Protection of fundamental rights

It is inherent in the British constitution that it can often be right to, in the words of Lord Hope of Craighead "recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person'', 1 even if it is a decision that impinges on fundamental rights, whether defined in the European Convention of Human Rights (ECHR) or otherwise.

However, for the courts to simply abdicate responsibility for protection of rights in complete areas of the law to another body would be contrary to their primary function to review the law and application of it, including by Parliament and the Executive. Rather than attempting to define a particular doctrine or theory of situations where the courts should exercise deference, it is instead submitted that the extent of deference should be judged on the individual circumstances and reasoning in each particular case.

A key reason that has been put forward by supporters of judicial deference is the competence of the courts to make decisions where fundamental rights are breached in the interests of the national interest. It has been argued that there are certain areas where the courts are not expert and they should bow to the decision-maker as being able to better equipped to make a decision as to what is in the public interest.

As Jowell notes, there "will be occasions where other bodies, whether Parliament, the executive or a non-departmental public body containing specialist expertise, will be better equipped to decide certain questions"2 than the courts. However, this decision should not be made on the basis that courts should not decide what is in the public interest and they should bow to Parliament or the Executive just because of their status. Rather, the decision maker's reasoning should be examined and used to inform the court's decision.

As Allan notes, "the extent to which courts should accept the conclusions of another public body as regards the public interest, or the implications of that interest for the specific case, depends on the evidence presented and the plausibility of the arguments offered in defence of the action or decision impugned. "3 This reasoning can be seen in the European Court of Human Rights decision in Smith4, where soldiers were dismissed from the army based solely on their homosexuality.

When the case was before the House of Lords, they rejected the claim, saying the policy was not irrational per the Wednesbury test. In this judgement , large weight was placed on that fact "it was supported by both Houses of Parliament and by those to whom the ministry properly looked for professional advice". However, when the case came before the European Court, they held that the court should review "whether the interference with the applicants' rights answered a pressing social need or was proportionate to the national security and public order aims pursued"5.

This approach was adopted by the House of Lords in Daly and was emphatically used in A v Home Secretary6, a case Feldman has called "perhaps the most powerful judicial defence of liberty" 7where the House of Lords ruled that breaches of rights taken under "national security" reasons were a "familiar tool of tyranny" and "can be used as a pretext for repressive measures".

This approach, which8, should be seen as correct as in cases involving fundamental rights as it enables the decision maker to have the discretion they require but also uses the courts to maintain a balance between any adverse effects on fundamental rights and the purpose which the discretionary power pursues. Indeed, this shows the correct functioning of the separation of powers in this context. Critics have suggested that it is against the doctrine of separation of powers to allow the courts to review policy decisions of Parliament or the Executive.

However, this view is unsustainable and fails to take into account that legal issues and policy issues often overlap. As Allan notes, "any question of public policy or public interest may have a legal dimension when its resolution has implications for the rights or interests of individuals particularly affected"9 It is exact role of courts to provide an independent check and balance on the Parliament and Executive, particularly when the boundary between legislature and executive is so negligible due to the domination of the Executive.

To apply deference to the level of certain areas would be to give effective carte blanche to the government to trample on fundamental rights, with only a weak Parliament and public opinion to hold them back. This adds to the argument that deference needs to be assessed on a case by case basis. As noted by Lord Steyn, "The truth is that even democratic governments sometimes flagrantly abuse their powers and need to face open and effective justice.

If this point needs proof, it is vividly illustrated by events following the armed conflicts in Afghanistan and Iraq. "10 It has also been argued that there should be a theory of judicial deference in certain areas so as to protect the notion of parliamentary sovereignty. Indeed, this may be true, as seen in Belmarsh11, where the Home Secretary made it very clear he felt bound by the court's interpretation of the Human Rights act.

Nevertheless, it seems absurd to base such key decisions as deference over fundamental rights on a concept which is "outdated"12 and which has been qualified to the extent its existence can be called into question. We have previously discussed judicial deference in relation to legislation and discretionary power granted by that legislation. However, there is also an issue as to when the courts should defer to the Executive in decisions made under the royal prerogative.

It was thought for many years that the courts cannot review the decisions made under the prerogative, effectively giving the crown carte blanche to discard the rule of law if it chose (although political pressure may have provided some control). However, in a process arguably started by Lain 13 there has been an erosion of this view, to a situation that is now governed by the GCHQ case 14, in which Lord Diplock ruled that prerogative powers are not inherently "immune from judicial review" simply because it is a prerogative, although it may be for issues such as national security.

Lord Roskill went on to give a list of powers which are not justiciable (including treaties, granting of honours and the disposition of armed forces) due to their nature. However, I would argue that this position should be extended where fundamental rights are breached (as they were in GCHQ) where no decision should be subject to deference purely because it is under the prerogative. Indeed, as these decisions have few other controls, it can be argued that the need for judicial review is key.

In the rights based constitution that Britain currently finds itself operating, where rule of law seems to be the supreme operator, it would not be appropriate to develop a doctrine where Parliamentary and Executive breaches of rights were deferred to by the courts simply because of the subject area. As Lord Steyn notes, "to carry judicial deference to the point of accepting Parliament's view simply on the basis that the problem is so serious and the solution difficult, would be to diminish the role of the courts in the constitutional process and to weaken the structure of rights upon which our constitution and nation is founded. "