Constitutions divide into those which empower courts to strike down legislation which contravenes human rights and those which do not. The Human Rights Act 1998 is regarded as an example of a commonwealth model of rights protections. It is justified as a new form of protection of rights which promotes dialogue between the legislature and the courts; dialogue being seen not just as a better means of protecting rights, but as a new form of constitutionalism occupying a middle ground between legal and political constitutionalism. This book argues that there is no clear middle ground for dialogue ... More

Constitutions divide into those which empower courts to strike down legislation which contravenes human rights and those which do not. The Human Rights Act 1998 is regarded as an example of a commonwealth model of rights protections. It is justified as a new form of protection of rights which promotes dialogue between the legislature and the courts; dialogue being seen not just as a better means of protecting rights, but as a new form of constitutionalism occupying a middle ground between legal and political constitutionalism. This book argues that there is no clear middle ground for dialogue to occupy. Most theories of legal and political constitutionalism combine legal and political protections and some provide an account of interactions between the legislature and the judiciary. Nevertheless, dialogue has a role to play. It differs from legal and political constitutionalism, being based on different assumptions. It focuses on analysing mechanisms of inter-institutional interactions, assessing when these interactions can provide a better protection of rights, facilitate deliberation, engage citizens, and act as an effective check and balance between institutions of the constitution. The book evaluates dialogue in the UK constitution, assessing the protection of human rights through the Human Rights Act 1998, the common law, and EU law. It also evaluates court–court dialogue between the UK courts and the European Court of Justice and the European Court of Human Rights. The conclusion evaluates the implications of the proposed British Bill of Rights and the referendum decision to leave the European Union.