22.5.3 UK and US: The effectiveness of the protection of rights in each country

1. Overview of Rights Protection in the UK and US

• UK: Rights protection in the UK is based on a combination of statute law, common law, and international obligations. The Human Rights Act 1998 (HRA) is the primary mechanism through which rights are protected, incorporating the European Convention on Human Rights (ECHR) into domestic law. The UK's uncodified constitution means that rights are not entrenched, and Parliament retains the ultimate authority to modify or repeal laws that protect rights.
• US: In the US, rights protection is enshrined in the Constitution, particularly through the Bill of Rights (the first ten amendments) and subsequent amendments. The US Supreme Court plays a crucial role in interpreting these rights and ensuring they are upheld, with the power to strike down federal and state laws that violate constitutional rights. Rights in the US are entrenched and cannot be easily altered by Congress or the President.

2. Mechanisms for Protecting Rights

• UK Mechanisms:
  • Human Rights Act 1998: Incorporates the ECHR into UK law, allowing UK courts to hear cases involving human rights violations. Courts can issue declarations of incompatibility if UK laws conflict with the ECHR, prompting Parliament to amend the law, though these declarations are not legally binding.
  • Common Law: Rights are also protected through judicial precedents and decisions that have developed over time, reflecting the principles of justice and fairness.
  • Judicial Review: Courts can review the actions of public bodies to ensure they comply with the law, including human rights protections. However, they cannot strike down primary legislation.
• US Mechanisms:
  • Bill of Rights: Provides a strong foundation for the protection of individual rights, with key protections such as freedom of speech, religion, and due process.
  • Judicial Review: The US Supreme Court has the power of judicial review, established in Marbury v. Madison (1803), which allows it to strike down laws and executive actions that violate the Constitution.
  • Civil Rights Legislation: Various laws, such as the Civil Rights Act 1964 and the Voting Rights Act 1965, protect against discrimination and ensure equal rights for all citizens.

3. Effectiveness of Rights Protection

• UK:
  • Strengths:
  • Flexibility: The UK system is adaptable, allowing Parliament to pass new laws to respond to emerging human rights issues. The Human Rights Act has played a significant role in advancing rights protection in the UK, particularly in areas like privacy and fair trial rights.
  • Judicial Activism: UK courts have become more assertive in protecting rights, particularly through the HRA, holding the government accountable for violations.
  • Weaknesses:
  • Parliamentary Sovereignty: Rights are not entrenched and can be modified or repealed by a simple majority in Parliament, potentially weakening protections. For example, the UK government can derogate from the ECHR in times of national emergency, reducing the protection of rights.
  • Limited Judicial Power: UK courts cannot strike down primary legislation, limiting their ability to protect rights effectively against legislative actions that may infringe on rights.
• US:
  • Strengths:
  • Entrenched Rights: The US Constitution provides a robust framework for protecting rights, with entrenched protections that cannot be easily altered by the government. The Supreme Court's power of judicial review allows it to serve as a strong check on the other branches of government.
  • Judicial Precedents: Landmark rulings like Brown v. Board of Education (1954) and Roe v. Wade (1973) have significantly advanced civil rights and liberties in the US.
  • Weaknesses:
  • Political Influence: The politicization of the Supreme Court can lead to decisions that reflect ideological biases rather than objective interpretations of the Constitution. For example, the recent overturning of Roe v. Wade in Dobbs v. Jackson Women's Health Organization (2022) reflects a shift in the Court's approach to rights protection.
  • Gaps in Protection: Despite strong constitutional protections, disparities in the application of rights remain, particularly for marginalized groups. Issues like voter suppression and systemic racism highlight ongoing challenges in ensuring equal protection under the law.

Comparative Analysis

Aspect	UK	US
Foundation of Rights	Human Rights Act 1998, common law, ECHR	US Constitution, Bill of Rights, subsequent amendments
Judicial Review	Courts can issue declarations of incompatibility but cannot strike down primary legislation	Supreme Court has the power to strike down laws and executive actions that violate constitutional rights
Entrenchment	Rights are not entrenched; Parliament can amend or repeal laws	Rights are entrenched and protected by the Constitution, making them difficult to alter
Flexibility	High flexibility; laws can be adapted to new circumstances	Low flexibility; constitutional amendments are difficult to achieve
Judicial Power	Limited judicial power; courts cannot overturn primary legislation	Strong judicial power; Supreme Court can invalidate federal and state laws
Political Influence	Limited; judicial appointments are less politicized	High; judicial appointments are highly politicized, affecting court decisions
Protection for Marginalized Groups	Relies on parliamentary legislation and court interpretations	Strong constitutional protection but ongoing challenges with enforcement and equality

Conclusion

• UK: The UK's system of rights protection is flexible and responsive to change, but the lack of entrenchment and limited judicial power can weaken the overall effectiveness of rights protection. Parliamentary sovereignty remains a significant constraint on the ability of courts to safeguard rights fully.
• US: The US offers stronger and more entrenched protections for rights through its Constitution and the power of judicial review. However, the effectiveness of this protection can be influenced by political factors, particularly in the appointment of Supreme Court justices. Despite these strengths, challenges remain in ensuring equal protection for all citizens.