Essay
A GRADE - Evaluate the view that we can no longer be assured our rights our adequately protected.
- Module
- Component 1, unit 1.4 rights
- Institution
- PEARSON (PEARSON)
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Evaluate the view that we can no longer be assured that rights are adequately protected in the UK [30]As rights are the legal, social, or ethical principles of entitlement, ‘adequately’ should be qualified by the standard of
liberal democracy in the UK and the degree to which checks and balances are sufficient in sustaining the parity between
government measures and individual freedom. A.V Dicey writes that parliamentary sovereignty is a key pillar of the UK’s
uncodified constitution, but any observer of political operations over recent years would know that this principle means we
can no longer be assured that our rights are adequately protected.
The Human Rights act 1998 is enshrined into the European Convention of Human Rights, giving it more credibility than
most statute law in the UK’s unentrenched constitution. Before 1998, those who felt their rights had been violated had to
go to Strasbourg to argue their case, this was very costly and time consuming. However, now with the HRA, rights can be
more adequately protected in the UK as judges in the highest court can declare legislation passed by parliament as
‘incompatible’ with the ECHR. Since the HRA came into force on 2nd October 2000, UK courts have made 43
declarations of incompatibility. One controversial case was that of David Miranda 2013, who was detained for 9 hours at
Heathrow airport while carrying classified, encrypted files for his partner Glenn Greenwald, a journalist at The Guardian. A
key clause in the Terrorism Act 2000, whereby travellers were allowed to be questioned with no right to remain silent or
receive legal advice, was declared incompatible with the ECHR by Lord Dyson as part of a court appeal judgement. This
declaration forced government ministers to re-examine the act, and the rules for police officers have now changed, where
they are told to not examine journalistic material at all. This shows how the HRA has given the judiciary a greater capacity
to challenge the government on behalf of citizens, better protecting rights. This way, the HRA acts as a Bill of Rights,
sanctioning an American codification of rights through the back door. However, the courts cannot mandate the type of
change that the government makes to legislation, nor can they mandate when they do it, and so the law may remain for a
while. The Belmarsh case (2004) demonstrates this, and also shows how parliamentary sovereignty can ultimately
undermine declarations of incompatibility. This case concerned the indefinite detention of foreign prisoners at Belmarsh.
They were held without trial under section 23 of the Anti-Terrorism, Crime and Security Act 2001. The House of Lords
held that the provisions under which detainees were being held were incompatible with Article 5 of the ECHR. However,
the Lords ruling and subsequent declaration of incompatibility did not render the acts of detention or application of section
23 invalid, nor did it bind the actions of the Home Secretary. As such the individuals remained in detention and had to
take their case to the European Court of Human rights. Here, parliament is asserting its utmost authority and diminishing
the decisions of the Lords, showing how sovereignty can challenge how well rights are protected by officials and the HRA.
This shows a departure from America’s ability to strike down laws immediately and perhaps a weakness in our political
system. Furthermore, as parliament is not bound by its successors, parliamentary sovereignty states that the HRA can be
repealed by a future government and Justice secretary Dominic Raab plans on doing exactly this. In December 2021,
Raab proposed replacing the HRA with a Bill of Rights which would effectively remove the ability for judges to make
declarations of incompatibility, clipping their wings. This will weaken protection for ordinary citizens and the power of the
judiciary, while illustrating how parliamentary sovereignty means that rights are not adequately protected.
A key function of parliament is to create and pass effective legislation, through this, rights can be protected by enacting
them into statute law. Both the Labour government from 1997 and the Coalition government from 2010 introduced very
significant changes in legislation that improved protection of our rights. For example, The Freedom of Information Act
2000 creates a public right of access to information held by public authorities. Here, the Act works to protect rights and
freedoms by providing transparency on the workings of public bodies and more accountability on the government,
theoretically improving civil liberties in the UK. However, the government is not bound by this act and has the right to deny
releasing information for a number of exceptions, demonstrating how parliamentary sovereignty plays a large part in
rights not being adequately protected. Also, Conservatives from 2010 were shown to be reversing extreme anti-terrorism
laws as the power to detain suspects without charge was reduced from 28 days to 14 days in 2011. This shows the
further advancement of human rights in terms of social control measures. Furthermore, the Identity Cards Act 2006,
which proved controversial in terms of invasion of privacy concerns and data protection, was repealed by the coalition in
2011 with the Identity Documents Act. Here, with the use of an executive majority and parliamentary sovereignty,
legislation can be introduced or repealed in order to improve the protection of ordinary citizens. However, parallels have
appeared in recent years in which, despite their ideological differences, both labour and the conservatives have ended up
introducing more restrictive laws in comparison to their prior legislation. For example, Tony Blair, in the Terrorism Act
2006, introduced that it was a criminal act to ‘glorify’ terrorism by directly or indirectly inciting and encouraging it, this can
be said to limit freedom of expression, violating a human right. Furthermore, in conflict with the Conservatives in 2010 and
in consensus with the later labour government, Boris Johnson in 2019 introduced a number of measures which have said
to restrict the rights of individuals. In order to curb the impact of the Covid-19 pandemic, Johnson introduced the statutory
instrument of the ‘rule of 6’ in 2020 which had no vote in parliament, allowing only people in groups of 6 to meet or suffer
legal consequences. This can be said to violate freedom of movement and assembly, but with the notion of parliamentary
sovereignty, these rights were able to be restricted from citizens. The two parallels of governments and how their
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