Constitutional Review Under the UK Human Rights Act.

• Author: Waluchow, W.J.
• Position: Book review

CONSTITUTIONAL REVIEW UNDER THE UK HUMAN RIGHTS ACT. Aileen Kavanagh. (1) Cambridge, Cambridge University Press. 2009. Pp. xiii + 455. $139.00 (Cloth), $61.99 (Paperback).

In 1998, the United Kingdom ("UK") experienced what could plausibly be characterized as a constitutional revolution, which was described by British constitutional lawyer, Keith Ewing, as "the most significant formal redistribution of political power in this country since 1911, and perhaps since 1688." (3) Under the newly introduced Human Rights Act ("HRA"), courts in the UK were, for the first time, explicitly empowered to review UK legislation against a codified set of rights, namely those found in the European Convention of Human Rights ("ECHR"). This is an international treaty to which the UK, as a member of the Council of Europe, had long been a signatory. Before 1998, the only form of redress for UK citizens, concerned with what they claimed to be violation of their Convention rights by UK government bodies was appeal to the European Court of Human Rights in Strasbourg. This is a body whose judgments, though given some (variable) measure of respect by the official organs of the UK government and judiciary, were not considered binding under UK law. The relationship between Strasbourg and these UK domestic bodies was anything but clear, comfortable, or stable. But by incorporating the Convention directly into UK law, all that changed. Citizens were able to appeal directly to UK courts for judgments concerning the compatibility of domestic UK laws with the rights (of the ECHR) now codified in the HRA.

Those whose thoughts about the nature and justification of judicial review (or what Aileen Kavanagh prefers to call "constitutional review") have been shaped by exposure to the relatively strong form(s) it takes under an entrenched, constitutional document like the United States Bill of Rights and, to a somewhat lesser extent, the Canadian Charter of Rights and Freedoms with it's Section 33 "notwithstanding" or "override" clause, may be surprised to discover an absence, in the UK, of many familiar features. Two differences stand out: (a) the HRA is, strictly speaking, an ordinary act of Parliament and, as such, is subject to ordinary procedures of repeal and amendment; and (b) UK judges do not enjoy the more familiar authority of American and Canadian judges to "strike down" laws judged to be in violation of recognized rights. Instead, they are required to take one of the following two steps. First, in cases where legislation, as it would normally be interpreted, is judged to infringe Convention rights, UK judges are required, under Section 3 of the HRA, to provide an authoritative interpretation of the otherwise offending legislation that renders it compatible with Convention rights. Often this interpretation will be one which departs from the plain, ordinary meaning of the legislation, or from the intended meaning plausibly ascribed to its drafters. In other words, judges are required to provide an authoritative interpretation which, but for the force of Section 3, would almost certainly be condemned as forced and unnatural, or an instance of judges trying to reinvent the law under the guise of interpretation, thereby usurping a legislative role properly reserved for democratically accountable bodies like Parliament. When all efforts to provide an appropriate interpretation fail, Section 4 of the HRA requires UK judges to issue a "declaration of incompatibility," a public statement of how and why the provisions in question cannot be rendered compatible with the relevant Convention right(s). It is then up to the offending body-or more precisely, the body judged by the court to have offended the HRA--to take whatever remedial steps, if any, it deems appropriate. Strictly speaking, then, a declaration of incompatibility fails to disturb the legal status quo.

These features of the HRA may lead one to think that the monumental step described by Ewing was not really much of a step at all. One of Kavanagh's objectives in this splendid book is to disabuse us of this idea, while at the same time assuaging the concerns of those who fear that the HRA marks a far too dramatic departure from centuries-long UK constitutional history, in particular its long-time commitment to the principles of Parliamentary sovereignty and democracy. Kavanagh skillfully surveys the relevant case law and the official (and nonofficial) records of public, judicial and parliamentary debates surrounding adoption, implementation and application of the HRA. Kavanagh also succeeds in demonstrating that constitutional practice under the HRA is not as far removed from what one finds in Canada and the United States as might appear, at first glance. It is certainly not as far removed as would be suggested by a superficial understanding of the two features described above. But these changes are not so dramatic as to represent the complete abandonment of centuries-long parliamentary and democratic traditions either. Kavanagh sets out to demonstrate that the traditional, orthodox doctrine of Parliamentary sovereignty is an exaggeration...