Human Rights in a Postnational Order: Reconciling Political and Constitutional Pluralism

This chapter looks at the overall significance of human rights developments in the European Union (EU) domain for the Human Rights Act 1998 (HRA) of the United Kingdom. It argues that those who retain a healthy scepticism (rather than cynicism) about the beneficial consequences of the implementation of the HRA, and the possible hardening of its strong principle of favourable interpretation towards the European Convention on Human Rights catalogue, its judicial declaratory power of incompatibility, and its monitoring of executive and parliamentary prior compliance into a de facto system of domestic entrenchment, cannot afford to disregard the EU dimension. The development of the EU as a higher tier of government, with its own claims to democratic legitimacy, disturbs some of the empirical premises of this key aspect of the sceptic's argument. This chapter discusses the democratic critique of rights' constitutionalism, reconciliation of political and constitutional pluralism, and arguments in favour of reconciliation between democracy and rights constitutionalism in the European context.