Public and EU Law: Contrasting Human Rights in UK and US Constitutions

This essay provides a comparative analysis of human rights within the constitutional frameworks of the UK and the US. It begins by highlighting the fundamental differences between the UK's unwritten constitution and the US's codified constitution, particularly concerning the codification and protection of individual rights. The discussion contrasts the US Bill of Rights and the Human Rights Act of 1998 in the UK, examining the historical context, legal protections, and limitations of each system. It further explores the role of treaties, judicial precedents, and legislative actions in shaping human rights law in both countries, concluding that while the US system has proven resilient in defending human rights and civil liberties, particularly through constitutional amendments and judicial review, the UK system faces challenges due to its parliamentary sovereignty and the ease with which rights can be modified or abolished. The essay emphasizes the importance of understanding these differences in the context of contemporary political and legal developments.

Running head: PUBLIC AND EU LAW
Public and EU Law
Name of the Students
Name of the University
Authors Note

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Introduction
A constitution of a country is considered to be the heart of that country. It has been
observed that an entire country is governed by the constitution of that country. A constitution
deals with many aspects, for instance rule of law, codification, parliamentary power and human
rights. Constitution helps to protect the rights of the citizens by providing certain fundamental
rights. Similarly, in order to maintain the law and order of a country some fundamental duties are
also provided by the constitution which must be followed by the citizens. If anybody violates or
tries to violate the fundamental rights or duties that person must be punished under the
provisions of the constitution. Almost all constitutions deal with the aspect of human rights
because it is a matter of international importance. Intending to protect the rights of the
individuals separate law has been enacted by several countries, such as the Human Rights Act,
1998 has been enacted in UK to protect the rights of the people of UK1. This paper mainly
focuses on the critical analysis of human rights of the UK’s Constitution with the US’s
Constitution. While discussing the same this paper also sheds light on the aspects of human
rights and implementation of it into the legislation of both the jurisdictions, such as Bill of
Rights, Treaties, enactment of several rights.
Discussion
Before discussing the difference between the UK and the US Constitution in relation to
the aspect of human rights implementation, it is vital to know the nature and features of both the
Constitutions. The first and foremost nature of the Constitution of UK’s is that, this constitution
is not a written constitution. Many authors are of the view that the UK’s Constitution is not
written because UK does not follow a single document to maintain the law and order of the state.
1 Landman, Todd. Protecting human rights: A comparative study. (Georgetown University Press, 2005).

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The Parliament passes law by using the power of the Crown that cannot be challenged by
anyone. On the other hand, in this respect it cannot be said that the US Constitution could be
more different in comparison to the UK Constitution. It is a solitary, formal and comparatively
short document which has turn out to be anchored in the past 230 years of the US political life2.
Many authors are of the view that these comparison is very obvious, therefore it is important to
trace out the implications of this difference, beyond this evident contrast.
The foremost implication of the codified or un-codified Constitution and possibly the
utmost strong point of the US Constitution is related to the rights of the individual. As the United
States has a codified Constitution, therefore it has a codified and incorporated set of rights that
all American citizens have. Human rights in the U.S. include a number of rights lawfully secured
by the U.S. Constitution, including revisions, state constitutions, imposed by treaties and
ordinary international law, statutory laws adopted by Congress, and formal referendums and
inventiveness of the American citizens. U.S. federal courts have authority over the laws of
international human rights because it is considered to be a part of the U.S. law. A report stated
that the United States got 86 points out of 100 on the basis of the human freedom and rights both
civil and political under the Freedom of World ranking. The U.S. ranked 38th under CIRI Human
Rights Data Project on the basis of human rights3.
In comparison, a set of codified rights is not present in the UK Constitution. In U.K.,
human rights include various fundamental rights of persons. Human rights are an essential part
of the U.K. Constitution and originated from common law and certain statutes such as Magna
Carta, the Bill of Rights, 1689 and the Human Rights Act 1998, Council of Europe membership
and international law. The concept of written human rights is new but these rights have been
2 Wiener, Antje. The invisible constitution of politics. Vol. 4. Cambridge: (Cambridge University Press, 2008)
3 Steiner, Henry J., Philip Alston, and Ryan Goodman. International human rights in context: law, politics, morals:
text and materials. (Oxford University Press, USA, 2008).

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practiced in UK for a long time. The key source of human rights jurisprudence today is the
Human Rights Act, 1998. It also introduced the European Convention on Human Rights into
national litigation4.
The United States Federal Government has granted absolute rights to citizens and
sometimes to the non-citizens as well through a ratified constitution. Over time, these privileges
developed over constitutional amendments, backed by laws and judicial precedents. The U.S. has
been criticized all over the world on the ground of human rights concerns, inclusive of the
minimum securities for workers in hazardous work, the detention of debtors, the violation of
citizens’ confidentiality by observation programs, cruelty of police, confinement of citizens for
revenue, maltreatment of convicts and adolescents in the jail system, forced disappearances,
unexpected surrender and extrajudicial treatment. Some spectators marked the U.S. with
extraordinary just marks on human rights, whereas others are accusing it of an insistent form of
human rights abuses5.
In contrast, the perception of written human rights is novel but human rights have been
practiced in UK from a long time ago even before the enactment of the HRA, 1998 and the
European Convention on Human Rights. Even, the Magna Carta 1215 also assured free
movement of people, and maintained common ground for all. It strongly endorsed the right to
have the body or habeas corpus, upkeep the freedom of individuals from illegitimate custody
with the right to plea. It has also been observed that previously the English parliament has been
used as a venue to discuss the common concerns of common people6.
4 Alston, Philip, and Ryan Goodman. International human rights. (Oxford University Press, 2013).
5 Gardbaum, Stephen. "Human rights as international constitutional rights." (2008) European Journal of
International Law 19.4: 749-768.
6 Greer, Steven. The European Convention on Human Rights: achievements, problems and prospects. (cambridge
university press, 2006).

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As per the Human Rights: The Essential Reference, it can be said that the American
Declaration of Independence was considered to be the principal constitutional document which
followed a contemporary description of human rights. The Constitution acknowledges a range of
immutable human rights, inclusive of freedom of speech and expression, freedom of religion,
freedom of assembly, the right to retain and bear arms, and freedom from cruel and rare penalty.
The popular instances of human rights computed by Congress after the drafting of the
constitution are the Civil Rights Act, 1964 and the Americans with Disabilities Act, 1990. The
scope of the U.S. government's legal protection of human rights is demarcated by case law, in
particular by the U.S. Supreme Court precedent. In addition, individual states have frequently
protected human rights which are not acknowledged at federal level through court action or
regulation. For instance, Massachusetts was considered to be the first of many States to accept
same-sex marriage.
On the other hand, where many authors are of the view that, in order to protect the rights
of the UK citizens more efficiently, it seems important to the government of UK to create a set of
rights in written format. Human Rights Act (HRA), 1998 has been enacted in order to introduce
the European Convention on Human Rights into UK law. In 1950, the United Kingdom co-
authored the European Convention on Human Rights, which enabled people to plea to the
European Court of Human Rights in Strasbourg even against the unlawful acts of the Parliament.
The basic principles of international law has always been respected by the Parliament. Many
authors are of the view that a vital role had been played by UK in the drafting of convention.
Individuals can expressly raise human rights entitlements in United Kingdom tribunals on the
basis of the Convention. It comprises of the right to life, slavery, an operative remedy and the
right of not to face discrimination.

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A difference between the two concepts, such as self-executing and non-self-executing
treaties is made by the U.S. Constitutional law within the framework of human rights and treaties
which identify or form individual rights. Non-self-executing treaties include those which grant
rights and may be allowed by law and becomes part of domestic law. In fact, there are also
situations that necessitate specific statutory consent. Human rights treaties establish an obligation
to refrain from behaving in a specific way or grant definite rights, are usually held to be self-
executing and do not warrant further legislative action. ‘Pacta Sunt Servanda’ is a famous
concept, as per which a country may not appeal provisions of its local laws or constitution as a
reason for non-compliance with its obligations under international law.
However, in case of the UK, basic rights form an essential part of EU law. The European
Union law necessitates that any action taken by its Member States shall act in accordance with
the necessities of EU law as regards the security of basic rights.
In the Bill of Rights, which came out of the first ten amendments to the US Constitution,
these rights has been observed. The Bill of Rights include several rights which are guaranteed to
the American citizens such as freedom of speech and expression, freedom from torture, right to
be treated equality. More protections can be contained in later amendments, such as in the
Fourteenth Amendment, which provides equality before law and equal protection under the law
and an amendment which has proven vital in safeguarding the legitimate rights of the African
Americans people and LGBT Americans7.
In contrast, a ‘British Bill of Rights’ has been proposed by certain Conservative
politicians but it has been observed that those rights are not stronger in comparison to those,
which are guaranteed under the HRA. Yet the shortcomings of the rights in the UK related to the
US go much more. The abolition or reduction of freedoms in the United Kingdom is simple, it
7 Ignatieff, Michael, ed. American exceptionalism and human rights. (Princeton University Press, 2009).

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needs only a Parliament Act. Conversely, in the case of US, a constitutional amendment is
needed. For instance, the Criminal Justice Act, 1994 in force abolished the right to silence when
the police or courts asked in the United Kingdom.
Two centuries later, the fact that these rights continue to be preserved can be perceived as
one of the pronounced strong points of the US Constitution. For instance, when the President
implemented a travel ban from seven Muslim-majority nations, such implementation has been
struck down by the federal courts on the grounds that it discriminated against a specific devout
group of people, in violation of the First Amendment, which was intended to safeguard religious
minority rights. The federal courts ruled in 2015 that processing of bulk phone information by
the National Security Agency (NSA) was unconstitutional under the Fourth Amendment:
freedom from irrational investigation and confiscation. Therefore, a written amendment of 1791
was competent to safeguard Americans in relation to the most current issues of digital privacy8.
In Hamdi vs. Rumsfeld [2004] 542 U.S. 507 case the power of the U.S Government
regarding the detention of enemy fighters has been acknowledged by the U.S. Supreme Court
inclusive of U.S. citizens but stated that the U.S. citizens shall get a chance of fair hearing and
capability to challenge the allegation before a neutral authority9.
In May 2019, the British Government announced that the first human rights ambassador
has been appointed in order to promote work of UK in the UN Human Rights Council and
internationally.
In Gilham vs. Ministry of Justice [2019] UKSC 44 case the court is of the view that the
failure of a judge to extend the protection of a whistleblower amounts to the violation of the
rights of the complainant under Article 14 of ECHR10.
8 Stephens, Beth. "Translating Filàrtiga: a comparative and international law analysis of domestic remedies for
international Human Rights violations." (2002) Yale J. Int'l L. 27: 1.
9 Hamdi vs. Rumsfeld [2004] 542 U.S. 507
10 Gilham vs. Ministry of Justice [2019] UKSC 44

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Conclusion
Therefore, from the above discussion it can be concluded that, even in the 21st century,
there exist a clear distinction between these two Constitutions in several areas. Nevertheless, it
can be argued that presently the US political system has become extremely dysfunctional, which
has revealed some of the institutional shortcomings, its ability to resist reform, its inflexibility
and its defense of anachronistic freedoms. Nevertheless, despite this, the U.S. Constitution has
proven strong in some crucial areas, especially the defense of human rights and civil liberties, an
environment where at present the U.K. Constitution has proved to be relatively weak.

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BIBLIOGRAPHY
Books and Journals
Alston, Philip, and Ryan Goodman. International human rights. (Oxford University Press,
2013).
Gardbaum, Stephen. "Human rights as international constitutional rights." (2008) European
Journal of International Law 19.4: 749-768.
Greer, Steven. The European Convention on Human Rights: achievements, problems and
prospects. (cambridge university press, 2006).
Ignatieff, Michael, ed. American exceptionalism and human rights. (Princeton University Press,
2009).
Landman, Todd. Protecting human rights: A comparative study. (Georgetown University Press,
2005).
Steiner, Henry J., Philip Alston, and Ryan Goodman. International human rights in context: law,
politics, morals: text and materials. (Oxford University Press, USA, 2008).
Stephens, Beth. "Translating Filàrtiga: a comparative and international law analysis of domestic
remedies for international Human Rights violations." (2002) Yale J. Int'l L. 27: 1.
Wiener, Antje. The invisible constitution of politics. Vol. 4. Cambridge: (Cambridge University
Press, 2008)
Cases
Gilham vs. Ministry of Justice [2019] UKSC 44
Hamdi vs. Rumsfeld [2004] 542 U.S. 507

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Legislation
Americans with Disabilities Act, 1990
Civil Rights Act, 1964
Human Rights Act, 1998