DOES THE HUMAN RIGHTS ACT NEED A PRINCIPLE OF JUDICIAL DEFERENCE

By Richard Clayton QC

This question of how and to what extent the courts should defer to governmental decisions is critical to the long term impact of the all human rights instruments.  The approach to be taken will inevitably be coloured by different domestic legal cultures and traditions.  The activist approach to the Canadian Charter of Rights in part reflects a the role of the court as an umpire in a federal system which will strike down legislation because, for example, a province has usurped the federal jurisdiction to enact criminal legislation.  In England, on the other hand, there is a strong tradition of deference based on the Dicean view of Parliamentary sovereignty and a Wednesbury test to assess a merits challenge.

But it is not surprising that the approach of the courts to judicial deference under the Human Rights Act is somewhat undeveloped.  The Act was not preceded by a broad-based campaign arguing for constitutional transformation- as in Canada or South Africa.  And the Government justified the incorporation of the Convention on very mundane grounds.  In the White Paper preceding the Act, particular stress was laid on the cost and time taken in waiting for adjudication from the European Court of Human Rights.  Consequently, there has been very little public discussion of the respective roles of courts and Parliament before human rights litigation commenced.  Lord Hoffman has suggested that no need for principle of judicial deference in Pro-life.

I shall argue The Human Rights Act is rightly regarded as a constitutional statute. English law has traditionally had some difficulty in defining what is meant by constitutional. 

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