UK Constitutional Law Association

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Benedict Douglas: The Fundamental Tension Underlying the UK Constitution

Are we defined by the duties we owe or the choices we make? Until very recently UK citizens have predominantly understood their personal identity, what is right and wrong, and how they should be governed, in terms of the duties they owe. This view of the individual is found within the UK Constitution and forms the historic basis of parliamentary sovereignty, and is the fundamental source of the initial hostility to the Human Rights Act 1998 (HRA). The HRA, devolution and the Brexit vote, by protecting and facilitating the ability of the individual to freely choose how to live and how to be governed, have challenged the duty basis for the Constitution and how we understand our identity as individuals. The golden thread of duty running though the tapestry of the UK constitution is fraying, and the restitching of its rules and institutions with a basis in individual freedom is not complete.

A duty based constitution views and defines individuals as owing duties which delineate their permissible actions; its foundation is individuals perceiving their own identity as deriving from their obligations rather than their choices. A constitution with a choice basis is grounded in an understanding of the individual as inherently possessing the freedom to choose how to live. A convenient fictional example of an individual’s duty based understanding of themselves and the UK Constitution’s duty based understanding of a person is the character of Queen Elizabeth, the UK’s head of state, in the Netflix drama series The Crown.

That the UK Constitution has not developed a basis for law or conception of human rights founded on individual freedom of choice, and instead conceptualises all people (not just the Queen) fundamentally as duty holders, is a product of its history. Walter Bagehot, writing in 1867, recognised this in The English Constitution. Arguing that the influence of the history of England upon the ‘common idea [of the nature of our national] character cannot be exaggerated’, he described the people of nineteenth century England as ‘a deferential nation’ who fundamentally see their relationship with the state as defined by the duty they owe to the Queen. This led him to conclude that ‘our constitution is not based on equality … but upon certain ancient feelings of deference’ of individuals to state power, rooted in the easily grasped notion of a duty owed to the monarch who was divinely anointed by God to rule, whom Christian subjects had a duty to obey.

The UK Constitution’s core principles are unchanged from Bagehot’s time and continue their adherence to a duty foundation. Parliamentary sovereignty, the sovereignty of the Queen in Parliament – ‘the most fundamental rule’ of UK constitutional law according the High Court in R (Miller) v Secretary of State for Exiting the EU [2016] EWHC 2768 (Admin) – means fundamentally that a duty is owed by all to obey the will of Parliament. There are ultimately no constitutional grounds on which citizen or court can hold themselves not to be bound to conform to Parliament’s laws. The other central tenet of the UK Constitution is the rule of law. But in his book on that subject, Lord Bingham states that at its core this also ultimately dictates that all are ‘bound by and entitled to the benefits of [the] laws’: all have a duty to obey the laws. These constitutional features embody a fundamental foundation in a conception of the individual, who until the British Nationality Act 1948 was a subject not a citizen, defined by the duties they owe, not one whose fundamental value is their capacity to choose how to live and through their choices define their own identity.

The HRA has proved controversial because the European Court of Human Rights (ECtHR) has interpreted the Convention rights as grounded in, and protecting, a conception of the individual as being fundamentally free to choose how to live and through so choosing to define their identity. This directly conflicts with the law and the individual’s duty based understanding of the UK citizen and Constitution.

In Pretty v United Kingdom (App no 2346/02) the ECtHR recognised that ‘self-determination runs like a thread through the Convention as a whole’. In relying upon this as a foundation to support its interpretation of the scope of Article 8, the court held that the right and by implication the whole Convention protected ‘individual autonomy’: the capacity ‘to conduct one’s life in a manner of one’s own choosing’. Both Kai Moller and James Griffin’s wider analyses of the Convention and of Western human rights discourse recognise both as grounded in a choice based understanding of the individual.

The conflict between the UK’s duty based understanding of the individual and the ECHR’s choice basis can be seen in the House of Lords decision in R (Pretty) v DPP [2001] UKHL 61. Here the application of the duty to respect the sanctity of life led the Lords to find that a refusal to assist the claimant in her choice to die did not engage her Convention rights. Whereas the ECtHR, applying a choice based foundation, held her Convention rights engaged, though it applied a margin of appreciation to the question of whether they were violated. The conflict between the duty and choice based conception of the individual underlies many judicial disagreements in HRA cases.

The difference between the choice and duty based understanding of the individual, and its effect upon the Constitution, can also be seen when the UK Constitution is contrasted with the French and United States constitutions. These states rejected the duty conception of the individual with their rejection of monarchical systems of government based upon it. They based themselves instead in an idea of the individual as free to choose how to live, creating constitutional orders ‘deriving their just powers from the consent of the governed’ and containing bills of rights. John Paul Sartre saw the individual as condemned to be free and continually defining themselves though their choices. This may be true of the French but the English have long viewed themselves as defined and bound by their duties.

I have referred to the English deliberately, for the UK devolution process has either reflected or created an understanding of the individual as defined by choice on the part of the occupants of Scotland, Wales and Northern Ireland.  Through the exercise of their choice in referenda they agreed to the creation of the devolved assemblies, and to this choice basis those assemblies are made subject, via the requirement in the devolution Acts that devolved legislation be consistent with the Convention rights to be valid. This may be the reason that the Commission on a Bill of Rights found the HRA was not unpopular in these parts of the UK: the choice basis underpinning the Convention rights was consistent with how individuals in the devolved nations saw themselves and their relationship with the state. It is too early to judge whether exercising the choice of how to be governed given in the Brexit referendum will lead to a similar change in how the people of England understand themselves and their relationship with the state.

There is a fundamental challenge to the basis of the UK Constitution. The disagreement that the HRA caused, the debate about whether there should be a new bill of rights, and whether it should emphasise duties, are only a symptom of a deeper fundamental tension. Once we understand that the tectonic basis of our Constitution has been shifting, from one of individuals defined as bound by duties, to one where the individual is recognised to have the inherent capacity and the freedom to choose how to live, we can see that the debate over the HRA is a tremor from a deeper constitutional earthquake.

This blog post summarises some of the arguments and evidence put forward in an article in the current edition of Legal Studies: B. Douglas ‘Too Attentive to our Duty: The Fundamental Conflict Underlying Human Rights Protection in the UK’ (2018) 38(3) Legal Studies 360.

Benedict Douglas is an Assistant Professor in Law at Durham University.

(Suggested citation: B. Douglas, ‘The Fundamental Tension Underlying the UK Constitution’, U.K. Const. L. Blog (12th Sept. 2018) (available at https://ukconstitutionallaw.org/))

8 comments on “Benedict Douglas: The Fundamental Tension Underlying the UK Constitution

  1. Andrew David Thorburn
    September 12, 2018

    What is this? How many people’s lives are controlled by Royal Charters and Bye-laws?

    ADT In Wattstown, Rhondda 10:28 120918

  2. Peter Harris
    September 13, 2018

    One could query therefore the position of British nationals abroad, say in he Overseas territories or the Crown Dependencies, who may be outside the territorial jurisdiction of Parliament, but subject to the residual Crown jurisdiction, if as such it can be described , of the Privy Council.

    To what extent do British nationals within the scope of the Crown in right of their territory actually owe a duty to Parliament of the United Kingdom?

    The Caribbean territories have recently objected to the United Kingdom Parliament’s attempt to impose beneficial ownership registers through the Privy Council, on a duty basis.

    Fundamentally one could query the constitutionality of requiring the descendants of slaves imported from Africa to owe a duty to the State whose citizens enslaved them, outside the jurisdiction of the United Kingdom which pretended to prohibit enslavement in a municipal context, and then released them into a duty, not to their own Crown in right, but that of the United Kingdom Parliament, operating through HMG and the Privy Council.

    The consequence of that is that they are being prevented from running their own economy in the manner in which they are otherwise entitled. How else where they to be compensated for the removal of their freedom? The right of abode?

    In the case of the Crown Dependencies that distinction is even more pronounced and reinforced by constitutional convention. Dame Hodge and Mr Mitchell found that out to their embarrassment, and have effectively recanted.

    Put simply the duty aspect of the English or United Kingdom Constitution is absent in the unwritten constitutions Crown Dependencies, and technically it is the Ducal aspect of the Crown as a whole, not the United Kingdom Crown, to which any “allegiance” might be owed.

    The drafting of the written Constitutions of the Caribbean OCTs may or may not derogate from the duty aspect. I leave that to those better informed than I.

    • Andrew David Thorburn
      September 17, 2018

      What is this all about?

      Old Roedeanians, Certified copy Royal Charter and Bye Laws 010911 Copied from III. —-GENERAL. paragraph 5:

      “Provided always and We do hereby order and direct that no Bye-Law made as aforesaid and no alteration of or addition to or repeal of any of the Bye-Laws of the Corporation shall have any force or effect if it be repugnant to the provisions of this Our Charter or to the Laws of the Realm, nor until it shall have been approved by the Lords of Our Privy Council of which approval a certificate under the hand of the Clerk of Our Council shall be conclusive evidence.”

      Gif us to dai ure daihwamliche bred…Charter me, charter me now….so that I can please ask first, without adversarial friction. Is that what it is all about?

      ADT In Wattstown, Rhondda. 1331 170918

      • Benedict Douglas
        September 18, 2018

        ADT this doesn’t seem relevant to my post. However, it seems to say that Roedean School may not make, amend or repeal any School by-law which is inconsistent with the provisions of its Royal Charter or with any provision of UK law. It additionally requires that for any school bylaw to be valid it must be approved by the Privy Council.

    • Benedict Douglas
      September 17, 2018

      That is an interesting issue, thank you.

      I would expect that where OCTs fall on the duty-choice basis spectrum would be a function of their individual history and their past and current relationship with the UK. It would be interesting work proving it. A study of this kind was conducted into the Constitution of Ireland by P Hanafin which I discuss very briefly in my full article.

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