Abstract for today’s seminar 3 pm Neil MacCormick Room 9.01, David Hume Tower

‘Whatever people say I am, that’s what I’m not.’

Dr Alison L Young, Professor of Public Law, Hertford College, University of Oxford.

Accounts of democratic dialogue tend to get a bad press and it is easy to understand why. They appear to promise to provide a resolution of the apparent tension between constitutional and parliamentary protections of rights, ensuring that courts are able to protect rights sufficiently to deal with perceived tyrannies of the majority, whilst promising a sufficient remedy to the democratic deficit criticism that arises whenever courts are empowered to strike down legislation. However, a brief overview of those legal systems which had adopted the commonwealth model, the model designed to facilitate dialogue, would appear to suggest that the model collapses all too easily in practice into either a constitutional or parliamentary protection of rights in all but name. This chapter will argue that these difficulties are not because dialogue is wrong; but because we misunderstand what dialogue means.

First, arguments abound that dialogue can provide a middle way between legal and political protections of rights. However, this argument is difficult to make as it is hard to find any account of legal or political constitutionalism which advocates that only courts or only the legislature should play a role in the protection of rights. Second, dialogue appears to be unique because it looks at dynamic interactions and exchanges, rather than relying on a static account of rights to which legislatures and executives are meant to comply. However, dynamic interactions are advocated by theorists that we would traditionally regard as legal or political constitutionalists. Third, dialogue is connected with commonwealth models of constitutionalism. However, dialogue can take place in legal systems with a constitutional and a parliamentary protection of rights and, depending on how these institutions interact with each other, it may not occur in legal systems which have adopted a commonwealth model of rights protections. In other words, democratic dialogue appears to be either ubiquitous or non-existent.

If we are to understand dialogue properly we need to recognise its role as a constitutional model, focusing on analysing interactions between institutions. The role of dialogue is to provide an account of those interactions which are better able to facilitate the many purposes of democratic dialogue – a better protection of rights, the facilitation of deliberation, the engagement of the public more broadly in the determination of rights and acting as check and balance between the institutions of the constitution in a manner that provides an important pressure valve. This chapter will outline these aims and explain how these may be easier to achieve in commonwealth models of rights protection.