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This article argues that “political herding” plays a crucial role in driving and shaping constitutional change. It links the prevalence of political herding to a psychological phenomenon, “social influence.” It goes on to argue that constitutional change is often driven by the desire for certain substantive policies, which in turn are determined by whether, in a particular epoch, the political community is herding in a progressive or reactionary direction. Contending that the general phenomenon whereby political communities go through recurrent swings to the left or to the right has been neglected by scholars, this essay aims to give this phenomenon the centrality it merits in relation to the evolution of the British constitution. Accordingly it considers the 1906 Liberal government, the 1945 Labour government and the lengthy succession of post-1979 neoliberal governments, analyzing how substantive progressive and reactionary programs led to constitutional change. Finally this article considers the legitimacy both of political herding itself, and of political herding's impact on constitutional change.
Jürgen Neyer has recently proposed replacing the European Union's 'democracy discourse' with a 'justice discourse'. This article challenges his arguments. It points out the difficulties associated with Neyer's assertion that EU democracy is not theoretically possible. It then goes on to argue against his proposition that it would be unfair to judge the EU against democracy criteria. Finally it questions Neyer's assumption that EU policy contains an incontestable justice, arguing that democracy remains essential as the means by which a political community differentiates between justice and injustice.
Academic lawyers have commented extensively on the judicial interpretation of the Human Rights Act 1998, but the reaction of politicians to it has received less attention. This paper examines the trends in parliamentary attitudes to human rights by analysing Commons and Lords debates on the Human Rights Bill itself, the Terrorism Bill 1999–2000, the Anti‐Terrorism, Crime and Security Bill 2001 and the Nationality, Immigration and Asylum Bill 2002. It also considers MPs' response to the Thompson and Venables and Anderson judgments, as well as Conservative attempts to amend the Human Rights Act. Against this background, it argues that the British polity can be characterised as a ‘contestatory democracy’, in which the system of fundamental rights protection is incomplete since it neglects Parliament's vital role in defining the Convention rights.
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