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

This free course is available to start right now. Review the full course description and key learning outcomes and create an account and enrol if you want a free statement of participation.

Free course

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 ).


Take your learning further

Making the decision to study can be a big step, which is why you'll want a trusted University. The Open University has nearly 50 years’ experience delivering flexible learning and 170,000 students are studying with us right now. Take a look at all Open University courses.

If you are new to university level study, find out more about the types of qualifications we offer, including our entry level Access courses and Certificates.

Not ready for University study then browse over 900 free courses on OpenLearn and sign up to our newsletter to hear about new free courses as they are released.

Every year, thousands of students decide to study with The Open University. With over 120 qualifications, we’ve got the right course for you.

Request an Open University prospectus