ABSTRACT
This and subsequent chapters turn their attention directly to the Human Rights Act. Certain propositions will become clear along the way. As a matter of formal structure, the Human Rights Act is capable of boosting contestation without restricting popular control – it may thus serve to promote the tendency of the constitution towards polyarchy where the electorate avoids elite-domination by having an effective and unconditioned means to assert equality with the individuals of the elite. The formal structure created by the Human Rights Act is equally capable of being operated so as to limit contestation and popular control; it may tend towards a hegemony centred on judicial power. The difference will depend on how the Act is in fact operated in the real world, and the extent to which the electorate may hold legislators to account for complying with the Human Rights Act. If a duty to comply with a judicial decision under the Act is seen by voters as representing a complete explanation by legislators (and their parties) for a course of conduct, then the link between public opinion and legislative action is restricted. Legislators cannot be seen as accountable by the public insofar as they are also seen by the public as having no constitutional choice. Democracy is predicated on the availability of a choice for electors to participate so as to hold elected representatives account for all legislative acts and omissions.
