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Beyond Lockean MajoritarianismEmergency, Institutional Failure and the UK Constitution

Beyond Lockean MajoritarianismEmergency, Institutional Failure and the UK Constitution The reluctance of the UK judiciary to query executive declarations of emergency is well established. The inherently political nature of this type of decision-making has long been thought by public lawyers to be beyond the ambit of legitimate judicial oversight. In the first part of this article, I suggest that one plausible way of understanding this strand of public law scholarship is to situate it within a Lockean understanding of emergencies and the legitimacy of executive action, an understanding that rules out the possibility of judicial interference with executive decision-making. My argument is that, thus grounded, this account is however under-protective of minority interests in moments of political crisis when these interests may be considered especially vulnerable to majoritarian political processes. The second part of this discussion asks whether institutional weaknesses in domestic political mechanisms of executive oversight at times of emergency have prompted re-assessment of the judiciary's traditionally deferent stance. Taking as its focus the House of Lords decision in Belmarsh, the article argues that the majority's nuanced rejection of the absolute non-reviewability of emergency declarations holds out the prospect (in certain defined circumstances) of successful review proceedings in respect of the claimed existence of a public emergency. Given the recent unwillingness of the European Court of Human Rights in the Strasbourg leg of the Belmarsh litigation to engage in close supra-national scrutiny of states actions in this sphere, developments at the domestic court level may be thought especially significant. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Human Rights Law Review Oxford University Press

Beyond Lockean MajoritarianismEmergency, Institutional Failure and the UK Constitution

Human Rights Law Review , Volume 10 (3) – Sep 18, 2010

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Publisher
Oxford University Press
Copyright
The Author [2010]. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org
ISSN
1461-7781
eISSN
1744-1021
DOI
10.1093/hrlr/ngq028
Publisher site
See Article on Publisher Site

Abstract

The reluctance of the UK judiciary to query executive declarations of emergency is well established. The inherently political nature of this type of decision-making has long been thought by public lawyers to be beyond the ambit of legitimate judicial oversight. In the first part of this article, I suggest that one plausible way of understanding this strand of public law scholarship is to situate it within a Lockean understanding of emergencies and the legitimacy of executive action, an understanding that rules out the possibility of judicial interference with executive decision-making. My argument is that, thus grounded, this account is however under-protective of minority interests in moments of political crisis when these interests may be considered especially vulnerable to majoritarian political processes. The second part of this discussion asks whether institutional weaknesses in domestic political mechanisms of executive oversight at times of emergency have prompted re-assessment of the judiciary's traditionally deferent stance. Taking as its focus the House of Lords decision in Belmarsh, the article argues that the majority's nuanced rejection of the absolute non-reviewability of emergency declarations holds out the prospect (in certain defined circumstances) of successful review proceedings in respect of the claimed existence of a public emergency. Given the recent unwillingness of the European Court of Human Rights in the Strasbourg leg of the Belmarsh litigation to engage in close supra-national scrutiny of states actions in this sphere, developments at the domestic court level may be thought especially significant.

Journal

Human Rights Law ReviewOxford University Press

Published: Sep 18, 2010

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