Parliament and the Human Rights Act: Can the JCHR help facilitate a culture of rights?
* Professor, Department of Political Studies, Queen's University; email: hiebertj{at}post.queensu.ca. A draft of this paper was presented at the conference on "Legislatures and Constitutionalism: The Role of Legislatures in the Constitutional State," in Banff, July 2004; I would like to acknowledge the organizers and participants for their valuable insights. I would like to thank Keith Ewing for his helpful comments on earlier drafts of this paper and Jeremy Clarke for his valuable research assistance. I would also like to acknowledge financial assistance in the form of a grant from the Social Science and Humanities Research Council of Canada.
The United Kingdom has overcome its historic antipathy to a domestic bill of rights. Its recently adopted Human Rights Act (HRA) is distinctly different from the world's best-known rights instrument, the United States Bill of Rights. Faced with inherent doubts about the desirability of abandoning the principle of parliamentary sovereignty in favor of judicial supremacy, and with mounting international and domestic pressures to articulate rights for the purposes of constraining state actions, the United Kingdom incorporated the European Convention on Human Rights into domestic law. But in so doing, it has developed an innovative approach to protecting rights. This model makes a key assumption—that rights will be protected not simply through after-the-fact evaluations by courts but by establishing opportunities and obligations for rights review by ministers, parliamentarians, and public authorities that are distinct from, and prior to, judicial review. The paper assesses the HRA's early effects on political behavior and focuses on the work of the recently created Joint Committee on Human Rights, which plays a pivotal role in ensuring that the government explains and justifies proposed legislation in terms of its consistency with rights.