Alison L Young

Is the government really acting for the people? Or does this rhetoric simply justify an executive power-grab? For some, Boris Johnson’s premiership epitomised how far the UK’s democracy has been captured by populism and the Prime Minister seemed more concerned about fulfilling the wishes of the British people than with following the rules or listening to Parliament. Events like ‘Partygate’ grabbed the headlines. Criticisms of Boris Johnson’s actions eventually led to his resignation and replacement as leader of his party and Prime Minister. Some feel that this shows that the UK’s constitution is healthy, with checks and balances in place to prevent any possible abuse of power. While these events attracted much media attention, other constitutional changes have been taking place with little public awareness. These have strengthened governmental powers and weakened political and legal checks over governmental actions. Deliberation is being replaced by rhetoric and principles of good government no longer seem to restrain the actions of those in power. Alison Young provides the first consolidated account of these changes, arguing that the UK is currently on a constitutional cliff-edge which endangers democracy and good constitutional government. She argues that more is needed to shore up the UK’s post-Brexit constitution to prevent it collapsing into a system of unchecked power.

A lot has happened to the UK Constitution in the last seven years. We've witnessed the UK's exit from the EU, further devolution to Scotland and Wales, a number of prominent cases by the Supreme Court, two early parliamentary general elections, major governmental defeats and two Prime Ministerial resignations. Alison Young has built on the text of Colin Turpin and Adam Tomkins' earlier edition, keeping their unique historical and contextual approach, whilst bringing the material up to date with more contemporary examples, including references to Brexit, the recent prorogation and Brexit case law, and the Covid-19 pandemic. The book continues to include substantial extracts from parliamentary and other political sources as well as from legislation and case law. It also provides a full yet accessible account of the British constitution at the culmination of a series of dramatic events, on the threshold of possible further constitutional reform.

Constitutions divide into those that provide for a constitutionally protected set of rights, where courts can strike down legislation, and those where rights are protected predominantly by parliament, where courts can interpret legislation to protect rights, but cannot strike down legislation. The UK's 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, with most theories of legal and political constitutionalism combining legal and political protections, as well as providing an account of interactions between the legislature and the judiciary. Nevertheless, dialogue has a role to play. It differs from legal and political constitutionalism in terms of the assumptions on which it is based and the questions it asks. It focuses on analysing mechanisms of inter-institutional interactions, and 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. This 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 court, 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.

The Human Rights Act 1998 is criticised for providing a weak protection of human rights. The principle of parliamentary legislative supremacy prevents entrenchment, meaning that courts cannot overturn legislation passed after the Act that contradicts Convention rights. This book investigates this assumption, arguing that the principle of parliamentary legislative supremacy is sufficiently flexible to enable a stronger protection of human rights, which can replicate the effect of entrenchment. Nevertheless, it is argued that the current protection should not be strengthened. If correctly interpreted, the Human Rights Act can facilitate democratic dialogue that enables courts to perform their proper correcting function to protect rights from abuse, whilst enabling the legislature to authoritatively determine contestable issues surrounding the extent to which human rights should be protected alongside other rights, interests and goals of a particular society. This understanding of the Human Rights Act also provides a different justification for the preservation of Dicey's conception of parliamentary sovereignty in the UK Constitution.