New Models of Constitutional Review

Abstract

Recently, in Commonwealth countries such as Canada, UK, New Zealand and Australia (at state level), is emerging a new, distinctive, model of constitutional review, in which courts have broad authority to interpret Bill of Rights provisions, but national legislatures can override courts' interpretations of rights by ordinary majority vote. In the UK, New Zealand and Australia (at state level), where it is not possible for a court to read and give effect to legislation in a way which is compatible with a bill of rights norms, a court may make a formal «declaration of incompatibility». Such a declaration, however, does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given, and is not binding on the parties to the proceedings in which it is made,following the traditional principle of sovereignty of Parliament. The net effect is that the legislature has powers to suspend the effect of courts' interpretation of particular rights, simply by the use of sufficiently clear language. In Canada – in a different constitutional setting – the key provision that ensures this is sect. 33 of the Canadian Charter, or the so-called «notwithstanding clause», with the consequential overriding power conferred on federal Parliament and to the legislature of a province. Also in the Nordic countries (especially in Finland and Sweden), various type of well-established ex ante parliamentary preview and restrained ex post judicial review clearly fit with weak-form model of judicial review of legislation. This essay considers how this new model functions, in constitutional theory and practice of the chosen countries.