Constitutional Review under the UK Human Rights Act
Constitutional Review under the UK Human Rights Act
Under the Human Rights Act, British courts are for the first time empowered to review primary legislation for compliance with a codified set of fundamental rights. In this book, Aileen Kavanagh argues that the HRA gives judges strong powers of constitutional review, similar to those exercised by the courts under an entrenched Bill of Rights. The aim of the book is to subject the leading case-law under the HRA to critical scrutiny, whilst remaining sensitive to the deeper constitutional, political and theoretical questions which underpin it. Such questions include the idea of judicial deference, the constitutional status of the HRA, the principle of parliamentary sovereignty and the constitutional division of labour between Parliament and the courts. The book closes with a sustained defence of the legitimacy of constitutional review in a democracy, thus providing a powerful rejoinder to those who are sceptical about judicial power under the HRA.
- Clarifies how the Human Rights Act has modified traditional doctrines of statutory interpretation through in-depth examination of the leading case-law on the compatibility of primary legislation with Convention rights
- Addresses key questions of constitutional theory underlying the application of the HRA to primary legislation, such as the idea of judicial deference, proportionality, parliamentary sovereignty, the separation of powers and the legitimacy of constitutional review in a democracy
- Contributes to the academic debate about the nature of UK public law and the role of the courts within it by providing a sustained riposte to those who claim that judges' powers to review primary legislation for compliance with Convention rights are illegitimate
Reviews & endorsements
'This excellent book should be on the required reading list of every human rights syllabus that aims at getting under the skin of the Human Rights Act (HRA), understanding fully where it fits in Britain's system of government and wrestling with the complexities of terminology, interpretation and proper application to which it has given rise. … an indispensable guide to the first 10 years of the HRA, by the finest scholar of the first generation to have cut their academic teeth on the measure.' Professor Conor Gearty, Public Law
'Aileen Kavanagh's book adds to [the] body of scholarship through a particularly skilful analysis of the methodology that underlies judicial decision-making in terms of the HRA. … her work probably qualifies as the most comprehensive of its kind to date. For this admirable feat the author deserves praise.' European Constitutional Law Review
'Constitutional Review under the UK Human Rights Act is a most significant contribution to the understanding of the exercise of the powers conferred on the judiciary in the United Kingdom by the HRA. It is likely to acquire the status of a book that no serious discussion of human rights law in the United Kingdom, or, for that matter, in Australia, can afford to ignore … it is a remarkable achievement.' The Hon Justice Pamela Tate, Australian Journal of Administrative Law
'In this review, I have managed only to touch upon the wealth of legal analysis, historical scholarship, and philosophical argument contained within Kavanagh's impressive book. Suffice it to say that those who would like to learn something - or a bit more - about the status of constitutionalism outside North American borders and who relish sophisticated, balanced philosophical analysis informed by a thorough understanding of the relevant legal practice would be well advised to read this book.' Professor Wil Waluchow, Constitutional Commentary
'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 … [This is] an excellent book - one that is essential reading for anyone who wants to acquire a serious and sophisticated understanding of constitutional review under the Human Rights Act.' Human Rights Law Review
Product details
May 2010Adobe eBook Reader
9780511730528
0 pages
0kg
This ISBN is for an eBook version which is distributed on our behalf by a third party.
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Table of Contents
- 1. Introduction
- Part I. Questions of Interpretation:
- 2. Sections 3 and 4 HRA: the early case-law
- 3. Interpretation after Ghaidan v. Mendoza
- 4. Section 3(1) as a strong presumption of statutory interpretation
- 5. The interplay between s.3 and s.4
- 6. The duty of the courts under s.2(1)
- Part II. Questions of Deference:
- 7. The nature and grounds of judicial deference
- 8. Deference in particular contexts
- 9. Proportionality and deference under the Human Rights Act
- Part III. Questions of Constitutional Status and Legitimacy:
- 10. The nature and status of the HRA
- 11. Parliamentary sovereignty and the HRA
- 12. Justifying constitutional review
- 13. Constitutional review and participatory democracy
- 14. Conclusion.
