This chapter examines the idea of ’dialogue’ as a way of conceptualising the relationship between the courts and the legislature in a system of ’weak-form review’. Tracking the trajectory of dialogue theory in Canada and in the UK, this chapter outlines the promise and perils of dialogue. By highlighting the iterative and interactive dynamic between courts and legislatures when seeking to uphold rights, the metaphor of dialogue held out the promise that it could transcend the Manichean narrative. However, the chapter argues that the idea of dialogue overpromised and underdelivered. It failed to take us beyond the Manichean narrative and ultimately provided a misleading and distorted understanding of the constitutional relationships between the branches of government in a constitutional democracy.

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.

The constitutional entrenchment of economic and social rights often requires courts to intervene directly in the administration of government. Such rights – to access goods, services, and programs such as social security, education, and health care – are now present in more than two-thirds of the world’s constitutions.1 Newer constitutional amendments extend such rights to housing, land, water, and a clean environment, implicating a wide array of government actions or omissions. Moreover, despite the conventional wisdom that such rights should not be enforced by courts, and should be entrenched at most as directive principles or other statements of aspiration, the duties for government that such rights create are increasingly justiciable.2 For better or worse, courts have become central in enforcing both negative and positive duties, in complaints arising from such matters as medical treatment denials, evictions, education outcomes, pollution levels, or food distribution schemes.