How Successful and Distinctive is the Human Rights Act? An Expatriate Comparatist's Assessment
| Author | Stephen Gardbaum |
| Published date | 01 March 2011 |
| DOI | http://doi.org/10.1111/j.1468-2230.2011.00843.x |
| Date | 01 March 2011 |
How Successful and Distinctive is the Human Rights Act?
An Expatriate Comparatist’s Assessment
Stephen Gardbaum
n
This article ¢rst assesses the success and distinctiveness of the Human Rights Act 1998 from the
perspective of its status as an exemplar of ‘the new Commonwealthmodel of co nstitutionalism.’
This new, intermediate model attempts to straddle the dichotomyof parliamentary sovereignty
and judicial supremacyby protecting rights through a reallocation of powersbetween courts and
legislatures that brings them into better balance than under either of these two traditional, more
lopsided models. As partof its assessment, the article critically examines an in£uential strand of
commentary claiming that in practice the HRA has proven to be less distinctive fromUS-style
constitutionalism than initially claimed or hoped. The seco nd part of the article seeks to contri-
bute to current debates about reform of the HRA by proposing ways to address its main struc-
tural weaknesses, especially the problem of remedial distortion.
As the tenth anniversary of its operative e¡ect recedes into the past, the political
review of a Commission to be established by the new coalition government.
The juxtaposition of this moment, both looking backover a decade of experience
and looking forward to possible replacement or reform, makes it a natural time
to take stock and assess if there are successes deserving retention and weaknesses
calling for change.
This task also re£ects un¢nished business of a sort on the part of the author
because soon after it came into e¡ect, I published an article identifying and
presenting the case for the HRA as a key part of a more general experiment by
certain Commonwealth countries to forge a new third model of constitutional-
ism.
1
This model is new in that it attempts to straddle the previous dichotomous
choice between parliamentary sovereignty as traditionally conceived in these
countries and constitutional or judicial supremacy as in jurisdictions such as Ger-
many and the United States.
2
Although as an attempted co ntribution to general
constitutional theory, the case that I presented was primarily a normative one,
parts of it depended on or assumed certain things about how the model would
n
MacArthur Foundation Professor of International Justice and Human Rights, University of Califor-
nia at Los Angeles (UCLA)School of Law. Iwould like to acknowledge the helpful responses to pre-
sentations of some of the ideas in this article at the 2009 Protecting Human Rights Conference in
Sydney, the Regulatory Networks Research School of ANU, the University of Melbourne Law
School’s Ce ntrefor Comparative Constitutional Studies and the University of Toronto Law Faculty’s
Constitutional Roundtable.Thanks also to Alison Youngand two anonymous reviewers for valuable
comments on a previous draft of this article.
1S.Gardbaum,‘The New CommonwealthModel of Constitutional ism’(2001)49 AmericanJournal of
ComparativeLaw 707.
2In the UK, the increasingly common dichotomy of political and legal co nstitutionalism covers
much of the same ground, although legal constitutionalism is of course not l imited to US-style
judicial supremacy.
r2011The Author.The Modern Law Review r2011The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(2) 195^215
operate in practice. Nearly ten years of experience and sustained scholarly atten-
tion provide some basis for a preliminary assessment of this important part of the
general experiment.
Although evaluations of the HRA during its ¢rst decade have ranged across
the full spectrum of possible positions from futility to utility, from too weak to
too strong, one increasi nglycommon s trand of commentary is that in practice the
HRA has proven tobe less distinctivefrom US-styleconstitutionalism than initi-
ally claimed or hoped; that it has created what might be thought of as de facto
judicial supremacy. This assessment posits a major gap between form and sub-
stance, theory and practice, or between how the HRA seems and what it really
is. As a descriptive claim, it is also the common starting point for two opposite
and more normative overall evaluations of the HRA’s success or failure. So for
those who hoped or claimed that the HRA institutionalized, and was justi¢ed
as, an intermediate model of constitutionalism, rendering or accepting this prac-
tical verdict amounts to a major sourceof disappointmentthat raises serious ques-
tions about the possibility of cabining judicial power once released from the
bottle of traditional parliamentary sovereignty.
3
By contrast, to tho se for whom
judicial supremacy is normatively appealing as necessary for the adequate protec-
tion of rights, this s hedding of the outer ski n of ‘weak-form’ judicial review
4
is a
welcome and justi¢ed development and points to the success of the HRA.
5
In
other words, the HRA is successful largely because it is not distinctive.
This article has two connected aims, e¡ected in its successive parts. The ¢rst is
to present my own systemically and comparatively tinted view of where things
stand in terms of both the success and distinctiveness of the HRA, and in the
process to provide a critical examination of this increasingly common and in£u-
ential judicial supremacist strand of commentary. Although, inevitably, some of
this discussion revisits what is by now fairly well-trodden territory, my hope is
that the article’s perspective and vantage point bring something fresh to the ana-
lysis. The second aim is to contribute to the current political and legal debates
aboutreform of the HRAby suggestingways to address the main problems iden-
ti¢ed in the ¢rst part and so to enhance both its ^ or its successor’s ^ performance
and intermediate character,assuming that the general legal statusof any new mea-
sure remains the same.
3As stated here,th is viewi s a compositerather than a speci¢cally attributable one, putting together
and perhaps pushing to an extreme position, the reactions of several commentators, including
J.H iebert,‘NewConstitutional Ideas: Can New Parliamentary Models Resist Judicial Dominance
When Interpreting Rights?’ (2004) Texas Law Review 1963; D.Nicol,‘The Human Rights Act and
the Politicians’ (2004) Leg Stud 451; and, in the New Zealand Bill of Rights Act context,
G. Huscroft,‘Civil Remedies for Breach of the Bill of Rights’ in P. Rishworth, G. Huscroft,
S. Optician, R. Mahoney (eds), The New Zealand Bill of Rights (Melbourne: Oxford University
Press, 2003)837.
4Mark Tushnet introduced the terminology of ‘strong-form’ versus ‘weak-form’judicial review to
distinguish certain newer forms of constitutional review, including (what I term) the new Com-
monwealth model,from traditional judicial supremacy. M.Tushnet,‘Alternative Forms of Judicial
Review’(2003) 101Michigan Law Review 252.
5Although her normativestance is subtle and mostly implicit, I interpret Aileen Kavanagh as gen-
erally approving of what she describes as the HRA’s lack of distinctiveness in practice as a form of
constitutionalism. A. Kavanagh, Constitutional Review underthe UK Human Rights Act (Cambridge:
Cambridge UniversityPress, 2009) 416^421.
How Successful and Distinctive is the Human Rights Act?
196 r2011 The Author.The Modern Law Reviewr2011The Modern Law Review Limited.
(2011) 74(2) 195^215
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