Political Constitutionalism and the Human Rights Act
I-Con, Vol. 9, pp. 86-111, 2011
31 Pages Posted: 7 Feb 2011 Last revised: 16 Oct 2011
Date Written: February 4, 2011
Many commentators portray the Human Rights Act (HRA) as marking the demise of Britain’s ‘Political Constitution’. This article argues otherwise. The HRA need not hand over supremacy for rights adjudication from the legislature to the courts. First, the HRA brings ‘rights home’, strengthening in certain respects domestic rights instruments vis-à-vis the ECHR. Second, sections 19 and 4 of the Act maintain and potentially enhance Parliament’s scrutiny of rights and its sovereignty over the courts in defining and upholding them. Finally, section 3 and rights-based judicial review more generally can be assimilated to a system of ‘weak’ review whereby courts defer to the legislative ‘scope’ determined by Parliament and are restricted in their independent determinations to the judicial ‘sphere’ of the fair conduct of the case at hand. Such ‘weak review’ has always been necessary. However, the HRA potentially reinforces judicial deference by giving it a stronger statutory basis. That the HRA could strengthen rather than undermine political constitutionalism need not mean it does or will do. However, the implication of this article is that it ought to be regarded as so doing, with the judiciary acting accordingly.
Keywords: Constitutionalism, Democracy, Rights, Judicial Review, UK Human Rights Act, ECHR
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