Judicial deference to administrative limitations of rights: between law and politics

Sirota, L. (2025) Judicial deference to administrative limitations of rights: between law and politics. Public Law, 2025 (Jul). pp. 570-591. ISSN 0033-3565

Abstract/Summary

In the past 40 years, not only the United Kingdom but also Canada and New Zealand have departed from their long-held understanding of rights as being subject to legislative compromise, and enacted legal protections for fundamental individual rights. Although these legal instruments do not all apply to legislation in the same way, they all bind administrative decision-makers. Yet when courts assess the compliance of administrative decisions with rights, they routinely defer to the decision-makers’ own judgments, which they would not do in analogous cases on other constitutional or statutory questions. This article offers an explanation for why this is so. After reviewing the history of the legal codification of rights in and the principles applicable to ordinary legality and constitutionality review, it considers the ways in which deference manifests itself in adjudication concerning rights, as well as the explanations the courts give for deferring to legislative and executive decision-makers. It then argues that these explanations are not sufficient, and that the deeper reason for deference is that courts still regard rights as inextricably political rather than legal commitments.