The Benefits and Drawbacks of the New Model
The previous section alluded to some benefits of the new model of constitutionalism. The two general benefits of the model are that first, it secures a more balanced distribution of power between the legisÂlature and courts on questions of rights, and second, it enables both institutions to assert freely their competing understanding of rights.
Courts and legislators are treated as 'joint or supplementary rather than alternative exclusive protectors and promoters of rights'.[161] The new model seeks to avoid the underlying tension between democratic self-governance and judicial policing of constitutional limitations.[162] It also provides an unparalleled 'opportunity for judicial oversight of legÂislation without displacing the ultimate power of legislatures to deterÂmine public policy7.[163] Courts can impose a high burden of justification on the legislature, and in considering how to respond to the issue of rights, the legislature has the benefit of a careful judicial analysis of the rights issues at stake.[164]How is the new model superior to the two traditional alternatives? Scholars argue that it is preferable to parliamentary sovereignty because it grants greater responsibility to the courts for the protection of rights, and by implication, grants a greater role for legal argument in politiÂcal decision-making.[165] On the other hand, it is preferable to judicial supremacy because it leaves room for the legislature to reject judicial understanding of rights by ordinary legislative majority—either by invoking the power to override or by refusing to comply with a declaraÂtion of incompatibility or inconsistency. Tushnet argues that under the new model, the legislature can revise judicial understanding of rights in the short run.[166]
In models of judicial supremacy, the legislature can only do so in the 'longish run'.[167] The reason for this seems intuitive and obvious: it is much harder to override a judgment through extraordinary procedures such as constitutional amendments (requiring greater-than simple majorities) or court-packing plans than it is to do the same through ordinary, everyday legislative procedures.
The former would be expected to require much greater political traction, which would be harder, and more time-consuming, to mobilize. Thus, it is clear that the element of time plays a major role in scholars' explanations of the superiority of the new model over models of judicial supremacy. The new model is said to be superior, then, not merely because it enables the legislature to assert its competing conception of rights, but because it allows it to do so relatively swiftly and easily.Proponents of the new model recognize that it suffers from some drawbacks—that in spite of seeking to achieve the golden mean between two extremes, it may, in practice, slide back into parliamentary sovereignty or judicial supremacy.[168] Hence, for example, if declarations of incompatibility under the HRA variety of the new model are invariÂably acted upon by the legislature, the model could, in practice, become indistinguishable from judicial supremacy. If, on the other hand, the legislature always ignores judicial declarations of incompatibility, treatÂing them as merely exhortative instructions, the new model would begin resembling parliamentary sovereignty. Weak-form review thus risks becoming parliamentary sovereignty or strong-form review 'in disguise'.[169] This will be referred to as the problem of 'internal stability7.
The new model also faces an 'external stability7 problem. Unlike systems of judicial supremacy, in which the written Constitution is relaÂtively immune (at least in the strictly legal sense) from changing politiÂcal tides, un-entrenched bills of rights under the new model are subject to the shifting preferences of ruling political coalitions. This external stability problem is brought out best by political developments in the UK. After increasing dissatisfaction with the functioning of the HRA and the influence of the Strasbourg Court on domestic adjudication, the Conservative Party included the repeal of the HRA in its manifesto for the 2015 general elections.[170] Commentators in the UK agree that with the Conservative Party's win in the general elections of 2015, the future of the HRA is uncertain. The arguments made in this book touch upon the problems of both internal stability and external stability assoÂciated with the new model, as it is manifested in the UK.