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Constitutional Review Under the UK Human Rights Act – Book Review

Constitutional Review Under the UK Human Rights Act – Book Review

Author: Aileen Kavanagh

Publication date:  7 May 2009

Publisher: Cambridge University Press

If any doubt remained about the significance of the Human Rights Act 1998 (HRA) in terms of the British constitution, this book surely silences any lingering scepticism. The result of a sustained academic endeavour, which involved tackling head-on the legal and political philosophy of academic titan Jeremy Waldron, Kavanagh exercises every page of her book in an effort to construct and defend an innovative interpretation of the HRA.

The text itself, counter to the usual criticism levelled at academia, prides itself on being rooted in reality. Indeed, Kavanagh hangs her argumentative hat on the idea that many of the arguments frequently made about the HRA rest on ideas that are so ‘remote’ from our political reality that we ought to significantly discredit their worth and opt for a new approach. However, anyone familiar with Kavanagh’s work or the academic fall-out from the HRA, will recognise that the centrepiece of this work is undoubtedly Kavanagh’s attempt to justify the ability of judges to review legislation (a practice also known as ‘constitutional review’). Whether you agree with this part of her thesis or not, and I retain my own doubts, through this text and the arguments within it, Kavanagh has managed to shoehorn herself into the fundamental debate about who should decide rights disputes – elected legislators or the judiciary. Kavanagh’s deft movements from this fundamental debate to the intricacies of the sub-sections of the HRA, alongside her unremitting and admirable dedication to clarity, ensure the reader is never devoid of understanding the impact of each upon the other. Beyond the more ostensibly argumentative parts of the book, Kavanagh’s account of the development of the law under the HRA is the most detailed, accurate and lucid I have read.

This text is everything an academic monograph ought to be, but the book itself stands so much taller than that. Beyond its academic innovation, Kavanagh’s approach would not only inform, but provoke a response from reader. To those who already think themselves familiar with the HRA and its constitutional impact, this book offers innovative new perspectives. For those new to, or less acquainted with, the HRA, this book offers a clear guide to the British means of protecting fundamental rights and how it fits into our constitution. Moreover, anyone unsure as to how provocative, modern legal scholarship ought to look would benefit immeasurably from delving into a copy of this book.

Joseph Tomlinson is a third year LL.B Law student at the University of Manchester interested in pursing an academic and practice career within public law (particularly administrative law). He is also currently President of the Manchester University Bar Society.

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