8 - The HRA as Partnership in Progress

Summary

This chapter traces judicial decision making under the Human Rights Act 1998, examining how courts approach their tasks of interpreting legislation compatibly with rights, on the one hand, or, if that is not possible, making a declaration of incompatibility instead. Though the declaration of incompatibility is not legally binding on the Government and Parliament, this chapter uncovers ’the hidden strengths of weak-form review’, highlighting the multiple ways in which declarations of incompatibility tie the hands of the political branches of government. It concludes that declarations of incompatibility are not aptly portrayed as opening gambits in a constitutional conversation, as dialogue scholars would lead us to believe. Instead, they are authoritative decisions in a collaborative constitutional scheme, where judicial determinations of the higher courts that legislation violates rights are entitled to constitutional comity and respect. It concludes by noting the current trend towards ’autochthonous constitutionalism’ under the common law, in preference to litigation under the HRA.