Constitutional Law, Administrative Law, and Human Rights

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Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction

how democratic a country Britain actually is. Th at, however, is a judgement best reserved to later chapters. At this point, we might more sensibly ask what yardsticks we might use in answering these questions. What is democratic governance? Some hypothetical examples Th e following hypothetical example assumes that the constitution of the countries concerned (countries A and B) provide that laws be made by referendums, in which all adult citizens are granted one vote. A law is passed if 50%+1 of those citizens who vote support the proposal.

Let us assume that a majority of citizens in both countries A and B decide that they are not prepared to tolerate the poverty caused by an economic depression which has left 20% of the adult population unemployed. Economic policy as a constitutional issue? In country A, a new law provides a generous scheme of unemployment benefi ts. Th e benefi t scheme is fi nanced by imposing heavy income taxes on the wealthiest 30% of the population. In doing this, the law frees the poorest members of society from the threat of starvation and homelessness. But it deprives the richest citizens of a substantial slice of their income, which they had planned to spend pursuing their own favoured forms of happiness. In country B, the law requires that men and women aged over sixty retire from work. A small retirement pension will be paid to the people forced to retire.

In doing this, the law reduces the problem of unemployment at a modest fi nancial cost to the majority of the population, but imposes substantial hardship on people over sixty years old who do not want to retire. How would we decide if these laws were ‘democratic’? Should we ask only if the law has majority support, and if the answer is yes, go no further? If so, both laws (and presumably the constitutional arrangements under which they were passed) would be democratic. Or should we demand that there be an inter- relationship between the level of support a law attracts and the severity of its consequences for particular minorities— the more severe the law, the greater the degree of support it must attract to be democratic? If we accepted that principle, could we then agree that forcing people to retire from work is more ‘severe’ than imposing heavy taxes on the rich? If so, could we further agree that forced retirement would be ‘democratic’ if it enjoyed 55% (or 66% or 75% or 100%) support, while 50%+1 would be suffi cient to ‘democratise’ large tax increases? Or thirdly, should we conclude that there are some laws whose consequences would be so severe that they may never be enacted by a democratic society, even if supported by 100% of the population? If so, would either forcing people to retire from work at sixty or imposing large tax increases on the wealthiest sections of the population fall into that category?

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