This chapter explores the Manichean narrative between political and legal constitutionalism. Examining the rival arguments of Jeremy Waldron and Ronald Dworkin, this chapter argues that we need to move beyond Manicheanism in order to capture the multi-institutional modes of rights protection in contemporary constitutional democracies. It argues that both Dworkin and Waldron succumb to the nirvana fallacy, a fallacy we need to shake off if we are to devise realistic accounts of how the key institutions act, counteract, and interact in a constitutional democracy. The chapter also puts pressure on the notorious ’counter-majoritarian difficulty’, arguing that we need counter-majoritarian checks, not only in the name of rights, but in the name of democracy as well. This chapter defends the idea of ’mediated majoritarianism’. Finally, it turns to the ongoing schism between political versus legal constitutionalism in UK public law, arguing that it suffers from similar flaws to the broader Manichean narrative. Instead of a zero-sum game between courts and legislatures, the branches of government can interact in mutually respectful and supportive ways.

This chapter argues that protecting rights in a constitutional democracy is a collaborative enterprise between all three branches of government, where each branch has a distinct but complementary role to play, whilst working together with the other branches in the constitutional scheme. At the heart of the chapter is a collaborative conception of the separation of powers, where the branches are situated within a heterarchical relationship of reciprocity, recognition, and respect. Grounded in the key values of comity, collaboration, and conflict management, this chapter sketches out the contours of the collaborative constitution. Instead of a conflictual dynamic of ’constitutional showdowns’, the chapter marks out a preference for ’constitutional slowdowns’. Whilst accepting the inevitability and, indeed, the legitimacy of constitutional counterbalancing and tension between the branches of government, the collaborative constitution attends to the collaborative norms which frame and shape the interaction between the branches in a well-functioning constitutional order.

This chapter explores the role of the Executive in the collaborative constitutional scheme, examining the modes and mechanisms of Executive engagement with rights under the UK Human Rights Act 1998. Emphasising that the role of the Executive is to initiate and drive forward new policy, this chapter puts the Executive in the driving seat of the collaborative constitution. However, it also uncovers a ’plural Executive’, highlighting the multiplicity of constitutional actors working within the Executive branch. Therefore, the chapter foregrounds the importance of an ’internal separation of powers’ within the Executive branch, highlighting the dialectical tension between differently oriented actors. Following a close analysis of Executive rights vetting under the HRA, the chapter concludes with an argument that we should imagine an Executive constitutionalism. At the very least, this chapter calls on constitutional scholars not to exclude the Executive in their pictures of constitutional government.

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 provides an introduction and overview to the idea of the collaborative constitution, sketching out the central claim that protecting rights is a collaborative enterprise between all three branches of government, where they each play distinct roles, whilst working together in constitutional partnership. This Introduction also clarifies the constitutional methodology employed in the book, namely, a methodology which connects theory with practice, and analyses the UK constitutional order in comparative context.

This chapter explores the role of the legislature in the collaborative constitutional scheme. It argues that the central role of the legislature is to scrutinise, check, and deliberate on policy proposals put forward by the Executive. The Executive proposes, whilst the legislature deliberates and disposes. Drilling down into the detail of legislative engagement with rights in the Westminster Parliament, this chapter showcases the Joint Committee on Human Rights (JCHR) as a key site for parliamentary deliberation and scrutiny on matters of rights. In this chapter, the JCHR is presented as a hybrid constitutional watchdog, which works alongside, and in collaboration with, other constitutional and accountability actors across the Westminster landscape.

This chapter documents the array of tools and techniques judges use when carrying out their adjudicative role as part of a broader collaborative enterprise. Whilst the theoretical literature often presents courts as speaking in prospective, prescriptive, and peremptory terms, this chapter uncovers a vast array of collaborative devices which courts use in subtle but significant ways. Presenting the courts ’as catalyst’, and foregrounding the idea of ’judge as nudge’, this chapter explores the varied phenomena of judicial alerts, prods and pleas, soft suggestions, and judicial advice. It uses the controversial Nicklinson case on assisted suicide as a vehicle through which to examine collaborative constitutionalism before the courts. The chapter concludes by arguing that the devices canvassed in this chapter are best conceived as collaborative devices, rather than the ’passive virtues’ defended in Alexander Bickel’s canonical account of adjudication by the US Supreme Court.

This chapter tackles two prominent critiques of parliamentary Bills of Rights, namely, that they are thwarted by the Executive dominance of Parliament in Westminster systems, or that parliamentary deliberation about rights is vulnerable to policy distortion and debilitation by the existence of judicial decision making about rights. Charting a course ’from domination to collaboration’, this chapter responds that both these critiques exaggerate the drivers of dominance, with respect to the Executive and especially with respect to the courts. Drawing on recent political science scholarship in Westminster Parliaments, the chapter argues that the Executive is not as dominant and dictatorial as is assumed in popular lore. Moreover, an empirical analysis of political and parliamentary behaviour in the post-HRA era challenges the assertion that the key political actors succumb to a cringing court mimicry. Whilst remaining attentive to the dangers in both directions – i.e. in the direction of Executive aggrandisement or judicial supremacy – this chapter argues that we need to put these threats in perspective. The upshot is a complex picture of constitutional collaboration between powerful political actors, not the straightforward or simple dominance of one over the other.

The Conclusion draws together the key themes explored in this book. Highlighting the crux norms of comity, collaboration, and conflict management framed by the conditions of reciprocity, reputation, and repeat play, the Conclusion defends a relational and collaborative conception of the separation of powers. Looking to new horizons, the Conclusion gestures at future lines of research opened up by the collaborative idea, including the possibility of imagining international, supra-national, and transnational law in collaborative terms. It concludes by presenting the fundamental norms of the collaborative constitution as vital in the current moment, but also as a form of ’constitutional capital’. On analogy with the influential idea of ’social capital’, it argues that the unwritten norms of the collaborative constitutional system are a precious constitutional resource we should preserve, protect, and enhance in order to create stable and sustainable constitutionalism for the twenty-first century.

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.