Constitutional Rights and Statutory Limitations

Abstract

Rights under the European Convention on Human Rights tend to be formulated broadly. Thus, the fundamental constitutional problem is not how to distinguish matters of constitutional right from matters of legislative discretion, but how to allocate authority in situations in which the constitutionality of specific rights limitations and structuring is controversial. Must we trade the Scylla of legislative absolutism for the Charybdis of judicial absolutism, or is it possible to achieve a balance between legislatures and courts within the very process of determining the constitutionality of rights limitations? In the context of the United Kingdom, this question has been well canvassed in debates about the foundations of judicial review. Neither the ‘ultra vires’ nor the ‘common law’ approach quite captures the basis on which the judiciary review the legality of executive action. The search for balance has also been made the subject of extensive inquiry in a recent study in which Alison Young argues that the Human Rights Act 1998 can be understood to facilitate a process of democratic dialogue in the protection of rights. This chapter explores the question of whether a mediating position can be extended from the foundations of judicial review and the structure of the Human Rights Act through the operation of all its doctrines, and in particular in applying the doctrine of proportionality, which has become central to the review of potential violations of human rights.