Proportionality and Parliamentary Debates: Exploring Some Forbidden Territory

In the case law under the Human Rights Act 1998, the courts often say that they will pay substantial respect to the considered decisions of democratic assemblies. Two questions arise from this. (i) Should a court deciding on the human rights compatibility of legislation inquire into whether the human rights issue has actually been considered during parliamentary debate and, if so, how seriously? (ii) What legal relevance, if any, should such parliamentary consideration have for the judicial assessment of human rights compatibility? This article seeks to answer these questions through an examination of the leading case law on judicial recourse to Hansard in compatibility cases, the requirements of Article 9 of the Bill of Rights 1689, the practice of the domestic courts in giving weight to parliamentary engagement with the human rights issue, as well as an examination of the relevant Strasbourg jurisprudence.