Limit And Nature Of Judicial Deference

This notion examines the approach to date of the courts to sub-section 3 and 4 of the Human Rights Act 1998 and the limit and nature of judicial deference to statute law, and by inference of Parliamentary sovereignty. It is based on literature from a variety of sources including journal articles, edited books, web resources research papers etc. The authors review come from a variety of backgrounds specifically including the three set of government i.e executive, legislature and judiciary. Moreover the judicial approach is particularly the application and the interpretation of the interpretive obligation under section 3 of the Human Rights Act and the power to declare legislation incompatible under section 4 and the construction by the judiciary of a principle of deference.

The background to the Act

The Human Rights Act 1998 is an outstanding piece of legislation. The sub-section 3 and 4 of the Human Rights Act defined the nature and the extent of judicial deference to statute law and it also determined the parliamentary sovereignty. It is well observed that if the doctrine of the Act under sub-section 3 and 4 works properly, then there is no further gap of judicial deference to legislature and as a consequence the Convention rights must be at stake.

Moreover the main question which articulates here is when judicial scrutiny of legislation drifts into judicial creation of legislation? [1] The Constitutional boundaries limit the judiciary to act in their own jurisdiction, in relation to the development of English law and judicial review of executive discretion. But unfortunately this question did not discuss in UK in relation to legislation before the Human Rights Act because courts were not allowed constitutionally to do so. [2] 

However there are two main reasons of it. Firstly, the Convention rights are framed in broad realm and the contrast between interpretation and legislation is not so clear. As the Common law used detailed legislation and the ECHR do not like such kind of legislation. Therefore Lord Woolf made it clear in Poplar Housing “the dividing line between legislation and interpretation would not be easy under the Human Rights Act." [3] Secondly, European Court of Human Rights has developed the doctrine of margin of appreciation. Which mean that there is nothing the limits of its writ in domestic law and there is certainly no-go zone for the Strasbourg Court, therefore it means that it left blank to our courts, if they do so then how can they exercise their authority.

In addition to, a question became raised after the passing of Human Rights Act that which kind of approach has to follow? So they focused the different approaches of the 1982 Canadian Charter of Rights and also the 1991 New Zealand Bill of Rights. [4] The Canadian approach could be lodged as judicial establishment, which allow the legislature to pass statute which link the Canadian charter, because the Canadian model stands at notwithstanding clause. Similarly the New Zealand model is describing as legislature first approach in which the courts might barred from analysing the clear expressed Acts of Parliament.

However sub-section 3 and 4 of the Human Rights Act is crafted to be different from both of these approaches. So the issue of judicial deference with regard to legislature became settled through the intersection of these two models and if they are applied so, then there is no need of further doctrine of judicial deference to legislation is required.

Deference to the legislature

In this context the main focus is laid upon the judicial deference paid to the legislation in the confusing circumstances brought in by the un-written British Constitution, where the intermingled executive and legislature is impossible to divide.

Moreover a need was felt that a definite boundary be drawn between the three branches of the government, which invited many debates. Prior to these debates on the disintegration of the three organs of the government, the ECHR was incorporated in UK Law. A wave of unrest passed among the political, judicial as well as academic circles and their concern was that by incorporating the broad human rights standards into UK law would bring an end to the supremacy of British Parliamentary system [5] over the courts by bringing such huge Constitutional changes without making the other jurisdictions transparent and clear. Primitively, it was based on whether an elected parliament or non-elected courts may have the final decision in determining whether a law should be in the democracy (as different that law does not interpret). [6] 

However many distinguishing features can be supplied through debates. An article by Danny Nicol named "Are Convention Rights a No-go Zone for Parliament?" [7] is an example to it. At one end he has used a term as incorporationists for those who believe that convention rights are above the reach of state and the statute and its true meaning would be defined by an independent judiciary who is free from the dominancy of executive. [8] 

At the other hand he presented the idea of third waver in which Human Rights Act being a unique constitutional instrument plays its role by enabling the parliament and government as well as the judiciary for giving a further effect to the fundamental rights. Hence the conception of each and every Conventional Rights is self evident and explanatory. [9] In addition to, rights may come parallel across each other due to pressing social needs or it may arises a clash of interest, then the ECHR may legitimately constrain them in certain circumstances. In such situation the demos would supersede the courts by appearing to be a better forum to decide these issues. [10] 

Judicial deference

The Act itself is quiet about the origin of this theme. However, this theme is inculcated in the judge made concept of judicial deference in the leading Post-Human Rights Act decisions. In the judgement of Roth [11] the subject has been analytically treated. According to laws LJ deference is the mean of resolving the strained relation between parliamentary sovereignty and fundamental rights, which in his view is created by the Human Rights Act between the legislative and constitutional supremacy. [12] 

In the light of above approach the scope of section 3 is viewed by the boundaries of deference constructed by the courts. The courts have focussed on this concept of deference to shape their interpretative function under the Human Rights Act, but the factors involving it seem to get more complex. They include indistinct factors such as culture and conditions of the British State and distinct or determining factors such as the rights are absolute or qualified and the subject matter of the issue before the courts is proper. According to Laws LJ and others, the last one is the determining factor of the extent of judicial deference. Moreover the deference is absolute in some context and barely exists in the others.

Likewise the spectrum of deference extends from Arts 5 and 6 related to the fair trial and due process which hardly give rise to the deference, national security and social and economic matters, and the courts are not likely to scrutinise them. The judiciary regards this difference as the natural consequence of the special responsibility of the states' two branches.

Similarly State's borders security is the special responsibility of the executive, and criminal justice is the foremost responsibility of the judiciary. Between these two branches there lies a spectrum not a no man`s land. The degree of deference lies to the democratic decision-maker must depend upon where the measure lies.

Hence the constitutional and institutional competency gives persuasive authority to courts in justice issues. According to John Wadham, [13] Article 5 and 6 of the ECHR is an incorporated Convention which maybe judicially determined and the rest would be the ultimate say of the Parliament, which would be helped by the scrutiny of a Joint Human Rights Select Committee, and this probably received as science of fiction at that time.

In addition to, Lord Steyn effectively defined that this was not the model which was passed by the Parliament in 1998. However the Canadian model is also needed to be democratically and openly debated. The further proceeding through back door may increase the realm of danger. So the misuse of section 3 would undermine the balance set in context by the Act. [14] 

Deference to Executive

In Human Rights Act it is the duty of judges to adjudicate in new and challenging ways. The deference to the executive on issues of public interest is to give rise newly acquired judicial role which not only protects fundamental human rights but also regards the Human Rights obligations in international arena. According to AV Home Secretary the Government derogated the commitments of human rights in order to constitute the authority of indefinite detention without trial of foreigners, who are suspected of terrorism in United Kingdom. [15] Moreover the Social-economical impact is also a great challenge for human rights. The European Court of Human Rights is trying to impose duties and responsibilities onto contracting parties. Therefore the judiciary is trying to demarcate democratically defensible role. However from a democratic point of view the courts have begun to see human rights obligations as essential of democracy. [16] 

In addition to, under the Human Rights Act judges may contribute to the political debates about democratic values but their words are not final. So it makes a complete forum to promote a series of human rights adjudication. However, to describe the judicial function it is not clear understanding of both equality and democracy.


The principle of the relational approach flies in the face of the premise in much of the legal sense that the so-called booby prize declaration of disharmonious should automatically actuate legislative change. It may not be a clue that the Act has failed when the day comes, as it certainly will that the government, with strong parliamentary backing, deny to amend a statute that the courts announce infringement of basic rights.

The aim of the HRA is to permit the courts to apply human rights obligations where they were once barred from doing so. It was not ordained so that the courts could have the final say in ways where there is no proper human rights answer any more than it permits them to renounce from their responsibility to examine on the grounds that it is outside their domain of competence.