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.

This chapter argues that the role of the judge in the collaborative scheme is not to be the faithful agent to the legislature, but rather that the courts should be constructive partners to the legislature in the constitutional scheme, where they are both oriented towards the common goal of achieving good government under the constitution, albeit in their own role-specific ways. In charting the active and creative role of the courts in the constitutional scheme, the chapter emphasises the epistemic and institutional constraints under which courts labour. It also highlights the active and valuable contribution they make to the constitutional system as a whole. The final section of the chapter examines ’the principle of legality’, namely, the presumption of statutory interpretation employed by Anglo-Commonwealth courts that they will read statutory provisions as compliant with rights, unless the contrary is made crystal clear in the statutory language. It is argued that, though ’the principle of legality’ is a powerful judicial tool which judges can use to ensure that rights are protected, it can operate in ’representation-reinforcing’ and even ’democracy-enhancing’ ways.