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Indeterminacy, disagreement and the Human Rights Act: an empirical study of litigation in the UK House of Lords and Supreme Court 1997–2017

Blackwell, Michael (2019) Indeterminacy, disagreement and the Human Rights Act: an empirical study of litigation in the UK House of Lords and Supreme Court 1997–2017. Modern Law Review. ISSN 0026-7961 (In Press)

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Abstract

This article explores the impact of the Human Rights Act 1998 (HRA) on the decision making of the House of Lords (UKHL) and the UK Supreme Court (UKSC). How does Convention rights content vary across areas of law in the UKHL/UKSC? Are some judges more likely than others to engage in Convention rights discourse? Is judicial disagreement more common in cases with higher levels of Convention rights discourse? This paper develops a robust method of answering questions of this nature which it applies to decisions of the UKHL/UKSC. It is shown that the Convention rights content of decisions has (i) varied over time, increasing until around 2006, then plateauing and then gradually declining; and (ii) varied over substantive areas of law, being especially prevalent in cases relating to public law and crime. It is also shown how higher levels of human rights discourse are associated with greater levels of disagreement. A benchmarked measure of human rights content is developed to show the effect of the particular judge on the human rights content, illustrating the indeterminacy in human rights discourse and how its deployment can be contingent on judicial attitudes.

Item Type: Article
Additional Information: © 2019 The Author. The Modern Law Review ©2019 The Modern Law Review Limited
Divisions: Law
Subjects: K Law > K Law (General)
Date Deposited: 21 Aug 2019 08:09
Last Modified: 15 Sep 2019 23:10
URI: http://eprints.lse.ac.uk/id/eprint/101424

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