Judicial deference
Encyclopedia
Judicial deference is a doctrine by which judge
s seek to avoid frustrating the will of the legislature
when deciding cases . It is most commonly found in countries, such as the United Kingdom
, which lack an entrenched constitution, as the essential purpose of such documents is to limit the power of the legislature.
There are some examples, however, of the occurrence of judicial deference in the United States
, such as on immigration case law, wherein the judiciary
has (historically) sought to not impede explicit constitutional Congressional
authority; see Fiallo v. Bell (1977).
In R (Kehoe) v Work and Pensions Secretary [2005], Lord Hope
explained that courts should "defer, on democratic grounds, to the considered opinion of the elected body as to where the balance is to be struck between the rights of the individual and the needs of society." Nevertheless the doctrine has been criticised for representing a way in which the courts should act obediently to Parliament in order to uphold the doctrine of Parliamentary Sovereignty
.
However, any suggestions that the House of Lords
was being unduly servile to Parliament
were overturned by the decision in A v Home Secretary [2005]. In the case, a group of detainees who had been imprisoned without charge under s.23 of the Anti-terrorism, Crime and Security Act 2001
on the grounds that they posed a threat to national security, appealed successfully against their detention. The court held that the powers of detention without charge violated Convention rights because of their discriminatory impact (articles 5 and 14 Human Rights Act 1998
).
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s seek to avoid frustrating the will of the legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
when deciding cases . It is most commonly found in countries, such as the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, which lack an entrenched constitution, as the essential purpose of such documents is to limit the power of the legislature.
There are some examples, however, of the occurrence of judicial deference in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, such as on immigration case law, wherein the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
has (historically) sought to not impede explicit constitutional Congressional
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
authority; see Fiallo v. Bell (1977).
In R (Kehoe) v Work and Pensions Secretary [2005], Lord Hope
Lord Hope
Lord Hope may refer to:*David Hope, Baron Hope of Craighead , senior judge*David Hope, Baron Hope of Thornes , former Archbishop of York*A subsidiary title of the Marquess of Linlithgow, created in 1703...
explained that courts should "defer, on democratic grounds, to the considered opinion of the elected body as to where the balance is to be struck between the rights of the individual and the needs of society." Nevertheless the doctrine has been criticised for representing a way in which the courts should act obediently to Parliament in order to uphold the doctrine of Parliamentary Sovereignty
Parliamentary sovereignty
Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
.
However, any suggestions that the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
was being unduly servile to Parliament
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
were overturned by the decision in A v Home Secretary [2005]. In the case, a group of detainees who had been imprisoned without charge under s.23 of the Anti-terrorism, Crime and Security Act 2001
Anti-terrorism, Crime and Security Act 2001
The Anti-Terrorism, Crime and Security Act 2001 was formally introduced into the Parliament of the United Kingdom on 19 November 2001, two months after the terrorist attacks on New York on 11 September. It received royal assent and came into force on 14 December 2001...
on the grounds that they posed a threat to national security, appealed successfully against their detention. The court held that the powers of detention without charge violated Convention rights because of their discriminatory impact (articles 5 and 14 Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
).