ABSTRACT
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. This chapter describes the need for a theory of 'legitimate breach', which is to say an understanding on the part of electorate and legislators alike that non-compliance with the Act will not represent a constitutional or international crisis. It shows that the Human Rights Act is designed so that participation by way of constitutional review litigation could operate as a route into ordinary political participation, rather than as a means of bypassing the political process altogether. The content of the Human Rights Act is only in the first instance defined by the constituting power.
