affiliated to the International Association of Constitutional Law
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  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 tenant 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  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/))