Delegating Rights Protection The Rise of Bills of Rights in the Westminster World

by Erdos, David

• ISBN13: 9780199557769
• ISBN10: 0199557764
• Format: Hardcover
• Copyright: 2010-11-19
• Publisher: Oxford University Press

Summary

Delegating Rights Protection explores bill-of-rights outcomes in four "Westminster" countries--Australia, Canada, New Zealand, and the UK--whose development exhibit an interesting combination of both commonality and difference. Comparative analysis of some thirty-six democracies demonstrates that the historic absence of a bill of rights in Westminster countries is best explained by, firstly, the absence of a clear political transition and, secondly, their strong British constitutional heritage. Detailed chapters then explore recent and much more diversified developments. In all the countries, postmaterialist socio-economic change has resulted in a growing emphasis on legal formalization, codified civil liberties, and social equality. Pressure for a bill of rights has therefore increased. Nevertheless, by enhancing judicial power, bills of rights conflict with the prima facie positional interests of the political elite. Given this, change in this area has also required a political trigger which provides an immediate rationale for change. Alongside social forces, the nature of this trigger determines the strength and substance of the bill of rights enacted. The statutory Canadian Bill of Rights Act (1960), New Zealand Bill of Rights Act (1990), and the Human Rights Act (UK) (1998) were prompted politically by a relatively weak and backward-looking 'aversive' reaction against perceived abuses of power under the previous administration. Meanwhile, the fully constitutional Canadian Charter (1982) had its political origins in a stronger, more self-interested and prospective need to find a new unifying institution to counter the destabilizing, centripetal power of the Québécois nationalist movement. Finally, the absence of any relevant political trigger explains the failure of national bill of rights initiatives in Australia. The conclusionary section of the book argues that this Postmaterialist Trigger Thesis (PTT) explanation of change can also explain the origins of bills of rights in other internally stable, advanced democracies, notably the Israeli Basic Laws on human rights (1992).

Author Biography

David Erdos is Katzenbach Research Fellow at the Centre for Socio-Legal Studies and Balliol College, Oxford University. Having read PPE at Merton College, Oxford University followed by a PhD in the Politics Department of Princeton University, he has a scholarly background in the social and political sciences. Increasingly, his work has engaged with traditional legal analysis. Substantively his areas of research interest concern constitutions, human rights, and the regulatory state, and he has published on constitutional reform movements, bill of rights legal impact, sexual minority rights, and Europeanization. The recent recipient of a prestigious Leverhulme early career research award (2010-13) his main current research examines the tensions between data protection, freedom of expression, freedom of information and the rule of law.

Table of Contents

Part One: Foundations
1. Introduction
2. The Origins of Bill of Rights: Concepts and Comparative Development
3. Theorizing the Origins of Bills of Rights
Part Two: Westminster Case Studies
4. Canada and the Canadian Bill of Rights Act (1960)
5. Canada and the Canadian Charter of Rights and Freedoms (1982)
6. New Zealand and the New Zealand Bill of Rights Act (1990)
7. United Kingdom and the Human Rights Act (1998)
8. Australia and the Failure of National Bill of Rights Genesis
Part Three: Conclusions
9. Postmaterialist Forces and Political Triggers
Appendix One: Rights Protected in Government-sponsored Bills of Rights Enacted or Proposed in Westminster Democracies
Appendix Two: Bill of Rights Institutionalization: Constructing the Scores
Appendix Three: Bill of Rights Institutionalization in Select Democracies: Variable & Sub-variable Scores