Beyond Lockean Majoritarianism?—Emergency, Institutional Failure and the UK Constitution

摘要

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.