ABSTRACT
All systems of constitutional review are counter-majoritarian. As we saw in Chapter 5, it is the purpose of constitutional review to act as a force to restrain the majority within legislatures. In Chapter 6, we saw that Parliamentary Sovereignty meant that no government could avoid accountability by blaming a lack of domestic authority. In Chapter 7 we argued that the counter-majoritarian effect could be seen as applying primarily to restraining the opinions of legislators and administrators, given that the inclination of electors to bring their opinions to bear on specific issues is for most issues somewhere between negligible to non-existent. In Chapter 8 we considered the question of whether legislators have complied with Human Rights Act decisions from a sense of obligation and, if so, what obligation? In this lies a fundamental challenge for the ‘elegant balance’ hypothesis: if the Human Rights Act has reconciled rights protection and democracy, the ability of the electorate to participate so as to dominate legislative opinion must remain an ‘I/we-can-do-that’ matter in terms of Pettit’s (2008: pp. 104–106) alien-control analysis. Insofar as creating a system of constitutional review may at times cause legislation to be directed by judicial rather than public opinion, the balance achieved by the Human Rights Act would indeed be elegant if the effectiveness of such judicial opinion is underpinned by ‘political costs’ traceable to undominated public opinion.
