This book discusses the extent to which the UK Human Rights Act successfully balances protection of rights and democracy. It is generally accepted that the Act prevents government from violating fundamental rights, but the extent to which the Act can legitimately be overridden as a result of public opinion and participation is less clear.
The work considers the Act’s effect on this popular element of the British Constitution. It uses analytical tools from republican political theory to explore the claim that the Act achieved a reconciliation between the protection of rights and democracy. In particular, it employs republican analysis of domination to consider how the Human Rights Act could operate so that public opinion invigilates legislative responses to judicial decisions. The key question is whether judicial decisions under the Human Rights Act serve to ‘remove, reduce or replace’ opportunities for the electorate to control judicial decision-making, remembering always that the electorate is seldom engaged in politics, but should it choose to, its ability to do so is at the heart of democracy. The study also examines the difficulty of isolating national constitutional forms where bills of rights are internationalised as with the European Convention on Human Rights.
The book will be a valuable resource for students and academics researching constitutional legal theory and comparative constitutional law. While the focus is on the UK HRA, broader theoretical issues of constitutional review will have significant international interest and relevance to domestic debates on a British Bill of Rights.
'In a radical departure from traditional norms of the common law, the Human Rights Act 1998 empowered judges to assess the proportionality of legislation which democratically elected politicians have put in place. In an innovative and refreshing approach to the subject, the author explores the implications of this change in the constitutional balance between Parliament and Courts. Drawing heavily of analytical tools borrowed from republican political thought, he makes an invaluable contribution to the contemporary debate.'
Jonathan Fisher QC, Member, Commission on a Bill of Rights for the UK, 2011-2012
'How is constitutional review to be institutionally reconciled with democracy? Dennis Dixon offers an account of the resolution offered by the Human Rights Act in Britain. While informed and critical, his analysis gives us an illuminating picture of the issues at stake and the aspects of that controversial arrangement that are worth celebrating. Even if the Act is overturned, the book will remain essential reading for anyone focused on this crucial question in democratic theory and design.'
Philip Pettit, L.S.Rockefeller University Professor of Human Values, Princeton University; Distinguished Professor of Philosophy, Australian National University
'At a time of increasing tensions between the judiciary and government, not just in the UK, but around the world, this book is a must read. Are judicial decisions upholding human rights anti-democratic in their genesis and character? By contrast, should governments be held to greater judicial account; is this in fact the true nature of democracy? This book approaches these and other questions in a lively and accessible manner. I recommend it to all students of constitutional democracy.'
Michelle Everson, Professor of Law, Birkbeck College, University of London
Chapter 1 Introduction
Chapter 2 Literature Review
Chapter 3 Theoretical framework
Chapter 4 The Nature of Democracy
Chapter 5 Constitutional Review – A Rights Protection Pact
Chapter 6 The Classic Constitution
Chapter 7 Human Rights Act and Democracy
Chapter 8 Reasons for Compliance: Constitutional Conventions, Atrophication and Internationalisation
Chapter 9 Legitimate Breach
Chapter 10 Conclusions
This series features thought-provoking and original scholarship on constitutional law and theory. Books explore key topics, themes and questions in the field with a particular emphasis on comparative studies. Where relevant, titles will engage with political and social theory, philosophy and history in order to offer a rounded analysis of constitutions and constitutional law.