Parliamentary Bills of Rights: The Experiences of New Zealand and the United Kingdom (original) (raw)
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Victoria U. Wellington L. Rev., 2004
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Parliamentary Bills of Rights: An Alternative Model?
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This paper examines the emergence of a new model for protecting rights (referred to as the 'parliamentary rights' model) in Canada, New Zealand, the United Kingdom, and the Australian Capital Territory. This parliamentary model is distinguished from the more traditional, judicialcentric, approach to rights protection in at least two ways. The ¢rst is that this parliamentary rights model incorporates the notion of legitimate political dissent from judicial interpretations of rights. The second way it challenges the court-centred model is by incorporating the systematic evaluation of proposed legislation from a rights perspective. Both of these features allow for the possibility of a broader range of perspectives on the appropriate interpretation of rights or the resolution of disagreements involving claims of rights than those arising from more judicial-centric bills of rights. The paper assesses whether this alternative approach to rights protection satis-¢es those sceptics who doubt the virtue or prudence of conceiving of political disputes as legal rights claims for which the judiciary has the dominant role in their interpretation and resolution. Conventional wisdom suggests that liberal constitutionalism can take one of two rival paths. One path is to codify rights, representing a higher law than ordinary legislation, where the judiciary is empowered to interpret these and grant remedies for their infringement. This is the model in£uenced byAmerican-style judicial review, and has been emulated and adapted inWestern Europe after 1945 and in central and Eastern Europe after 1989. 1 Although signi¢cant di¡erences exist in the nature of constitutional adjudication (relating to whether ordinary or constitutional courts are used, di¡erences in the appointment, composition and tenure of judges, and how issues come before courts), 2 what unites this approach is the judiciary's capacity to nullify legislation that is deemed inconsistent with protected rights. And nullify legislation they have. In the past thirty years, the 'French, German, and Italian courts have, respectively, invalidated more national laws than has the US Supreme Court^in its entire history'. 3 The second path emphasises the supremacy of legislative judgment. This is the approach of Westminster-modelled parliamentary systems that historically have
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The United Kingdom has long resisted the idea of adopting a judicially reviewable bill of rights, which historically has been considered inconsistent with a core constitutional principle of parliamentary sovereignty. When adopting the Human Rights Act (HRA), the political framers insisted on preserving Parliament's final say on the legality of legislation.The decision to authorize judicial review, while also constraining the scope of judicial remedies by withholding a power to invalidate inconsistent legislation, has introduced serious ambiguity about the function of the HRA and also about where political legitimacy resides for resolving institutional disagreements about how rights appropriately guide or constrain legislation. The first example of ambiguity is with respect to how institutional actors understand the principal function of the HRA. For example, does rights protection occur primarily through judicial review, either by authorizing the judiciary to engage in interpret...
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This article contests the widely held view that an effective bill of rights requires judicial interpretation of rights to prevail over political judgement. Most bills of rights reflect classical liberal assumptions that premise freedom and liberty on the absence of state intervention. Yet they govern modern welfare states that presume and require substantial state involvement, seen to various degrees as facilitating rather than restricting the conditions for robust and equal citizenship. Judges cannot provide answers that are so definitive or persuasive to questions about whether social policy is reasonable in terms of human rights that they rule out other reasonable judgements. Although these concerns are often used to justify rejecting a bill of rights, this article takes a different position. It argues that a political community can benefit from exposure to judicial opinions on whether legislation is consistent with rights, but should also encourage and expect parliament to engag...
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Conceptual Precision and Parliamentary Rights Review: Disambiguating 'Dialogue'
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What unites the Anglo-Commonwealth community of governmental participants and public stakeholders in scrutiny and interpretation of legislation is greater than what divides it by different jurisdictional borders, constitutional architecture, and politico-legal cultures. This article addresses the nature and scope of cross-jurisdictional commonalities and emerging challenges in the interplay between scrutiny and interpretation of legislation. It concentrates upon the Trans-Tasman region, with some comparative reference to the UK, Canada, and elsewhere. In particular, it highlights the implications for scrutiny and interpretation of legislation that arise from an overlay of rights-enhancing architecture through a charter or bill of rights ('human rights law') or other institutional need to consider internationally recognised human rights. It also explores recent Australian parliamentary and judicial developments that have comparative significance for rights-protection in other...