The Uncertainties of the Rule of Law in Britain

Abstract

The political class in the United Kingdom is proud of what is known as ‘British exceptionalism’. Its members have for several centuries hymned the organic untidiness of Britain’s governing arrangements and the flexible and decisive way in which the executive can respond to events. This article seeks to assess the impact of the Human Rights Act 1998 on the rule of law in the UK and sets out the context within which its codified expression of positive human rights is being absorbed into the bloodstream of a common-law system built around the idea of ‘negative’ rights. Our main emphasis will be on the ability of a generally conservative judiciary to hold the executive to account. We discuss the weaknesses of the constitutional settlement in the UK and their effect on the rule of law and ‘judicial review’, the main instrument by which aggrieved individuals and groups can seek redress against public policies and decisions. The Human Rights Act, which at last incorporates the European Convention on Human Rights into British law, will over time have a profound impact on public life. It is perhaps the most significant enactment of the Labour government’s first term in power. However, further constitutional and judicial reforms will be required before executive power is truly accountable.