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298 Chapter 13
Canadian courts would consequently be far less likely to defer easily to
parliament or the executive in deciding issues of policy than their English
counterparts.
The South African Constitution explicitly includes socio-economic
rights, and these rights have, from the outset, been accepted as justiciable. 33
Courts have not, therefore accepted arguments that socio-economic rights are
not justiciable on the basis of constitutional competence arguments, since
courts are not democratically mandated to decide issues of socio-economic
policy. Such arguments are, however, nonetheless relevant to the manner
in which socio-economic rights matters are decided and the relief which is
given.
2.2 Institutional competence
The second consideration underpinning a court’s approach to deference
relates to perceived institutional limitations in the various branches of
government, and is based on a ‘practical evaluation of the capacity of
decision making bodies to make certain decisions’. 34 For Lord Steyn, the
‘relative institutional capacity’ of the courts is the critical factor in deciding
whether courts should defer to the other branches of government. 35 This
consideration is given further weight in the modern bureaucratic state
with its reliance on specialist expertise in almost all areas of the
government machine. As a result, some have argued that it is
inappropriate for courts to engage in review of complex government
policy, or ‘polycentric decision making’, as judges lack the experience,
knowledge or resources to make these types of decisions, in particular, to
assess what the consequences of their decisions may be and to respond
flexibly to unanticipated results of those decisions. For the same reasons, as
a general rule, courts will be far more willing to defer to other agencies where
the matter is one of fact or policy rather than of law or constitutional
interpretation.
It is important to note from the outset that, as with the other
factors underpinning constitutional deference, the question of institutional
capacity is based on the perceived appropriateness of the courts to make
certain types of decisions, rather than an inherent inability to make these
decisions. In principle, there are very few, if any, decisions which a court
cannot make, if given enough time and information. In commenting on a
33
Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the
Republic of South Africa, 1996 1996 4 SA 744 (CC) para 77.
34 Jowell (n 2 above) 330.
35
Lord Steyn ‘Deference: A tangled story’ (2005) Public Law 346 352. See also J Jowell
‘Judicial deference and human rights: A question of competence’ in P Craig &
R Rawlings (eds) Law and administration in Europe: Essays in honour of Carol Harlow
(2003) 67 80; J Jowell ‘Judicial deference: Servility, civility or institutional capacity?’
(2003) Public Law 592 598.