Lunch Seminar with Scott Stephenson

I will illustrate this effect by examining how the European Convention on Human Rights and the European Court of Human Rights have altered the constitutional status of the United Kingdom’s Human Rights Act 1998 (‘UK HRA’). An object of my analysis is to identify an additional way in which international legal regimes influence the domestic law of dualist systems beyond the standard modes of indirect judicial and direct legislative incorporation. The UK HRA is an example of a new type of bill of rights that allows the legislature to override a judicial decision on rights through the ordinary lawmaking process. It is commonly claimed that legislative override has failed in practice. In Canada and the UK, the two countries most prominently associated with this innovation, the legislature rarely invokes its power to reverse a judicial decision on rights. Most scholars attribute the power’s desuetude to pragmatic political reasons: legislatures fail to override judicial decisions because voters trust judges more than politicians to resolve questions of rights. In the paper, I propose another reason grounded in normative constitutionalism: the rule of law. The rule of law provides that everyone, including the government, must abide by the law, including judicial interpretations of the law. Legislative override is in tension with the rule of law because it allows the legislature, which is largely controlled by the government in parliamentary systems, to exempt the government from adverse judicial decisions. This tension is particularly prominent when a bill of rights is considered higher law—law that superintends the government—because it allows the legislature to use ordinary law to resist the application of higher law. I suggest that the European Convention and European Court have been instrumental in converting the UK HRA, which is an ordinary statute, into higher law and thus suppressing use of the override power.

Registration:
For participation in the event please use this registration form no later than 8 October 2014 11:00.

You are welcome to bring your own lunch bag.