Contextual constitutionalism after the UK Human Rights Act 1998

I Introduction

The UK Human Rights Act 1998¹ (HRA) requires judges to review legislative and administrative action for compliance with the rights and freedoms entrenched in the European Convention on Human Rights (Convention). But unlike constitutional texts such as the Canadian Charter of Rights and Freedoms, the HRA does not empower the judiciary to strike down offending legislation. Instead, judges are directed, under section 3, that ‘so far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’ If a Convention-compliant interpretation is not possible, under section 4 judges may make a ‘declaration of incompatibility.’ While such declarations do not invalidate the legislation under review, they give notice to the elected branches that the legislation violates the Convention and that, as a consequence, the European Court of Human Rights (ECHR) may find the UK in breach of its international legal obligations. Sections 6–9 of the HRA provide for judicial review of administrative action and remedies, including compensatory remedies for injuries resulting from Convention breaches.

When the HRA was enacted, both supporters and detractors acknowledged its constitutional significance, though for different reasons. Admirers hailed it as ‘a quantum leap into a new legal culture of fundamental rights and freedoms’² purporting to establish ‘a higher order framework, a constitutional order.’³ Sceptics worried that the HRA embodied an unprecedented shift in political power from the elected branches to a democratically unaccountable judiciary.⁴

Roughly ten years on, Aileen Kavanagh’s Constitutional Review under the UK Human Rights Act and Tom Hickman’s Public Law after the Human Rights Act provide textured assessments of the HRA jurisprudence and its influence on public law. Both are firmly in the ‘admirer’ camp, offering sustained defences of review under the HRA from the perspective of sophisticated constitutional theories. Kavanagh’s book focuses on the HRA cases and the perennial tension between popular democracy and rights-based review protective of minorities. Hickman’s focus is how the HRA has reshaped UK public law. Their distinctive emphases repay close reading of both books, as do the originality, nuance, and rigour of their arguments. This article cannot do justice to the authors’ many contributions. I will pass over, for instance, Kavanagh’s insightful discussion of parliamentary sovereignty (ch 11), as well as Hickman’s persuasive critique of the failure of HRA review to impose procedural obligations when decision making affects Convention rights (ch 8). Nor will I attempt to relate their arguments to the wider literatures they engage.

My chief aim is to suggest that, despite differences on some substantive matters, both are committed to a constitutional theory I shall refer to as ‘contextual constitutionalism.’ The hallmark of this theory is the contention that constitutional review is legitimate only if it pays careful attention to the legal and institutional context within which it takes place. By ‘legal context,’ I mean the context for statutory interpretation constructed by legislation and its purposes, common-law principles and values, and international norms. ‘Institutional context’ refers to features of the elected and non-elected branches that make them more or less well suited to performing certain constitutional functions, such as adjudication and law making. We shall see that the authors’ commitment to contextual constitutionalism reflects a like commitment on the part of the courts. A corollary of this theory is that one-size-fits-all prescriptions are suspect, since they threaten to efface legally significant features of particular contexts. Thus Kavanagh is critical of commentators who argue in the abstract in favour of giving preference ex ante to review under section 3 of the HRA rather than under section 4, or vice versa (ch 5; e.g. 123). For her, only an inquiry sensitive to the legal and institutional context of the relevant case can determine whether review under section 3 or section 4 is appropriate. In a similar vein, Hickman abjures using proportionality in every case of judicial review of administrative action (ch 6; e.g. 183–4).

We begin with the...