One of the most idiosyncratic elements of Britain’s political framework is its unwritten constitution. Almost alone amongst the many countries of the world, Britain’s political structure is defined not by reference to a single codified text, but instead is made up of a varied assortment of texts, laws, judgements and principles which have evolved since time immemorial. The lack of a codified constitution is not merely a historical accident, though – it is a manifestation of Britain’s historical scepticism of the possibility of a rational grounding for government and rights. The modern-day idea of a written constitution is a concept deeply wedded to the Enlightenment, and to the possibility that a group of men or women could – using solely their reason – formulate a document which would be sufficient to act as a cornerstone of a body politic.
This was not the route chosen by Britain. Edmund Burke, in his Observations on a Late State of a Nation, wrote that ‘politics ought to be adjusted, not to human reasonings, but to human nature; of which the reason is but a part, and by no means the greatest part.’ Burke’s argument here – that politics is the realm of human natures rather than minds and should be treated as such – is in many ways one of the key justifications for an uncodified constitution.
Many written constitutions contain references to human rights. The constitution of the French Fifth Republic, for instance, speaks of ‘human rights [droits de l’Homme] and the principles of national sovereignty, as defined by the Declaration of 1789’ explicitly linking human rights with a man-made declaration. The American Declaration of Independence, similarly, suggests that ‘men […] are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.’ But are human rights any stronger if grounded in a codified constitution than they would be in an unwritten one such as Britain’s? It would seem otherwise – that Britain’s constitution provides one of the best and strongest defences for human rights due to its pliant nature and irreducibility.
The basic human rights enjoyed by British citizens might correspond to those enacted in British law by – for instance – the Human Rights Act of 1998, but they do not stem from it. Such principles as the rule of law or the prohibition of cruel and unusual punishment can be found in texts such as the English Bill of Rights of 1688; indeed, even the Norman Magna Carta contains references to liberties of Britons still in force today. Each of these texts, unlike the French ‘Declaration of the Rights of Man’, does not seek to suggest that human rights can be grounded on something as flimsy as a piece of paper – they imply that they are reassertions or reaffirmations of pre-existing ancient rights. As the 1688 Bill of Rights puts it, the British constitution makes reference to ‘ancient rights and liberties.’ Such liberties cannot be removed through a constitutional amendment or reinterpreted according to judicial whim. The effect of our rights being ‘ancient’ is to make them integral to the essence of what it has always been to be a British citizen.
Written constitutions can often become fetishized merely by virtue of being a constitution (and thus a symbol of a country.) Such a situation reduces constitutional elements like human rights into slogans – contingent upon a singular wording at a particular point in history which is then taken to be a transcendent and eternal truth. Daniel Hannan, the Conservative MP for Hereford and South Herefordshire, has written of how this process ‘divorces [rights] from any context of law, custom or tradition’ and makes them ‘uncertain in their meaning.’ But by transcending the inherent limitations of the fixed word upon the page, ‘the security which an Englishman enjoys for personal liberty does not really depend upon or originate in any general proposition contained in any written document’, as A.V. Dicey put it.
When rights are tied to specific wordings arising from specific historical moments they can be both too permissive and too limited. One example of this can be found across the Atlantic in the American Constitution. The Second Amendment argues that ‘the right of the people to keep and bear Arms shall not be infringed.’ This right, arising from a highly specific historical context, is today used in a highly contentious fashion to justify the possession of assault rifles by citizenry. By contrast, the framers of the American constitution did not foresee extending many of the rights they codified to African-Americans; this tying of rights to historical moments through the act of codification was what eventually led to the state-sanctioned enactment of such practices as segregation and Jim Crow laws.
In other constitutional systems there can often be a tension between the right of the people en masse to legislate as they will through the vehicle of parliament, and their individual rights. The former is embodied through parliamentary sovereignty, and the latter through the rule of law. Part of the brilliance of the British system, though, lies in its ability to locate human rights as something which emanate from neither but are guarded by both. The British judiciary and the British legislature both defend differing aspects of British ancient liberties, and the ambiguity as to which is supreme – an ambiguity which is a central element of our uncodified constitution – means that our constitution is flexible enough to allow the precise interpretation of rights to reflect the nuances of each individual act of interpretation, keeping both individual rights and collective political rights in balance.
Considerable public debate regularly takes place on questions of human rights in this country. Such discourse should not be seen as a failure of the unwritten constitution, but in fact a vindication of it. Through its refusal to be tied to specificities – whether a specific document or a specific historical moment – the British constitution takes on a uniquely universal aspect. This is particularly important in terms of human rights – the constitution sees them not as being grounded in written texts but instead merely reaffirmed by them. Certain rights are, and have been since time immemorial, the inalienable property of all British citizens – it is around this understanding that the constitution has evolved.