Contextual Constitutionalism after the UK Human Rights Act 1998

Abstract

The UK Human Rights Act 1998 (HRA) gives UK courts enhanced interpretive powers under which they are required to construe domestic legislation, if possible, so that it that conforms to the European Convention on Human Rights. Building on interpretive techniques and values inherited from common law constitutionalism, the courts conduct review under the HRA with sensitivity to the legal and institutional contexts in which the impugned decision was made. This is the core of contextual constitutionalism, a constitutional theory that explains review under the HRA.

In separate engaging books, "Constitutional Review under the Human Rights Act" and "Public Law after the Human Rights Act," Aileen Kavanagh and Tom Hickman provide insightful commentary on jurisprudence arising from the HRA. Kavanagh focuses on the tension between popular democracy and minority rights protection, while Hickman discusses the way the HRA has reshaped UK public law. This review suggests that both authors are committed to contextual constitutionalism. The authors’ discussions of two related doctrines -- the separation of powers and judicial deference -- reveal their commitment to the theory. If their books share a weakness, it is a reluctance to explain clearly the relationship between human rights and legality.

Keywords: Human Rights Act, Constitutional Law, European Convention on Human Rights, Judicial Review, Separation of Powers, Judicial Deference, Common Law Constitutionalism, Pluralism, Human Rights, Legality