Finding and Filling the Democratic Deficit in Human Rights

Abstract

Debates over the democratic deficit in the implementation of Bills of Rights and other human rights legislation tend to focus on the relative merits of the Legislature and the Judiciary in protecting human rights. This is unhelpful and erroneous. The Legislature and Judiciary, as well as the Executive, in modern democracies must be seen as a whole, not as separate parts, and certainly not as antagonists. As such, the question of any democratic deficit becomes an investigation of the apparatus and actions of government overall. This paper focuses on one such innovation - namely, the role played by parliamentary scrutiny of draft legislation for human rights compliance. Taking as examples the scrutiny systems in the United Kingdom and Australia, the study concludes that while falling short of inculcating a ‘culture of human rights’ throughout government, let alone society generally, the processes have nevertheless had positive impacts on the way policy is made and legislation is enacted.