Parliamentary Bills of Rights: An Alternative Model?

Publication Date01 January 2006
DOIhttp://doi.org/10.1111/j.1468-2230.2006.00574.x
AuthorJanet L. Hiebert
Parliamentary Bills of Rights: An Alternative Model?
Janet L. Hiebert
n
This paper examines the emergence of a new model for protectingr ights(referred to as the ‘par-
liamentary rights’model) in Canada, New Zealand, the United Kingdom, and the Australian
CapitalTerritory.This parliamentary model is distinguis hed fromthe more traditional, judicial-
centric, approach to rights protection in at least two ways.The ¢rst i s 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 byi ncorporating the systema-
tic evaluation of proposed legislation from a rights perspective. Both of these features allow for
the possibility of a broaderrange of perspectives on the appropriatei nterpretation of rights or the
resolution of disagreements involving claims of rights than those ar ising from more judicial-cen-
tric bills of rights. The paper assesses whether this alternative approach to rights protections atis-
¢es those sceptics who doubt the virtue or prudence of conceiving of political disputes as legal
rights claims for whichthe judiciaryhas the domina ntrole in their i nterpretation and resolution.
Conventional wisdom suggests that liberal constitutionalism can take one of two
rival paths. One path is to codify rights, representing a higherlaw than ordinary
legislation, where the judiciary is empowered to interpret these and grant reme-
dies for their infringement.This is the model in£uenced byAmerican-style judi-
cial review, and has been emulated and adapted inWestern Europe after 1945 and
in central and Eastern Europe after 1989.
1
Althoughsigni¢cant di¡erences exist in
the nature of constitutional adjudication (relating to whether ordinaryor consti-
tutional 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
judiciarys capacity to nullify legislation that is deemed inconsistent with pro-
tected 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
n
Professorof PoliticalStudies,Queen’sUniversity,Kingston, Canada.I wish to acknowledgethe insight-
ful commentson earlier draftsof this paper fromWojciechSadurski, PaulRishworth,Jim Allan and the
anonymousreviewersfor the Modern LawReview. I would also liketo acknowledgethe helpful responses
to presentations of this paper at the ResearchSeminar in Philosophyof Law and LegalTheory,European
University Institute, Florence,i nJanuary 2005and in Australia atthe ResearchSchool of SocialScience at
ANU, and faculty lawseminars at UNSWand Monash University,in Marchand April 2005.
1 S. Gardbaum,‘TheNew Commonwealth Modelof Constitutionalism’(2001)49 A merican Journ al of
Comparative Law 707;W. Sadurski, ‘Rights-Based Constitutional Review in Central and Eastern
Europe’ in T. Campbell, K. D. Ewing and A. Tomkins (eds), Sceptical Essays on Human Rights
(NewYork: OxfordUniversity Press, 2001).
2 For discussion of some of these di¡erences, see J. Ferejohnand P. Pasquino,‘Constitutional Adjudi-
cation: Lessons from Europe’ (2004) 82 Tex L Rev1671; A. Stone Sweet,‘Why Europe Rejected
American JudicialReview.And Why It MayNot Matter’ (2003)101Mich L Rev 2744.
3Sweet,n2above,2780.
rThe Modern LawReview Limited 2006
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2006) 69(1) MLR 7^28
rejected the idea of construing political debates as legal con£icts that require a
judicial role in their resolution. Rights are not foreign to this system and arepro-
tected through the rule of law and interpretations of the common law. Yet their
function is di¡erent from the previous model. Individual rights do not provide
independent checks to determine the validity of legislative judgment. Instead,
the legitimacy of a political system is premised onthe general right to participate
in the political deliberations thatcharacterise representative government. Political
systems bas ed on the supremacy of legislative judgme nt do not ‘understand pol i-
tical rights i n terms of the drawing of boundaries around autonomous indivi-
duals’ but celebrate, instead, the ‘right of rights
4
in which ‘large numbers of
rights-bearers act together to control and govern their common a¡airs’.
5
Those who are sceptical about the merits of usi ng bills of rights as the ce ntral
method to structure and evaluate political decisions are no doubt frustrated by the
triumph of this ¢rst path ofco nstitutionalism. Despite their persistent and dire warn-
ings of the negative consequences of relying on legally interpreted rights to deter-
mine the validity of contested state actions, no indication exists of any intent
amongst political communities to reverse prior decisions and discard their bills of
rights.
6
Moreover,dec isions to adoptbills of r ightswhere judges determine the valid-
ity of impugned legislation have often been made without serious contemplation of
what constitutionalising rights means for the democratic right of participation.
7
Sceptics have had to resign themselves to the popularity of this juridical form
of constitutionalism.They continue to comprise aminority perspective in doubt-
ing the prudence of utilising a bill of rights. And even if their criticisms were to
motivate a political movement intent on discardingthis newparliamentarybill of
rights,the level of resistance and the political and legal di⁄culties associated with
such a radical change would probably ensure constitutional inertia. Although
sceptics may have resigned themselves to their inability to transform constitu-
tional paths already taken, they continue to argue strenuously against the demise
of this second model. Nevertheless, such resistance seems futile as parliamentary
jurisdictions such as Canada (1982), New Zealand (1990), and the United King-
dom (1998) have adopted bills of rights. Once commonplace in the Common-
wealth world, this second model now exists in an unquali¢ed form in only one
common law country ^ Australia
8
^ and even this exception is quali¢ed by the
Australian Capital Territory’s adoption of a statutory bill of rights in 2004. More-
over, oneAustralian state,Victoria, is actively engaged in a consultation exercise to
consider adopti ng a statutory bill of rights.
9
4 J.Waldron,Law a nd Disagreement (Oxford: Clarendon Press, 1999)2 82. See generally chs 10^11.
5ibid 233 (note omitted).
6 K. D. Ewing,‘The Case for Social Rights’ in T. Campbell, J. Goldsworthy, and A. Stone (eds),
Protecting HumanRights. Instruments and Institutions(NewYork: OxfordUniversity Press, 2003) 323.
7 W. Sadurski, ‘Rights-Based Constitutional Review in Central and Eastern Europe’ n 1 above,
315^317.
8 K. D. Ewing,‘HumanRights’ in P. Cane and M.Tushnet(eds),The OxfordHandbook of LegalStudies
(Oxford:Oxford University Press,20 03)288.
9 Victoria AttorneyGe neralRob Hulls announced on 18April 2005 the creation of a Human Rights
Consultation Committee. http://www.justice.vic.gov.au/CA256902000FE154/Lookup/HR_
Consultation_project/$¢le/communityconsultationpaper.htm (Lastvi sited 26 July20 05).
Parliamentary Bills of Rights
8rThe Modern LawReview Limited 2006

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