Supreme Court Or Parliament In Protecting Rights Flashcards
(8 cards)
Introduction
In the UK’s un-codified constitutional framework, civil liberties are protected both by legislative action by Parliament and judicial interpretation and enforcement by the courts. Parliament, as the sovereign law-making body, has historically initiated landmark civil rights legislation. However, the judiciary- especially the Supreme court since 2009- has increasingly asserted its role in upholding the rule of law, reviewing executive actions and safeguarding individual rights. Although Parliament possesses legislative supremacy, the judiciary’s impartiality, independence and capacity to check executive power make it the more reliable and principled guardian of civil liberties in practice.
1: parliament as legislator v judiciary as check on executive
It could be argued that Parliament is the most effective guardian of civil liberties due to its power to enact transformative legislation and respond to shifting societal values.
The Human Rights Act 1998 domesticated the European Convention on Human Rights, giving UK citizens direct access to enforceable rights in national courts—a revolutionary moment in British legal history.
The Equality Act 2010 was another parliamentary milestone, harmonising and strengthening anti-discrimination protections across nine characteristics, offering a powerful statutory framework to challenge prejudice in employment, education, and public services.
More recently, Parliament passed the Civil Partnerships, Marriages and Deaths Act 2019, permitting opposite-sex couples to enter civil partnerships—this reflected a legislative willingness to rectify gaps in legal equality following court decisions and public campaigning.
These laws suggest that Parliament can not only uphold rights but also advance them in a democratic and inclusive manner.
1: Parliament as legislator v judiciary as check on executive power
However a more convincing argument is that it is the judiciary that most reliably safeguards civil liberties by independently scrutinising executive overreach and enforcing compliance with legal principles, especially when Parliament is passive, complicit or constrained by political interests.
In Miller (No. 2) (2019), the Supreme Court ruled unanimously that the Prime Minister’s attempt to prorogue Parliament for five weeks during the Brexit crisis was unlawful because it had the effect of frustrating Parliament’s constitutional functions. This was not merely a procedural correction but a profound defence of the principle of representative democracy—a civil liberty in its own right.
Similarly, in R v Secretary of State for the Home Department (2023), the Court invalidated the government’s Rwanda deportation scheme for violating Article 3 of the ECHR, affirming the judiciary’s role in protecting asylum seekers from inhuman and degrading treatment even amidst political hostility.
The courts have also intervened in less publicised but equally vital cases, such as R (on the application of SG) (2016), where the “bedroom tax” was ruled discriminatory against disabled individuals under Articles 8 and 14.
These examples show that the judiciary acts as the constitutional firewall that blocks government actions which would otherwise override basic liberties—especially when Parliament declines to do so.
2: parliamentary accountability v judicial independence and legal rationality
It could be argued that Parliament is the better guardian of civil liberties because it is democratically accountable and more responsive to public sentiment, interest group pressure and electoral feedback
For example, parts of the Police, Crime, Sentencing and Courts Act 2022—particularly those curtailing protest rights—were defeated or diluted in the House of Lords after widespread public protest and lobbying by civil liberties groups.
Parliamentary scrutiny through Select Committees, All-Party Parliamentary Groups (APPGs), and backbench rebellions can significantly shape rights-respecting legislation.
Additionally, Parliament’s inclusive and deliberative nature allows for more complex balancing of competing rights and societal interests—something that judicial processes, limited by precedent and adversarial structure, can struggle to accommodate. On this view, Parliament’s openness to democratic participation makes it better suited to determine where the balance of civil liberties should lie.
2: parliamentary accountability v judicial independence and legal rationality
However a more convincing argument is that the judiciary’s institutional independence, legal expertise and procedural impartiality make it superior and more consistent defender of individual rights, especially in controversial or politically sensitive cases
In R v Chief Constable of Greater Manchester Police (2014), the Supreme Court found that the automatic disclosure of old and minor offences in DBS checks violated Article 8 (right to private life), especially where the offences were committed as a juvenile and bore no relevance to future employment. The judiciary enforced proportionality, subtlety, and fairness—traits often lost in Parliament’s broader political deliberations.
Likewise, in R v Director of Public Prosecutions (2021), the Court quashed the convictions of anti-arms trade protesters, holding that the convictions interfered with their rights under Articles 10 and 11 (freedom of expression and assembly). This was a clear demonstration of the Court placing constitutional principle above political convenience, particularly as Parliament had endorsed tougher measures on protest.
Courts also apply doctrines like proportionality and necessity which ensure that interference with rights is legally justified, not merely politically expedient. These are tools that Parliament, by nature of its political function, cannot deploy with equal objectivity.
3: Parliamentary reform powers v judiciary’s role in initiating and catalysing reform
It could be argued that Parliament remains the ultimate guardian of civil liberties because it possess the authority and mechanism to respond to judicial findings, reform laws and implement systemic changes.
After the declaration of incompatibility in Steinfeld and Keidan (2018), Parliament passed legislation in 2019 to extend civil partnerships to opposite-sex couples. Likewise, after R v Secretary of State for the Home Department (2010), which found that indefinite sex offender notification violated Article 8, Parliament amended the law to allow review after 15 years.
These cases demonstrate that, while courts may issue declarations or rulings, they lack the capacity to implement systemic remedies—a task which inevitably falls to Parliament. Parliament also balances wider societal considerations, such as national security or fiscal constraints, which are crucial to civil liberties in context and often beyond the judiciary’s remit.
3: parliamentary reform powers v judiciary’s role in initiating and catalysing reform
However, a more convincing argument is that it is the judiciary that prompts and pressures parliament into action, initiating legal and moral shifts in rights protection.
In R v Investigatory Powers Tribunal (2019), the Supreme Court invalidated an ouster clause in the Regulation of Investigatory Powers Act, reasserting that even national security decisions must be subject to judicial oversight—a powerful rejection of executive secrecy.
This landmark ruling preserved the right to judicial redress in surveillance and privacy matters. The same principle was applied when the Court ruled in Privacy International that courts must retain oversight even when governments seek to exclude them.
Similarly, in Ashers Baking Company v Lee, while the ruling upheld freedom of expression under Article 10, it demonstrated the judiciary’s capacity to mediate between clashing rights (equality vs expression) with surgical precision—a task Parliament often oversimplifies.
Courts are therefore not merely reactive, but proactively shape the rights landscape through principled, case-by-case adjudication, compelling the political branches to follow.
Conclusion
Although Parliament is the primary legislative guardian of civil liberties, its effectiveness is often compromised by political calculations, executive dominance and delays in reform. By contrast, the judiciary offers an impartial and legally grounded and responsive mechanism to defend rights and curb executive overreach. Through interpretative precision, declarations of incompatibility and robust judicial review, courts ensure that rights are not only written into law, but actively upheld and enforced.
