kötz (1998, p. 273) generally identify Swedish law as part of the Nordic legal family, together with Danish, Finnish, Icelandic and Norwegian law. In their view, the legal systems of the Nordic countries are related to continental legal systems, but present certain common features which make the group a distinct legal family. One important common denominator of these systems is legal pragmatism, which some view as particularly strong in Swedish law (Bogdan 2013, p. 76). Concerning public law, yet another sub-division is meaningful, viz., that of Sweden as an East-Nordic system of public law. In the field of public law, Swedish law—together with Finnish law (and the legal system of the autonomous Åland islands within Finland)—has certain features that differ from the West-Nordic legal systems of Denmark (including the autonomous legal systems of the Faroe Islands and Greenland), Iceland and Norway. In contrast with the other Nordic legal systems, Sweden and Finland (including Åland) have administrative courts and administrative authorities enjoy a high degree of institutional independence from the ministries (Husa et al. 2007, p. 157; Smith 2011, p. 624). For the presentation of Swedish law below, material in English has been used as much as possible. Many of the relevant acts of law are available in unofficial English translations published by the Government, and some of these are publicly accessible on the Government Offices website . When discussing these pieces of legislation, I use the terminology of these translations. A general presentation of the Swedish legal system is found in Bogdan (2010), and Ragnemalm (1991) provides a comprehensive account of Swedish administrative law. The latter is outdated in part on a detailed level, but still paints a valuable overall picture of the general features of this field of law. The outline of this contribution is as follows. First, Sect. 2 describes the institutional and constitutional background of Swedish administrative law. Here, the law’s historical evolution is outlined, as it explains some of the peculiarities of Swedish administrative law in comparison to many other legal systems. In Sects. 3–5, the various forms of judicial review available in administrative courts are discussed. The sections cover the so-called administrative-judicial appeal (Sect. 3), the municipal appeal (Sect. 4) and the legal review of governmental decisions (Sect. 5). Section 6 offers concluding remarks on the central features of the Swedish system.

2 Background The current constitutional role of administrative authorities in Sweden is the result of developments in Swedish legal history, going back at least to the consolidation of the Swedish state in the seventeenth century. This historical continuity has been significantly influenced by various legislative initiatives, most importantly the

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establishment of the Supreme Administrative Court in 1909 and the constitutional and administrative reforms of the 1970s. The administrative structure of the Swedish state was established early on—in the 1634 Instrument of Government (Regeringsform), which laid down a number of administrative authorities under royal power. There still are some institutions dating back to this seventeenth-century structure, among them the County Administrations (Länsstyrelser). Over the centuries, the administrative authorities developed a certain degree of independence from the King and his Council. Increasingly, the legal system viewed the administrative authorities as public bodies separated from the Government, able to exercise a high degree of freedom in their competence to make individual decisions. Thus, in many respects, the position of the administrative authorities was similar to the one enjoyed by courts. The historical details of this process are subject to academic discussion (Wenander 2018). The current central fundamental law, which forms the core of the constitutional system, is the 1974 Instrument of Government (Regeringsform, 1974:152), in force since 1975. The previously established free-standing role of the administrative authorities was retained in this modern fundamental law. Importantly, this Instrument of Government did not make clear distinctions between the roles of courts and administrative authorities. Following the older traditions described above, the difference between the two categories was regarded primarily as a formality (Ragnemalm 1991, p. 22). In its original 1974 version the Instrument of Government dealt with the judiciary and the administrative authorities in the same chapter. A constitutional reform in 2010 divided the rules in two chapters (Ch. 11 and 12 of the Instrument of Government). This may be seen as an indication of a clearer constitutional distinction between the categories, and even as support for increased emphasis on the separation of powers in Swedish constitutional law (Nergelius 2015, p. 16). The forms for appeal of administrative decisions emerged in parallel with these constitutional developments. Since the establishment of central administrative authorities in the seventeenth century, these bodies and other authorities (Collegia) had combined administrative and judicial tasks. This tradition of blurring the distinction between courts and administrative authorities continued well into the late twentieth century. Administrative decisions were appealed to superior administrative authorities, in many instances the County Administrations, with a possibility to escalate the matter further to the King in Council as a last instance. In contrast to neighbouring Denmark, ideas of separation of powers did not lead to the introduction of a general rule on judicial review of administrative decisions, as in Sec. 63 of the Danish Basic Law (Grundloven). Even after the Supreme Administrative Court (originally Regeringsrätten; now Högsta förvaltningsdomstolen) was established in 1909, many administrative decisions were still appealed to higher administrative authorities with the King in Council (Kungl. Ma:jt i statrådet) as the final instance. Both the appeal bodies and the King in Council (since 1975, the Government) had the possibility not only of conducting a legality review, but also of looking into the substance of the matter and replacing the appealed decision with a new one. During the twentieth century, the

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hearing of appealed administrative matters was gradually transferred to the administrative courts. The reform of administrative procedure in the 1970s established a three-tiered system of administrative courts, paving the way for this transfer. The old Chamber Court (Kammarrätten) was divided and the new Administrative Courts of Appeal (Kammarrätter) were to function as the second instance. Parts of the County Administration were remodelled into County Courts (Länsrätter), later replaced by Administrative Courts (Förvaltningsrätter), serving as the first instance among the administrative courts. The development was related partly to the interest in relieving the Government of the administrative burden of having to decide individual matters, and partly to the requirements of judicial review under Art. 6(1) of the European Convention of Human Rights and EU Law (eventually codified in Art. 47 of the Charter of Fundamental Rights of the European Union). At the end of the twentieth century, the appeal of administrative decisions was by default a matter for the Administrative Courts (Sec. 22 a of the Administrative Procedure Act, Förvaltningslag, 1986:223, now Sec. 40 of the new Administrative Procedure Act, Förvaltningslag, 2017:900). The constitutional and administrative system of Sweden is sometimes described as a ‘Swedish administrative model’ (Hall 2015). All administrative authorities are organised as free-standing public bodies, enjoying virtually the same constitutional protection as courts when making individual decisions relating to the use of public power against individuals or municipalities, or the application of acts of law (Ch. 12 Sec. 2 of the Instrument of Government; Nergelius 2015, p. 84). These matters of organization and constitutional protection are related to the fundamental design of Sweden’s constitution. According to the travaux préparatoires of the 1974 Instrument of Government, the Swedish constitution does not rest on ideas of constitutional powers balancing each other, but on popular sovereignty. The elected Parliament (Riksdag) should alone hold the highest constitutional power. In spite of these statements, as could be expected in a well-functioning democracy basing on the rule of law, the Swedish constitution contains a division of functions and important elements of control among the central state organs (Nergelius 2015, p. 17). However, arguments relating to the idea of the separation of powers are not frequent in Swedish constitutional discussions. Today, the Swedish system of general administrative courts consists of a threetiered system of 12 Administrative Courts, four Administrative Courts of Appeal and one Supreme Administrative Court. These courts hear appeals on taxation, social insurance, social welfare, public procurement, public permits and benefits of different kinds, various other decisions by administrative authorities, and certain decisions by local and regional municipalities and the Government (see below). Four of the Administrative Courts also function as Migration Courts. Their judgements may be appealed to the Administrative Court of Appeal of Stockholm, which serves as the Migration Court of Appeal and as the final instance in migration cases. Besides the general administrative courts, there is a special administrative court, the Foreign Intelligence Court (Försvarsunderrättelsedomstolen), which hears matters on permits for signals intelligence. The following account focuses on judicial review in the general administrative courts.

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3 Administrative-Judicial Appeal The main form of judicial review of administrative decisions is carried out under the so-called administrative-judicial appeal ( förvaltningsrättsligt överklagande or förvaltningsbesvär) (Ragnemalm 1991, p. 209). In this form of appeal, the administrative court has the same decision-making competence as the deciding administrative authority. Therefore, the court may carry out an all-round assessment of the appealed decision, including both matters of legality (laglighet) and what has traditionally been labelled as suitability or reasonableness (lämplighet). The dichotomy between these two concepts is recurrent in Swedish administrative law discourse, although the usefulness of the distinction has been questioned (Marcusson 1992, p. 129; von Essen 2017, p. 23). In difference to the West-Nordic systems of Denmark, Iceland and Norway, the concept of discretion (skön) plays a very limited role when determining the scope for judicial review of an administrative decision (Smith 2011, p. 625). Under the administrative-judicial appeal procedure, the administrative courts have the power not only to quash the appealed decision, but also to change the decision in substance, or replace it with a new decision (Ragnemalm 1991, p. 238). The reason for the administrative courts having this broad competence is historical. As described in Sect. 2, the administrative courts emerged to a significant degree from administrative organs, either from the Government (the Supreme Administrative Court) or the County Administrations (the Administrative Courts). The administrative courts retained the possibility of conducting a full review—a feature of the appeal within the administrative system. It may be noted that the Swedish constitutional tradition of not maintaining a clear distinction between executive and judicial powers would seem to be a prerequisite for this system. The handling of cases in the administrative courts is based on a two-party procedure, with the administrative authority first deciding on the matter acting as the appellant’s counterpart (Sec. 7 a of the Administrative Court Procedure Act, Förvaltningsprocesslag, 1971:290, with amendments of 1995). Notwithstanding the two-party procedure, the administrative court shall ensure that the case is as well investigated as the nature of the case requires. The court does this by directing how the investigation should be supplemented (Sec. 8 of the Administrative Court Procedure Act). The court shall also take into account the unwritten principle of the order of the instances (instansordningens princip), which entails that a new aspect of the proceedings should not be dealt with for the first time in a superior instance. If a court finds that an important aspect of the case has not been touched upon in the relevant lower instance, then the court should remand the case to the administrative authority (Lavin 2016, p. 104). When deciding a case, the administrative court may find, of course, that the decision meets requirements of both legality and suitability, and thus uphold the appealed decision. However, if the court in its all-round assessment of legality and suitability finds that the decision is deficient, the court may take different courses of action depending on the circumstances (Ragnemalm 2014, p. 201).

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As a first option, the court may quash the decision without any further decision on the matter. This would be the choice for a decision that is contrary to the applicable provisions and thus illegal. In this situation the administrative authority may issue a new decision, as long this is permitted by the relevant legal provisions as well as the principles and provisions relating to the protection of legitimate expectations. The court can also choose to change or replace the decision. This is possible as long as the court deems that it has sufficient information to adjudicate the case. Furthermore, the important aspects of the case must have been sufficiently dealt with in previous instances to satisfy the principle of the order of instances. Third, the court can quash the decision and remand the case to the lower instance, normally the deciding administrative authority. The lower instance is considered legally bound by the administrative court’s assessment of the substance of the matter (Ragnemalm 2014, p. 169). This third option would be a natural choice when the court needs more information and this lack of facts cannot be remedied in the court proceedings under the principle of the order of instances (von Essen 2017, p. 443). Although the main rule is that the court may make an all-round assessment of an appealed decision when the administrative-judicial appeal procedure is applicable, it is rather difficult to make more general statements on the limits for this full assessment. The courts’ use of the possibility to alter an appealed administrative decision is dependent on the content of the appealed decision, the applicable legislation and the information available to the court in the individual situation. It is possible that the application of the legal framework described above is also guided by implicit ideas of administrative discretion or deference to the administration. However, no comprehensive legal study in this field has been made (Smith 2011, p. 626). Undoubtedly, such a study would be highly relevant. It should be mentioned that in later years, the Supreme Administrative Court has limited the scope somewhat for the all-round assessment of administrative decisions in the field of social welfare. The legal literature has highlighted the cases HFD 2011 ref. 48 and HFD 2013 ref. 39 as examples of this (Lavin 2016, p. 87; von Essen 2017, p. 23). The first case dealt with support under the Act concerning Support and Service for Persons with Certain Functional Impairments (Lag om stöd och service till visa funktionshindrade, 1993:387). In the case, the Supreme Administrative Court held that it was not the duty of the administrative courts to go into the details about measures to be taken to achieve the good living conditions required by the act. According to the court, the assessment and balancing of interests needed to take into account such aspects as local preconditions, organizational resources and the availability of appropriate personnel. The court added that there must be a certain flexibility. In the second case, the court made the same kind of assessment concerning support under the Social Services Act (Socialtjänstlag, 2001:453). There are other cases, however, indicating that the full review is still highly relevant in cases on social welfare. The Supreme Administrative Court case RÅ 2008 ref. 85 concerned whether the medication Viagra should be covered by the legislation on subventions on medicinal products. The court made some remarks as to its framework for scrutiny, thus indicating arguments for limiting its assessment.

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The court stated that there were no limitations in the relevant act of law. Nor was such a limitation supported by the travaux préparatoires or by considering the composition and competence of the deciding administrative board. The court therefore concluded that it was to carry out a traditional all-round assessment (von Essen 2017, p. 23). The case HFD 2015 ref. 36 concerned the placement of a young person in a family home according to the Care of Young Persons Act (Lag med särskilda bestämmelser om vård av unga, 1990:52). The court referred to the all-round assessment in the administrative procedure, holding that this procedure was not limited to assessing the suitability of the family home as decided by the Social Welfare Committee; the court could also decide on another placement, as long as this alternative had been sufficiently investigated. von Essen (2017, p. 23) concludes that the applicable legislation constitutes an important factor in determining the scope of assessment by the administrative courts. The administrative-judicial appeal procedure has been questioned and discussed in the light of Europeanization, the two-party procedure and ideas of separation of power (Edwardsson 2009; Heckscher 2010). As described earlier, the development of this form of review is linked to the historical and constitutional development of the Swedish public administration, including the constitutional choice of downplaying the idea of a separation of powers. Therefore, it seems very difficult to change the current system without a major reform of the entire Swedish administrative and constitutional system.

4 Municipal Appeal Municipal appeal (laglighetsprövning enligt kommunallagen or kommunalbesvär) constitutes a special form of review for certain decisions by municipalities on the local and regional level (Kommuner and Landsting/Regioner). Democratically based, local self-government is a cornerstone of the Swedish constitution (Ch. 1 Sec. 1 of the Instrument of Government). This local self-government is constitutionally protected to a certain degree (Ch. 14 of the Instrument of Government). At the same time, it is clear that Sweden is a unitary and centralised state, with the Parliament as the foremost representative of the people (Ch. 1 Sec. 4 of the Instrument of Government; Nergelius 2015, p. 94). The legislation concretizing these constitutional provisions provides that municipalities may attend on matters of general concern connected to their territories or with their members (i.e., in principle, the inhabitants) when the matter is not within the competence of the state or any other body (Ch. 2 Secs. 1 and 2 of the Local Government Act, Kommunallagen, 2017:725). The municipalities are also entrusted with carrying out public tasks in many fields, such as organizing social welfare, public schools and environmental protection on the local level, under the legislation adopted by the Parliament and Government. In such situations, the municipalities function as agents of the central state (Persson 2013, p. 316).

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Any member of a municipality may challenge a municipal decision by appealing it to the Administrative Court (Ch. 13 Sec. 1 of the Local Government Act). This provision is subsidiary to other statutory rules (Ch. 13 Sec. 3 of the Local Government Act). In the many situations where such special rules apply, administrative decisions made by municipal bodies are appealed under the administrative-judicial appeal described above. When there are no special provisions on appeal, however, the municipal appeal serves as a review of decisions made by either the directly elected municipal assemblies (Fullmäktige) or the politically appointed administrative boards of the municipalities (Nämnder) (Persson 2013, p. 319). The different forms of appeal in principle thus reflect the role of the municipality when making a decision, viz., either as a self-governing body under the Local Government Act (municipal appeal) or as an agent of the state under legislation in special fields (administrative-judicial appeal). The municipal appeal constitutes a legality assessment. An appealed decision shall be quashed if it has not been made in due order; if it refers to a matter outside the competence of the municipality; if the deciding body has exceeded its powers; or if the decision is otherwise contrary to an act of law or other statutory provision (Ch. 13 Sec. 8 of the Local Government Act). Importantly, the Local Government Act explicitly provides that the administrative court may not substitute the appealed decision with another decision. The assessment under the municipal appeal does not entail considerations on the suitability of decisions (Persson 2013, p. 318). In this way, the judicial review under municipal appeal offers the municipal level the opportunity for a certain amount of discretion. This can be linked to the constitutional principle of local selfgovernment.

5 Legal Review of Governmental Decisions As described above (Sect. 2), the historical Swedish model of review of administrative decisions was based on appeal to superior administrative bodies and eventually the Government, without the possibility of reference to a court. During the twentieth century, this model was largely abandoned. However, situations remain where the applicable legislation designates the Government as the last instance of appeal (or the only deciding instance) in certain administrative matters. This occurs when there is a perceived need of a political perspective in the balancing of interests. To comply with the right to a fair trial under the European Convention on Human Rights (ECHR), the Act on Legal Review of Certain Governmental Decisions (Lag om rättsprövning av vissa regeringsbeslut, 2006:304) provides a possibility of challenging a governmental decision in an individual matter before the Supreme Administrative Court (Lavin and Malmberg 2010, p. 86). The assessment is limited to decisions relating to the civil rights and obligations of the individual under Art. 6 (1) of the ECHR.

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As with the municipal appeal procedure, the legal review of governmental decisions is limited to matters of legality. If the Supreme Administrative Court concludes that the governmental decision at issue conflicts with a legal rule, the court shall quash the decision. If necessary the court shall remand the case to the Government. The applicable legislation may demand that the Government balances public and private interests in its assessment, or that it does not act in an unreasonable way. Then, the assessment of the Supreme Administrative Court shall cover the application of such provisions, which means that the judicial review also covers matters of suitability. Thus, as noted above, the distinction between legality and suitability review is not always sharp. Generally speaking, the legal review of governmental decisions has been held to leave less room for discretion than the administrativejudicial appeal, but more than the municipal appeal (Ragnemalm 2014, p. 208).

6 Conclusion The Swedish system of administrative law (the ‘Swedish administrative model’) is characterised by the independent organization and decision-making of the administrative authorities and the wide scope of the assessment of the administrative courts. These features may in turn be linked to the limited influence of constitutional ideas of separation of powers. The current state of the law is a product of long-term historical development. In an international perspective, the main form of review—the all-round assessment of the administrative-judicial appeal, including the possibility to alter the decision—might seem unusual. In contrast to many other legal systems, the administrative authorities are not considered to be part of an executive branch under the political leadership of a minister. This means that the authorities’ decisions are not considered to be political in nature. Although this model of appeal has been critically discussed, Sweden shows no signs of giving up its traditional system, although there are examples of the Supreme Administrative Court limiting the scope of the assessment in certain types of cases. However, the reasons for this seem to be more of a practical nature, rather than being based on general principles on the separation of state functions. In contrast to the administrative-judicial appeal, the municipal appeal and the legal review of governmental decisions give far more leeway to the deciding bodies. It can be noted that in both the Government and the municipalities, these bodies are composed of politicians. These forms of review fit rather well into the patterns of administrative discretion found in other states, such as the West-Nordic neighbour systems in Denmark, Iceland or Norway. The peculiar features of Swedish administrative law in this respect first become visible when this approach is contrasted with other legal systems. Although Sweden is a well-established democracy with a strong reputation in the protection of individual rights and the rule of law, it is highly questionable whether the Swedish

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administrative model would suit other legal systems. Although other legal systems feature independent administrative authorities and various degrees of all-round assessments, the Swedish system is rather extreme in that the default rule is this wide scope for assessment. Furthermore, the different choices available to the administrative courts in individual cases offer a rather high degree of discretion to the courts, and this latitude could be called into question. The topic certainly deserves more attention in Swedish legal research. On a general level, the constitutional principles on division of powers are confronted with pragmatic considerations, based on the field’s historical development. Comparative studies could prove to be a viable method for highlighting the theoretical and practical strengths and weaknesses of the Swedish legal system in this respect.

References Bogdan M (ed) (2010) Swedish legal system. Norstedts Juridik Bogdan M (2013) Concise introduction to comparative law. Europa Law Publishing Edwardsson E (2009) Domstolsprövning av förvaltningsbesluts lämplighet. In: Lundin A-K et al (eds) Regeringsrätten 100 år. Iustus Hall P (2015) The Swedish administrative model. In: Jon Pierre (ed) The Oxford handbook of Swedish politics. Oxford University Press, http://www.oxfordhandbooks.com. Accessed 25 Oct 2018. https://doi.org/10.1093/oxfordhb/9780199665679.013.17 Heckscher S (2010) Ska förvaltningsdomstolarnas roll ändras? En rättspolitisk betraktelse. In: Möller T, Ruin O (eds) En statsvetares olika sfärer: Vänbok till Daniel Tarschys den 23 augusti 2008. Hjalmarson & Högberg Husa J, Nuotio K, Pihlajamäki H (eds) (2007) Nordic law: between tradition and dynamism. Intersentia Lavin R (2016) Förvaltningsprocessrätt. Wolters Kluwer Lavin R, Malmberg L-G (2010) Administrative law. In: Bogdan M (ed) Swedish legal system. Norstedts Juridik Marcusson L (1992) Laglighets- och lämplighetsprövning – En titt i backspegeln och framåt. Förvaltningsrättslig tidskrift 121 Nergelius J (2015) Constitutional law in Sweden, 2nd edn. Wolters Kluwer Persson V (2013) Local government in Sweden. In: Panara C, Varney MR (eds) The local government in Europe: the ‘fourth level’ in the EU multi-layered system of governance. Routledge Ragnemalm H (1991) Administrative justice in Sweden. Juristförlaget JF. In: Wade W, Piras A (eds) Also published in Administrative law – the problem of justice. Vol. 1, Anglo-American and Nordic systems (1991). Giuffrè Ragnemalm H (2014) Förvaltningsprocessrättens grunder, 10th edn. Jure Smith E (2011) Likheter og skillelinjer i nordisk forvaltningsrett. Förhandlingarna vid det 39:e nordiska juristmötet i Stockholm. De nordiske Juristmøder Strömberg H, Lundell B (2018) Allmän förvaltningsrätt, 27th edn. Liber von Essen U (2017) Förvaltningsprocesslagen. En kommentar. Wolters Kluwer Wenander H (2018) Administrative court procedure in Sweden. In: Sommermann H-P, Schaffarzik B (eds) Handbuch der Geschichte der Verwaltungsgerichtsbarkeit in Deutschland und Europa. Band 2. Springer Zweigert K, Kötz H (1998) An Introduction to Comparative Law, 3rd edn. Oxford University Press

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Henrik Wenander is a Professor of Public Law at the Faculty of Law at Lund University. His research focuses on European and international aspects of public law, especially in relation to Swedish administrative law. He has published on mutual recognition of administrative decisions, the constitutional position of public administration, Nordic legal cooperation and general principles of administrative law under European influence. He is the co-editor of the peer-reviewed Swedish Journal of Administrative Law, Förvaltningsrättslig tidskrift.

Judicial Deference to the Administration in the United States John C. Reitz

Abstract 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.

An earlier version of this report has been published in 66 (Supp.) AM. J. COMP. L. 269–98 (2018). The author gratefully acknowledges the research assistance of Iowa law students Bingqing He, Steven Keely, and Todd Skauge on this paper. J. C. Reitz (*) University of Iowa College of Law, Iowa City, IA, USA e-mail: [email protected] © Springer Nature Switzerland AG 2019 G. Zhu (ed.), Deference to the Administration in Judicial Review, Ius Comparatum – Global Studies in Comparative Law 39, https://doi.org/10.1007/978-3-030-31539-9_19

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The question of the proper degree of deference that courts should accord administrative officials in the process of reviewing their actions has proven to be quite controversial in the United States. It also illuminates the basic structure of the administrative state in the United States. This report will attempt to document these features of this subject under federal administrative law, and will attempt, at the end, to offer some comparative perspectives on why this subject raises especially strong debates within the United States. The report ends with the question to what extent these debates are relevant to other countries. Limitations of space require that the entire discussion on this topic and citation to literature be highly compressed.

1 Introduction to the Legal and Administrative Structure of the United States and the Subject of Judicial Deference To help the foreign reader understand the U.S. administrative law relating to the subject of judicial deference to administrative agencies, it is necessary to review briefly key aspects of the U.S. legal system, especially the judicial and administrative components, the meanings of the words “deference” and “discretion,” how those two terms are built into the basic statutory standards for judicial review at the federal level, and how those two terms relate to each other.

1.1

Structure of the U.S. Legal and Administrative System

This report will focus on federal administrative law. It is important to understand that, despite the Supremacy Clause in the federal Constitution, state administrative law is not in general required to conform to federal administrative law because the federal Constitution is not understood to give the federal government lawmaking competences over basic state administrative law. For administrative law purposes, it is of course important that federal due process applies to the states through the Fourteenth Amendment. The federal Administrative Procedure Act (APA), the basic statute that governs administrative procedure at the federal level, does not apply to state government and each state has its own state APA. It is also important to understand that issues of federal administrative law are litigated in federal courts, and issues of state administrative law are litigated in the courts of each respective state. Moreover, because the U.S. Supreme Court has in effect full discretion to decide whether or not to hear a case, and because it hears a small number of non-criminal cases per year, many important federal administrative law issues are in effect resolved by the Federal Circuit Courts of Appeal, especially if they all agree.1

1 A split in the circuit courts is generally one of the strongest arguments to persuade the Supreme Court to review a Court of Appeals decision, but it is no guarantee of Supreme Court review.

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Governmental power in the United States at both the federal and state level is, at least in theory, structured according to the classical distinction between the legislative, executive, and judicial branches of government, and each of these branches is said to be independent and co-equal. The federal Constitution says rather little about a federal administrative bureaucracy. It does refer to the “Departments” of government, provides for the process of nomination and confirmation for federal “Officials,” and gives the president the power to require a written “Opinion” of each principal officer in each department of government on any subject relating to the duties of that office.2 It is customary to speak of the bureaucracy as if it were part of the executive branch of government. Already in Marbury v. Madison, the heads of departments are spoken of as “agents” of the president,3 and today the term “agency” is used in administrative law scholarship and teaching generally to refer to each functionally separate unit of the bureaucracy, without regard to whether its actual title is that of “department”, “commission,” “board,” “service,” etc. The President has the duty to “take care that the laws be faithfully executed,” so it makes some sense to see the agencies as the President’s agents for that purpose and to see the President as the supervisor of the agencies. But it is important to recognize that they are also in a sense agents for the legislature, too.4 Moreover, both presidential and congressional powers to direct the agencies are limited to some degree by such doctrines as due process, ex parte rules in formal adjudication, and the general requirements of rationality imposed on all agency actions. Most importantly, congressional power to supervise agency action is limited to legislative action (passing new laws, including the budget, repealing or modifying old laws that delegated power, and holding hearings related to those activities).5 In the United States, agencies are typically, but not always, given the full panoply of regulatory—that is, normative—powers, both (1) to decide disputes about how existing statutes and regulations apply to specific parties and (2) to promulgate regulations to fill in the gaps in existing statutory law to carry out its statutory mission. The federal APA refers to all processes under (1) as “adjudication,” regardless of whether formal, court-like process is used or not, and all processes under (2) as “rulemaking.” The product of adjudication is an “order,”6 and the

2

The appointment and nomination clauses are in Article II, Section 2[2]. The written opinion clause is in Article II, Section 2[1]. 3 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 166 (1803) (heads of departments may be “political or confidential agents of the executive”). 4 Only Congress can authorize the formation of a new agency. An agency has power only to the extent that Congress delegates powers directly to the agency or the agency receives a subdelegation of power that Congress gave to the President or another agency. Congress shares its power over the agency’s budget with the President. 5 Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983) (invalidating one- or two-house vetoes of agency regulations). 6 Administrative Procedure Act § 1(7), 5 U.S.C. § 551(7) (2012) [hereinafter “APA § 551(7)”].

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product of rulemaking is a “rule,”7 though the term “regulation” is used interchangeably with rule in everyday speech, and some agencies like the Internal Revenue Service or the Securities Exchange Commission label their rules officially as regulations. Both of these types of actions are subject to judicial review under the standards discussed in Section 1.3 below. If the statute delegating adjudicatory power to an agency requires, in words or substance, that formal, court-like procedures be used in those adjudications, those procedures, especially the fact-finding process, will take place in an agency tribunal and not in a federal court, at least as an initial matter. The agency tribunal uses procedures that are similar to but not as stringent as those used in regular courts, and the agency employee who presides at the court-like hearing in the agency tribunal is an administrative law judge (ALJ) or administrative judge (AJ). Their decision will only become the final decision of the agency if there is no appeal to the head or heads of the agency. Some agencies may have intermediate agency appeal boards, but typically final decision is reserved to the head or heads of the agency and they generally make their decision on basis of the record compiled in the agency tribunal. Because of the press of business, agency heads rarely exercise their power to hold new evidentiary hearings. The federal courts provide judicial review, and most delegating legislation provides for judicial review to start in one of the federal court of appeals (“federal circuit court”) though some statutes provide for review to start in the federal district courts. Judicial review will normally involve review on the agency record, whether that record has been compiled through formal or informal procedures.

1.2

Introduction to the Concepts of Deference and Discretion

The APA sections on judicial review do not actually use the term “deference,” but Section I.C. below will show that judicial deference to agency decisions is built into and required by some of the standards for judicial review set out in Section 706 of the APA. This report will refer to that kind of deference as de jure deference, deference that is required by the law governing judicial review. This form of deference is the focus of this report and is probably the most important—certainly the most discussed—form of deference in U.S. federal judicial practice. It is the type of deference required, for example, by “substantial evidence,” “arbitrary and capricious,” and “hard look” review, and what is known as Chevron Deference, all of which will be discussed in Section II below. But there are other reasons that reviewing courts might be inclined to grant administrative authorities some degree of deference. For example, they may think that they owe deference to other government officials as a courtesy. Perhaps they defer because, as government officials, they identify more readily with agency

7

APA §551(5).

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officials than with private parties challenging them. The courts may in fact be somewhat biased in their favor. Courtesy and/or bias may be reflected in the commonly stated judicial presumption that government officials perform their functions in good faith and in a competent manner.8 With respect to technical and scientific matters, courts may or may not see the agency as having greater expertise than the challenging parties, but they most likely see the agencies as having greater expertise, or at least access to greater expertise, than the courts, and they may therefore be especially reluctant to second-guess the agency’s decisions on these grounds. Deference for any of these reasons, which this report refers to as “de facto deference,” is not required by the statutory standards for judicial review but is the kind of deference that, as a matter of fact, results from factors that lead the courts to respect and defer to agency judgments. I think that the best interpretation of “Skidmore deference,” discussed below in Section II.C., is that it is a form of de facto deference.

1.3

De Jure Deference in the APA Standards for Judicial Review

Section 706(2) of the federal APA states that reviewing courts “shall hold unlawful and set aside agency action, findings, and conclusions found [to violate the grounds set out in any of the six following subsections].” Section 706(2) is thus the statutory source of the standards for judicial review of agency action (also referred to as “scope of review”), but in fact only three of the subsections actually mention the standard of review directly or by implication. The three that do not, subsections, (B), (C), and (D), address “legality review,” that is, they authorize the courts to invalidate agency action that violates the legal limitations on agency action, such as constitutional or statutory provisions, or procedures required by law. The legality standards do not mention deference, and traditionally U.S. courts have understood the interpretation of terms in a constitution or statute to raise questions of law on which courts should not defer to the interpretations by agencies. Section II.B. below will discuss how cases like Chevron have modified that understanding. Subsections (A), (E), and (F) of APA Section 706(2) deal with aspects of “rationality review.” Unlike legality review, which asks the courts to police the boundaries of agency action to make sure that the agency does not try to exercise powers that go beyond the legal limitations on the powers that have been delegated to it, rationality review asks the courts to police how the agencies exercise those powers it has been given. Rationality review is thus directed to review of the reasons that the agency can give to justify the exercise of its powers, either to determine the facts upon which it acts or to reach decisions or formulate policy rules on the basis of those facts and the governing law. 8

See, e.g., infra, note 26 (quoting Supreme Court in Overton Park).

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Of these three subsections, (A) is the most broadly applicable standard. It authorizes the courts to invalidate agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Despite the somewhat infelicitous phrasing, this provision has generally been understood as laying down one unified standard of review known as “arbitrary and capricious” review.9 The terms “arbitrary” and “capricious” have been understood to require a form of deference by the courts because it is not enough under this standard that the court be unpersuaded by the agency’s reasons. According to the literal meaning of the words, something that is arbitrary or capricious is not just poorly supported, but in fact is essentially unsupported. Courts routinely recite that this standard prohibits them from merely substituting their judgment for that of the agency.10 Courts are not permitted to invalidate agency action merely because they would have weighed the evidence differently, drawn different inferences from the evidence in front of the agency, or arrived at what they think is a better rule of policy. Within the zone marked out by the statutory and regulatory limitations on agency action, courts have to defer to agency judgment about which action to take. In this sense, the standard appears to be one of medium deference because it does not imply the complete deference that results from preclusion of judicial review, but it is clearly more deferential than de novo review. The two other standards are limited to review of factual findings. Subsubsection (E) is the “substantial evidence” standard for the review of agency findings of fact in proceedings that are decided under Sections 556 and 557 of the APA. This standard therefore applies only to fact-finding by an agency pursuant to a statutory delegation of power to find facts under formal procedures, and this occurs in the United States today chiefly in what is known as “formal adjudication.” Substantial evidence is also a standard of medium deference. Like arbitrary and capricious review, it does not authorize the courts to substitute their evaluation of the evidence for that of the agency; the court can invalidate the agency’s fact-finding only if nowhere in the whole record is there substantial evidence supporting the agency’s evaluation of the evidence. Finally, subsection (F) authorizes the court to invalidate agency action “unwarranted by the facts to the extent the facts are subject to trial de novo by the reviewing court.” De novo review affords no deference to the agency’s fact-finding. The court is authorized to ignore the agency’s determination and conduct its own fact-finding. This provision typically applies to agency actions with respect to statutes that have not been assigned to the agency to administer. Examples include agency fact-finding relevant to decisions about what documents to produce in response to Freedom of Information Act (FOIA) requests or compliance with the mandatory rules of the APA, such as the bias and ex parte rules. But Section 2.3 below will argue that de facto deference (Skidmore deference) may apply here as well as anywhere else.

The reference to “law” seems to be an inelegant doubling of the legality standards in other subsections. Arbitrary or capricious exercise of delegated powers would seem to be a type of abuse of discretion. 10 See, e.g., quotation from State Farm in text at note 28, infra. 9

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The Concept of Discretion

The APA uses the term “discretion” in two different senses. In Section 701(a)(2), judicial review is entirely precluded for matters which are “committed to agency discretion by law.” So in those cases, courts cannot set any limits to agency action. But Section 706(2)(A) provides in relevant part that courts “shall hold unlawful and set aside agency action, findings, and conclusions found to be . . . an abuse of discretion, . . .” So in cases subject to 706(2)(A), agencies have discretion that can be limited by judicial review. This report will focus on this bounded or medium form of discretion and will not further cover the complexities of preclusion of judicial review except to say that preclusion may be express or implied, Congress has passed relatively few statutes that expressly preclude judicial review, the federal courts have interpreted the APA to express a strong presumption in favor of judicial review, and so far they have found the implication of complete preclusion of review in relatively few situations, and never with respect to constitutional claims.11 Like medium deference, medium discretion comes in two different types and I will call them respectively, de jure and de facto discretion. The defining feature of de jure discretion is that the agency’s exercise of this kind of discretion affects legal rights and duties of the public because Congress has given the agency normative power. The principal normative powers that most regulatory agencies have are (1) the power to make rules with respect to the statutes committed to the agency’s administration by the delegating statute, and (2) the power to adjudicate disputes about the application of those statutes or the agency’s rules. With respect to the formulation of rules, the delegating law is generally understood in the United States to provide considerable policy-making space to the agency and this is perhaps the most important point for foreign-trained lawyers to understand about U.S. administrative law. But even with respect to fact-finding, U.S. agencies are understood to have considerable discretion because, consistent with our commonlaw background, U.S. lawyers conceive of the fact-finding processes, especially the characterization of facts for application of law, to be intertwined with the formulation of policy and law. The sphere of discretion open to the agencies in making policy and law in these ways may appear to be particularly large in the U.S. system because, at least at the federal level, U.S. law has long accepted rather general delegations of rulemaking power to agencies. The doctrinal test is said to prevent Congress from authorizing agency rulemaking unless the delegating legislation sets out “intelligible principles” to guide the agency. But this test has not been interpreted to be particularly confining. In the most recent Supreme Court decision to consider the constitutionality of a broad delegation, the Court reaffirmed its acceptance of such a loose standard as regulating “in the public interest.”12 The breadth of the delegations that 11

Levin (1990). Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 474 (2001) (citing with approval cases from 1935 to 1991 accepting as delegation standards regulating “in the public interest” or 12

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are habitually accepted in the United States means that we necessarily look at the administrative agencies as bodies that are vested with a considerable degree of de jure discretion. De facto discretion by contrast is not the product of a grant of adjudicatory or rulemaking power. A common example of de facto discretion is the discretion that agencies with enforcement power typically have whether or not to attempt to enforce the rules they are tasked with enforcing against a given party. The agency’s discretion to enforce or not is not the exercise of a normative power. When the agency exercises its discretion to enforce by instituting an action in court or—if it has been delegated adjudicatory power—before its own agency tribunal, its enforcement action does not change the legal rights and duties of parties against whom enforcement is sought. As a matter of fact, the targets now have to defend against an enforcement action, but until the agency or court exercises its adjudicatory power, they have not been adjudged liable. Nor does the contrary decision not to enforce change the potential targets’ legal rights and duties though as a matter of fact the targets then do not have to defend against an enforcement action.13 De facto discretion, I suspect, is found in every country’s administrative system. And in no system, including the administrative systems of the United States, does the mere existence of de facto discretion warrant deference.

1.5

The Connection Between de Jure Deference and de Jure Discretion

But the mere existence of de jure discretion does warrant de jure deference. The medium or moderate standards of de jure deference built into both arbitrary and capricious review and the substantial evidence rule in effect define the discretion that is subject to judicial review under these standards. The medium deference built into these standards protects that sphere of discretion by keeping the courts from simply nullifying the agency’s discretion by substituting its view of the proper fact-finding or policy or law. Within the sphere of delegated powers, the only constraints on the agency action have to do with either procedures the agency must follow or the general standard of rationality. As long as the agency complies with applicable procedural requirements and can give reasons that satisfy the test of rationality, the courts cannot invalidate agency action within that sphere.

similarly broad standards, and rejecting delegation doctrine challenge to a law authorizing the EPA to set “ambient air quality standards the attainment and maintenance of which in the judgment of the [head of the EPA], based on [the] criteria [set out in another section] and allowing an adequate margin of safety, are requisite to protect the public health”). 13 For example, the Justice Department’s decision not to prosecute a party for a violation of the Sherman Antitrust Act does not shield that party as a matter of law from prosecution by private parties seeking treble damages under that statute.

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Within the zone of discretion, the agency enjoys freedom to act. The agency has a degree of discretion to find the facts. It cannot find facts in a manner contrary to the evidence, but the agency has discretion with regard to choosing among reasonable characterizations of the evidence adduced in the agency proceeding and among the inferences that may reasonably be drawn from the evidence submitted. In making rules or articulating general norms in the course of deciding adjudications,14 the agency has discretion to evaluate evidence concerning relevant factual issues and it has discretion to make policy and law, subject again only to the substantive and procedural requirements laid down in the relevant statutes and pre-existing regulations and the general requirement of rationality. Because U.S. federal law accepts broad delegations of power, the de jure deference required of courts is correspondingly broad.

2 The Practice of Judicial Deference in the United States 2.1 2.1.1

De Jure Deference Part I: Basic Rationality Review of Agency Action Within the Agency’s Zone of Discretion “Substantial Evidence”: A Standard of Medium Deference for Fact-Finding in Formal Processes

The application of the substantial evidence rule is in many ways the clearest and most settled area of the law of judicial review in the United States.15 The “substantial evidence” test is familiar to U.S. attorneys as the standard used at least since the early twentieth century for appellate court review of findings of fact by juries.16 As the Eighth Circuit has held, “[t]he substantial evidence standard was imported into administrative law from cases dealing with review of jury verdicts and is more deferential than the ‘clearly erroneous’ standard used in reviewing findings of fact by a district judge.”17 Nevertheless, the Eighth Circuit noted in the same case that in two respects substantial evidence in the administrative context is a more demanding

14

Agencies are free to make policy and law either through rulemaking or adjudications. True rules are made only through rulemaking, APA § 551(5). But agencies have to justify their decisions in adjudication by reference to norms of general applicability, and when an agency formulates such a norm in the course of setting forth its justification, that norm becomes binding in the sense that the agency can deviate from that norm in subsequent cases only if it can provide a good reason for the change based in law and generally applicable policy. Shaw’s Supermarkets, Inc. v. N.L.R.B., 884 F.2d 34 (1st Cir. 1989). A legal norm articulated in this way is not the equivalent of a rule but it has a certain normative force, so we typically speak of that kind of norm as a form of agency lawmaking. But this consistency norm may not apply to all types of informal adjudication. 15 Pierce (2010), 2:§ 11.2, at 979 (“among the most stable and satisfactory features of our system”). 16 Id. 2:§ 11.2, at 976–79. 17 Chen v. Mukasey, 510 F.3d 797, 801 (8th Cir. 2007).

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standard than in review of jury verdicts. First, the court noted that the version of the substantial evidence rule in the APA requires the reviewing court to take into account the whole record, including not only the evidence that supports the agency action, but also the evidence that detracts, whereas the test applied to jury verdicts requires the appellate courts to “draw every reasonable inference in favor of the verdict and [forbids courts to] make credibility determinations or weigh the evidence.”18 Second, because juries do not have to explain their findings, but agencies do, the substantial evidence rule entails review of the reasoning process by which the agency evaluated the evidence. As a result, the Eighth Circuit noted, an agency making a credibility determination must “give reasons that are ‘specific’ enough that a reviewing court can appreciate the reasoning behind the decision,” and sufficiently cogent “that a reasonable adjudicator would not be compelled to reach the contrary conclusion.”19 Because of these two differences, it would be easy to get the impression that the administrative law standard is not as deferential as the standard for jury verdicts, but if the two standards seem different, those differences are at least in part due to these two quasi-procedural differences in the method for applying the review standard to the two different situations. Be that as it may, the need for a medium standard of deference is the same in both cases. Like administrative agencies, juries are by law afforded an important zone of discretion to decide a case, and the standard for review is intended to protect that zone of discretion while at the same time authorizing the courts to ensure that there is a rational basis for the decision and the jury’s decision does not violate the legally binding boundaries on that discretion. In fact, Professor Pierce’s well-known treatise says that “[t]he substantial evidence test remains extremely deferential to agencies . . . .”20 And the Supreme Court has also indicated that the deference required by the standard is significant. “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”21 Reflecting on how difficult it is to specify precisely the intensity of review, Justice Frankfurter summarized the legislative history from the drafting of the term “substantial evidence” in both the APA and the Taft-Hartley Act that amended the National Labor Relations Act as follows: “It is fair to say that in all this Congress expressed a mood.”22

18

Id. Singh v. Gonzales, 495 F.3d 553, 557–558 (8th Cir. 2007) (quoted in Chen v. Mukasey, 510 F.3d 797, 802 (8th Cir. 2007)). 20 Pierce (2010), 2:§ 11.2 at 980 (quoting Consolo v. Federal Maritime Commn, 383 U.S. 607, 619–21 (1966)). 21 Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938), quoted in Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951). 22 Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 487 (1951). 19

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427

“Arbitrary and Capricious” Review: The Most Generally Applicable Standard of Medium Deference

There is authority to the effect that substantial evidence is, or should be, a stricter standard for the agency than arbitrary and capricious,23 but the courts generally treat both standards as calling for the identical intensity of judicial review. As then-Judge Scalia wrote for the D.C. Circuit, “in their application to the requirement of factual support the substantial evidence test and arbitrary and capricious test are one and the same. The former is only a specific application of the latter.”24 In some statutes delegating rulemaking power in certain specific areas, Congress has used the term “substantial evidence” to denote a requirement for stricter (less deferential) review of the facts upon which the agency justifies its rules than would be required by “arbitrary and capricious” review,25 and courts strive to implement the congressionally mandated scheme for those specific areas. But those statutes do not change the meaning of the terms in the generally applicable APA. The leading interpretation of arbitrary and capricious review today is known as “hard look” review. Arbitrary and capricious review requires, the Supreme Court has said, “a thorough, probing in-depth review,” one that is “searching and careful.”26 Even though it does not mention the term, Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Insurance Co.27 is generally regarded as the defining case for hard look review. In that case, the Supreme Court held that the arbitrary and capricious standard is narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a “rational connection between the facts found and the choice made.” . . . Normally, an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.28

23

Pierce (2010), 2:§ 11.4 at 1020–22. Association of Date Processing Service Organizations, Inc. v. Board of Governors of the Federal Reserve System, 745 F.2d 677, 683 (D.C. Cir. 1984). 25 Id. at 685–86. 26 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415–416 (1971) (also saying that the standard requires “a substantial inquiry,” though the agency is “entitled to a presumption of regularity,” but the “court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment”). 27 463 U.S. 29 (1983). 28 Id. at 43 (citations omitted). The Court says the governing issue in the case is whether the agency action is arbitrary and capricious even though the applicable statute required that agency findings be supported by “substantial evidence on the record considered as a whole. . . .” Id. at 44. 24

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The case involved a challenge to a rule promulgated by the motor vehicle safety agency29 pursuant to its statutory authorization to make rules for motor vehicle safety. Car crashes had become the leading source of accidental deaths and injuries in the country and wearing seatbelts had been proven to reduce the deaths and injuries, but the American public did not like seatbelts and refused to “buckle up,” so the agency had promulgated a rule requiring new vehicles to be equipped with “passive” restraints, i.e., restraints that did not depend on action by the occupants of the vehicles to turn them on or attach them. In the form this passive restraint rule came to have after a complicated drafting and adoption history, the two principal systems that could satisfy the rule were passive seatbelts (belts that automatically attached when an occupant sat in a seat but which could be detached) or airbags. The agency’s new rule rescinded that earlier rule and simply eliminated the entire requirement for passive restraints. Applying arbitrary and capricious review, the Justices ruled unanimously that the agency’s new rule was invalid because, having concluded that detachable automatic seatbelts would be ineffective because so many people would simply detach them, the agency then gave no consideration at all to replacing the old rule with a requirement for airbags, which the consumer cannot so easily render non-functional. “Not one sentence of [the agency’s] rulemaking statement discusses the airbags-only option.”30 Like the prong of hard look review that asks whether the agency has relied on a factor Congress did not intend it to consider, invalidating the rule on the basis of failure to consider an important aspect of the problem is a relatively easy case in the sense that the factual premise is generally quite clear. If the agency has relied on a factor it was not supposed to consider or failed to consider an important aspect of the problem, it has violated in a relatively clear manner the legal restrictions on the exercise of its discretion. The reviewing court cannot so easily be accused of secondguessing the agency’s logic. All nine Justices agreed that the auto safety agency had failed even to discuss the possibility of retaining the part of the rule that would have required air bags. Since the agency was tasked with adopting rules to reduce the death toll from automobile accidents, its failure even to discuss why it had not adopted this obvious alternative for protecting human life in traffic accidents—an alternative it had determined to be a possible way of satisfying its old passive restraints rule—was a clear violation of its duty to act rationally. The second part of the Court’s argument shows a more problematic side of hard look review. In this part, a bare majority of five justices invalidated the rescission of the passive restraints rule on the grounds that the evidence did not support the agency’s dismissal of the safety benefits of automatic seatbelts. Detachable automatic belts would clearly save lives if they are attached, so the issue was how much use the public would make of belts that could be detached. Because these kinds of automatic belts had been field tested only in limited studies, the Court noted that

29 The Department of Transportation acted through its delegate the National Highway Traffic Safety Administration. 30 Id. at 48.

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there was no reliable direct evidence showing whether usage rates would increase if automatic belts were required, so the issue was what conclusions could reasonably be drawn from the limited field studies. The Court conceded that “[t]his is precisely the type of issue which rests within the expertise of [the agency] and upon which a reviewing court must be most hesitant to intrude.” The majority nevertheless did fault the agency for failing to provide persuasive arguments to support its view that the doubling of usage rates found in field studies with detachable automatic belts guarded by ignition interlocks could not be viewed as the basis for anticipating a significant increase in usage if detachable automatic belts were generally required. The problem, the Court said, is that the agency failed to take into account the factor of inertia—the fact that it requires effort to detach the detachable belts, just as the agency’s own studies had determined that the low usage rates of manual belts stemmed in part from a similar problem of inertia, because it requires effort to buckle up manual belts. For the four justices who dissented on this part, the majority opinion involved too intrusive a form of judicial review that in effect second-guesses the agency’s decision with respect to exactly that part of its evaluation of the evidence that draws on its expertise and experience. They also thought that because the rule rescinding the first rule came after the election of a new president from a different political party with a much more critical attitude toward regulation, the agency should be entitled to regard public resistance and uncertainties in extrapolating from the available studies to be much more important than it may have previously thought under a more regulation-friendly president. As already noted, any form of rationality review raises the danger that the courts will second-guess agency decisions, and the stricter sounding rhetoric of hard look review only exacerbates that concern. Agencies respond by issuing more and more elaborate statements of reasons and take longer and longer to assemble a record to support their decisions. Critics have labeled this effect “regulatory ossification,” and it is no doubt an important, unintended consequence of a system that uses independent courts to enforce the requirement of rationality in agency action. When an agency can accomplish its goals through adjudication of individual cases, hard look review may even deter agencies from issuing rules.31 Despite these problems, hard look review is a major feature of federal court rationality review.

2.1.3

The Specially Deferential Standard for Review of Agency Rejections of Petitions to Engage in Rulemaking

Legislation authorizing an agency to issue rules about a given subject usually is permissive and does not require the agency to act. In such a case, the decision whether to engage in rulemaking in response to a petition to do so is at the heart of the agency’s delegated zone of discretion. The courts have long held that the agency

31

See, e.g., Pierce (1995).

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decision not to engage in rulemaking will be reviewed under an especially deferential standard, which the courts characterize as “extremely limited” and “highly deferential.”32 In State Farm, the Supreme Court did not accept the argument that an agency decision to repeal a rule should be judged by the same lenient standard as the decision not to promulgate a rule in the first place, but it accepted the premise of the argument by stating that “an agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.”33 This highly lenient standard is generally rationalized as being appropriate when “the agency has chosen not to regulate for reasons ill-suited to judicial resolution, e.g., because of internal management considerations as to budget and personnel or for reasons made after a weighing of competing policies.”34 Accordingly, the courts will apply the normal and less deferential arbitrary-and-capricious standard if the agency rejects the rulemaking petition on the merits by arguing either that the agency lacks statutory authority to undertake the requested rulemaking or that the facts do not support agency action along the lines requested.35

2.2

2.2.1

De Jure Deference Part II: The Special Problem of Deference to Agency Interpretation of Vague or Ambiguous Language in Statutes and the Agency’s Own Regulations Chevron Deference

The most celebrated case in the United States with respect to judicial review of agency decisions is Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.36 The relevant statute in that case, the Clean Air Act Amendments of 1977,

32

National Customs Brokers & Forwarders Assn. of America, Inc. v. United States, 883 F.2d 93, 96 (D.C. Cir. 1989) (cited with approval in Massachusetts v. EPA, 549 U.S. 497, 527–528 (2007)). See also State Farm, 463 U.S. at 41(standard for reviewing agency refusals to undertake rulemaking normally “considerably narrower than the traditional arbitrary-and-capricious test”). 33 Id. at 42. 34 Professional Pilots Federation v. FAA, 118 F.3d 758, 763 (D.C. Cir. 1997) (upholding FAA rejection of petition to revise rule prohibiting commercial pilots from flying after age 60 where FAA rejection based on the view that there was no known measure to distinguish pilots who present a danger to air travel because of aging from those who do not). 35 Id. But hard look review does not seem very strict in this case. The court upheld the FAA even though it admitted that age 60 was arbitrarily selected as the cut-off and its age-60 rule prevented the gathering of any evidence about flight-worthiness of pilots over that age that might be used to challenge the rule. In this case, safety concerns apparently outweighed strict requirements for supporting evidence. 36 467 U.S. 837 (1984).

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required states that had not achieved the national air quality standards set by the Environmental Protection Agency (EPA) under earlier legislation—the so-called “nonattainment” states—to have permitting programs regulating “new or modified major stationary sources” of air pollution. In the use of its power to promulgate rules to implement the permit requirement, the EPA had adopted a definition of “stationary source” that allowed the states to permit plant owners to treat all the pollutionemitting devices in a plant as one source, as if they had a bubble over them. The new regulation was popular with industry because it gave factory owners flexibility to decide which parts of a polluting plant to upgrade as long as the total pollution produced by the plant remained under the regulatory maximums. An environmentalist group, the Natural Resources Defense Council, challenged the EPA regulations on legality grounds as a misinterpretation of the statute. The D.C. Circuit agreed and invalidated the EPA rule even though it held that the statute did not define the term “stationary source” or otherwise address the bubble concept. Rather, that court held the regulations to be illegal because the bubble concept was inappropriate in view of the court’s understanding that Congress was motivated by a policy of improving air quality in nonattainment areas. In reversing and upholding the EPA regulations, the Chevron court laid down the famous two-step test: First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.37

The Supreme Court held that although the statute could be interpreted to allow the agency’s original policy of treating each smokestack in an industrial plant or facility as a separate source, it could not be interpreted to bar the agency’s “bubble” concept. Neither the language of statute nor the legislative history yielded any evidence that Congress had thought about this issue. And the Court found that the policies underlying the statute included not only improving air quality in nonattainment areas, but also making allowance for reasonable economic growth in the parts of the economy subject to Clean Air Act regulation. The legislation, however, did not indicate how the balance between those two obviously conflicting policies should be struck. The Court therefore deemed the term ambiguous and because the Court found the bubble concept suitable to advance economic growth without clearly disserving the goal of reducing air pollution, it upheld the EPA’s bubble concept as a reasonable interpretation of the statute.

37

Id. at 842–843.

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The Meaning of Chevron

Chevron is not necessarily required by the American concept of legislative delegation to agencies of a zone of discretion, but it is in a sense the epitome of that concept. Step One of the Chevron test is a form of legality review in which the question is whether the statute forbids the agency to do what it has done. In this way, the courts police the outer bounds of the zone of discretion given to the agency. Where the courts can determine what the statute means, their job it to enforce the will of Congress, without any deference to the agency’s reading of the statute. In a footnote the Supreme Court made it clear that Step One of the Chevron test is not a “plain meaning” rule; the courts are to search for the “unambiguously expressed intent of Congress” using the “traditional tools of statutory construction.”38 But if those tools do not permit the court to determine what Congress meant or whether Congress even considered the issues presented to the court, then Step Two treats the agency as operating within its zone of discretion. Step Two therefore requires deference to the agency as long as the agency has made a “permissible construction of the statute.” Step Two does not mean, however, that the court has to approve the agency action. It still has to test it for rationality, but “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.”39 Step Two of Chevron thus invokes the traditional form of medium-level, arbitrary-and-capricious review, not just for factfinding and policy making, but also for agency readings of statutes that are not clear. As explained above, the APA’s provisions on judicial review are designed to honor congressional intent to grant discretionary power to an agency by requiring medium-deference review to protect the agency’s law-making or de jure discretion. Using their interpretive powers, courts have long sought to distinguish words in statutes granting discretion from words setting limits.40 The revolutionary part of Chevron is thus not the concept that agencies may have been given zones of discretion. The revolutionary part is the presumption that all ambiguity and gaps are to be taken as marking a delegation to the agency of a zone of discretionary policy- and law-making authority, whether it appears that Congress thought about the ambiguity and consciously decided to delegate to the agency the discretion to resolve issues left open by the ambiguity or gap or simply was not aware of the ambiguity or gap and had no intent at all with respect to the resolution of the issues thereby left open.41

38

Id. at 843 n.9. Id. at 844. 40 See, e.g., N.L.R.B. v. Hearst Publications, Inc., 322 U.S. 111 (1944). 41 467 U.S. at 865 (“Perhaps [Congress] consciously desired the [agency] to strike the balance [among conflicting policy goals] at this level [of specificity posed by the case], thinking that those with great expertise and charged with responsibility for administering the provision would be in a better position to do so; perhaps it simply did not consider the question at this level; . . . it matters not . . . .”). 39

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The Puzzles of Chevron

Chevron raises a number of puzzles,42 but the most important problem is how to put Chevron Step Two together with hard look review. Rhetorically the two doctrines seem to pull in opposite directions. State Farm is an exhortation to the lower courts to make arbitrary-and-capricious review meaningful by taking a hard look at how the agency has exercised its de jure discretion, but Chevron is an exhortation not to substitute the courts’ judgment for that of the agency on matters committed to the agency’s de jure discretion. Courts have divided over which standard is the proper one to apply in a given case.43 It does not seem possible to separate the fields of application of the two standards. The interpretation of the term “stationary source” in Chevron might seem to present a pure question of statutory interpretation, but in adopting its new bubble concept, the EPA is also clearly making policy. In State Farm, the rescission of a rule the agency was not obligated to make in the first place might seem to present as clear a case as one can imagine of policy-making, and yet the making of the new rule is subject to all the same statutory standards that governed the old rule and thus constitutes an act of statutory interpretation at the same time. So the two standards apply to one and the same agency action. One might argue that Chevron tells the court to defer to the substance of the agency’s decision as long as it is reasonable while State Farm tells the court to uphold the agency action only if it has done a good job of explaining why its action is reasonable, but it is hard to deny that evaluating the reasonableness of an agency action overlaps a good deal with evaluating the agency’s explanation.

2.2.4

The Triumph and Genius of Chevron

Chevron is by far the most widely cited Supreme Court decision in federal administrative law. On that ground alone, one might say that it is the most important administrative law decision. Both the specific presumption in favor of delegation of discretion to the agency and the rhetoric of the case seem to urge the courts to reduce the intensity of judicial review. There is some empirical evidence to show that such has been the case.44 Despite the effect of its rhetoric to promote deference to agency interpretations of law, the Chevron test is not outcome-determinative. There are

42 Courts and commentators have, for example, debated whether the two steps in the Chevron test are really distinct, see, e.g., Energy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009) (majority and dissent disagreeing); Stephenson and Vermeule (2009). 43 See, e.g., Arendt v. Shalala, 70 F.3d 610 (D.C. Cir. 1995) (Edwards, C.J., applies hard look for court; Wald, J., concurring, would apply Chevron Step Two). 44 See, e.g., Schuck and Elliott (1990).

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cases upholding or striking down agency regulation on both steps of the Chevron test.45 Chevron has been much praised as a decision promoting the values of democracy by reducing the role of non-elected federal courts in determining the policy meaning of congressional statutes in favor of politically responsive agency heads.46 By enlarging the agencies’ role in determining the interpretation of statutory delegations, the Chevron presumption helps ensure that courts are not taking over, under the guise of statutory interpretation, policy-making in spheres that Congress meant to delegate to an agency, not to a court. That seems like an important way to protect democracy. The Chevron presumption arguably goes beyond that sensible function, however, since it applies in situations in which the courts cannot be sure that Congress had any intention to delegate power. Perhaps most importantly, the case is an arguably brilliant solution to the difficult problem of distinguishing statutory language of delegation from statutory language imposing limits on discretion. Under Chevron Step Two, a court may not use statutory ambiguity as a cover for imposing its own policy choices. Ambiguity means delegation of discretion to the agency, not to the courts. Chevron is thus a “bright-line” rule that is somewhat “anti-court,” but it also imposes a fairly clear background rule for Congress: If you do not want to delegate power to the agency to make law and policy, speak clearly in the statute! But Chevron is also a drastic solution. Any competent lawyer can find ambiguities and gaps in almost any document of moderate complexity and length. American statutory drafting may be especially prone to gaps and ambiguities.47 So the Chevron test actually amounts to a strong presumption in favor of delegation. In that sense, it expands the power of the executive branch at the expense of both of the other two branches even in the absence of congressional intent. Some commentators have voiced doubts about Chevron on the grounds of separation of powers,48 and others have simply questioned the wisdom of the Chevron presumption.49 The question is whether the presumption is simply too drastic.

45 Kerr (1998) (in 1995 and 1996, agency interpretations upheld 73% of the time; of all those decisions rejecting the agency’s interpretation, 59% failed Step One, 18% failed Step Two, and 23% failed a general test of reasonability, conflating Steps One and Two). 46 Liu (2014) and Manning (1996). 47 Among other factors, in the United States, unlike in parliamentary systems or systems with much stronger executive branches, legislation does not tend to originate in the executive branch or the administrative bureaucracy, which might be expected to produce drafts that more coherently reflect the executive branch policy. Rather, in the U.S., it tends to be the result of drafting efforts by multiple congressional committees, including the lobbyists who seek to influence them. 48 E.g., Werhan (1992). 49 E.g., Farina (1989); Merrill and Hickman (2001); Sunstein (1989), pp. 444–445 (Chevron deference contradicts congressional hostility toward agency discretion and separation of powers).

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The Search for Chevron Step Zero

These concerns have led to a search for what scholars have generally called “Chevron Step Zero,” a test to limit the scope of the Chevron presumption.50 The Supreme Court settled on one form of Step Zero in United States v. Mead Corporation,51 where the Court held that “administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.”52 The Court supplemented that general test with a discussion of the categories of agency action that, the Court said, tend to satisfy the abstract test. The Court indicated in particular that “the overwhelming number of our cases applying Chevron deference have reviewed the fruits of notice-andcomment rulemaking or formal adjudication.”53 Accepting the argument by Professors Merrill and Hickman that the Step Zero test should be seeking to determine whether Congress “would want [the] delegation to mean that agencies enjoy primary interpretational authority,” the Court explained that the kind of “relatively formal administrative procedure” involved in notice-and-comment rulemaking and formal adjudication “tend[s] to foster the fairness and deliberation that should underlie a pronouncement of such force.”54 One interpretation of Mead is that it thus turns Chevron deference into an award to an agency for following the relatively formal procedures of formal adjudication or notice-and-comment rulemaking.55 But I believe this is a misreading of Mead. That case expressly affirms an earlier decision in which it accorded Chevron deference to an agency determination made in the course of an informal adjudication.56 It makes much more sense to interpret it as an attempt to limit Chevron deference to those cases in which Congress has delegated discretionary normative power to the agency. In this interpretation, the de jure deference of Chevron applies only when Congress

Students tend to object that this test should be called “Chevron Step 1.5” since it logically comes after Step One and before Step Two, but the literature tends to use the term “Step Zero.” 51 533 U.S. 218 (2001). 52 Id. at 226–227. 53 Id. at 230. 54 Id. at 230 & n. 11 (quoting Merrill and Hickman 2001). 55 Goldsmith and Manning (2006). 56 533 U.S. at 231 (citing NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251 (1995)). In Mead, the Court also says that interpretive rules “enjoy no Chevron status as a class.” 533 U.S. at 232. Interpretive rules are exempt from notice and comment rulemaking. APA § 553 (b) (A), so the Court’s statement would seem consistent with the idea that Chevron deference is reserved for agency actions that comply with the relatively more formal levels of process required by the APA. However, in Barnhart v. Walton, 535 U.S. 212 (2002) (applying Chevron deference to Social Security Administration interpretations found in many informal agency rulings and manuals over many years), the Court seemed to contradict that position by giving Chevron deference to long-standing interpretive rules. 50

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has granted the agency de jure discretion, that is, a zone of discretion to make policy with something like the force of law.57 Courts often say in such a situation that the agency has been charged with administering the statute. Conversely, it is well established that Chevron deference does not apply to agency interpretations of statutes as to which the agency has not been given the power to make rulings that have the force of law.58 Thus statutes applicable to many agencies, like the FOIA or the APA are statutes as to which no agency has been given de jure discretion to make law and policy and therefore there is no reason for de jure deference for agency determinations of the meaning of those statutes. There have been other suggestions for a Step Zero, but the only other one that has so far commanded a majority on the Supreme Court is an exception to the Chevron presumption for “very important cases.” Already the year before Mead the Supreme Court struck down as ultra vires FDA rules issued to regulate nicotine and cigarettes as, in the words of the delegating statute, a “drug” and “drug delivery devices,” respectively. The Court recognized that the statutory terms were ambiguous, but the Court refused to accord deference to the agency’s reading of the statute, holding that “[i]n extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended [that a statute’s ambiguity be interpreted as an implicit delegation from Congress to fill in the statutory gaps].”59 As Chief Justice Roberts reaffirmed for a majority of six justices in King v. Burwell, the logic of this exception is that on “a question of deep ‘economic and political significance’ that is central to [the] statutory scheme [at bar,] had Congress wished to assign that question to an agency, it surely would have done so expressly.”60 King was an extraordinary case. The plain meaning of the crucial statutory language in the Affordable Care Act (the health care bill enacted under President Obama) was clearly contrary to the interpretation adopted by the Internal Revenue Service (IRS) in its tax regulations. Chief Justice Roberts nevertheless joined the liberal wing of the Court to uphold the IRS regulations by holding that the statute had to be given a non-obvious meaning as a matter of law, not out of deference to the agency, but rather because the results that could be thought to flow from an interpretation based solely on the plain meaning would result in complete failure of the Act’s central goal of expanding the number of people able to purchase private health insurance and thus was clearly not what Congress intended. This exception for “extraordinary cases” or “questions of deep economic and political significance” is both very sensible and yet deeply unsettling because of the difficulty of discerning its boundaries.

57 Agencies do this most clearly by making legislative rules because they have the force of law unless and until they are invalidated on judicial review. For the explanation of how agencies make law in adjudications, especially ones done under formal process, see note 14 supra. 58 See, e.g., Gonzales v. Oregon, 546 U.S. 243 (2006). 59 FDA v. Brown & Williamson Tobacco Corp. 529 U.S. 120, 159 (2000) (emphasis added). 60 134 S. Ct. 2480, 2489 (2015) (citing Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2444 (2014), which in turn was quoting Brown & Williamson, 529 U.S. at 160).

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Chevron’s Possible Fall

Several Supreme Court Justices have indicated their willingness to overturn the Chevron presumption.61 A number of scholars, pointing to cases in which the Court appears to ignore it, have questioned whether the Supreme Court really still applies Chevron.62 In 2016, the House of Representatives passed a bill to eliminate Chevron deference legislatively, and that bill was reintroduced in 2017.63 The two newest Supreme Court justices have both voiced criticisms of Chevron while they were federal circuit judges. It is dangerous to predict what will happen, but I would argue that overruling the Chevron presumption should not eliminate the practice of deferring to agency interpretations of law when they are acting within the bubble of discretionary authority to make policy that Congress has delegated to them. The elimination of Chevron will simply augment the courts’ powers to determine whether Congress has given the agencies such power and will probably result in an overall diminution of the agencies’ powers to make policy and law.

2.2.7

Auer or Seminole Rock Deference: Deference to an Agency’s Interpretation of Its Own Regulations

Seminole Rock or Auer deference, named after the two cases in which it received its definitive formulation,64 provides that reviewing courts shall give deference to agency interpretations of their own rules. The typical claim for this kind of deference is thus an agency’s interpretive rule or guidance document interpreting an agency’s legislative rule or an even more informal agency statement about the meaning of its regulations, for example, in an informal adjudication or even an agency brief in litigation. Auer deference seems similar to, and as strong as Chevron deference. The Supreme Court has said that under Auer deference, “[t]he agency’s interpretation must be given ‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.’”65 After decades of generally unquestioning application, the doctrine has begun to be seriously questioned, especially on the grounds that it eliminates or reduces any incentive that judicial review might otherwise provide to agencies to take care to

61

See, e.g., City of Arlington, Texas v. F.C.C., 569 U.S. 290 (2013) (Roberts, C.J. and Alito and Kennedy, JJ., dissenting); Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149–1158 (10th Cir. 2016) (Gorsuch, J., concurring). 62 Jellum (2007) (Chevron is dying); Lawson and Kam (2013) (pointing out that Chevron deference appears to be at a dead end and advocating that it ought to be regarded as a dead letter). 63 Separation of Powers Restoration Act of 2017, H.R. 76, 115th Cong. (2017); Separation of Powers Restoration Act of 2016, H.R. 4768, 114th Cong. (2016). 64 Auer v. Robbins, 519 U.S. 452 (1997); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945) (pre-APA case). 65 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (quoting Seminole Rock, 325 U.S. at 414).

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ensure clarity in the legislative rules they issue. Under Auer deference, an agency can blithely issue ambiguous rules, secure in the knowledge that they can clarify any problems in interpretive rules that will be given Auer deference.66 After a number of rumblings in earlier decisions, in a 2015 decision, three justices indicated their willingness to overrule Auer deference or at least hear argument on the issue.67 The defense of Auer deference rests on the fact that the APA requires medium deference for agency formulation of law and policy, and even findings of fact under the basic rules for arbitrary and capricious review as long as the agency stays within its zone of delegated power. A refusal to give it deference on the grounds that it is important to incentivize the agency to speak clearly in its legislative rules would not only be contrary to law, but also may just encourage agencies to forego giving the public the benefit of the guidance about agency understandings and intentions currently provided by interpretive rules. Thus, on balance, the arguments for Auer seem to outweigh the arguments against. If the Chevron presumption were to be eliminated, the scope of Auer deference would shrink, but it would not disappear to any greater extent than would the basic doctrine of medium deference for agency actions within the scope of its de jure discretion. Auer deference seems especially likely to persist.

2.3

De Facto Deference and Skidmore Deference

In Mead, the Court found that the Customs rulings at issue in that case failed to qualify for Chevron deference because the agency was not operating within its zone of discretion. But the Court vacated and remanded the case because of the “possibility that [the ruling] deserves some deference under Skidmore.”68 The 1944 case of Skidmore v. Swift & Co,69 which concerned the standards of judicial review of rules issued by the Administrator of the Wage and Hour Division of the Department of Labor, clearly concerned agency action that was not taken within a zone of discretion that had been delegated to the agency. In fact, the agency lacked rule-making or adjudicatory power. It functioned as a prosecutor and issued informal bulletins indicating how it would exercise its power to bring injunctive actions in the courts to restrain violations of the Fair Labor Standards Act, a classic form of de facto discretion. Justice Jackson wrote for the Court: We consider that the rulings, interpretations and opinions of the Administrator under the Act, while not controlling upon the courts by reason of their authority, do constitute a body of

66

See, e.g., Thomas Jefferson University, 512 U.S. at 525 (Thomas, J., dissenting); U.S. v. Mead Corp., 533 U.S. 218, 246 (2001) (Scalia, J., dissenting); Manning (1996). 67 Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199 (2015) (separate concurring opinions by Alito, Scalia, and Thomas, JJ.) 68 533 U.S. at 227. 69 323 U.S. 134 (1944).

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experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.70

It is not clear that Justice Jackson meant his statement to describe a type of deference. Factors like the “thoroughness . . . in its consideration,” and the “validity of its reasoning” sound like factors that persuade the court that the agency is right, and in such cases the court is making up its own mind that the agency is right. That is quite different from de jure deference that requires the court to affirm the agency action even if it disagrees with the agency’s normative judgments. Be that as it may, the Court in Mead, clearly thinks of the Skidmore standard as a form of deference, and studies of the lower federal courts’ invocation of Skidmore show that they do, too.71 Based on their study of decisions by the federal courts of appeal during the first five years after the Mead case was decided in 2001 (covering a total of 106 cases), Professors Kirstin Hickman and Matthew Krueger think that Skidmore deference is also fairly substantial; they say it is “surprisingly deferential,”72 though they also think that it is “less deferential than Chevron.”73 If it is a form of deference, it is clearly a form of de facto deference, in my terms, not de jure, because it does not stem from a delegation of discretion to make normative rulings. The court’s deference to or agreement with the agency—whether based on actual persuasion or true deference—has to be based on some other aspect of the agency or its treatment of the issue under review that would justify the court in deferring to the agency’s judgment. Hence the typical cases of deference based on the agency’s expertise, especially in technical or scientific matters, factors pointed to in Skidmore’s phrase, “a body of experience and informed judgment.” Since expertise, care in stating its reasons, and persuasiveness are aspects of agency activity that courts can observe, I call deference based on them de facto deference to distinguish it from the de jure deference that results from the legal command to give deference that Congress is understood to give when it delegates a zone of discretionary normative power to an agency. Professor Peter Strauss seems to be getting at exactly the same point when he says we should talk about “Chevron space” and “Skidmore weight.”74 How does Skidmore deference work? The weighing of factors like expertise, consistency, thoroughness of argument, are no doubt so fact-specific that it would be difficult to generalize. However, the Hickman-Krueger study does suggest that courts applying Skidmore tend to make a preliminary finding that the statute is not clear enough to find the agency action ultra vires.75 The Skidmore doctrine has thus

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Id. at 140. Hickman and Krueger (2007), Wildermuth (2005–2006) and Womack (2002). 72 Hickman and Krueger (2007), p. 1238. 73 Id. at 1309. 74 Strauss (2012). 75 Hickman and Krueger (2007), p. 1280. 71

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in effect reproduced the form of the two-step Chevron test, though arguably at a somewhat weaker level. Since Skidmore deference does not depend on statutory delegations of power, it can potentially apply to all agency actions, but it applies in fact only when the factors that warrant such deference are present. This aspect of Skidmore deference also means that there is always a potential doctrine of deference available to the agency. For example, Professors Hickman and Krueger tell us that the “heartland of Skidmore’s domain” are cases in which the agency “either possesses expertise but not the power to bind or enjoys Chevron-requisite authority but chooses to act more informally.”76 These are the cases, they say, for which Chevron deference is not available because in these cases Congress has not delegated normative discretion to the agency. But for exactly the same reasons, arbitrary and capricious review, including hard look, does not apply. Let us suppose, that in the absence of Chevron deference or hard look, the default standard of review would be non-deferential, either the taking of new evidence (a true de novo proceeding) or the application of the reviewing court’s independent judgment (also sometimes referred to as de novo review). But it is always open to the agency to try to show that there are sufficient factors to warrant Skidmore or de facto deference. For judicial review advocates the elevation of the Skidmore formulation to a form of deference may seem disturbing, but I think it should be understood as the recognition of a fundamental dynamic the world over: Courts tend to respect administrative officials or at least be willing to give them the benefit of a presumption that they are doing their job in accordance with law. The burden of persuasion is generally on the party challenging government action as a technical matter, especially if that party is the plaintiff, and it is always on the private party as a practical matter because of this judicial attitude. It may be a mistake to elevate that attitude to a doctrine of deference, but I suspect that the doctrine is in accordance with experience. It is also a recognition of the limited capacity of courts to interpret highly complex law or law that deals with highly technical issues that turn on deep understanding of bodies of scientific knowledge.

2.4

The Puzzle of Military, Security, and Foreign Affairs Issues

Courts are especially inclined to defer to the executive branch with regard to issues that involve military, security, or foreign affairs law. For example, Professors Eskridge and Baer have described the “super-strong deference to executive department interpretations in matters of foreign affairs and national security[, called]

76

Id. at 1301.

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Curtiss-Wright deference after the famous 1936 decision.”77 This super deference is said to be supported not just by congressional statutory delegations, but also by the President’s implied powers in these fields. So, for example, in Department of the Navy v. Egan, the Supreme Court ruled that, in light of the President’s broad powers to protect national security and conduct foreign policy, “unless Congress specifically has provided otherwise, courts traditionally [should be] . . . reluctant to intrude upon the authority of the Executive in military and national security affairs.”78 How should we understand this deference and what should the limits of deference be? To the extent that executive action in this area depends on statutory delegations of power, the analysis in this report suggests that de jure deference should apply to protect congressional delegation of de jure discretion to the executive, and that with respect to actions taken outside of any zone of delegated normative discretionary powers, the factors that might warrant de facto deference should also be considered. Some scholars and courts have so argued. But the President’s implied constitutional powers in these areas provide another and arguably stronger source for a broad de jure discretion that needs to be protected by de jure deference. In fact, some courts and scholars have argued either to invoke the political question doctrine to preclude all judicial review in these cases or to apply such a highly deferential version of judicial review that it seems inconsistent with such doctrines as substantial evidence, hard look review, or Chevron deference. Because of the limitations of space, this report simply raises this complex issue and cites to some of the most recent literature on the subject.79

2.5

The Puzzle of Science and Technology

Another major problem area is science and technology. How can generalist courts provide a sufficient review of agencies that are regulating at the borders of scientific knowledge? The assumption has generally been that courts are at their most deferential in dealing with expert agencies and that they consequently are failing to hold agencies accountable to the standards of rationality required by the general doctrines of judicial review and the standards in the APA. Here too, there is talk of a type of super deference, meant to express the view that generalist courts should be at their most deferential in reviewing agency action that involves complex science and technology, in large part because that position matches our notions about the institutional competences of the courts.80 But it is precisely those institutional

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Eskridge and Baer (2008), p. 1100 (referring to United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304 (1936)). 78 584 U.S. 518, 529 (1988). 79 See, e.g., Baugh (Student Comment, 2015), Deeks (2013), Eskridge and Baer (2008), Masur (2005), Moore (2017) and Sitaraman (2014). 80 Fisher et al. (2015) and Meazell (2011).

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competences that pose the problem: How can courts carry out hard look review if they adopt the super deference approach? In fact, in the 1970s, a debate on this very issue broke out in the D.C. Circuit Court in connection with judicial review of EPA regulations based on a finding that automotive emissions from leaded gasoline posed a significant risk of harm to the public. The exact issue concerned how to deal with complex scientific issues in judicial review. Judge Bazelon took the view that “substantive review of mathematical and scientific evidence by technically illiterate judges is dangerously unreliable,” and he recommended instead that the reviewing court concentrate its efforts on what it knew best, the strengthening of administrative procedures.81 Judge Leventhal argued to the contrary that the judges were bound by the statutory requirements for judicial review. They could not abstain from substantive review of the agency’s decision, including its science because the reviewing statutes require the court to look, not just at procedure, but also at the substance of the agency decision. In fact, Judge Leventhal made the famous claim in this debate that Congress has been willing to delegate its legislative powers broadly—and courts have upheld such delegation—because there is court review to assure that the agency exercises the delegated power within statutory limits, and that it fleshes out objectives within those limits by an administration that is not irrational or discriminatory.82

In 1978, the Supreme Court opinion in Vermont Yankee Nuclear Power Corp. v. N.R.D.C. came down strongly on Judge Leventhal’s side by reversing the D.C. Circuit in a case in which that court had invalidated action by the Nuclear Regulatory Commission for failing to allow cross examination of the agency’s expert on whom the agency had relied in promulgating a rule to the effect that the underground storage of spent nuclear wastes would not pose a significant hazard to human life. The proceeding under review had been a notice-and-comment rulemaking, in which the APA does not require agencies to make provision for an oral hearing with cross-examination of the agency’s experts. In Vermont Yankee, the Supreme Court effectively forbade the lower federal courts from imposing on agencies procedural requirements that could not be justified on the basis of reasonable interpretation of the APA’s actual requirements. With that history in mind, a small group of scholars has in recent years undertaken to study how agencies and reviewing courts engage with scientific issues. While one of the studies seems to confirm the super deference story,83 two studies have uncovered a more complex and more hopeful story. Professor Emily Meazell looked broadly at how courts handle scientific issues in judicial review and concluded that super deference is in retreat. Instead, she believes that “[c]ourts are using their generalist approach in a way that benefits administrative law as well as science

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Ethyl Corp. v. EPA, 541 F.2d 1, 67 (1976) (Bazelon, C. J., concurring). Id. at 68 (Leventhal, J., concurring). That strong rationale for judicial review is not less applicable in areas involving science and technology. 83 Czarnezki (2008). 82

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values.”84 In particular, she sees the possibility for generalist courts to act “as translators, providing a bridge between the technical generators of agency science and the lay consumers of it.”85 Professors Elizabeth Fisher and Wendy Wagner and EPA representative Pasky Pascual focused on the courts’ review of the EPA’s National Ambient Air Quality Standards (NAAQS), which they thought might present the best case for a constructive engagement between agency and court on scientific issues. What they found was indeed what they characterized as a “constructive partnership between the courts and agencies in science policy in NAAQS cases.”86 The authors’ major conclusion is that to create meaningful review of the science involved, it is crucial for the agency to develop “analytical yardsticks” which essentially constitute a record of how the agency collected all the data and calculated all the key measures it needed to and provided a mechanism for seeking public comment and especially peer review by the relevant scientific community. Thus the agency provided good science to back up its decisions about the NAAQS, but it also provided a procedure that enabled the court and the public to see how carefully the scientific conclusions had been formulated and vetted. These are heartening studies, but they are just a beginning. Scientific issues pose a huge challenge to generalist judges charged with conducting not just procedural and ultra vires review, but also meaningful substantive rationality review in accordance with hard look and the other doctrines of medium deference.

3 Summary and Comparative Remarks The U.S. federal law of judicial review is quite complex, mainly because the boundaries of the most important doctrines governing judicial review, hard look review and Chevron deference, and the relationship between them continue to be controversial. The fundamental point of this report, however, is not really in doubt. Significant deference (or as I call it, medium de jure deference) is required in the U.S. system of administrative law because of the prevalence of delegations of substantial discretion to exercise normative power—the power to make determinations that have in some meaningful sense the force of law. Judicial deference is required in order to keep judicial review from depriving such delegations of meaning and function. The interesting comparative question is whether this U.S. practice of rather broad delegations of law-making power with its concomitantly broad doctrine of judicial deference is relevant to other countries. I have elsewhere argued that the United States is particularly, and perhaps uniquely, characterized by an aversion to

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Meazell (2011), pp. 738–739. Id. at 784. 86 Fisher et al. (2015), p. 1681. 85

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concentrating governmental power, and that U.S. doctrines of separation of powers, federalism, and judicial review of the constitutionality of legislation, all of which constitute parts of the broad pattern of divided governance in the United States, fit its generally more market-centered and therefore less state-centered political economy.87 The practice of delegating to administrative agencies broad power to take normative actions seems to be a part of this general pattern since it allows Congress to disaggregate state power by ceding some of its power to the agencies. True, the agencies are often said to be “in” the executive branch, but as discussed in Section I A, above, both the President’s and Congress’s powers to direct agency action are actually somewhat limited, especially in comparison with the law-making powers of presidents and legislators in other countries. So delegation to an agency could be said to diffuse power more than delegation to the President. Do countries with less strongly market-centered political economies view the delegations of power to their administrative agencies in the same way, as creating substantial zones of action within which the agency has discretion to find facts and to promulgate policy and law? If they do not, there is probably no need for a robust doctrine of judicial deference, at least not of the de jure type, though I have hypothesized that de facto deference may well be universal, especially deference on the grounds of governmental expertise. But the problems of regulation for modern states increasingly calls for regulatory bodies with substantial discretion, so it will be interesting to learn to what extent other countries have also struggled with these same problems of de jure agency discretion and court deference.

References Baugh M (Student Comment 2015) An unfulfilled promise: how national security deference erodes environmental justice. Golden Gate Univ Environ Law J 8:81–117 Czarnezki J (2008) An empirical investigation of judicial decisionmaking, statutory interpretation, and the Chevron doctrine in environmental law. Univ Colo Law Rev 79:767–823 Deeks A (2013) The observer effect: national security litigation, executive policy changes, and judicial deference. Fordham Law Rev 82:827–898 Eskridge W, Baer L (2008) The continuum of deference: supreme court treatment of agency statutory interpretation from Chevron to Hamdan. Geo Law J 96:1083–1217. https://doi.org/ 10.2139/ssrn.1132368 Farina C (1989) Statutory interpretation and the balance of power in the administrative state. Colum Law Rev 89:452–528. https://doi.org/10.2307/1122864 Fisher E, Pascual P, Wagner W (2015) Rethinking judicial review of expert agencies. Tex Law Rev 93:1681–1721 Goldsmith J, Manning J (2006) The President’s completion power. Yale Law J 115:2280–2312. https://doi.org/10.2307/20455697

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Reitz (2006). For a summary of my work on political economy to date and an explanation of how I derive the typologies on which this work depends from the new institutional literature of political science, see Reitz (2012).

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Hickman K, Krueger M (2007) In search of the modern Skidmore standard. Colum Law Rev 107:1235–1311 Jellum L (2007) Chevron’s demise: a survey of Chevron from infancy to senescence. Adm Law Rev 59:725–782 Kerr O (1998) Shedding light on Chevron: an empirical study of the Chevron doctrine in the U.S. Courts of Appeals. Yale J Reg 15:1–60 Lawson G, Kam S (2013) Making law out of nothing at all: the origins of the Chevron doctrine. Adm Law Rev 65:1–75 Levin R (1990) Understanding unreviewability in administrative law. Minn Law Rev 74:689–781 Liu F (2014) Chevron as a doctrine of hard cases. Adm Law Rev 66:285–344. https://doi.org/10. 2139/ssrn.1878943 Manning J (1996) Constitutional structure and judicial deference to agency interpretations of agency rules. Colum Law Rev 96:612–696. https://doi.org/10.2139/ssrn.2849555 Masur J (2005) A hard look or a blind eye: administrative law and military deference. Hastings Law J 56:441–521 Meazell E (2011) Super deference, the science obsession, and judicial review as translation of agency science. Mich Law Rev 109:733–784 Merrill T, Hickman K (2001) Chevron’s domain. Geo Law J 89:833–921 Moore A (2017) Stringent yet flexible: circuit courts’ use of the substantial evidence test in asylum cases. Tex Tech Adm Law J 18:225–288 Pierce R (1995) Seven ways to deossify agency rulemaking. Adm Law Rev 47:59–95 Pierce R (2010) Administrative law treatise, 5th edn. Wolters Kluwer, Austin Reitz J (2006) Political economy and separation of powers. Transnatl Law Contemp Probl 15:579–625 Reitz J (2012) Comparative law and political economy. In: Clark D (ed) Comparative law and society. Edward Elgar, Cheltenham, pp 105–132. https://doi.org/10.4337/9781781006092 Schuck P, Elliott E (1990) To the Chevron station: an empirical study of federal administrative law. Duke Law J:984–1077. https://doi.org/10.2307/1372738 Sitaraman G (2014) Foreign hard look review. Adm Law Rev 66:489–563 Stephenson M, Vermeule A (2009) Chevron has only one step. Va Law Rev 95:597. https://doi.org/ 10.2139/ssrn.1259816 Strauss P (2012) “Deference” is too confusing—let’s call them “Chevron Space” and “Skidmore Weight”. Colum Law Rev 112:1143–1173 Sunstein C (1989) Interpreting statutes in the regulatory state. Harv Law Rev 103:405–508 Werhan K (1992) The neoclassical revival in administrative law. Adm Law Rev 44:567–627 Wildermuth A (2005–2006) Solving the puzzle of Mead and Christiansen: what would Justice Stevens do? Fordham Law Rev 74:1877–1912 Womack E (2002) Into the third era of administrative law: an empirical study of the supreme court’s retreat from Chevron principles in United States v. Mead. Dick Law Rev 107:289–342

John C. Reitz is the Edward L. Carmody Professor of Law and International Studies, Director of the Doctoral (SJD) and Masters (LLM) Graduate Programs and Visiting Scholars at the University of Iowa College of Law. He is a Titular Member of the International Academy of Comparative Law; past President of the American Society of Comparative Law; Permanent Visiting Professor, Zhejiang University Law School in Hangzhou, China; and Visiting Professor, Universities of Muenster (1994) and Freiburg (1996), Germany, and the Victoria University in Wellington (2002), New Zealand. He has lectured widely around the world on U.S. and comparative law topics. His research and teaching focuses on comparative law and administrative law.