Issues of judgmentTimes 29 OctoberRe [1981] Ch 167
4.384An issue of judgment is one on which difference of opinion is both possible and legitimate. In some cases, difference of opinion is possible but not legitimate. For example: statutes and documents may be interpreted differently, as may case-law, but there is in law only one correct interpretation.
4.385Issues of judgment were described by Lord Diplock in
Birkett v James1[1978] AC 297. as:
… decisions which involve balancing against one another a variety of relevant considerations upon which opinions of individual judges may reasonably differ as to their relative weight in a particular case.
2[1978] AC 297 at 317.4.386This description identifies the essential features. The conclusion involves taking into account a number of factors. The significance of each factor must be assessed in the context of all of the others. The task of assessing the overall significance of the factors in combination is so complex that it is inevitable that there may be legitimate scope for differences of opinion.
4.387It is of the nature of an exercise of judgment that a tribunal has to explain how it was exercised.
3Wall LJ in Cunliffe v Fielden [2006] Ch 361 at [23]. See further para 4.475.4.388A tribunal may have to exercise judgment in four different circumstances.
4.389First, the tribunal may have to analyse evidence and make findings of fact.
4See chapter 12.4.390Second, the tribunal may have to make a finding of compound fact.
5Jessel MR in Erichsen v Last (1881) 8 QBD 414 at 416. This is a finding that involves the overall effect of a number of constituent facts, each of which has to be analysed in the context of all the other facts. For example: whether a couple are living in the same household depends on the combined effect of a number of facts about the way they have organised their living arrangements.
4.391Third, the tribunal may have to apply a standard to the circumstances of the case. For example: the standard of proportionality or reasonableness.
4.392Fourth, the tribunal may have to exercise a power or discretion, including a case management power.
4.393The exercise of judgment in these different circumstances may involve different processes. As the Court of Appeal noted in
MT (Algeria) v Secretary of State for the Home Department:
6[2008] QB 533 at [101].That assessment of proportionality is far different from the fact-finding exercise with which we are concerned in the present case.
Discretion and other exercises of judgment
4.394Discretion is used in two senses.
The narrow sense of discretion
4.395The essence of a discretion in its narrow and strict sense is that the decision-maker has a choice. For example: what procedure should a tribunal adopt at a hearing? In the circumstances of the case and on the material before the tribunal, there may only be one proper answer. But there may well be a range of different and more or less appropriate answers. The choice must be made judicially. But there is a choice.
4.396This is different from the other ways in which a tribunal may have to exercise judgment. They do not involve a choice. Different tribunals might analyse the same facts differently. For the individual tribunal the facts may be difficult to analyse. The tribunal may be ‘in two minds’. But the tribunal cannot simply chose one or the other decision as a matter of preference, even a judicially exercised preference.
4.397The distinction was recognised in
R (Fisher) v English Nature,
7[2004] 1 WLR 503. where Lightman J said of a statutory provision that it ‘affords scope for judgment: it affords no scope for discretion’.
8[2004] 1 WLR 503 at [18]. And in
Runa Begum v Tower Hamlets London Borough Council,9[2003] 2 AC 430. where Lord Walker said of the process under the legislation dealing with homeless persons: ‘… it is apparent that the process involves some important elements of official discretion, and also issues which (although not properly described as involving the exercise of discretion) do call for the exercise of evaluative judgment’.
4.398It was spelt out in more detail by the Court of Appeal in
R v Chalkley10[1998] QB 848. when commenting on the nature of a decision whether to admit evidence:
… the task of determining (in)admissibility under section 78 [of the Police and Criminal Evidence Act 1984] does not strictly involve an exercise of discretion. It is to determine whether the admission of the evidence ‘having regard to all the circumstances, including the circumstances in which the evidence was obtained … would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it’. If the court is of that view, it cannot logically ‘exercise a discretion’ to admit the evidence, despite the permissive formula in the opening words of the provision that it ‘may refuse’ to admit the evidence in that event.
11[1998] QB 848 at 874. The test for admitting or excluding evidence under the rules of procedure is different: see chapter 10.The wide sense of discretion
4.399Discretion in its wide and looser sense means any exercise of judgment. For example: in
Birkett v James,12[1978] AC 297. Lord Diplock used discretion to describe decisions on interlocutory issues requiring the balancing of considerations.
13[1978] AC 297 at 317. See also Lord Keith in Devon County Council v George [1989] AC 573 at 604 (whether something was necessary to facilitate attendance at school); Henry LJ in Storer v British Gas plc [2000] 1 WLR 1237 at [24] (issues of fact and degree). The scope for difference of view is shown in the description of a decision on abuse of process.4.400However, this use is not consistent. In the context of a decision on abuse of process, Lord Diplock disavowed its use in
Hunter v Chief Constable of West Midlands Police,
14[1982] AC 529 at 536. despite his comment in
Birkett v James, whereas the Court of Appeal used the word in
R v Chalkley.15[1998] QB 848 at 874. The Competition Tribunal has said that this use is better avoided and considered that ‘the more correct concept is one of a margin of judgment or evaluation of the facts’.
16UniChem Ltd v Office of Fair Trading [2005] 2 All ER 440 at [172]. See also the Court of Appeal in R v Clark (2007) Times 29 October.4.401This wide use of discretion is dangerous in that it may mislead tribunals into believing that all forms of judgment involve, and therefore allow, a conscious choice. The better view is that the other forms of judgment are not discretions, although it may be appropriate for an appellate body to take the same approach to all exercises of judgment, whether discretions or not.
17See Lord Bridge in George Mitchell (Chesterhall) Ltd v Finney Lock Seeds [1983] 2 AC 803 at 815.4.402Whether or not a judgment involves a discretion is not merely a matter of semantics. The proper classification may have a significance. For example: a discretion must be exercised in a way that is compatible with a party’s Convention rights, but an exercise of judgment that does not involve a discretion does not. In
Campbell v South Northamptonshire District Council,18[2004] 3 All ER 387. the issue for the Court of Appeal was whether a decision on entitlement to housing benefit discriminated against the claimants in respect of their religious beliefs. The Court held that it did not. Peter Gibson LJ said:
… If the tribunal were given a discretion, then it is not disputed that that discretion must be exercised comformably with the convention. However, it is plain that reg 7(1)(a) [of the Housing Benefit (General) Regulations 1987] gives neither the local authority nor the tribunal any discretion at all. What has to be decided is a pure question of fact as to whether or not the tenancy agreements are or are not on a commercial basis.
19[2004] 3 All ER 387 at [60].Types of discretion
4.403A discretion may be unfettered or structured. The difference is the extent to which legislation guides the exercise of the discretion. A discretion may be wholly unfettered, wholly structured, or part and part.
4.404No discretion conferred on a tribunal is entirely free. Even a discretion, such as the procedure to be followed at a hearing, has ‘to be exercised judicially, and in accordance with what is just and proper’.
20Megarry V-C in Re Salmon (dec’d) [1981] Ch 167 at 175.4.405It must also be exercised for the purpose for which it was given.
4.406If it is structured, it may be restricted or guided. If it is restricted, legislation will specify factors that must not be taken into account. If it is guided, legislation will provide a list of factors that are relevant. The list may or may not be exhaustive. A discretion may be limited in a combination of both ways.
21For example: reg 21(1) of the Child Support (Variations) Regulations 2000 provides guidance for the exercise of the discretion whether a variation of child support maintenance would be just and equitable, whereas reg 21(2) restricts it.4.407If a tribunal exercises a discretion in a particularly unusual way, it is bound to give reasons.
22Robert Walker LJ in Jones v Governing Body of Burdett Coutts School [1999] ICR 38 at 47.4.408There is sometimes a preference for procedural discretions that are unfettered rather than structured. This is based on the belief that this allows the tribunal greater freedom of action. However, structured procedural discretions have advantages:
•the legislative guidance assists consistency both for the same judge over time and between judges;
•the criteria guide the tribunal in investigating facts and circumstances relevant to the discretion;
•they also assist the parties and their representatives to gather and present information of the relevant facts and circumstances, supported by argument directed to the criteria for decision;
•by making clear to the parties the matters that will be considered as relevant by the judge, they can avoid the need for an oral hearing on the exercise of the discretion.
23On the relevance of this to the need for an oral hearing, see Lord Bingham in R (West) v Parole Board [2005] 1 WLR 350 at 35. 4.409In short, a structured procedural discretion enhances the quality of decision-making. It seldom restricts the decision-maker’s freedom of action unreasonably.
Exercising judgment in practice
4.410The process of decision-making that involves assessing the combined effect of a number of separate factors has been analysed by Richard A Posner, an experienced Federal appellate judge from the United States, in
How Judges Think.24Harvard, 2008. On his analysis, this involves a two stage process. The first stage is intuitive:
Because the unconscious mind has greater capacity than the conscious mind, the knowledge accessible to intuition is likely to be vast … When a decision depends on several factors, you may do better by using your intuition than by trying to evaluate consciously each factor separately and combining the evaluation to form an ultimate conclusion. The costs of consciously processing the information may be so high that intuition will enable a more accurate as well as a speedier decision than analytical reasoning would.
25Richard A Posner, How Judges Think, Harvard, 2008, p108, footnotes omitted.There is no alternative to the use of intuition, because the working memory available to the conscious mind has too small a capacity to cope with the multitude of combinations involved.
26Philip Johnson-Laird, How We Reason, Oxford, 2006, chapter 5.4.411The second stage in Posner’s process is to attempt to explain the decision analytically as a check on error:
The judicial opinion can best be understood as an attempt to explain how the decision, even if (as is most likely) arrived at on the basis of intuition, could have been arrived at on the basis of logical, step-by-step reasoning. That is a check on the errors to which intuitive reasoning is prone, because of its compressed, inarticulate character …
27Richard A Posner, How Judges Think, Harvard, 2008, p110, footnote omitted.4.412The process of decision-making that involves assessing the reasonableness of an action or decision has been analysed by Aharon Barak, who was the President of the Supreme Court of Israel, in
The Judge in a Democracy.28Aharon Barak, The Judge in a Democracy, Princeton, 2006. On his analysis, reasonableness is determined by the objective for which the standard is applied:
The concept of reasonableness assumes a pluralistic outlook, which recognizes the existence of a number of appropriate considerations and wishes to balance them by giving the ‘appropriate’ weight to the internal relations between them … the ‘appropriate’ weight of the relevant considerations is determined according to their power to advance the objectives which lie at the foundation of the act (or decision) whose reasonableness is being tested.
29Aharon Barak, The Judge in a Democracy, Princeton, 2006, p69, quoting from his decision in Ganor v Attorney-General.Deference under the Human Rights Act 1998
4.413The issue of proportionality arises in respect of some of the Convention rights under the Human Rights Act 1998. The extent to which the courts will show respect or deference
30This term was in vogue for a time, but was disapproved by Lord Hoffmann in R (ProLife Alliance) v BBC [2004] 1 AC 185 at [75] on the ground that it suggested servility or gracious concession, which were inappropriate to the rule of law. to a decision-maker varies. In
Huang v Secretary of State for the Home Department,31[2006] QB 1. the Court of Appeal distinguished the circumstances in which it applies. It applies to judgments on the formation of policy or where for practical reasons the courts are not in a position to arrive at an autonomous decision.
32[2006] QB 1 at [52]–[53]. It does not apply to decisions on the application of the policy.
33[2006] QB 1 at [55]–[56]. Laws LJ explained the proper approach on an appeal:
If the policy perpetrates an apparent violation of a Convention right so that the government must demonstrate proportionality, the court will not be satisfied merely upon it being shown that a reasonable decision-maker might consider the policy proportionate. It will required a substantial reasoned justification of the policy in the light of the discipline inherent in this kind of case … The difference between this approach and
Wednesbury is plain to see.
Wednesbury review consigned the relative weight to be given to any relevant factor to the discretion of the decision-maker. In the new world, the decision-maker is obliged to accord decisive weight to the requirements of pressing social need and proportionality.
34[2006] QB 1 at [54].4.414On appeal in
Huang,35[2007] 2 AC 167 at [16]. the House of Lords distinguished between deference and the ordinary judicial task of assessing the overall effect of competing considerations.