In 2013 Alison Young was granted a Leverhulme Research Fellowship Award to write a book on Democratic Dialogue and the Constitution.The book looks at human rights protections, looking at the best way in which to protect human rights and preserve democracy. Arguments about these issues are often presented in polemical terms. Theorists tend to argue either that the legislature or the judiciary should play the main role when protecting human rights. Legal constitutionalists prefer a strong judicial protection of rights, prioritising the rule of law. Political constitutionalists argue that this harms democracy and that legislatures provide a better protection of human rights. Neither theory is able to provide reasons that would conclusively prove that their theory was the best way in which to protect human rights. ‘Democratic dialogue’ is presented as a resolution of this dichotomy. It argues that human rights are better protected when there is a dialogue between the legislature and the courts. Both should work together to protect human rights. By combining their different areas of expertise, the legislature and judiciary work together to ensure a strong protection of rights that respects democratic principles.
Democratic dialogue is seen as particularly suited to the UK constitution, where the Human Rights Act is an example of a ‘commonwealth’ model of rights protections. The Human Rights Act 1998 does not empower the courts to strike down legislation that is incompatible with Convention rights. Rather, the courts are required to read and give effect to legislation in a manner compatible with Convention rights, so far as it is possible to do so. Where this is not possible, the courts may make a declaration of incompatibility. Any declaration of incompatibility does not affect the legality, validity or effect of any legislation declared incompatible with Convention rights. The Act, therefore, is seen as facilitating dialogue. The legislature and the courts have to work together to protect rights, balancing the protection of rights with the protection of democracy.
The argument is used not just with regard to the relationship between the legislature and the courts. It is also argued that dialogue is a way of resolving the tension between domestic and European protections of rights. When there are conflicts between the European Court of Human Rights and UK courts as to the definition of a Convention right, these conflicts are best resolved through dialogue, where both courts can work together to ensure a strong protection of rights which takes account of cultural differences across the members of the Council of Europe. Similarly, dialogue can ease tensions between the national courts and the Court of Justice of the European Union, both when applying the EU Charter of Fundamental Rights and when applying other, more general principles of EU law.
Democratic dialogue almost appears to be too good to be true. The book investigates its claims to provide an alternative account of the protection of human rights and the relationship between domestic and European law. It argues that democratic dialogue can provide a novel understanding of constitutions, challenging the current paradigms of legal and political constitutionalism. However, the theory has to be very carefully distinguished from new interpretations of legal and political constitutionalism, particularly as regards the nature of interactions it requires between the legislature and the courts. It argues that democratic dialogue can help to provide a better means of protecting human rights and can also help to maintain checks and balances, particularly in a legal system such as the United Kingdom, which has no fully codified constitution. In addition, when interpreted in the right manner, it helps to facilitate participatory democracy. However, it can only achieve these objectives in certain conditions which are not fully matched in the United Kingdom constitution. It is an ideal which can only partially be achieved, but which can help to provide a better framework within which to answer questions as to the best way of protecting human rights, both as to the relative roles of the legislature and the courts and as to the relationship between domestic and European courts.
Some ideas from the book were recently presented at the conference of the Studies of Parliament Group held in Oxford in January 2015, which was attended by academics, parliamentary officers and Members of Parliament. Alison will also be presenting ideas from the book in Delhi in April 2015 at a conference organised by the University of Oxford and Melbourne University. The research from the creation of the book have led to a related work, in particular to assess the Conservative Party’s proposals to replace the Human Rights Act 1998. A blog post was written on this issue, attended a workshop at Durham University in November 2014, Alison appeared on Radio 4’s Unreliable Evidence and, with Stephen Dimelow, a report is being co-written for the Constitution Society.
The book will be published by Oxford University Press in January 2017. It can be found here.