JUDICIAL DEFERENCE AND “DEMOCRATIC DIALOGUE”

JUDICIAL DEFERENCE AND “DEMOCRATIC DIALOGUE”:
THE LEGITIMACY OF JUDICIAL INTERVENTION
UNDER THE HUMAN RIGHTS ACT

By Richard Clayton QC

The extent to which the courts should defer to Parliament when deciding cases under the Human Rights Act is inherently controversial.  Some very public criticisms of the judiciary have been made by Government spokesmen and the press, particularly in relation to asylum claims. Part of the problem is that so many Human Rights Act issues are open textured; and the scope for judicial intervention under the Act is therefore considerable.   But the most serious difficulty is that the English courts have yet to articulate a developed approach towards judicial deference when considering human rights claims, although Lord Walker recently began that process in R(Pro-Life Alliance) v BBC.

I shall argue that the constitutional nature of the Human Rights Act mandates an intensive standard of review by the courts.  The implications of this sort of analysis for administrative decision making are relatively straightforward.  More challenging are conflicts that arise where the courts examine the policy choices of the legislature.

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Richard Clayton QC