Judicial Deference under the Human Rights Act

AuthorRichard A. Edwards
Publication Date01 November 2002
DOIhttp://doi.org/10.1111/1468-2230.00413
Judicial Deference under the Human Rights Act
Richard A. Edwards*
Judicial deference to the other branches of government has become a common
judicial technique in cases arising under the Human Rights Act. The author
outlines the current approach of British courts in deciding when to defer, arguing
that it is flawed and unprincipled. The author goes on to argue that a principled
approach to deference is necessary, and offers examples of when and how courts
should defer to the other branches of government when considering constitutional
claims.
Introduction
Few would doubt that in a constitutional democracy there will be times when it is
appropriate for a court adjudicating a human rights claim to defer to the judgment
of the other branches of government. The key question is, however, when and to
what extent should the judiciary defer? Traditionally judicial deference in this
context has been justified for two reasons. Firstly, there is the principled argument
that the courts lack democratic legitimacy.1Put simply deference will mitigate the
anti-democratic nature of judicial review.2The principled argument shines through
the various opinions in the House of Lords decision in Alconbury.3Secondly, there
is a pragmatic argument. The judiciary are institutionally incompetent to deal with
the socio-economic issues that frequently arise in these cases.4Not only is
adjudication an inappropriate process for assessing complex issues of policy, but
the courts also lack the resources and the judiciary the training and expertise to
adequately weigh the issues.5
ßThe Modern Law Review Limited 2002 (MLR 65:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 859
* Senior Lecturer in Law. Faculty of Law. UWE, Bristol. My thanks to Ed Cape, Howard Davis, Peter
Billings and Andrew Theunissen for their helpful comments on earlier drafts of this paper. The usual
disclaimer applies. Comments may be emailed to .
1 Keith Ewing and Conor Gearty, ‘Rocky Foundations for Labour’s New Rights’ [1997] 5 EHRLR 146
147–148.
2Brown vStott [2001] 2 WLR 817, 834 per Lord Bingham; Irwin Toy vQuebec (AG) [1989] 1 SCR
927, 993 per Dickson CJC and Lamer and Wilson JJ.
3R (Alconbury Developments Ltd) vSecretary of State for Transport, the Environment and the Regions
[2001] 2 WLR 1389, 1411 [69–70] per Lord Hoffmann, 1408–1409 [60] per Lord Nolan, and 1432
[144] per Lord Clyde.
4 Lon Fuller, ‘The Forms and Limits of Adjudication’ (1978) 92 Harvard Law Review 353 394–404; R.
A. MacDonald, ‘Postscript and Prelude – the Jurisprudence of the Charter: Eight Theses’ (1982) 4 Sup
Ct Law Rev 321 337.
5R(International Transport Roth GmBH) vSecre tary of State for the Home Department [2002] EWCA
Civ 158 [2002] 3 WLR 344, 378 [87] per Laws LJ. Unlike judicial restraint, where a court will
declare the substance of the case non-justiciable because, for example, it requires non-legal findings,
deference recognises that the issue is cognisable by the court but that there are good reasons for not
subjecting the decisions or acts of the other branches of government to the rigorous scrutiny normally
expected during constitutional cases. In contrast to deference, questions of justiciability are concerned
with the scope of judicial review rather than the validity of legislative or executive action (Lorne
Sossin, Boundaries of Judicial Review: The Law of Justiciability in Canada (Scarborough: Carswell,
1999) 237).
Development of the doctrine
That judicial deference has become a firmly established feature of judicial review
in cases involving the British Human Rights Act (HRA) should not therefore be
surprising.6Indeed, even before the HRA came into force there were calls from
eminent jurists and judges for the development of such a doctrine. For example,
Murray Hunt called for the development of a doctrine of ‘due deference’ whereby,
depending on the context, a court should defer to the decision maker or
legislature.7Hunt was not alone in this view. Indeed, various similar arguments
were advanced by a number of distinguished lawyers all calling for the judiciary to
exercise ‘due deference’ to the legislature or executive where appropriate. It was
argued, for example, that a court must exercise restraint when reviewing the
decisions of a person or body possessed with specialist expertise.8Thus the House
of Commons enjoys ‘a special role in the field of finance’.9Similarly, matters in
the ‘social and economic and political sphere’ should be left to the legislature or
the relevant decision-maker ‘because they are in the best position to make the
relevant policy choice.’10 At the same time the judiciary indicated their
receptiveness to the idea both judicially11 and extra-judicially. While the Human
Rights Bill was progressing through Parliament Lord Bingham, then Lord Chief
Justice, observed that
those who hope for a surge of judicial activism may be disappointed . .. I think that British
judges will continue to accord a very considerable margin of appreciation to political and
official decision makers . .. to do so would certainly help to allay the fears of those who see
incorporation as an objectionable judicial usurpation of democratic authority.12
No doubt fortified by these arguments the senior judiciary responded by
developing a domestic doctrine analogous, though not identical,13 to the European
Court of Human Rights ‘margin of appreciation’.14 The development of deference
as a judicial doctrine under the HRA can be traced to the decision of the House of
Lords in Kebilene.15 In what has since become a classic statement of the doctrine
Lord Hope observed that there will be times during Convention adjudication when
a court would need to recognise that:
difficult choices may have to be made by the executive or the legislature between the rights
of the individual and the needs of society. In some circumstances it will be appropriate for
the courts to recognise that there is an area of judgment within which the judiciary will
defer, on democratic grounds, to the considered opinion of the elected body or person whose
act or decision is said to be incompatible with the Convention. This point is well made at p
74, para. 3.21 of Human Rights Law and Practice (1999), of which Lord Lester of Herne
6 Paul Craig, ‘The Courts, the HRA & Judicial Review’ [2000] 117 LQR 589 590.
7 Murray Hunt, ‘Judicial Review after the Human Rights Act’ [1999] 2 QMWLJ 14 15–16.
8 David Pannick, ‘Principles of Interpretation of Convention rights under the Human Rights Act and the
Discretionary Area of Judgment’ [1998] PL 545 545–551.
9 S. Singh, M. Hunt and M. Dennetriou, ‘Is There a Role for the ‘‘Margin of Appreciation’’in National
Law After the HRA?’ [1999] EHRLR 15 22.
10 ibid 22.
11 RvRadio Authority, ex p Bull [1998] QB 294, 310 per Lord Woolf MR.
12 Lord Bingham of Cornhill, ‘Incorporation of the ECHR: The Opportunity and the Challenge’ [1998] 2
Jersey Law Review 257 269–270 (emphasis added).
13 See for example Lord Steyn’s remarks in Brown n 2 above 842, where His Lordship quite correctly
concludes that the margin is ‘logically not applicable to domestic courts’. See also Sir John Laws,
‘The Limitation of Human Rights’ [1998] PL 234 258.
14 For the essence of the doctrine see Handyside vUK (1979) 1 EHRR 737, para 48.
15 RvDPP ex p Kebilene [2000] 2 AC 326.
The Modern Law Review [Vol. 65
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