Interpretative Bills of Rights and the Mystery of the Unwritten Constitution

Abstract

The British and New Zealand constitutions have much in common, including their approach to the protection of fundamental rights. The novel, interpretative approach reflected in the New Zealand Bill of Rights Act 1990 was an important influence on those who drafted the United Kingdom’s Human Rights Act 1998. However, substantial similarities notwithstanding, the New Zealand and United Kingdom Acts differ in significant respects — not only textually, but also in their judicial application and wider reception by politicians and the public. This article considers the extent of (and reasons for) the similarities and differences between the two systems, against the background of the debate presently being conducted in the United Kingdom about whether its Human Rights Act should be replaced by a new 'UK Bill of Rights'. It will be argued that, ultimately, that which distinguishes the two systems is less significant than that which unites them — and that their respective models of human rights protection are both functions of, and are sustained by, the unwritten form of constitutionalism that is common to New Zealand and Britain.

Keywords: constitution, constitutional law, bill of rights, human rights, parliamentary sovereignty, human rights act 1998, New Zealand bill of rights act

JEL Classification: K10, K19, K30, K39