Legislation and Rights (AQA A-Level Politics): Revision Notes
Legislation and Rights
The effectiveness of recent UK legislation protecting citizens' rights is a complex and contested issue in British politics. This note examines the current debates about rights protection, the role of key legislation, and the tension between individual and collective rights in the UK's uncodified constitution.
How well does the UK protect human rights?
Citizens' rights in the UK are protected primarily through statute law rather than through a codified constitution. The two most important Acts are the Human Rights Act 1998 (HRA) and the Equality Act 2010. The HRA incorporates the European Convention on Human Rights (ECHR) into UK law, creating what is sometimes called a constitutional 'double lock' for certain rights.
However, because these are statute laws rather than entrenched constitutional rights, they remain vulnerable to change by parliament. Unlike countries with constitutional sovereignty (such as the USA), where a codified constitution has ultimate authority over parliament, the UK operates under parliamentary sovereignty. This means parliament can theoretically weaken or repeal these protections at any time.
Parliamentary Sovereignty vs Constitutional Sovereignty
The UK's system of parliamentary sovereignty means that statute laws protecting rights (like the HRA 1998) can be changed or repealed by a simple parliamentary majority. This differs fundamentally from countries with constitutional sovereignty, where rights protections are entrenched and require special procedures to amend.
Arguments that the UK protects rights well
The UK's constitutional culture values civil liberties, at least in principle. Every parliamentary Act must contain a declaration confirming it complies with the HRA 1998. This creates formal government support for human rights.
The HRA and ECHR together provide strong legal protection for core rights such as privacy and freedom from torture. Before Brexit, EU law also provided additional protection, particularly for workers' rights. The UK benefits from a relatively strong institutional framework beyond the courts, including the Equalities and Human Rights Commission, which brings cases under the Equality Act 2010.
ECHR Application Statistics
According to a 2012 British Academy report, between 1966 and 2010 there were approximately 14,460 applications by UK citizens to the ECHR in Strasbourg. Only 1.3% of these cases found the UK government had breached the convention. This low breach rate suggests UK citizens' rights are generally well protected compared to other member states.
Arguments that the UK does not protect rights well
Little political consensus exists between parties about what human rights protections should actually include. The existing framework based on the HRA and ECHR faces regular political attacks, particularly from Conservatives who have called for a 'British Bill of Rights' to replace the current system. European judgements that contradict UK policies often spark media criticism of the European Court of Human Rights.
Brexit has removed the safety net for certain non-discrimination, migrant and labour rights previously provided by EU law. UK governments have repeatedly passed legislation that dilutes rights protection, especially in areas like national security. Recent anti-terror laws and measures reforming immigration, social benefits and housing have all been criticized for weakening rights.
Social and economic rights, such as the right to appropriate healthcare, are seen by some as poorly established and weakly protected. International human rights law has had limited practical impact on government policy.
Vulnerability of Statute Law Protection
Because UK rights protections are based on statute law rather than a codified constitution, they can be weakened or removed by any government with a parliamentary majority. This makes rights protection in the UK fundamentally different from countries with entrenched constitutional rights, where special procedures (such as supermajorities or referendums) are required to change fundamental rights.
The ECHR and the Council of Europe
It is important to understand that the ECHR is completely separate from the European Union. The ECHR was drawn up in 1950 by the Council of Europe, a different organization. All EU members must also be members of the Council of Europe and sign up to the ECHR, but leaving the EU does not automatically mean leaving the ECHR.
ECHR Independence from the EU
The European Convention on Human Rights (ECHR) and the Council of Europe are entirely separate from the European Union. The Council of Europe has 46 member states (as of recent counts), while the EU has far fewer. Currently, only the Vatican City and Belarus are not members of the Council of Europe. This means Brexit did not affect the UK's membership in the ECHR or obligations under it.
Some Conservative politicians have argued for the UK to withdraw from the ECHR and create a British Bill of Rights instead. However, any attempt to do this would create considerable political and legal opposition.
Should the British Constitution be codified?
There has been ongoing discussion about whether the UK should adopt a codified (written) constitution. This debate has intensified during political crises, such as the protracted Brexit struggle between 2017 and 2019, when parliament and government appeared unable to find a way forward.
Arguments for codification
A codified constitution would provide greater clarity on what is and is not constitutional and therefore lawful. As constitutional expert Vernon Bogdanor remarked, "The understandings are not always understood" when referring to conventions. Removing the vagueness of custom and tradition would represent a desirable modernization of the political process.
A codified constitution would provide further and more easily understood rights for all citizens. The Constitution could entrench key rights rather than leaving them vulnerable to parliament. This would reduce the concentration of power in the hands of the executive.
Local government and regional assemblies outside England would enjoy proper constitutional protection and permanence. It would end the process of piecemeal codification such as the Cabinet Manual and the Osmotherly Rules (guidance drawn up in 1980 and revised in 2014 for civil servants appearing before select committees).
Examples of Broken Conventions
Conventions can be and are broken. For example, the Lords rejected the 1909 Budget, breaking convention. More recently, Boris Johnson sought to prorogue (suspend) parliament for 5 weeks in 2019, far longer than the usual short period. Only a unanimous ruling by the Supreme Court stopped this attempt. These examples demonstrate the weakness of relying on unwritten conventions rather than codified rules.
The UK is one of only three countries (along with Israel and New Zealand) not to have a codified constitution. This is increasingly seen as outdated in the modern world.
Arguments against codification
The current constitution encourages flexibility and adaptability, for example regarding the calling of early elections. Codified constitutions are by nature far more rigid and less able to respond to changing circumstances.
Codification would go against the tradition of UK politics, which is one of constitutional evolution rather than revolution. Parliament would struggle to reach consensus on much of the content of a codified constitution. Should it stipulate a particular voting system, and if so, which one? These are questions that would prove deeply divisive.
A codified constitution would give unaccountable judges greater power, as they would be required to make rulings on which Acts or measures were constitutional, much as they do in the USA. This would also likely considerably politicize the judiciary, undermining their independence.
The Public Demand Question
The issue of education and awareness about the British Constitution is best met by better political education in schools rather than by codification. There is also a marked lack of popular demand for such reform. The alternative vote referendum of 2011 demonstrated limited public enthusiasm for constitutional change, with only 42% turnout and a decisive rejection of the proposed reforms.
Most importantly, codification would seriously undermine parliamentary sovereignty, which has served the country's politics well over the centuries. Philip Johnstone, writing in the Daily Telegraph in January 2020 after the Brexit bill was passed, commented that "It turns out our system wasn't broken after all."
Individual and collective rights
Citizens' rights are often categorized as either individual rights or collective rights, and understanding the difference is important for evaluating how well the UK protects rights.
Individual rights are rights held by individual citizens, such as the right to a fair trial or the right not to face discrimination. These protect individuals from unfair treatment and ensure personal freedoms.
Collective rights belong to groups. These can range from formally organized groups such as trade unions to those that are faith-based, or those that reflect a certain characteristic such as gender, disability or sexuality. Collective rights can also apply to the population as a whole, such as the right to protection from acts of terrorism and the safeguarding of national security.
Conflicts between individual and collective rights
These two sets of rights often conflict with each other. For example, all individuals have the right to practice any (or no) religious faith, which often involves following a particular moral code such as refraining from drinking alcohol or disapproving of homosexuality. Yet such a stance could be at odds with the collective rights of wider groups such as drinkers or the LGBTQ+ community.
No Fixed Pattern of Resolution
The outcomes of conflicts between individual and collective rights follow no particular pattern in terms of which set of rights usually prevails. Much depends on the individual context, the interpretation of the judges and public opinion. Courts resolve these tensions on a case-by-case basis, making this a dynamic rather than fixed aspect of the British Constitution.
Several case studies illustrate these tensions and how courts have resolved them.
Case study: Ashers Baking Company
Case Study: Ashers Baking Company (Individual Rights Prevailed)
In a case involving Ashers Baking Company Ltd in Northern Ireland, the owners were prosecuted for refusing to bake a cake for a gay rights activist who had asked them to incorporate the slogan 'Support gay marriage' along with a picture of Bert and Ernie from Sesame Street and the logo of the Queerspace organization.
The Court's Decision:
In October 2018, the Supreme Court overturned the judgements of lower courts that the bakery was guilty of discrimination. The argument was that the bakery did not discriminate against the customer who happened to be gay, but against the message on the cake, which they would have objected to regardless of the customer's sexual orientation.
Key Principle:
The issue was therefore not about sexuality but what is termed 'forced speech'. For example, can a Labour-supporting printer refuse to produce Conservative Party publicity or vice versa? The answer is probably yes. This case demonstrates how the individual right to free speech or expression can prevail over the collective rights of a particular group.
A similar case but with a different outcome occurred in 2013 when the Christian owners of a Cornish guest house lost a court case over refusing to allow a same-sex couple to share a double bedroom.
Case study: Female Genital Mutilation (FGM)
Case Study: Female Genital Mutilation (Child's Individual Rights Prevailed)
A particularly sensitive topic concerns traditional cultural practices illegally practiced by some minority groups in the UK. Female circumcision (FGM) is a common practice among certain communities in parts of Africa and the Middle East, though it is illegal in most countries.
Legal Framework:
Under UK child safeguarding rules, schools and social services are required by law to report immediately to the police any suspected cases of FGM, which is illegal under the Female Genital Mutilation Act 2003.
The Rights Conflict:
This results in a potential clash between the individual rights of a citizen to follow cultural practices and the collective rights of wider UK society, who rightly see the practice as a form of child abuse. There are also the important individual rights of the child to consider.
Resolution:
In this instance, the solution is clear in UK law. The individual rights of the child are uppermost, and the lack of informed consent makes it straightforward to ban the practice, despite it being a collective tradition in certain communities.
Case study: Uber drivers
Case Study: Uber Drivers (Collective Rights Prevailed)
In 2016, two Uber drivers sued the firm claiming that they were employees and not, as Uber claimed, self-employed. By claiming to be employees, the drivers would gain entitlement to benefits such as holiday pay and the minimum wage.
The Conflict:
They were fighting for the collective rights of all Uber drivers and were supported by the Independent Workers' Union of Great Britain. However, they were opposed not only by Uber but also by some of their fellow Uber drivers who enjoyed the freedom of being self-employed and asserted their individual rights regarding employment status.
The Outcome:
Ultimately, Uber lost its case and the collective rights of all its workers were protected at the expense of some individual drivers. This case demonstrates how conflict can exist not only between individual and collective rights but also between different individuals' rights within the same category.
Anti-terror legislation and rights
Several clauses of anti-terror legislation designed to protect the collective right of public safety have been successfully challenged in the courts. For example, in 2004 the courts ruled that indefinite detention of suspected terrorists broke human rights laws, seemingly favoring individual rights to a fair trial over collective rights to protection from terrorist outrages.
Dynamic Nature of Rights Protection
Much depends on the individual context, the interpretation of the judges and public opinion. The latter can often persuade the government to pass legislation to tilt the balance of rights in one or other direction. The issue of citizens' rights is therefore a dynamic rather than fixed aspect of the British Constitution.
Remember!
Key Points to Remember:
- The Human Rights Act 1998 incorporates the ECHR into UK law, providing the main legal protection for human rights in the UK
- The Equality Act 2010 protects discrimination-related rights such as pay equality and equal access to services
- Because these are statute laws rather than entrenched rights, parliamentary sovereignty means they could theoretically be weakened or repealed by parliament
- Arguments about whether UK rights are well protected focus on the vulnerability of statute law versus the effectiveness of the 'double lock' with the ECHR
- A codified constitution would entrench rights more firmly but would reduce parliamentary sovereignty and judicial flexibility
- Individual rights belong to individual citizens (e.g. right to fair trial), while collective rights belong to groups (e.g. workers' rights, LGBTQ+ rights)
- Conflicts between individual and collective rights are resolved on a case-by-case basis by courts, with no consistent pattern of which prevails
- Key case studies include Ashers Baking Company (individual rights prevailed), FGM (child's individual rights prevailed), and Uber drivers (collective rights prevailed)