Judicial Review and Parliamentary Debate: Enriching the Doctrine of Due Deference

Abstract

Recent cases in the European Court of Human Rights have placed greater emphasis on the quality of legislative debate when determining whether to apply the margin of appreciation to the decisions of member States. This paper explores how courts in general might go about assessing the quality of legislative debate about rights, and presents a set of criteria against which such debate can be assessed. While pushing at the boundaries of constitutional orthodoxy, this paper looks ahead to a framework of democratic dialogue where sovereignty is shared between courts, Parliament and other constitutional organs. In this context, it argues that courts ought to defer where certain criteria are met in the process of parliamentary deliberation on the rights questions which come before them.