Judicial Deference under the Human Rights Act

Edwards, Richard A.

doi:10.1111/1468-2230.00413

Cited by 51 publications

(7 citation statements)

References 2 publications

(3 reference statements)

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“…Indeed, deferring gives up some control over the outcome, which might be detrimental to the development of the legal order and affect the protection of individual rights under EU law (Madsen et al, 2022, p. 436). Ultimately, indiscriminate deference falls short of judicial abdication (Edwards, 2002).…”

Section: What Is Deference In the Court?mentioning

confidence: 99%

A Spoonful of Sugar: Deference at the European Court of Justice

Zurita,

Brekke

2023

Preprint

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This article analyses the European Court of Justice’s strategic use of deference as a resilience technique in the preliminary reference procedure. It focuses on the strategic potential of using deference in two scenarios: First, when the Court uses teleological interpretation or expands the scope of the EU legal order; second, when it declares national measures incompatible with EU law. The findings indicate that the Court is more likely to use deference when expanding EU law, and less likely to defer when it declares national measures incompatible with EU law. The article challenges commonly held assumptions regarding the use of deference. First, the findings substantially qualify accounts linking the increase of deference to the maturity of the EU legal order and a certain halt of judicial activism. Deference allows the Court to explore new frontiers of EU law, suggesting that although the legal order might have matured, the Court does not perceive the project of legal integration as completed. Second, the article defies claims that deference is used by the Court as a "weapon of restraint".

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Section: What Is Deference In the Court?mentioning

confidence: 99%

A Spoonful of Sugar: Deference at the European Court of Justice

Zurita,

Brekke

2023

Preprint

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“…After over two years of the Human Rights Act there has been neither chaos nor the for the use of section 3 was the doctrine of judicial deference to the original intention of Parliament (Edwards, 2002;Klug, 2003 A local authority policy to pay foster carers of friends and relatives less than the allowance paid to stranger foster carers was successfully challenged using Article 8. 13 A local authority decision to leave a severely disabled woman and her carer-husband in unsuitable accommodation for almost two years was struck down on the basis of Article 8.They were awarded £10,000 under section 8 of the Act.…”

Section: The Act In Practicementioning

confidence: 99%

“…Whilst denying that the law was incompatible with the fair trial Convention right, the Law Lords effectively rewrote the section to allow the trial judge to admit such evidence if it was necessary in order to secure a fair trial. 8 However, in a later case, 9 the House of Lords decided that the appropriate test for the use of Section 3 was the doctrine of judicial deference to the original intention of Parliament (Edwards, 2002;Klug, 2003).…”

Section: The Act In Practicementioning

confidence: 99%

The Human Rights Act 1998: A Bridge between Citizenship and Justice?

Johnson¹

2004

Social Policy & Society

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“…When faced with primary legislative provisions allegedly conflicting with a Convention right(s), the courts have to interpret and apply several interlocking provisions of the HRA, engaging in a dialogue with the executive and legislature. 17 Section 2 enjoins them to have regard to ECHR jurisprudence. Section 3 mandates that, if at all possible, they should find an interpretation of the allegedly offending provision in the legislation that renders it compatible with the Convention right(s).…”

Section: Judicial Approaches To the Human Rights Act 551 II The Courmentioning

confidence: 99%

Judicial Approaches to the Human Rights Act

Bonner¹,

Fenwick²,

Harris-Short³

2003

ICLQ

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The case law generated in just over two years' operation of the Human Rights Act 1998 (HRA), enables stocktaking rather than definitive appraisal.1 This article begins by recalling the markedly contrasting roles in United Kingdom law of the European Convention on Human Rights (ECHR) before and after the HRA, the better to appreciate judicial approaches to, and use of, the HRA in the areas surveyed. The second part of the article focuses on judicial use of key provisions of the HRA to interpret primary legislation said to conflict with one or more Convention rights and on judicial use of the power to make a declaration of incompatibility. It considers a selection of decisions, principally of the House of Lords and the Court of Appeal, which raise important points regarding the purpose and scope of the HRA as a constitutional document and indicate judicial uncertainty as to how the HRA should be conceptualised, interpreted and applied. With this emerging picture of a cautious and uncertain judiciary in mind, the final two sections of the article give detailed consideration to the post-HRA jurisprudence within two discrete areas of English law. Part III explores the impact of the HRA on judicial approaches to the clash between the freedoms of expression and assembly, on the one hand, and public order, on the other. Part IV considers the ‘use and abuse’ of the HRA and of Article 8 ECHR in private law family disputes. Finally, certain tentative conclusions as to the perhaps disappointing story of the HRA so far, will be proffered.

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Judicial Deference under the Human Rights Act

Cited by 51 publications

References 2 publications

A Spoonful of Sugar: Deference at the European Court of Justice

A Spoonful of Sugar: Deference at the European Court of Justice

The Human Rights Act 1998: A Bridge between Citizenship and Justice?

Judicial Approaches to the Human Rights Act

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