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I. INTRODUCTION
The Human Rights Act of 1998,1 which came into full force in the United Kingdom2 on October 2, 2000,3 will have an uncertain but undoubtedly significant impact on British constitutional law. The Act represents the culmination of a long-running constitutional debate in the United Kingdom over whether to adopt a Bill of Rights.4 By incorporating most of the substantive provisions of the European Convention on Human Rights (European Convention)5 into the domestic law of the United Kingdom, the Human Rights Act marks a dramatic shift in how individual rights are conceptualized under British law. Traditionally, civil liberties-including fundamental ones such as freedom of expression, freedom of religion, and the right to privacy-were seen as "residual" in nature: "[T]hey are the residue of freedom left behind after the legal restrictions have been defined" by legislation or the common law.6 The British constitution has traditionally eschewed broadly worded textual pronouncements of fundamental rights, preferring, instead, to rely on the democratic process, the rule of law, and the United Kingdom's complex system of checks and balances to safeguard civil liberties. This approach has been repeatedly questioned over the past two decades.8 The Human Rights Act, which puts courts and other public authorities under a positive duty to "give[] effect" to the rights enumerated in the European Convention in their day-to-day activities,9 marks a shift in the perception of civil liberties from residual freedoms to positive rights.
Nonetheless, at first glance this British "Bill of Rights" seems rather toothless, particularly if judged by the standards of U.S. constitutionalism. In most countries with an effective charter of rights, the theory has been that citizens can never be assured of the safety of their liberties unless those liberties are insulated from the vagaries of democratic decision-making.10 Fundamental rights must be "entrenched"-enshrined in some constitutional instrument in a way that makes it difficult or even impossible for later generations to modify or abolish those rights-if they are to be preserved." The Human Rights Act does not entrench rights in this way. The Act is given no special legal status, and, like any act of Parliament, it can be repealed by a simple majority vote in the House of Commons. Indeed, in a way the Human Rights Act is even...