Judicial deference

United Kingdom

In Regina v. Director of Public Prosecutions Ex Parte Kebeline and Others [1999], 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 the British Parliament to uphold the doctrine of parliamentary sovereignty.

However, any suggestions that the House of Lords was being unduly servile to Parliament were overturned by A v Home Secretary (No 2) [2005]. In the case, detainees imprisoned without charge under section 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 had discriminatory impact (Articles 5 and 14 of the Human Rights Act 1998).

United States

There are some examples of judicial deference in the United States, despite its entrenched constitution. For example, in immigration law, the judiciary has historically sought to allow the explicit constitutional authority of the US Congress. An example is US Supreme Court decision Fiallo v. Bell (1977).

The same restraint is requested in foreign affairs as not-judicable matters, to safeguard the executive branch.

References

References

1. Squatrito, Theresa. (2025). "Judging under Constraint: The Politics of Deference by International Courts". Cambridge University Press.
2. Kirk A. Randazzo, ''Defenders of Liberty or Champions of Security? Federal Courts, the Hierarchy of Justice, and U.S. Foreign Policy'', 1438430477, 9781438430478, SUNY Press 2010.