ABSTRACT
This chapter sets out the proposed use of republican theory to provide a theoretical framework to analyse the effect of the Human Rights Act on democracy in the British Constitution. We are in essence considering the claim made that the Human Rights Act provides an ‘elegant balance’ between protecting rights and maintaining Parliamentary Sovereignty; and thus that it reconciles judicial protection of fundamental rights and democracy. In terms of constitutional theory, we are considering the continued validity of two claims that Dicey made as regards relationships of domination within the British Constitution: firstly the claim that ‘[t]he sovereignty of Parliament is, from a legal point of view, the dominant characteristic of our institutions’ (Dicey, 1982: p. xxxvi), and, secondly, the claim that the relationship between public opinion and legislative change is such that the electorate is the ‘political sovereign’ within the Constitution (Dicey, 1982: pp. 26–29, 285). An analysis of domination will demonstrate how far the British Constitution can be said to be a ‘controlled constitution’ (Jackson v Attorney General [2005] UKHL 56; [2006] 1 AC 262 [102]) by reason of the role given to the courts under the Human Rights Act.
