Judicial Review and Parliamentary Debate: Enriching the Doctrine of Due Deference

Murray Hunt (Ed), Parliament and Human Rights: Redressing the Democratic Deficit (Oxford University Press 2014), Forthcoming

23 Pages Posted: 28 Dec 2013  

Liora Lazarus

University of Oxford - Faculty of Law

Natasha Simonsen

University of Oxford - Saint Anne's College; King's College London – The Dickson Poon School of Law

Date Written: August 1, 2013

Abstract

Recent cases in the European Court of Human Rights have placed greater emphasis on the quality of legislative debate when determining whether to apply the margin of appreciation to the decisions of member States. This paper explores how courts in general might go about assessing the quality of legislative debate about rights, and presents a set of criteria against which such debate can be assessed. While pushing at the boundaries of constitutional orthodoxy, this paper looks ahead to a framework of democratic dialogue where sovereignty is shared between courts, Parliament and other constitutional organs. In this context, it argues that courts ought to defer where certain criteria are met in the process of parliamentary deliberation on the rights questions which come before them.

Suggested Citation

Lazarus, Liora and Simonsen, Natasha, Judicial Review and Parliamentary Debate: Enriching the Doctrine of Due Deference (August 1, 2013). Murray Hunt (Ed), Parliament and Human Rights: Redressing the Democratic Deficit (Oxford University Press 2014), Forthcoming. Available at SSRN: https://ssrn.com/abstract=2365844 or http://dx.doi.org/10.2139/ssrn.2365844

Liora Lazarus (Contact Author)

University of Oxford - Faculty of Law ( email )

St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom

HOME PAGE: http://www.law.ox.ac.uk/profile/lazarusl

Natasha Simonsen

University of Oxford - Saint Anne's College ( email )

Woodstock Road
Oxford, OX2 6HS
United Kingdom

King's College London – The Dickson Poon School of Law ( email )

Somerset House East Wing
Strand
London, WC2R 2LS
United Kingdom

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