The doctrine of deference

It is apparent from the case law that the judges are very conscious of the invisible boundary line between those matters on which they regard themselves as competent to adjudicate and those matters which should be left for the democratically-elected government. This is the doctrine of deference. The doctrine may be compared with that of justiciability under judicial review. The principal distinction lies in the fact that whereas courts will rule on justiciability in order to decide whether to review, with deference the courts conduct an examination and then decide that they should defer to the elected government and/or parliament on the grounds of competence and/or democratic principle. The concept is also similar to the concept of margin of appreciation, which is used by the Court of Human Rights and which confers on states an area of discretion with which the Court will not interfere.115 ‘Deference’ may also be expressed in the form of competence – in the form of the question: ‘Is this matter within the competence of the courts to decide or for Parliament and/or the executive?’ Underlying the concept is the desire to preserve the separation of powers between the judiciary, executive and legislature and to protect the judges from charges that they are interfering in another institution’s legitimate sphere of power. Notwithstanding the legitimacy of the objective, there is a fine line to be drawn between deferring to another institution and failing adequately to protect human rights – the duty which has been conferred on the judges by the Human Rights Act.