Effectiveness of Rights protection -Difference

Topic 1

Constitutional vs legislative basis for rights  

Constitutionally entrenched rights (US) vs flexible statutory rights (UK)

US 1

The rights protections are entrenched in codified constitution, especially the Bill of Rights and subsequent amendments
The first amendment guarantees freedom of speech, which makes these protections difficult to alter or remove, with alteration requiring (2/3 of both houses plus ¾ of state approval) entrenched under Article V’s high amendment threshold

UK 1

Conversely, in the UK, rights protections are largely based on statutory law, such as the Human Rights Act 1998, Equality Act 2010, which parliament could amend or repeal if it so chooses by simple majority through new acts of parliament due to parliamentary sovereignty.

Parliament can also legislate around SC rulings as the safety of Rwanda act 2024 did in response to R(AAA) v SSHD (2023) without amending HRA itself

Different 1

cultural analysis

-focusing on the foundational documents that established and protect rights within each system, with US rights constitutionally secured due to founding fathers will for protection against tyrannical government, versus the more adaptable statutory rights in the UK due to evolved nature of UK uncodified constitution.

This difference illustrates that US rights protections are constitutionally entrenched and less susceptible to political change as constitutional rights doctrine cannot be displaced by ordinary legislation while Uk rights protections are ultimately more flexible and can be altered by parliamentary legislation with simple majority.

Topic 2

Role of federalism and devolution in rights 

State by state divergence on rights (US) vs UK wide uniform rights statutes (UK)

US 2

In US, the federal system allows individual states to legislative on rights issues, often resulting in significant variation between states. 

Example:  
states like California have stronger protections for LGBTQ+ rights, whilst others, such as Texas, have more restrictive abortion laws following Dobbs v. Jackson (2022) 

UK 2

In the UK, devolution has granted some autonomy to Scotland, Wales, and NI, but these regions generally align on key human rights issues, with acts of parliament like the Human Rights Act 1998 and equality act 2010 applying throughout the UK. 

Example:  

The UK Government blocked Scotland’s Gender Recognition Reform (Scotland) Bill in January 2023 using Section 35 of the Scotland Act 1998, citing conflicts with the UK-wide Equality Act 2010, producing more uniform rights protection

Difference 2

Structural theory because the way rights vary across regions is fixed by either constitutional reservation (10 amendment reserved power for state) or by statute.

US: 10th amendment allow state to diverge sharply on right: California’s prop 1 enshrined abortion rights while Texas enforces near total ban.

UK: HRA 1998, Equality Act 2010 apply UK wide.

Topic 3

Strength of judicial review over legislation

Outright striking down of legislation (US) vs declarations that leave the final word with parliament (UK)

US 3

US SC can strike down federal or state law violating constitutional rights: students for fair admissions v Harvard (2023) ended race conscious admissions with SC ruling that affirmative action in college admission is unconstitutional, violated title VI of the civil rights act of 1964.

UK 3

UK SC can’t invalidate acts of parliament but can issue declaration of incompatibility under section 4 HRA, as seen with R v SSHD 2023 on illegal migration act 2023 declaration of incompatibility with ECHR citing potential for refoulement sending asylum seekers to Rwanda

leaving parliament free to act on them or ignore them, with passage of Safety of Rwanda act 2024 overriding judicial decision and allowing gov to continue with the policy

Difference 3

structural theory applies because how strongly each SC can review legislation is set by its constitutional design.

US SC can strike down federal or state law that violate constitutional rights

UK SC can only issue declaration of incompatibility under section 4 HRA, leaving parliament free to act on them or ignore them