Governing Like Judges?<sup>*</sup>

Janet L. Hiebert

in The Legal Protection of Human Rights

Published in print February 2011 | ISBN: 9780199606078
Published online September 2011 | e-ISBN: 9780191729720 | DOI:
Governing Like Judges?*

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This chapter expresses a sceptical stance about the extent to which bills of rights can be crafted in such a way as to avoid the damaging consequences of strong judicial review. Research on how bills of rights affect bureaucratic and political behaviour when developing and evaluating legislation in Canada, New Zealand, and the United Kingdom, shows that even ‘weak’ bills of rights lead to cautious executives who refrain from bringing forward legislation that might be considered inconsistent with judicial decisions. In this way, they may be said to ‘govern like judges’ producing legalistic legislation which distorts policy and political judgments regarding human rights concerns. It is as if judges were in the corridors of power at the time legislation is being developed. Moreover, the capacity of parliamentarians to oppose government legislation is reduced if the legislation is thought to be potentially inconsistent with relevant judicial rulings. The chapter therefore believes that weak form systems are unstable and will either revert to parliamentary supremacy of merge into strong court systems. It concludes that, however bills of rights are designed, and allowing for significant differences between Canada, New Zealand, and the UK, the idea of developing robust and effective systems of rights-based parliamentary scrutiny is unrealistic.

Keywords: bills of rights; Canada; New Zealand; United Kingdom; parliamentary scrutiny; legislative process

Chapter.  13196 words. 

Subjects: Human Rights and Immigration

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