Human Rights in the British Constitution

A Prisoner of History

As the debate in the United Kingdom over the possible repeal of the Human Rights Act continues, the key question facing constitutional scholars is whether introducing a British Bill of Rights is at all possible under current constitutional circumstances. This Article attempts to make a contribution from a comparative historical perspective. First, a comparative historical study of the emergence of bills of rights in liberal democracies seeks to uncover the historical conditions for the establishment of entrenched bills of individual rights. This study utilizes the method of prototypical cases, focusing on the emergence of entrenched bills of rights and relevant enforcement mechanisms in the United States, Germany, and Canada. Second, the applicability of these historical conditions to the UK of the early twenty-first century will be analyzed. As a model of “weak-form” judicial review, the Human Rights Act so far seems to have failed to establish a consensus over how human rights are best protected in the UK. This Article aims to answer the question of whether human-rights protection in the UK remains a prisoner of seventeenth-century British constitutional history.

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