Tuesday, 22 May 2012

Of Tongues and Teeth: Sliding Scales in Judicial Review

The UK Supreme Court's decision of last week in Humphreys v Revenue Commissioners puts me to thinking about sliding scales. These are quite common in public law. At base, the idea is that greater scrutiny will be paid to decisions (or statutory provisions) in some circumstances, and less in others.

Old world administrative lawyers will be familiar with Wednesbury review and its offspring, super- and sub-Wednesbury. For matters of economic or social policy, review will be more limited than it ordinarily would, by virtue of a reduction of the available grounds of review; only a demonstration of bad faith or improper motive will suffice. But when important interests (short of rights protected by the Human Rights Act) are implicated by a decision, "anxious scrutiny" will be applied by reviewing courts. It has never been clear, however, precisely what this means. Does not a judge owe a duty to scrutinize all decisions closely?

Across the Atlantic, Canadian administrative lawyers dabbled with three standards of review of administrative action: correctness, unreasonableness and patent unreasonableness. The standards varied not on the basis of the type of interest at stake, but on the type of decision and decision-maker: whether the legislature had sought to protect the decision-maker from review; the expertise of the decision-maker; the purpose of the relevant statutory provisions; and the nature, relatively factual or legal, of the question under review. This project foundered, however, because of, first, the impossibility of distinguishing between the two variants of unreasonableness; second, the difficulty in squaring with the rule of law the suggestion that an unreasonable decision could sometimes stand, as long as it was not patently unreasonable; and third, the time-consuming nature of the multi-factor analysis.

What these trials and travails demonstrate is the need for the various standard of review to be well defined. Beyond verbal formulations, they need to be capable of application by judges. There is need for 'teeth' as well as 'tongue'. A sliding scale in judicial review should resemble the saddle of an exercise bike, which can be moved up and down but can be used only if locked securely into a particular position.

Humphreys concerned a social welfare regime and its compatibility with the equality provision of the European Convention on Human Rights. Child tax credits in the UK are distributed, by the agency responsible for taxation, to the person with most responsibility for childcare. Given that mothers generally have the most responsibility for childcare, the net result is indirect discrimination against fathers. However, the discrimination was not based on one of the express grounds of prohibition in the Convention. Accordingly, a relaxed standard of review (or margin of appreciation) applied, consistent with the European Court of Human Rights' decision in Stec v United Kingdom:
The scope of this margin will vary according to the circumstances, the subject-matter and the background. As a general rule, very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, a wide margin is usually allowed to the State under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation.’ (at para. 52)
I wonder what the difference is between "reasons" for a decision and "very weighty reasons". Indeed, I wonder what the difference is between "weighty reasons" and "very weighty reasons"; all that the word "very" seems to add is tautology. Much like "anxious scrutiny" or "patent unreasonableness", the standard is all tongue and no teeth.

At the other end of this sliding scale, the standard of "manifestly without reasonable foundation" is more promising (although again, the word "manifestly" is linguistically ornamental at best). Once a defect is identified in the government's policy, a foundation must be established that is solid notwithstanding the defect.

In the event, the government's overall policy of reducing child poverty carried the day. Entitling two households to the credit might have the unfortunate effect of making children worse off, by putting them in a position where neither father nor mother could make adequate provision (see para. 29; interestingly, there is no mention in the judgment of how this might play out in same-sex relationships). The government's approach to child benefit also cohered with its general approach to individuals' transitions from work to employment, which is facilitated by providing the child benefit in the form of a credit rather than a weekly allowance (see para. 30). Moreover, it was still open to parents to sort any imbalances out between themselves (see para. 31). There was thus the necessary reasonable foundation.

Baroness Hale, who gave the judgment of the Court, noted in closing that family courts could have been trusted to make any orders necessary to equalize imbalances. Presumably, rather than relying on family courts, an analogous administrative structure could be set up within the tax agency to achieve this equalization purpose. Strikingly, Baroness Hale suggested that this would "be the more rational solution to the problem under discussion" (at para. 32).

But the courts' place is not to determine policy. While the government's approach might not have been optimal, it had the necessary reasonable foundation.

I have much to say about sliding scales in chapter 4 of A Theory of Deference in Administrative Law, which I hope to blog about after publication.