NewPredicted Paper 2 Q2(b) essay

Rights essay - notes

Evaluate the view that the protection of rights in the UK now depends more on the courts than on Parliament.

1. The question and the line of argument

The question asks whether rights protection in the UK relies more on the courts or on Parliament. Pick a side - the question rewards a clear judgement.

Suggested line of argument: Rights protection in the UK still depends more on Parliament than on the courts. Parliament can override court rulings on rights through primary legislation, and recent examples (Safety of Rwanda Act 2024) show it does. Courts can issue declarations of incompatibility but cannot strike down statutes.

The alternative line of argument is that the courts now bind Parliament in practice through the HRA, the ECHR and judicial review. Either side is defensible if backed with named cases.

2. The constitutional framework for rights

UK rights protection has several legal sources.

European Convention on Human Rights (ECHR) - Council of Europe treaty signed 1950. The UK is a signatory; the ECHR is administered by the European Court of Human Rights in Strasbourg, which can find the UK in breach.
Human Rights Act 1998 - Labour Act incorporating ECHR rights into UK law. Came into force October 2000. Allows UK courts to issue declarations of incompatibility with ECHR rights but cannot strike down statutes.
Equality Act 2010 - parliamentary statute consolidating equality and anti-discrimination protections.
Common law - the courts have developed protections such as habeas corpus over centuries.
Specific Acts - the Race Relations Act 1965, Public Order Act 1986, freedom of information protections, the Online Safety Act 2023 all create or limit rights by statute.

3. Cases where the courts have stood up to the executive

Case	Year	What it shows
Belmarsh	2004	Law Lords issued a declaration of incompatibility against indefinite detention of foreign nationals. Government and Parliament accepted the declaration and amended the law.
Hirst v UK	2005	European Court of Human Rights found the UK's blanket prisoner voting ban breached the ECHR. UK delayed compliance for over a decade and ultimately introduced only narrow changes.
Cherry / Miller 2	2019	Court ruled the prorogation of Parliament unlawful - a rights-adjacent ruling that protected Parliament's right to sit.
Rwanda case	2023	Supreme Court ruled Rwanda was not a safe third country for asylum seekers, protecting non-refoulement rights.

4. Cases where Parliament has limited or overridden the courts

Act / Event	Year	Effect on rights
Equality Act 2010	2010	Parliament created a unified anti-discrimination framework by statute - rights here come from Parliament, not the courts.
Public Order Act	2023	Parliament restricted protest rights - "locking on", slow walking and other tactics now criminal offences.
Illegal Migration Act	2023	Parliament passed legislation removing right of asylum for those arriving via unauthorised routes.
Safety of Rwanda Act	2024	Parliament responded directly to the 2023 Supreme Court ruling by declaring Rwanda a safe country in statute. The Court did not push back.

Key point. UK courts cannot strike down primary legislation. The most a court can do is issue a declaration of incompatibility, which has no legal force - Parliament can choose to ignore it.

5. AO1 / AO2 / AO3 framing

AO1: Name the Acts. HRA 1998 (in force October 2000), ECHR 1950, Equality Act 2010, Public Order Act 2023, Illegal Migration Act 2023, Safety of Rwanda Act 2024.

AO2: Use the concepts. Declaration of incompatibility (not legally binding). Parliamentary sovereignty (Parliament can repeal HRA, can override Strasbourg). Judicial review (courts can challenge executive but not statute).

AO3: The strongest judgement is that rights still depend more on Parliament because Parliament can override the courts whenever it chooses (Rwanda 2024 is the proof) and because most rights in the UK come from Acts of Parliament rather than from judges (Equality Act).

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