Fergal F. Davis (ARC Laureate Fellowship: Anti-terror laws & the democratic challenge; University of New South Wales (UNSW)) has posted “Lord Neuberger and the Diceyean Bushel” . The abstract reads:
On 6 April 2011, Lord Neuberger, the Master of the Rolls, delivered the second Lord Alexander of Weedon Lecture. In it he revisited the awkward tension which exists between the “notion of supremacy of the democratically elected legislature and the rule of law”. While the topic approached is one of controversy, the learned Master of the Rolls adopted a position which is essentially orthodox – namely that Parliament remains supreme despite membership of the European Union, the existence of the European Court of Human Rights at Strasbourg and the Human Rights Act, 1998 (HRA). To describe Lord Neuberger’s position as orthodox is not intended to be a criticism. His suspicion of judicial supremacy is welcome and equally agreeable is his statement against judicial passivism. However, two problems emerge: firstly, the contention that Parliament remains supreme is difficult to sustain once it is subjected to anything beyond the most formal level of analysis; secondly, and more importantly, by returning to the orthodox Diceyean perspective he risks stifling potentially significant constitutional innovation contained within the HRA. This article will argue that the orthodox position advanced by Lord Neuberger needs to be set aside and a position equally respectful of the democratic legitimacy of Parliament, but more conscious of the role of the courts in contentious areas, should be adopted.