In this excellent comparative study of rights protection, Stephen Gardbaum argues that a ‘new model of constitutionalism’ has emerged from Commonwealth countries, representing a new approach ‘to structuring and institutionalizing basic constitutional arrangements that occupies the intermediate ground in between the two traditional and previously mutually exclusive options of legislative and judicial supremacy’.Footnote 1 It promises, he says, a ‘third way’: a ‘distinct third answer to the general question of how constitutionalism's core limits on governmental power should be institutionalized in a democracy’.
In any field the idea of a ‘third way’ is intrinsically appealing, raising the prospect of something transcendent that might take us beyond established ways of working and thinking, expanding our horizons and possibilities. But for anyone proposing such an idea, the challenges are great: is there something so truly distinctive about a new model that it warrants the label of a third way?
Gardbaum starts by clearly setting out the two established models. In the legislative supremacy model there are no constitutionally enshrined rights. Rights are instead ‘created and changed by the legislature on an ad hoc basis’ and ‘courts have no power to review legislation for infringing rights’. The alternative is judicial supremacy where there are constitutional limits on legislative power, typically referable to a codified bill of rights and the courts have the final say.
The new model—the third way—he says, ‘calls for the enactment of a bill of rights—although not necessarily one that imposes constitutional limits on the legislature—and its enforcements through the twin mechanisms of judicial and political rights review of legislation’. The model operates in three stages. First, there is mandatory pre-enactment political rights review where the legislature considers whether Bills are consistent with rights protections. The ‘gold standard’ here is the UK Parliament's Joint Committee on Human Rights. The second stage is weak-form judicial review that ‘decouples’ judicial review from judicial supremacy. Among the important functions of judicial rights review is that in ‘a relatively fact-specific, applied dimension [of] rights deliberation that contrasts with the legislative approach of generality … [it] addresses the risk of the under-enforcement of rights’. The third stage is subsequent political rights review in the form of legislative reconsideration. In this stage a legislature may choose to go against the views of the courts, though there should be neither routine use of that legislative power nor a failure to exercise the power at all. Of course, sensitive questions of politics, legitimacy and the rule of law will arise and Gardbaum sees the development of the legitimate use of such power as ‘a critical and urgent task for the new model’.
Having set out the theoretical case in the first half of the book, Gardbaum turns to practice. He takes five jurisdictions which have adopted bills of rights in the last 25 years: Canada, New Zealand, the UK and, in Australia, the state of Victoria and the Australian Capital Territory. In four thorough, systematic chapters he explains how rights protection and review has operated and measures each with respect to the extent they represent an instance of the new model. He completes the study with a concluding chapter that provides an overall assessment. A British scholar working in the US for the last two decades, Gardbaum appears equally at home in all the jurisdictions he examines and comparisons across the spectrum are made deftly. The substantive sweep is quite broad though. Inevitably, some of the most interesting and challenging aspects are in the analysis of how national security is protected at the expense of rights.
Comprehensive as the jurisdictional analyses are, a reader's view may well vary depending on one's familiarity with each. As an Australian, I might have expected to have seen more weight given to the federal protections of free speech, which he relegates to a footnote, or to the way political culture informs constitutional choices. In Australia there is no express protection for speech but since 1992 the High Court has implied into the Constitution a freedom of political communication which operates as a limit on legislative power.Footnote 2 This constitutionalization of free speech shapes rights-related debates about speech in Australia and informs wider debates and choices about the place of judicial supremacy in constitutional arrangements. The pull of a constitutionally conservative political culture—only 8 of 44 referenda have succeeded in Australia, with none passing since 1977—is acknowledged, but if the new model is to be pursued then political culture in any jurisdiction will be important. More generally, in any jurisdiction where the existing model is predominantly or solely one of legislative supremacy, there will inevitably be caution in moves towards judicial rights review; as Gardbaum rightly observes, it is easier to let the judicial power genie out of the bottle than to put it back in.
Working across several jurisdictions, one of the great challenges for Gardbaum is whether it is possible to theorize to the level of generality for which he aims or whether the differences in jurisdictions mean that the components of the model are more influential than the whole. The question of the extent to which the model is broadly applicable remains to be seen but Gardbaum makes an excellent case for developing constitutional arrangements with the comparative insights he offers.
This is a book that deserves a very wide readership. It is written and structured with beautiful clarity. It provides comparative points of reflection that should illuminate the adequacy (or otherwise) of rights protection processes and suggest alternatives or developments. However, while a compelling case is made for the emergence of an approach that is distinctive and distinguishable from the two archetypal models, is it so distinctive an approach that it represents a third way?
The very nature of the debates makes it difficult to establish a third way claim. Despite the distinctiveness of the model, the established conceptualisation of the debates is (as Gardbaum observes) that ‘there are still two, and only two, sides’. And in the new model with the final word falling to the legislature, it is difficult to think of the new model as transcending that division. Having said this, the fact the legislature has the final word does not mean that Gardbaum's new model is illusory, and nor does it render his new model liable to collapse (and he includes a discussion on what does and does not make the model collapse earlier in the book). However, it does appear to inescapably suggest that the model is ultimately one of political constitutionalism. Gardbaum himself concedes this could be one reading of the new model. His answer to that proposition is that such a reading inappropriately reduces the model to mere question of who has the final word and that if one looks further it will be apparent that the new model is novel because it ‘creates a different division between legislative and judicial power—granting greater power and responsibility to the courts for the protection of rights and a greater role for legal argument as a practical constraint on political decision-making’. But, with the final word resting with the legislature, it ultimately falls into the political constitutionalism camp.
In a different vein, a counter to the argument that the new model is merely a version of political constitutionalism is, he argues, that it is also a version of legal constitutionalism. In this way it ‘suggests, or creates, a constitutionalism continuum’. Gardbaum's argument that there is a continuum and his ability to make it visible are both appealing and convincing, but it does not follow that the third way claim is warranted. Still, the new model is sufficiently novel (at least in its strongest forms where legislative and judicial powers are used well) that it is meaningfully distinct from the traditional form of political constitutionalism and it should be identified as such. Any number of labels might be chosen for it. It strikes me as a being a ‘resistant model’ of political constitutionalism, resistant in the sense that it resists political tendencies towards expediency, generality and under-enforcement of rights.
Any conclusion about the extent to which Gardbaum's case for the existence of a third way is or is not compelling should not diminish the significance of this book. It is a valuable contribution to the literature and should become a key point of reference from which the theory and practice of rights protection and constitutionalism might continue to be understood.
