Janet L. Hiebert

Interpreting a Bill of Rights: The Importance of Legislative Rights Review

This article contests the widely held view that an effective bill of rights requires judicial interpretation of rights to prevail over political judgement. Most bills of rights reflect classical liberal assumptions that premise freedom and liberty on the absence of state intervention. Yet they govern modern welfare states that presume and require substantial state involvement, seen to various degrees as facilitating rather than restricting the conditions for robust and equal citizenship. Judges cannot provide answers that are so definitive or persuasive to questions about whether social policy is reasonable in terms of human rights that they rule out other reasonable judgements. Although these concerns are often used to justify rejecting a bill of rights, this article takes a different position. It argues that a political community can benefit from exposure to judicial opinions on whether legislation is consistent with rights, but should also encourage and expect parliament to engage in legislative rights review. The article discusses how three parliamentary systems have attempted to infuse more concern for rights in their processes of decision making, and concludes with suggestions on how legislative rights review can be strengthened.

The courts/parliament trade-off: Canadian attitudes on judicial influence in public policy

Do citizens have meaningful attitudes – i.e. enduring, subjectively important and psychologically consequential evaluative orientations – regarding the relative roles of courts and legislatures in resolving contentious issues of public policy? If so, what explains these preferences? Using data from the Canadian Election Study, the authors find that Canadians possess meaningful attitudes on what they term the ‘courts/parliament trade-off’. They also find significant heterogeneity across levels of political knowledge in the nature of these attitudes. Further, most determinants of attitudes on the courts/parliament trade-off can be understood to reflect evaluations of political outcomes under the courts or Parliament, rather than assessments of processes within these institutions. Attitudes on the trade-off are largely interpretable as responses to dynamic features of party politics.

A Hybrid-Approach to Protect Rights? An Argument in Favour of Supplementing Canadian Judicial Review with Australia's Model of Parliamentary Scrutiny

One of the difficult issues liberal democracies face is how to distinguish allowable government action from the protected sphere of human activity. Rights have become increasingly important as a critical standard for evaluating the justification of policy. Yet no consensus exists on the best institutional methods for defining the scope of rights or for ensuring that rights are adequately and appropriately considered in the formulation of policy. Since the Second World War, many countries have shown an increasing interest in utilising a bill of rights against which to evaluate state action. Even parliamentary systems, founded on Diceys precepts that the rule of law and parliamentary sovereignty are a superior way for respecting rights,l have departed from, or have been pressured to alter, this institutional framework.

Parliamentary Bills of Rights: The Experiences of New Zealand and the United Kingdom

1. Introduction Part I. The New Zealand Bill of Rights Act 1990: 2. Political origins of the New Zealand Bill of Rights Act 3. The New Zealand Bill of Rights Act and MMP 4. Parliamentary review of the Misuse of Drugs Act 1975 5. Parliamentary select committees and Section 7 reports Part II. The United Kingdoms Human Rights Act 1998: 6. Political origins of the Human Rights Act 7. Pre-legislative compatibility assessments under the HRA 8. Parliamentary review of national security issues 9. Parliamentary review: equality and democratic issues 10. Conclusion.