Legal skills and debates in Scotland
Legal skills and debates in Scotland

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Legal skills and debates in Scotland

3.2.2  Judicial deference

The principle of judicial deference refers to the extent to which the judiciary ought to defer to the sovereignty and legitimacy of Parliament when coming to judgments. Legal academic Aileen Kavanagh gives the following definition:

… judicial deference occurs when judges assign varying degrees of weight to the judgments of the elected branches, out of respect for their superior expertise, competence or democratic legitimacy …

Kavanagh, 2010, p. 223

The reasons that Kavanagh gives for adhering to the principle of judicial deference are that Parliament is thought to be more legitimate than the courts because it is democratically elected, more expert than the judiciary in matters of policy, and more competent than lawyers (who are trained only and specifically in legal rules and interpretation) to turn policy into law. Deference is a principle applied by the courts, especially when dealing with sensitive political issues – such as national security – that are often considered best left to the other branches of government. The principle is controversial, with some academic commentators believing that the judiciary is too deferent to Parliament and other commentators considering that it ought to maintain deference. Understandably, it is often politicians within the government of the time that argue most stridently that the judiciary should be more deferent to the wishes of Parliament than it currently is. This has become increasingly so with debates surrounding the expanding scope of human rights law and the Article 50 case (R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 ).

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