REVIEWS: Constitutional Review under the UK Human Rights Act by Aileen Kavanagh
| Date | 01 September 2010 |
| Published date | 01 September 2010 |
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00823_1.x |
tical authority to enable it to better scrutinise and restrain the government. As
well as urging for electoral reform to create a more representative Parliament,
Ewing makes the interesting suggestion that the reports of the JCHR should be
givena more important status,either by requiringthem to be formallyconsidered
during the legislative process or, more radically, by requiring legislation that the
JCHR believes violates human rights to be passedwith a special majority (277). In
making this case for greater parliamentary scrutiny, Ewing positions himself
against what he calls ‘the juristocracy (and its pom-pom waving cheerleaders in
the lawschools)’ (285). But why mustan enhanced role forParliamentcome at the
expense of the courts? Whydoes Parliamentdeserve all the praise?
Questions such as these usually prompt two distinct (though not mutually
exclusive) answers: thereis an argument from e¡ectivenessand an argument from
legitimacy. Having documented throughout Bon¢re of t he Liberties the ine¡ective-
ness of both the courts (Strasbourgexcepted) and Parliament, Ewing shifts in his
conclusion to an argument about legitimacy. The problem, however, is that he
o¡ers only super¢cial arguments to support his conclusion that the courts lack
legitimacy. The more one reads, in this book, about the ine¡ectiveness of the
courts to enforce Convention rights under t he HRA, the more one becomes con-
vinced thatthe answer lies in ensuring thatthe domestic courtsbecome more like
Strasbourg. Perhaps that is undesirable, perhaps that is illegitimate. But Ewing
does not o¡er good enough re asons, possibly because to do so might further ill u-
minate an apparent contradiction in his position, which is to criticise the courts
for notdoing something thathe does not want themto do.This otherwise admir-
able book su¡ers as a result.
James A. Gran t
n
Aileen Kavanagh, Constitutional Review under the UK Human Rights Act,
Cambridge: Cambridge University Press, 2009,455 pp, pb d31.99.
Is an Act of Parliament constitutional? To ask the question is to presuppose an
audience.Tothe Canadian orAmerican lawyer, the question anticipates an evalua-
tion of the Act against the written constitution and the jurisprudence of the
Supreme Court interpreting andbuilt up around and beyond the text.The lawyer
queries whether the Act, despite having been passed by Parliament, fails to be law on
account of its being unconstitutional. The Act will be presumed valid, but the
authority of courts to evaluate its const itutional conformity makes that presump-
tion provisional rather than conclusive. In the United Kingdom, the same ques-
tion prompts a di¡erent inquiry. The British lawyer may situate the Act within
the genre of constitutional statutes, alongside the Parliament Acts 1911 and 1949,
the Freedom of Information Act, and ^ the topic of this review ^ the Human
Rights Act. In turn, the British lawyer may evaluate whether the Act of Parlia-
ment coheres with Britain’s constitution by situating Parliament’s action within
n
Universityof Oxford
Reviews
887
r2010The Authors. Journal Compilation r2010The Modern Law ReviewLimited.
(2010)73(5) 883^902
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