10 - Human Rights

Summary

Human rights have had a fragile status in Britain, given the overpowering doctrine of parliamentary sovereignty, which has enabled a parliamentary majority to achieve any policy in the absence of entrenched constitutional protections. Plans to repeal the 1998 Human Rights Act are evidence of this. Dicey wrote that parliamentary sovereignty was tempered by the rule of law in the UK, but it is unclear from his work how the rule of law could operate to override the will of a despotic parliamentary majority. Brexit adds to this precarity, by removing EU human rights protection from UK law (which had something close to an entrenched status, while the UK was an EU member). This calculated deletion of fundamental rights – involved in the deliberate exclusion of the EU Charter of Fundamental Rights from UK law post-Brexit – is almost unparalleled in the Western world (although perhaps the US Supreme Court’s Dobbs decision, which removed the protected status of the right to abortion from US constitutional law, comes close, at least for that right).