This paper uses a socio-legal perspective to shed light on the UK’s current backlash against human rights. While Euro-scepticism and the UK’s political constitutionalist tradition does somewhat explain the hostility towards judicial protection of human rights, this paper argues that this is not the entire picture. Perspectives from politics, sociology and criminology reveal that the political conditions in which the HRA was introduced were already inimical to the judicial protection of human rights. Since the mid-to late Twentieth Century, criminal justice policy in the UK underwent what David Garland terms ‘dramatic changes’. These changes include, amongst other factors: an increasingly active legislature in the criminal justice field; changes in the emotional tone of crime policy; the politicisation of crime; and populist rhetoric and policies. This paper will argue that the current political climate that is hostile towards criminals or other ‘others’ (e.g. immigrants) is symptomatic of this ‘culture of control.’ Defenders of human rights have identified this problem of unpopular ‘others’ and have attempted to counter them by downplaying the role that human rights have had in such contentious cases or emphasising the importance of human rights in cases that are seen as more publicly pleasing. These defences however, fail to address why this othering occurs, and what, if anything, can be done to counter this. At the same time, the reach of the legislature in other areas of public policy has receded to the rise of the executive and ‘technocracy’ in what has been termed ‘the decline of parliaments’. High profile projects such as Policy Exchange’s ‘Judicial Power Project’ which make the case for a more restrained approach to judicial review are conceptualising the increase in judicial powers as a unilateral decision made by the judicial branch. This, however, ignores the aforementioned sociological and political factors that affect the dynamic and balance of power between the legislature and the executive, and in turn how this affects judicial power. By placing the existing debate regarding the judicial protection of rights in this broader context, a more comprehensive explanation of rights hostility can be understood. This paper will conclude by arguing that as a result of this culture of control, hostility towards the judicial protection of human rights in the UK will not abate with the repeal of the HRA and its replacement with a ‘British Bill of Rights’.
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