Constitutional Review under the UK Human Rights Act

Provides a critical and theoretically informed analysis of the leading case-law on the compatibility of primary legislation with the HRA.

Aileen Kavanagh (Author)

9780521682190, Cambridge University Press

Paperback, published 7 May 2009

470 pages
22.8 x 15.1 x 2.2 cm, 0.74 kg

'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

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.

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.

Subject Areas: Constitutional & administrative law [LND], Jurisprudence & philosophy of law [LAB]