In this excellent book, Aileen Kavanagh argues that the protection of human rights and other constitutional values has to be a collaborative endeavour. It needs the cooperation of both the courts and the constitution’s political branches (government and Parliament). Constitutional rights are their shared responsibility. It seems many constitutional lawyers have been asking the wrong questions: Is Parliament, or are the courts, ultimately superior? Which has the final say? Does Parliament “remain sovereign” (in the post-Human Rights Act 1998 era)? Kavanagh deplores lines of thought that assume (and inquire into) the “hegemony and supremacy of one branch over another” (p. 1). The assumption imposes a false dichotomy. It is false because in practice, institutions (usually) cooperate with mutual respect and restraint. They are not competing for dominance. And, Kavanagh argues, this is not merely desirable but essential for a stable and flourishing constitutional order.
The Collaborative Constitution ably proves this descriptive claim with case studies. Courts and government usually do treat each other with mutual respect. Relations between the central constitutional actors embody the “seemingly old-fashioned virtues of moderation and self-restraint, comity and compromise, civility and sensitivity, forbearance and fair play” (p. 404). Those familiar with the quarter-century of the HRA’s history can think of some counter-examples. Flash-points have included the Belmarsh case (A v Secretary of State for the Home Department [2004] UKHL 56) (“war on terrorism” legislation), the decision that life membership of the sex-offenders’ register violated Article 8 ECHR, and the prisoner-voting saga. Kavanagh analyses these episodes (ch. 12). She finds that notwithstanding occasional outspoken politicians – their rhetoric perhaps addressed to the popular media, but tellingly criticised by other parliamentarians – the Government’s actions have always accepted and implemented the judicial decisions, if reluctantly.
Even if these events show tension between courts and politicians over particularly emotive issues, to focus on them would underemphasise “the countless times the government does not rail against an adverse court ruling with vituperative rhetoric” (p. 405). One wonders whether the common lawyer (or academic lawyers) may be prone to mislead themselves by concentrating on “Great Cases” that are quite unrepresentative of quotidian judicial review. (Holmes J. warned: “Great cases like hard cases make bad law … because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment”: Northern Securities Co. v United States, 193 U.S. 197, 400–01 (1904); readers may compile their own lists.)
The collaborative attitude is vitally important, in Kavanagh’s view. She condemns one-sided praise for either law or politics (ch. 1). Ronald Dworkin’s Judge Hercules, a “mythical demi-god of unrivalled moral and intellectual prowess” typifies the former (p. 39), but is mirrored by Jeremy Waldron’s riposte praising “dignified” legislatures nobly battling an unelected “ermined elite” (p. 1). It is not simply that all such encomia are egregiously partial (i.e. both incomplete and committed). They share the polarising premise that constitutional actors are either heroes or villains, “locked in an embrace of eternal and inevitable opposition” (p. 228), fighting to become “sole and supreme guardian of rights” (p. 36). For Kavanagh, this is downright unhelpful. There is no either-or choice: law or politics? Courts and the political branches play different and complementary roles: the Constitution needs both (ch. 3). Kavanagh cites Jackson J.’s dictum about institutions’ “separatedness but interdependence, autonomy but reciprocity” (Youngstown Sheet and Tube Co. v Sawyer 343 U.S. 579, 635 (1953)). In result, to quote Lord Thomas C.J.: “the Executive, Judiciary and Parliament cannot but work together” (p. 98). Working together requires comity. Institutions will sometimes healthily disagree, but mutual criticism needs to remain respectful and restrained. By contrast, “antagonism, hostility, and open confrontation” is corrosive (p. 110), threatening to spark “cycles of escalating constitutional brinkmanship” (p.129).
For the sceptic who insists on asking (pace Kavanagh) “but which institution is supreme?”, it might appear (implicitly) that it is the courts. That is one reading, anyway, of Kavanagh’s demolition of the “democratic dialogue” theory of the HRA (chs. 2, 8, 11). Faced with an incompatible statute, the courts normally use section 3, HRA to rewrite it compatibly with the ECHR. (Indeed, this is typically the Government’s preferred solution, when it intervenes in such cases.) Only rarely does the court hold that a compatible reading would exceed the limits of “possible” reinterpretation and issue a section 4 declaration of incompatibility. If section 4 is the HRA’s “dialogic device par excellence” (Poole quoted at p. 250) it seems disappointingly underutilised. Moreover, whenever such declarations are issued, Kavanagh identifies a nascent constitutional convention demanding governmental and parliamentary compliance (ch. 12). Evidence: both the perfect record of compliance and innumerable politicians’ statements that government and Parliament are bound to take remedial action to implement judgments. Not simply to avoid the political costs of failing to do so (which would have to be explained to Parliament’s Joint Committee on Human Rights), nor the near-inevitability of condemnation by the European Court in Strasbourg. The fundamental reason for the attitude of compliance, Kavanagh persuasively argues, lies deeper.
A court’s judgment is always seen as binding and authoritative – as it must. The Government can be trusted to comply with judgments, even “mere” declarations. If this were otherwise, it would undermine the practice across public law, where institutional trust enables courts to “forbear from making coercive orders against the Government [and] make declaratory orders instead” (p. 257 quoting Craig v HM Advocate [2022] UKSC 6, at [46] (Lord Reed)). The “dialogue” theory was always, therefore, misconceived. It postulated that a senior court’s formal declarations of incompatibility with the ECHR might be ignored or dismissed, as if nothing but conversational suggestions. (Indeed, R (Rusbridger) v Attorney General [2003] UKHL 38 shows deep judicial hostility to claims brought to initiate “conversations” about “hypothetical, premature or academic questions”: a declaration of incompatibility was refused because “Courts are neither a debating club nor an advisory bureau” (at [35] (Lord Hutton).) The section 4 “declaration of incompatibility” enjoys the same force as other judicial declarations. It would be improper for the Government (or Parliament) to reject a court order simply because it disagreed. Only extraordinary circumstances could justify that constitutionally dangerous response. It is mistaken to describe the HRA as a “weak” form of rights protection: although “nominally hortatory and theoretically advisory, in reality it has proved to be a much stronger form of remedy than first appears, not radically dissimilar in form and effect to judicial strike-downs under ‘supreme’ Bills of Rights” (p. 260).
When a court issues a formal order, then, it expects to be obeyed. One is put in mind (this is not in Kavanagh’s book) of the apocryphal story of Field Marshal the Duke of Wellington’s first cabinet meeting, as prime minister. “I gave the fellows their orders”, the duke afterwards complained about his ministers, “and they wanted to sit there and discuss them!” This is simply not done.
However, and crucially, the courts are well aware of their powerful authority. For this reason, Kavanagh explains, judges have been properly circumspect in deciding about legislation’s compatibility with human rights standards. That includes moderating the intensity of “proportionality” scrutiny (“the lingua germanica of rights-based review”, p. 287), albeit proportionality may still “cut deep into legislative priorities at times” (p. 294). Kavanagh gives a full account of the factors considered in ‘calibrating’ the standard of judicial review (ch. 9). Of course, it remains fundamentally an exercise in reviewing the primary, political, decision maker. It is obviously insufficient that the court simply disagrees on the merits and substance. (Even Dworkin accepted that to place the primary power of government in judicial hands would “extinguish” democracy: quoted p. 268.)
Vital to this calibration exercise are questions about comparative institutional suitability and competence. Refreshingly, Kavanagh defends the virtues of Government (ch. 4). It is not the “evil” that public lawyers often assume. Government alone has the “energy” and the electoral legitimacy to drive necessary social change. Moreover, institutions within the executive constrain its mighty powers. Kavanagh notes, for example, the influence of the Law Officers and departmental legal advisers, of Parliamentary Counsel drafting Bills to implement government policies (“internal guardians of values … integral to the legal order”, quoted p. 133) and the expertise (and “ballast”) of the permanent civil service. All this provides “intra-Executive checking” (p. 145). Understanding the constraints on (and within) government weakens the case for judicial activism.
Parliament might not be well-suited to governing the country itself (p. 151, quoting J.S. Mill). But Parliament scrutinises the Government and provides another important locus for human rights and constitutional values. Section 19, HRA requires ministerial statements about proposed legislation’s compatibility (or otherwise) with the ECHR. Kavanagh’s case studies show how section 19 has concentrated the attention of the lawmaking process. Ministerial statements have fulfilled Lord Irvine L.C.’s ambition that any “departures” from the ECHR should be “conscious, reasoned … and not the product of rashness, muddle or ignorance” (p. 351). As anticipated, statements of in-compatibility have been extremely rare. Kavanagh’s example is the Communications Bill 2002 (prohibition on paid political advertising), following VgT v Switzerland (2001) 34 E.H.R.R. 159. The proposed broadcasting ban enjoyed universal, cross-party support in Parliament and also the Independent Television Commission’s and Electoral Commission’s. Kavanagh praises the careful, conscientious scrutiny of ECHR-compatibility by Government, Parliament (including the JCHR) and other advisory bodies. This “serious Executive and parliamentary engagement with rights” (p. 198) weighed heavily when the House of Lords unanimously upheld the ban in Animal Defenders International v Secretary of State for Culture, Media and Sport [2008] UKHL 15 (confirmed (narrowly) in ADI v United Kingdom (2013) 57 E.H.R.R. 21: see e.g. concurring opinion of Judge Bratza at [12]). For Kavanagh, the episode shows “mutually responsive and mutually respectful” relations between the judicial and political branches of government (p. 201).
But does this example suggest that courts will respect legislation provided that the political branches have strived to comply with European Convention law, namely reasoning in the approved judicial manner? In other words, that the style of political debate must be “legalistic”? Kavanagh rejects such criticisms (ch. 6). While section 19 and the JCHR certainly focus on the ECHR’s legal requirements, it is exaggerated to suggest government policy is “distorted”, let alone that political debates have become “cringing” imitation of judicial reasoning. Far from “debilitating” political debate on human rights (i.e. politicians ignoring such questions, as the exclusive concern of the court), the HRA gives such questions greater “salience”. The courts have been a significant “catalyst” for political debate. Kavanagh describes (ch. 10) the variety of techniques for courts to “signal” human rights problems – and potential solutions – to government and Parliament. Through hints, alerts, pleas and warnings, the judges “coax” as well as command. (Kavanagh comments that this is a more active if equally subtle judicial approach than Bickel’s famous “passive virtues” – but there is considerable common ground between them: pp. 327–29.) If the political branches decide against certain policies which would (they apprehend) probably not survive legal scrutiny, that is not undue submission to “a lawyerly elite”. It is simply “prudent” (p. 192).
The sceptic might object here that prudent submission is still submission and one commentator’s “prudence” is another’s “obeisance”. Do the political branches really have a choice? More incendiary than the Communications Bill was 2023’s Illegal Migration Bill (mentioned as the only other example of certified incompatibility under s. 19 HRA). As subsequently enacted, this defied the ECHR outright by expressly disapplying s3 HRA (Illegal Migration Act 2023, s. 1(5)). Still more trenchant defiance, after Kavanagh’s book was published, appeared in the Safety of Rwanda (Asylum and Immigration) Act 2024, where Parliament felt it necessary to declare it is “sovereign” and the validity of its Acts “is unaffected by international law”: section 1(4). (This, effectively, was overruling Rex (AAA (Syria)) v Home Secretary [2023] UKSC 42.) The Rwanda Bill had been criticised for (ironically) jeopardising parliamentary sovereignty, since judges have suggested sovereignty’s limits might be exceeded if Parliament ever “did the unthinkable” (Sir Geoffrey Cox KC M.P. (former Conservative Attorney General) et al., Daily Telegraph, 11 December 2023). Professor Mark Elliott argued that the Bill represented “a serious constitutional failure” because the UK’s unwritten constitutional tradition requires “self-restraint” from Parliament as well as from the courts (Daily Telegraph, 12 December 2023). This criticism is fully consonant with Kavanagh’s thesis.
We will never know how the courts would have reacted (retaliated?). The incendiary device has been defused, following the election in July 2024 of a Labour Government opposed to the Rwanda asylum-processing policy and committed to the Blairite HRA settlement (cf. Lord Hermer A.G.’s Bingham Lecture, “The Rule of Law in an Age of Populism”, October 2024). Political self-restraint is back in fashion.
Kavanagh comments that while comity’s obligations are intrinsically “undramatic” they are also “deeply demanding” (p. 13). They have come under strain as never before through “populist” governments. If this imperils the unwritten, convention-based tradition of the British constitution, it would be a matter for regret. Kavanagh explains her British focus. The UK’s unusual constitutional settlement should not be written off as an anomaly. Rather, it is exemplary. All constitutions have at their core the understandings, attitudes and beliefs of the key institutions and actors. The UK is unusually explicit and open about this – given the absence of a document distractingly labelled “The Constitution” (a purportedly exhaustive statement of constitutional values). Kavanagh notes Wojciech Sadurski’s reflection that the crisis in judicial-political relations in Poland shows “the relative irrelevance of formal constitutional design” (p. 411). While, as Kavanagh accepts, good constitutional architecture is beneficial, it is insufficient: if the constitutional norms that comprise the “rules of game” should be rejected, “not even the most intricate and exquisite scheme of checks and balances … can compensate for their lack” (p. 412). A constitution comprises considerably more than “parchment barriers” (p. 17). “At the deepest level, all constitutions ultimately rest on a commitment by the key constitutional actors to abide by the norms of constitutional democracy under the rule of law” (p. 17).
In my opinion, this is an important and original book. Aileen Kavanagh’s command of the literature is evident from the bibliography which alone runs to 68 pages. The learning is lightly worn, for Kavanagh’s thesis is advanced in lively and attractive prose. The Collaborative Constitution challenges a number of fashionable scholarly positions. The “dialogue” theory of “weak” judicial review under the HRA (and the Canadian Charter of Rights, also discussed in the book). The judge-worship of Dworkin’s many public law followers – and its equal and opposite reaction in Waldron’s praise of legislatures. Kavanagh articulates a deep implicit truth: values matter. It would be easy to scoff at Lord Hennessy’s wryly labelled “Good Chaps Theory of Government”. Dicey’s emphasis on conventions as “constitutional morality” now sounds unbearably old-fashioned. But attitudes committed to preserving inter-institutional comity are at the centre of a successful constitution. Focusing upon the long, peaceful evolution of the British political settlement following 1689’s “Glorious Revolution” should, perhaps, return to the repertoire of public law teaching. Constitutional drama means failure. The dullness of settled constitutional arrangements, resolving legal and disputes by universally-accepted processes, is a paramount virtue (if an unexciting one). Ultimately, a constitution “is only enabled to exist by the forbearance of those [bodies] among whom [governmental] power is distributed … [and] each must exercise a wise moderation” (Lord John Russell quoted pp. 111, 404).
