Point: One view is that the Human Rights Act 1998 has given the courts genuine power over Parliament to protect rights.
Example: In Belmarsh (2004) the Law Lords issued a declaration of incompatibility against the indefinite detention of foreign nationals under anti-terrorism legislation, and the government withdrew the policy.
This shows: On this view, the HRA empowers the courts to discipline Parliament when it strays into rights-infringing legislation.
However... However, the legal force of a declaration of incompatibility is limited.
Counter example: A declaration of incompatibility under section 4 of the HRA does not strike down legislation. The statute in question remains valid and in force. Parliament can choose to amend the law (as it did after Belmarsh) but it can also choose to ignore the declaration.
This shows: This shows that even at the high point of the HRA, the courts cannot bind Parliament. They can only ask Parliament to think again, and Parliament can decline.
Interim judgement: On balance, rights still depend on Parliament: the courts can flag breaches but only Parliament can fix them.
Point: A second view holds that judicial review of rights-restrictive legislation makes the courts the decisive actor.
Example: In the Rwanda case (2023) the Supreme Court ruled that Rwanda was not a safe third country, blocking the government's policy of removing asylum seekers there.
This shows: On this reading, the courts can defeat even a flagship government policy on rights grounds.
However... However, the Court's win was reversed within months.
Counter example: Parliament responded in 2024 by passing the Safety of Rwanda (Asylum and Immigration) Act, which declared Rwanda a safe country by statute and disapplied the relevant parts of the HRA for these cases. The Supreme Court accepted the outcome.
This shows: This shows that even when the courts win the legal argument, Parliament can win the political one by passing fresh legislation. Rights depend on whether Parliament chooses to act on the court's reasoning.
Interim judgement: The Rwanda chain is decisive evidence that Parliament, not the courts, has the final say on rights in the UK.
Point: A third argument is that even the most important rights protections in modern UK law are parliamentary creations rather than judicial ones.
Example: The Equality Act 2010 consolidated decades of anti-discrimination law into a single statute covering nine protected characteristics, including age, disability, race, religion and sexual orientation.
This shows: On this reading, the most broad rights protections in the UK system were built by Parliament from scratch, not extracted by judges from common law or the ECHR.
However... However, defenders of the courts-first view might argue that the Equality Act simply codified existing judge-made principles.
Counter example: In fact the Equality Act extended protections well beyond what any common law right or court ruling had ever created. The doctrine of indirect discrimination, the public sector equality duty and the protected characteristic framework are all parliamentary innovations.
This shows: This shows that when the UK system wants to create durable rights protections, the route taken is parliamentary statute, not judicial development.
Interim judgement: The Equality Act 2010 confirms that the source of meaningful rights in modern Britain is Parliament.
Point: A fourth argument concerns rights that are limited rather than extended.
Example: The Public Order Act 2023 created new criminal offences such as "locking on" and obstructing major transport works, narrowing the practical right to protest in England and Wales.
This shows: On this view, Parliament has shown it can restrict rights whenever it wants to, even where courts and human-rights bodies have raised objections.
However... A defender of the courts-first reading might argue that human rights bodies and the courts can still police the boundaries.
Counter example: In practice the Public Order Act remains on the statute book. The courts have considered specific applications but have not struck down the Act itself, and indeed could not. The Council of Europe's monitoring of UK protest law has had no binding effect.
This shows: This shows the reality of rights in the UK: when Parliament legislates to restrict them, the legislation stands. Courts can interpret but cannot reverse.
Interim judgement: On the evidence of the 2023 protest legislation, Parliament holds the whip hand on rights.
Point: A final argument is that the existence of the HRA itself shows the courts have become central to rights.
Example: The Human Rights Act 1998, in force from October 2000, requires courts to read all UK legislation compatibly with ECHR rights so far as possible and to issue declarations of incompatibility where it cannot.
This shows: On this reading, the HRA has changed the UK constitution: courts now have a quasi-constitutional role on rights.
However... However, the HRA itself depends on Parliament.
Counter example: The HRA can be amended or repealed by ordinary Act of Parliament. Successive governments have proposed replacing it with a Bill of Rights, and the Safety of Rwanda Act 2024 disapplied parts of the HRA for the Rwanda policy. Whatever rights protection the HRA gives, Parliament can take back at any time.
This shows: This shows that the courts' rights jurisdiction is conditional on Parliament continuing to authorise it. Where Parliament withdraws that authorisation - as it did partially in 2024 - the jurisdiction shrinks.
Interim judgement: On balance, rights protection in the UK still depends more on Parliament: the courts hold what Parliament has lent them, and Parliament can always ask for it back.