Aileen Kavanagh, Constitutional Review under the UK Human Rights Act

Aileen Kavanagh is now firmly established as one of the United Kingdom's foremost constitutional scholars; she has taken a central role in expounding and justifying the practice of constitutional review described in the title of this book, doctrinally, constitutionally and theoretically. She has, for this reader at least, produced by far the most convincing and satisfying account of the factors the senior judges use in deploying their key tools of interpretation and declaration under sections 3 and 4 of the Human Rights Act (HRA).1 While her approach is sometimes open to question at the normative level, it is always illuminating analytically. Kavanagh has done more than perhaps anyone else to explain and defend what is really going in cases like Ghaidan-Mendoza2R v A (No 2),3 and Bellinger v Bellinger.4 Her stance is located between the poles of T.R.S. Allan on the one hand, who believes that judicial deference amounts to an abnegation of the constitutional judicial function, and the political constitutionalists, who express strong scepticism about constitutional review, on the other: she defends a strong constitutional reviewing role for the judges, under the HRA, but, equally strongly, the exercise of due judicial deference. She has been at pains—as in this book—to stress the continuity of many judicial techniques with landmark cases in the past, such as Anisminic,5 and the democratic pedigree of the powers given to the judiciary under the HRA. But she has also not flinched from characterising the role of the judges, at least in some cases, as un-democratic, in the sense of contrary to majoritarian decision-making (what she calls a ‘procedural account of democracy’ (p. 367)); but none the less as valuable, even essential, as a necessary defender of the liberties of those who have been meted out some rough treatment in the pursuit of perceived majority interests over the last 20 years, perhaps most notably terrorist suspects and asylum seekers.

Constitutional theory · Constitutionalism · Deference · Democracy · Judicial activism · Judicial deference · Judicial restraint · Judicial review · Political science · Politics · Judicial and Constitutional Studies · Law