The New Commonwealth Model of Constitutionalism: Theory and Practice.

• Author: King, Jeff
• Position: Book review

THE NEW COMMONWEALTH MODEL OF CONSTITUTIONALISM. Stephen Gardbaum. (1) Cambridge: Cambridge University Press. 2013. Pp. xii + 262. $99.00 (cloth), $39.99 (paper).

In an influential article in 2001, (3) Professor Stephen Gardbaum drew attention to a family resemblance between Commonwealth legal systems which offered some form of constitutional rights review, but within a framework that permitted the supremacy of the legislature. For example, Section 33 of the Canadian Charter of Rights and Freedoms permits legislative override of the Charter by the federal or any provincial parliament, and the United Kingdom's Human Rights Act 1998 empowers judges to declare acts of the UK Parliament incompatible with the European Convention on Human Rights, which leaves the impugned law on the books (sometimes for years). This combination of judicial review with continuing legislative supremacy, along with parliamentary and executive consideration of rights-compliance before legislation is enacted, has been noticed by others as well. Mark Tushnet classified such systems as having "weak form review," (4) and Janet Hiebert has dubbed them the "parliamentary model." (5)

In this book, Gardbaum deepens his analysis of these systems by identifying what he regards as the main characteristics of this model, and presenting an elaborate normative defense of them. He argues that the "New Commonwealth Model" found in Canada, New Zealand, the UK, and Australia represents a normatively compelling "third way" between the strong form, or "court-centric" form of constitutional rights review familiar in the United States and Germany, and the model of parliamentary sovereignty, which, in its classical British form, forbids judges to question the validity of any act of Parliament. Gardbaum's book should be of interest to American constitutional lawyers, not only because the "counter-majoritarian difficulty" is a perennial concern, and Gardbaum engages to some extent with Bickel, Ely, Tushnet, Ackerman and other leading American constitutionalists. It is also because he defends a model of judicial review that is a radical departure from the American brand.

In this review essay, I illustrate how Gardbaum has illuminated an important phenomenon in comparative constitutional law. He has shown with unparalleled rigour and insight how the various interlocking features of the Commonwealth model of constitutional rights protection work, and has put forth a novel argument about how they ought to work. However, I will also argue that his exercise in theory building is problematic from methodological and substantive standpoints. In his quest to build an "internal theory of the New Model," Gardbaum's approach equivocates between describing the jurisdictions and prescribing how they should operate. His methodology of finding a third way between two schools of thought in British constitutional theory is marred by the failure of the distinction to be stable and convincing, and by the doomed attempt to blend irreconcilable positions about the value of judicial review in a rights-based democracy.

As to substance, my key gripe is with the crucial proposal that legislatures should consider, but ultimately disregard, judicial declarations that statutes violate rights if the legislature reasonably disagrees with the judgment. This idea, I argue, is incompatible with Gardbaum's own position about legislative failures to protect rights, it holds out a Panglossian hope for legislative cooperation, and it fails to acknowledge the very substantial rule of law problems we would have in a society where judicial decisions were treated like legal advice.

1. AN OUTLINE OF THE BOOK

   1. THE THEORY OF THE NEW COMMONWEALTH MODEL

      Part I sets out the "theory" of the New Commonwealth Model, whereas Part II sets out the "practice," namely, the way the model operates in some key jurisdictions that recently adopted bills of rights, including Canada (1982), New Zealand (1990), the United Kingdom (1998) and some Australian states (2004, 2006). Part I is an outline of the essential features of the model as Gardbaum defines it, a normative argument in defense of these features, and an exploration of how an ideal model ought to work.

      So what are these features? The model essentially has four of them (pp. 25ff, see also 37-46, 77-94). The first characteristic is a codified bill of constitutional rights. This bill can be in a written constitution or in statutory form provided they have "some form of higher law status" (pp. 35-36). For example, while the Canadian Charter of Rights and Freedoms is a part of the entrenched Canadian constitution, the UK Human Rights Act 1998 (HRA), New Zealand Bill of Rights Act 1990 (NZBORA), and the Victorian Charter are all legislation passed through ordinary channels and (unlike the entrenched Canadian Charter) repealable under the ordinary legislative process. Even so, the perception in the UK is that the HRA is a "constitutional statute," (6) and one can suppose the same for the NZBORA. This means that these statutes have a more hallowed status than ordinary law, making them politically harder to amend or repeal, and possibly giving them special legal status that would allow them to prevail over conflicting statutes under certain circumstances.

      The second feature is that there is pre-enactment political rights review. The HRA imposes a duty on the UK Minister introducing a bill in Parliament to issue a formal "statement" to Parliament that a bill complies or does not comply with the European Convention on Human Rights. The Joint Committee on Human Rights (a select committee of both Houses of Parliament--(JCHR)), furthermore, must report to Parliament on the human rights implications of any bill. Gardbaum regards the JCHR as truly exemplary of pre-enactment political rights review, and this reviewer wholeheartedly agrees. The Victorian Charter, and NZBORA, provide similar mechanisms. The Canadian Charter is not accompanied by any legislatively formalized mechanism as such, but the administrative practice is to inquire thoroughly into the Charter compatibility of proposed legislation, sometimes with a view to "charter proofing," (7) at others with a good faith intention of compliance. These are all examples of pre-enactment political rights review, though they vary in quality. Gardbaum considers the Canadian approach to be weakest because the pre-enactment review is by the executive rather than the legislature (8) (pp. 122-23). For this type of pre-enactment political review to operate properly, he argues, it should be neither exclusively an executive nor legislative process, but rather both. And it should not be about averting legal risk, but rather be proactive and normatively wide-ranging, and thus free from the fetters that bind (or at least preoccupy) judges.

      The third essential feature is judicial rights review. Gardbaum here envisages "constitutional review" (p. 83), and beyond the obvious features one would expect, his theory embodies a curious departure from standard models. While on the one hand, he is opposed to interpretive judicial supremacy, on the other, he argues that judges should not defer to legislatures on account of their democratic legitimacy. "Judicial rights review should be respectful but unapologetic.... [The passive virtues] would be structurally misplaced and counterproductive in a system of penultimate judicial review" (p. 85). So judges should give their judgments on the merits and not drift towards "reasonableness review" or any other representation-reinforcing standard. Why would they, if the legislature can have the final word? Gardbaum maintains that the court's role is nonetheless to

      inform the legislature and alert the citizenry of their rights concerns from a legal perspective posed by a piece of legislation. Here the virtues of skilled professionalism and judicial independence from electoral accountability within a majoritarian political system, especially a parliamentary one, play their role--not by conclusively or automatically rendering the ultimate decision, but by bringing a perspective to bear on it that may otherwise not be brought (p. 84). This position of recommending a combination of "unapologetic" judicial review on the understanding that the legislature can merely disregard the declaration has also been advanced by Francesca Klug and Danny Nicol in the United Kingdom, (9) the latter being more skeptical of courts than Klug or Gardbaum. Here the skeptical reader will raise an eyebrow. If the courts are unapologetic but the legislature compliant, the recommendation might make things worse. And further, there is no discussion of epistemic grounds for judicial restraint, despite this being well tilled soil in the literature on the subject in both the U.S. and the Commonwealth.

      The fourth, "critical, and distinctive, hybrid feature of the new model" is the formal legal power of legislative reconsideration (pp. 45, 87-94). The four legal systems he discusses all have formal ongoing legislative supremacy over (most) rights questions. Yet he argues further however that this formal power must be exercised from time to time if the normative arguments supporting the New Commonwealth Model are accepted. In his model, in other words, legislatures would have the last word, as a matter of both law and practice. None of the four systems actually respect the criteria/practice of legislative reconsideration as he sets it out. In brief, the UK and Canadian parliaments tend to accept or "comply" with court judgments, and the New Zealand and Australian ones have a paucity of caselaw and disinterested legislatures.

      Although Gardbaum argues in favor of legislative reconsideration, he regards the development of "norms of legitimate use" to be an urgent task, and this is an especially helpful part of the book. The first is procedural: "the legislature must engage in serious and principled reconsideration of the judicial...