The Human Rights Act and Juridification: Saving Democracy from Law

Abstract

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.