Rights-Based Constitutional Review
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Rights-Based Constitutional Review

Constitutional Courts in a Changing Landscape

Edited by John Bell and Marie-Luce Paris

Constitutional review has become an essential feature of modern liberal democratic constitutionalism. In particular, constitutional review in the context of rights litigation has proved to be most challenging for the courts. By offering in-depth analyses on changes affecting constitutional design and constitutional adjudication, while also engaging with general theories of comparative constitutionalism, this book seeks to provide a heightened understanding of the constitutional and political responses to the issue of adaptability and endurance of rights-based constitutional review. Providing structured analyses the editors combine studies of common law and civil law jurisdictions, centralized and decentralized systems of constitutional review, and large and small jurisdictions.
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Chapter 2: The United Kingdom

Chintan Chandrachud and Aileen Kavanagh


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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