ABSTRACT
When considering the effect of the Human Rights Act on democracy, the question is whether the Act tends to clear channels for participation such that the constitution operates more as a ‘polyarchy’, to use Robert Dahl’s terminology; or, alternatively, does the Act tend to frustrate the electorate asserting itself against those that hold immediate power? Has it given the judiciary an oligarchical position where their decisions are enforced and entrenched independently of public opinion, or is judicial opinion simply a source of influence which may be set to one side when the public exercise their participatory rights in earnest? If, as Laski (1921: p. 23) said, sovereignty tends to flow to the administrative centre, how does the Human Rights Act affect this flow? Lord Kerr argued that, in respect of primary legislation, the Act directs attention to Parliament, the source of the incompatibility and the only cure (Nicklinson [365]). But Parliamentarians have at times redirected the attention back to the courts by presenting themselves as having no choice but to comply, for example, in the legislative response to F and Thompson (HL Debate, 2012: col. 886). To answer these questions we must understand the constitutional system in which the Human Rights Act operates, for it is within this system that the Act will restrict or promote, create or destroy avenues for ‘popular control’, which is ‘suitably individualized, unconditioned and efficacious’ (Pettit, 2012: p. 302, see also p. 279). Therefore, we shall consider the operation of the classic British Constitution.
