Interpreting a Bill of Rights: The Importance of Legislative Rights Review
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 engage in legislative rights review. The article discusses how three parliamentary systems have attempted to infuse more concern for rights in their processes of decision making, and concludes with suggestions on how legislative rights review can be strengthened.
a The author acknowledges financial support from the Social Sciences and Humanities Research Council of Canada, the research assistance of Nazeer Patel and the helpful comments of two anonymous referees for the Journal and the Editor, Albert Weale.