Political constitutionalism and the Human Rights Act

Abstract

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 be taken as handing 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 European Convention on Human Rights (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 generally can be assimilated to a system of "weak" review whereby courts defer to the legislative "scope," as 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, so called, 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. However, the implication of this article is that it ought to be regarded as doing so, with the judiciary acting accordingly. © The Author 2011. Oxford University Press and New York University School of Law. All rights reserved.