Davis, Feargal (2006) Extra-constitutionalism, the Human Rights Act and the Labour 'Rebels' : applying Prof. Tushnet's theories in the UK. Web Journal of Current Legal Issues (4). ISSN 1360-1326
Full text not available from this repository.Abstract
The control of executive power during periods of emergency is important but complicated. One key problem arises from the need to guarantee that the executive does not abuse its power at a time when there can be considerable pressure to act, while at the same time ensuring that the courts do not prevent the executive from maintaining the security of the state. This article aims to examine Prof Mark Tushnet’s emerging theory of extra-constitutionalism and apply it to the UK. The article will consider the response of the UK government to judicial criticism of its anti-terror legislation in light of s.4 of the Human Rights Act, 1998 (HRA). Finally, the feasibility of adopting Tushnet’s proposed control of the executive by the legislature and public will be discussed. In particular consideration will be given to the effectiveness of such non-judicial forms of review within the framework of the UK’s electoral and Parliamentary systems.