This chapter examines the power of the legislature to have ’the last word’ under section 33 of the Canadian Charter of Rights, and the UK Human Rights Act 1998. In both cases, the democratically elected legislature is empowered to legislate notwithstanding rights. Whilst both of these provisions have been hailed as the lynchpin of a New Commonwealth model of constitutionalism, or as an instance of weak-form review, this chapter observes that they have hardly ever been used. The task of the chapter, then, is to examine and explain ’the underuse of the override’. Departing from the dominant narrative that the legislature wanted to use the override but was thwarted by exogenous political costs, this chapter argues that the rare use of the override was part of the original design of both systems from the outset. Instead of being a tragic thwarting of democratic dialogue, or an unfortunate atrophy of constitutional powers, rare use of the override was a feature, not a bug in both systems. Supplementing the historical narrative with normative argument, the chapter defends the rare use of the override as a vindication of the collaborative constitutional ideal.

One key question which arises under the Human Rights Act 1998 is whether there is a constitutional convention of political compliance with declarations of incompatibility. This chapter provides a comprehensive empirical analysis of all the political responses to declarations of incompatibility in the first two decades of the HRA. It concludes that there is significant evidence of a constitutional convention in statu nascendi. Though the convention does not preclude the government and legislature from rejecting a declaration of incompatibility in exceptional and rare circumstances, there is a conventional and normative expectation amongst the key political actors that they are under an obligation to comply with those declarations in the normal run of affairs.

Throughout the latter half of the twentieth century UK policy makers and constitutional lawyers grappled with how to incorporate human rights concerns into a constitution based upon the theoretically unlimited legislative power of Parliament. This chapter charts progress towards this goal, examining first the inadequacies of the protection of ‘civil liberties’ in the UK under common law and statute. We then consider how other countries have attempted to reconcile majoritarian democratic politics with legal protections for individual rights, and how these efforts influenced the UK in the development of the Human Rights Act 1998 (HRA). The remainder of the chapter examines the scheme of the HRA 1998, considering what rights were incorporated under the Act and the powers that the courts gained over legislation and over the activities of public bodies.