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Enhancing Parliament's role in relation to human rights Judgments : Fifteenth report of session 2009-10, report, together with formal minutes and written Evidence
Saul, Follesdal and Ulfstein examine in detail the interplay between national parliaments and the international human rights judiciary.
In many countries today there is a growing and genuinely-held concern that the institutional arrangements for the protection of human rights suffer from a 'democratic deficit'. Yet at the same time there appears to be a new consensus that human rights require legal protection and that all branches of the state have a shared responsibility for upholding and realising those legally protected rights. This volume of essays tries to understand this paradox by considering how parliaments have sought to discharge their responsibility to protect human rights. Contributors seek to take stock of the extent to which national and sub-national parliaments have developed legislative review for human rights compatibility, and the effect of international initiatives to increase the role of parliaments in relation to human rights. They also consider the relationship between legislative review and judicial review for human rights compatibility, and whether courts could do more to incentivise better democratic deliberation about human rights. Enhancing the role of parliaments in the protection and realisation of human rights emerges as an idea whose time has come, but the volume makes clear that there is a great deal more to do in all parliaments to develop the institutional structures, processes and mechanisms necessary to put human rights at the centre of their function of making law and holding the government to account. The sense of democratic deficit is unlikely to dissipate unless parliaments empower themselves by exercising the considerable powers and responsibilities they already have to interpret and apply human rights law, and courts in turn pay closer attention to that reasoned consideration. 'I believe that this book will be of enormous value to all of those interested in human rights, in modern legislatures, and the relationship between the two. As this is absolutely fundamental to the characterand credibility of democracy, academic insight of this sort is especially welcome. This is an area where I expect there to be an ever expanding community of interest.' From the Foreword by the Rt Hon John Bercow MP, Speaker of the House of Commons
In many countries today there is a growing and genuinely-held concern that the institutional arrangements for the protection of human rights suffer from a 'democratic deficit'. Yet at the same time there appears to be a new consensus that human rights require legal protection and that all branches of the state have a shared responsibility for upholding and realising those legally protected rights. This volume of essays tries to understand this paradox by considering how parliaments have sought to discharge their responsibility to protect human rights. Contributors seek to take stock of the extent to which national and sub-national parliaments have developed legislative review for human rights compatibility, and the effect of international initiatives to increase the role of parliaments in relation to human rights. They also consider the relationship between legislative review and judicial review for human rights compatibility, and whether courts could do more to incentivise better democratic deliberation about human rights. Enhancing the role of parliaments in the protection and realisation of human rights emerges as an idea whose time has come, but the volume makes clear that there is a great deal more to do in all parliaments to develop the institutional structures, processes and mechanisms necessary to put human rights at the centre of their function of making law and holding the government to account. The sense of democratic deficit is unlikely to dissipate unless parliaments empower themselves by exercising the considerable powers and responsibilities they already have to interpret and apply human rights law, and courts in turn pay closer attention to that reasoned consideration. 'I believe that this book will be of enormous value to all of those interested in human rights, in modern legislatures, and the relationship between the two. As this is absolutely fundamental to the characterand credibility of democracy, academic insight of this sort is especially welcome. This is an area where I expect there to be an ever expanding community of interest.' From the Foreword by the Rt Hon John Bercow MP, Speaker of the House of Commons
The European system of human rights protection faces institutional and political pressures which threaten its very survival. These institional pressures stem from the backlog of applications before the European Court of Human Rights, the large number of its judgments that remain unimplemented, and the political pressures that arise from sustained attacks on the Court's legitimacy and authority, notably from politicians and jurists in the United Kingdom. This book addresses the theme which lies at the heart of these pressures: the role of national parliaments in the implementation of judgments of the Court. It combines theoretical and empirical insights into the role of parliaments in securing domestic compliance with the Court's decisions, and provides detailed investigation of five European states with differing records of human rights compliance and parliamentary mobilisation: Ukraine, Romania, the United Kingdom, Germany, and the Netherlands. How far are parliaments engaged in implementation, and how far should they be? Do parliaments advance or hinder human rights compliance? Is it ever justifiable for parliaments to defy judgments of the Court? And how significant is the role played by the Parliamentary Assembly of the Council of Europe? Drawing on the fields of international law, international relations, political science, and political philosophy, the book argues that adverse human rights judgments not only confer obligations on parliamentarians but also create opportunities for them to develop influential interpretations of human rights and enhance their own democratic legitimacy. It makes an authoritative contribution to debate about the future of the European and other supranational human rights mechanisms and the broader relationship between democracy, human rights, and legitimate authority.
Judicial review by constitutional courts is often presented as a necessary supplement to democracy. This book questions its effectiveness and legitimacy. Drawing on the republican tradition, Richard Bellamy argues that the democratic mechanisms of open elections between competing parties and decision-making by majority rule offer superior and sufficient methods for upholding rights and the rule of law. The absence of popular accountability renders judicial review a form of arbitrary rule which lacks the incentive structure democracy provides to ensure rulers treat the ruled with equal concern and respect. Rights based judicial review undermines the constitutionality of democracy. Its counter-majoritarian bias promotes privileged against unprivileged minorities, while its legalism and focus on individual cases distort public debate. Rather than constraining democracy with written constitutions and greater judicial oversight, attention should be paid to improving democratic processes through such measures as reformed electoral systems and enhanced parliamentary scrutiny.
The UK's engagement with the legal protection of human rights at a European level has been, at varying stages, pioneering, sceptical and antagonistic. The UK government, media and public opinion have all at times expressed concerns about the growing influence of European human rights law, particularly in the controversial contexts of prisoner voting and deportation of suspected terrorists as well as in the context of British military action abroad. British politicians and judges have also, however, played important roles in drafting, implementing and interpreting the European Convention on Human Rights. Its incorporation into domestic law in the Human Rights Act 1998 intensified the ongoing debate about the UK's international and regional human rights commitments. Furthermore, the increasing importance of the European Union in the human rights sphere has added another layer to the relationship and highlights the complex relationship(s) between the UK government, the Westminster Parliament and judges in the UK, Strasbourg and Luxembourg. The book analyses the topical and contentious issue of the relationship between the UK and the European systems for the protection of human rights (ECHR and EU) from doctrinal, contextual and comparative perspectives and explores factors that influence the relationship of the UK and European human rights.