Judicial deference under the Human Rights Act 1998

Abstract

Examines the constitutional boundaries of the judicial function in the light of the Human Rights Act 1998, focusing on the courts approach to the interpretive obligations under s.3, the power to make declarations of incompatibility under s.4, and the concept of judicial deference to statute law and parliamentary sovereignty. Discusses the debate around judicial deference and the background to enactment of the 1998 Act, the rules of statutory interpretation and the judiciary's views on the meaning of the obligation to read legislation to give effect to rights under the European Convention on Human Rights 1950 "so far as it is possible to do so". Argues that the concept of judicial deference was not contained within the 1998 Act and that judicial decisions, exemplified by R. v A (Complainant's Sexual History), have failed to reflect the structure of the ss.3 and 4 which sought to enable the courts to uphold rights while also maintaining the legislature's authority. Suggests that the proper application of this dialogue or relational scheme would obviate the need for a further concept of judicial deference