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Towards a framework for understanding constitutional deference 299
British Court of Appeal judgment dealing with the allocation of limited
budgets in the healthcare sector, in which the Court stated that it could not
make such a judgment, Lord Justice Dyson noted the following:
I do not think that the court was saying that the court cannot make such a
judgment. Clearly, it is not impossible for the court to do so, especially if it is
provided with all the material that was available to the decision makers. But it
is not the normal function of courts to make such judgments, and they
are less-well-equipped than health authorities to make them. 36
Thus, the question of institutional competence is not purely one of
intellectual capacity and knowledge, but one of appropriateness. In this sense,
it is clearly linked to issues of constitutional competence. Another issue
affecting the institutional competence of courts to adjudicate certain matters
is the nature of the evidence placed before the court. Where evidence relates
to complex social science matters, courts will be more deferent to the
decision making of the other branches of government. 37 There is also, of
course, a limit to the quantity of evidence that can be placed before the court
and which judges can be expected to assimilate. 38
Lon Fuller’s famous article on polycentricity is often cited as authority
for the view that courts are not appropriate forums to decide sufficiently
polycentric matters. 39 Since decisions involving social policy or socioeconomic
rights are normally thought to involve polycentric issues and
complex issues of policy, courts are often reluctant to adjudicate on such
matters and will usually accord the state a high level of deference in such
adjudication. 40 In particular, where there are competing socio-economic
theories, courts will be extremely reluctant to make policy choices. Given
the centrality of Fuller’s article on this matter, it is worth discussing it in
some detail.
The notion of polycentricity was first introduced and discussed by Fuller
in his posthumously published article of 1978, ‘The forms and limits of
adjudication’. This article remains the foremost exposition on
polycentricity, cited repeatedly in the secondary literature and case law as
authority for the proposition that polycentric decisions are not justiciable,
with little further discussion. Fuller’s article explores the use of
adjudication as a form of social ordering, contrasting adjudication with two
36
Lord Justice Dyson ‘Some thoughts on judicial deference’ (2006) Judicial Review 103 para
13. The judgment being discussed by Lord Justice Dyson was R v Cambridge Health
Authority, ex parte B [1995] 1 WLR 898.
37
See the minority decisions in MacDonald (n 32 above) which discuss this consideration
in detail.
38 Lord Walker ‘Second-guessing government: Judicial deference and human rights’
(unpublished paper delivered at Oriel College, Oxford, 17 February 2005) 19.
39 L Fuller ‘The forms and limits of adjudication’ (1978) 92 Harvard LR 353.
40 Decisions in Canada and the United Kingdom illustrate this approach well: See the
minority decisions in MacDonald (n 32 above), Chaoulli v Quebec (AG) (2005) 1 SCR
791; and the English decisions in Kebilene (n 31 above); Roth (n 31 above) paras 144 184.