What's so Weak About ‘Weak-Form Review’? The Case of the UK Human Rights Act 1998

Abstract

Professor Mark Tushnet’s distinction between ‘strong-form’ and ‘weak-form’ review has become an enormously influential way of characterising, and then distinguishing between, the US system of rights-protection on the one hand, and that which exists in Canada, the UK and New Zealand on the other. The aim of this article is to subject this distinction to probing analysis, in part by seeing how it fares when applied to the United Kingdom. I will argue that if we look at the UK system through the lens of this distinction, we risk distorting and misunderstanding some of its key features. This analysis is then used as a springboard to reflect on some broader problems and instabilities inherent in the distinction which, in turn, cast doubt on the usefulness of the distinction as a meaningful typological tool in comparative constitutional law.

Keywords: constitutional law, comparative law