The Human Rights Act and Juridification: Saving Democracy from Law

DOI10.1111/j.1467-9256.2010.01371.x
Published date01 June 2010
Date01 June 2010
AuthorFergal Davis
Subject MatterResearch and Analysis
Research and Analysis
The Human Rights Act and
Juridification: Saving Democracy
from Lawponl_137191..97
Fergal Davis
Lancaster University
The Human Rights Act (HRA) 1998 s. 4 declaration of incompatibility was designed to preserve and
maintain the supremacy of parliament and thereby reinforce the superiority of the democratic
actors within the UK constitution. Despite this, the author will illustrate a process of juridification
the replacing of politics with the formality of law and legal decisions and will argue that this has
undermined the protection of civil liberties and the control of the executive in the UK. The
strengthening of democracy through a genuine ‘declaration of incompatibility’ rather than the
current de facto judicial strike-down power will be advocated.
Introduction
The Human Rights Act (HRA) 1998 allows citizens to assert their rights under the
European Convention of Human Rights (ECHR) before the UK courts. Under s. 4 of
the HRA, all UK courts above the High Court have the power to determine that an
Act of Parliament is ‘incompatible’ with the HRA. Such a declaration does not
invalidate the Act of Parliament. Following a s. 4 declaration, s. 10 of the Act
provides that a minister of the crown ‘may by order make such amendments to the
legislation as he considers necessary to remove the incompatibility’ the minister
is not compelled to act. The presumption exists that if the minister failed to rectify
the incompatibility, it would then be an issue for parliament.
‘[The] genius [of the declaration of incompatibility] lies in the way in which it
deliberately undermines its own authority, inviting the political back in to control
the legal at just the moment when the supremacy of the legal discourse seems
assured’ (Gearty, 2006, p. 95).
This retreat from the ‘supremacy of the legal discourse’ is respectful to A.V. Dicey’s
theory of parliamentary sovereignty (Dicey, 1959) and is designed to avoid ‘the
judicialisation of politics; and the politicisation of law’ (Phillipson, 2007). Despite
parliament’s attempt to limit the role of the courts to ‘courteous requests for
conversation, not pronouncements of truth from on high’ (Gearty, 2006, p. 96)
there has been a discernible process of juridification particularly noticeable in the
field of counter-terrorism. This article will examine that process, which constitutes
a turning to the courts as a substitute for traditional methods of politics. Through
POLITICS: 2010 VOL 30(2), 91–97
© 2010 The Author.Journal compilation © 2010 Political Studies Association

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