judicial deference

Definition of judicial deference

Further reading

Judicial deference is a doctrine by which judges 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).