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from left to right: Dr Aileen Kavanagh, Lord Macdonald of River Glaven QC, The Rt Hon Dominic Grieve QC MP and Daniel Greenberg (former Parliamentary Counsel)
Underpinning all controversies surrounding the protection of rights in the UK is a deeper controversy about the respective roles of the branches of government, and an account of the relationship between them.  Some take a court-centric approach, arguing that rights are the exclusive preserve of the courts.  Only courts can be expected to be proper guardians of rights in the constitutional order, defending them against invasions from the legislative branch.  Others argue that the courts and Parliament are rivals or adversaries, each vying for supremacy in the constitutional order on questions of rights. 

In her research – funded generously by the British Academy – Aileen Kavanagh develops an alternative account.  Rather than conceiving of the courts and Parliament as either entirely separate on the one hand, or as rivals on the other, she argues that we should view them instead as partners in a collaborative enterprise, where each branch has a distinct, but complementary, role to play.  This alternative view – based on partnership and collaboration – will result in a book entitled Rights in the Collaborative Constitution.

Relevant Publications

During her year as British Academy Mid-Career Fellow, Aileen Kavanagh published a number of papers which explore different strands of the idea of a collaborative constitution. These include the following:

Aileen Kavanagh, ‘What’s so Weak about Weak-Form Review? The Case of the UK Human Rights Act 1998’ (2015) 13 International Journal of Constitutional Law 1008

Aileen Kavanagh, ‘What’s so Weak about Weak-Form Review? A Rejoinder to Stephen Gardbaum’ (2015) 13 International Journal of Constitutional Law 1049.

Aileen Kavanagh, ‘A Hard Look at the Last Word’ (2015) 35 Oxford Journal of Legal Studies 825.

Aileen Kavanagh, ‘The Lure and the Limits of Dialogue’ (2016) 66 University of Toronto Law Journal 83.

Aileen Kavanagh, ‘The Constitutional Separation of Powers’ in David Dyzenhaus & Malcolm Thorburn (eds) Philosophical Foundations of Constitutional Law (Oxford, OUP, 2016).

Aileen Kavanagh (with Chintan Chandrachud) ‘Rights-based constitutional review in the UK: From Form to Function’ in John Bell & Marie-Luce Paris (eds), Rights-Based Constitutional Review – Constitutional Courts in a Changing Landscape (Edward Elgar, 2016).

Aileen Kavanagh, ‘The Role of Courts in the Joint Enterprise of Governing’ in Barber, Ekins & Yowell (eds) Lord Sumption and the Limits of the Law (Oxford, Hart Publishing, 2016).

Conference Presentations

Aileen Kavanagh presented her research findings at a number of conferences and seminars:

‘Legality and the Legislative Process’, Public Law Conference 2014, University of Cambridge, 14 September 2014.

‘The Role of Courts in the Joint Enterprise of Governing’, Conference on Lord Sumption and the Limits of the Law, Trinity College, University of Oxford, October 2014.

‘Parliament and the Courts: Protecting Rights in the Collaborative Constitution’, Study of Parliament Group Annual Conference, January 2015.

‘Judges and Parliamentarians: Partners in a Collaborative Enterprise’, Protecting Rights – Engaging Parliament - British Academy Conference, October 16th, 2015.

Aileen also visited the Joint Committee on Human Rights on a number of occasions, spoke to members and interviewed the Legal Advisor to the Committee, Murray Hunt, who is also a Visiting Professor in the Oxford University Law Faculty.  

Workshop

At the end of her Fellowship, Aileen Kavanagh organised a high-level workshop at St John’s College Oxford entitled ‘Protecting Rights – Engaging Parliament’.  This conference drew together a wide range of academics from across the world with key actors in the political and judicial branches of government. All interested members of the Oxford Law Faculty and postgraduate students were invited to attend this workshop and contribute to discussion.  Aileen presented a paper entitled ‘Judges and Parliamentarians: Partners in a Collaborative Enterprise’ where she outlined some of my research findings to date.

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