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Lawyers along the way
have tried to tell me how reasonable it
was that a court reviewing the
decision-making of an official or tribunal
should act in deference to the expertise
of the decision-maker. Even before my
exposure to the officials making decisions
about asylum seekers and other
non-citizens, I found this surprising. I thought people were
intended to enjoy rights in international
treaties and in the Canadian Charter and
that courts were to ensure these rights
against the decisions of ministers or even
parliaments. This is the notion dating
back to the 13th century Magna
Carta: that a court should examine the
lawfulness of decisions leading to
incarceration or torture – not that a
court should defer to some official
assuming she or he got it right. Given
this expectation it has been depressing to
watch the Supreme Court of Canada pass
back the fate of a refugee into the hands
of a Minister intent on deporting or
extraditing so that the minister can
repeat the attempt to balance the need to
return against the need to protect the
refugee from a plausible risk of torture
if returned. This happened in the case Suresh
2002 and in Nemeth
2010. So I was pleased to find
that law professors in the UK have been
putting out critical views on discretion
now that the UK has incorporated the
European Convention of Rights and Freedoms
into UK law. There are arguments from an
author in traditionally progressive
Cambridge to the effect that the notion of
deference should be dropped and that a
court must examine the right itself in
context.[1]
Even a sympathiser of the notion of
deference after a workshop on the topic in
traditionally conservative Oxford proposes
a clearer model for “discretion.” [2]
She seeks to avoid mere acceptance of
expertise - “submission” – and comes
closer to a notion of “some respect.” So
both sides feel a need for changes to the
way deference has been used, but one side
feels the notion should be dropped. I am with the Cambridge
author on this one: drop the word. I am
part of a generation which learned to
question. The word deference can only set
a sympathetic rather than a questioning
tone – for me anathema to ensuring rights.
The
very word “deference” carries unfortunate
baggage for someone like me raised in the
class stratified society of the UK just
after WWII. Deference suggests one touches
one’s forelock to the squire (who was
typically a political conservative) as
opposed to showing solidarity with “us,”
the friends with parents working in the
mills (who typically voted labour). Some
situations deserved deference from others.
It was an “us” and “them” society and
deference was something owed to “them.” I
prefer questioning those in authority. A vague concept like
deference can give license to some sloppy
decision making. I noticed that the
refugee determination tribunal tended to
fall back on another vague notion - the
person’s “credibility.” This allowed them
to dispatch a difficult decision with
relatively little work. It is
understandable once a vague concept is
there to be used. The tribunal decision
makers process a lot of cases. The
decisions are difficult. They are as
afraid of finding everyone a refugee as
they are of failing to recognise a
refugee. The concept of deference can play
a similar role for a reviewing court. Over
worked courts should not have that kind of
easy way out from tough decision-making
involving tricky new specialized refugee
concepts. Rather a court should have to do
its job: when fundamental rights are at
issue, it should evaluate the rights at
issue for itself and ensure them for that
individual. In an age which requires
ensuring rights, there needs to be a
principled way in which the individual can
have a court protect rights – not just
judicial review. Allan explores this in
his articles. There
is a practical side. My work with asylum
seekers revealed much pressure on human
decision makers and their work system. The
Minister has much political pressure to
extradite a Roma refugee like Nemeth on
flimsy grounds to the European country of
Hungary during trade discussions with the
EU. Immigration officials naturally tend
to support one another’s immigration
decisions – especially when they enjoy
quite broad “discretion” weighing bundles
of factors which include important family
and children’s rights. Telling them that
one of their team had not considered some
factor or another in a refugee’s case
situation and sending it back to the same
officialdom so another member of their
team might consider the case does not seem
a realistic way of ensuring rights at
issue.
It is not reasonable for a court to
expect the team of officials or the
“minister” to make rational decisions to
protect an individual’s fundamental rights
just because they have had some training,
have been given some information and have
been asked to consider an additional
factor. For its inherent meaning
and for its vagueness the concept of
deference should be dropped. The European
Court of Human Rights, which evaluates for
itself whether a right has been violated
or not has developed a concept “margin of
appreciation” for the decision making of
the member state which it is examining.
Even this concept is questionable for a
body charged with ensuring rights for the
individual, but the term is less offensive
and is a better candidate on which to base
an improved model. All of
which brings me back to Canadian NGO
thinking in the early submissions to
the Canadian Courts. When a person’s
important rights are at issue, a court
should put itself between the
individual and the state and ensure
that the rights are protected. That
will require the court to determine
for itself whether a serious
probability of torture exists or not,
and to weigh the legitimacy, necessity
and proportionality of a proposed
limit to the enjoyment of family life
associated with expulsion. Deference
is not a helpful word. [1]
See for example ,T. R. S. Allan,'Human
Rights and Judicial Review: a Critique
of "Due Deference"’ (2006) 65 CLJ 671,
and related subsequent articles. [2] Alison
L. Young, “In Defence of Deference” (2009)
72(4) MLR 554-580.  |