ABSTRACT

This chapter summarises important debates in the literature on the effect of the Human Rights Act on democracy. It starts by framing the issues in respect of what is commonly called the 'counter-majoritarian problem', and the search for ways to reconcile the power inevitably given to judges under constitutional review with democracy. Decisions on incompatibility with human rights take many forms. Most obvious is a formal declaration of incompatibility, but the decision may also be in the form of striking down executive action or replacing a natural but incompatible meaning of a statute with a purposive compatible interpretation. One of the most difficult issues in Human Rights Act literature is that of 'judicial deference', which is essentially what Baroness Hale described as 'the weight to be accorded the views of the various public authorities involved in making the decision which is alleged to have infringed convention rights'.