PRINCIPLES FOR JUDICIAL DEFERENCE

By Richard Clayton QC

Deference involves the principle that the courts (out of respect for the legislature or executive) will decline to make their own independent judgment on a particular issue.  The concept is critical to a proper understanding of how the courts are to approach the HRA- whether and in what circumstances it is legitimate for the courts to gainsay Parliament or the executive, a process which has excited real political controversy with recent Home Secretaries. In this paper I propose to cover the following topics: the obligation to defer to democratic institutions; the structural features of the HRA which mandate strict scrutiny; the lessons that can be learned from the Canadian case law concerning its Charter of Rights and Freedoms, particularly the relevance and value of the principle of democratic dialogue; the appropriateness of deference in the context of unqualified rights; the nature of the obligation to defer to the decision maker whose decision is under challenge; and the substantive and procedural aspects of the deference principle. To date there has been very little critical examination of what we mean by deference.  The most extended analysis was undertaken by the House of Lords in R(ProLife) v BBC.  Lord Hoffmann observed that: the word “deference” is now very popular in describing the relationship between the judicial and the other branches of government, I do not think that its overtones of servility, or perhaps gracious concession, are appropriate to describe what is happening Lord Hoffman went on to discuss the principle in terms which I shall discuss later.  Lord Walker, on the other hand, analysed the proportionality principle with the intensity appropriate to the circumstances of the case, agreed with Lord Hoffmann that the word “deference” may not be the best word to use and concluded that any formulation of the deference principle as “one size fits all” would be impossible.

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