Parliamentary Bills of Rights: An Alternative Model? (original) (raw)

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