Constitutional Courts in a Changing Landscape
Studies in Comparative Law and Legal Culture series
Edited by John Bell and Marie-Luce Paris
Chapter 2 by Chandrachud and Kavanagh (‘Rights-based constitutional review in the UK: from form to function’) introduces the UK rights-based constitutional review system. In its form, the Human Rights Act 1998 was designed to preserve parliamentary sovereignty while ensuring that rights would receive robust protection. The model of incorporation grants the courts the power to review legislation for compliance with incorporated Convention rights but not the power to strike down primary legislation, thereby leaving to Parliament the last word on how to uphold rights. However, a detailed analysis of the design (form) and operation (function) of the Human Rights Act shows that constitutional design is not necessarily determinative of how a system of judicial review works in practice. The authors argue that Parliament does not seem to have the final say under the HRA. In many cases, the courts have had ‘normative finality’ on questions of rights thanks to the strength of the interpretive obligation and the fact that declarations of incompatibility have been complied with in almost every case. The practice of the HRA tends to reveal that judicial powers granted to courts have proved to be stronger than originally envisaged, hereby displaying an arguably relevant rapprochement between the British approach under the HRA and a US-style of strong judicial review.
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