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A structural comparison of rights in the UK and USA might first focus on the constitution which gives the US a codified list of rights in the Bill of Rights as well as in amendments such as the Fifteenth, the Twenty-Fourth and Twenty- Sixth (voting rights), and the Nineteenth (gender). These rights are entrenched and subject to enforcement and interpretation in the courts which can over rule federal laws, state laws and the actions of governments state and federal. No such higher law exists in the UK since Parliament is sovereign.
In 1998 when the Labour government passed the Human Rights Act, which incorporated the European Convention on Human Rights into British law. This added into the formal structure of British law — freedom of expression, freedom of religion, the right to a fair trial and the right to life. The significant difference, however, is that in the UK these rights are not entrenched . In 2015 the Conservative government announced plans to replace the Human Rights Act with a British Bill of Rights. In 2022 this idea has been revived. Although this has not yet happened it would have been quite possible by a simple majority in both houses of Parliament.
Rights in the UK have relied on a culture which saw liberty as a characteristic of Britishness- often contrasted with our continental neighbours. The traditional observation that 'an English man's home is his castle' or the casual remark 'it's free country aint it ! ' relied on a generally accepted belief that the British were uniquely more free than most other peoples. The antipathy towards ID cards, police data bases or an armed police force were all grounded in this culture.
'In the UK moral principles are found in the law, in the USA law is found in moral principles'
Ruth Bader Ginsburg regularly said that Roe might have harmed the evolution of abortion rights by going too far, too fast. She argued support for abortion rights, which she supported, was already increasing, but that the court with its one fell swoop altered that trajectory and created a more polarized environment.
Ginsburg’s other main problem with Roe was that it was based upon the right to privacy rather than the right to equal protection — she felt the latter would have left it more insulated from challenges since it was more explicit in the constitution.
The existence of entrenched rights does not ensure that rights are protected or enforced. In the United States, it is possible to find examples of rights not being effectively protected despite the provisions of the Constitution or federal law. In the UK and the USA the protection of rights depends on the strength of political processes and the assertion of political will. Political institutions and their action or inaction are dependent on the cultural context in which they exist. The passage of the post-Civil War amendments did not end racial discrimination. And when the Supreme Court established the so-called ‘separate but equal’ doctrine in its 1896 decision of Plessy v Ferguson, the Court was clearly not protecting the rights of African-Americans. Neither did the Twenty-Fourth Amendment (1964) immediately end all discrimination against racial minorities in voter registration throughout all the states. Those in the gay and lesbian community would have considered the Defense of Marriage Act (1996) not to be protective of their rights to same-sex marriages. There are those who regard the protection of a woman’s right to choose an abortion as having led to a decrease in the protection of the rights of the unborn child. Balancing rights is rather like balancing scales. As one group’s rights are ‘protected’, a different group may well feel that their rights have been eroded or threatened. There was a debate in the UK regarding the balance between individual rights and national security following the bombings in London in July 2005. Legislation drawn up that year by the Blair government saw concerned raised that asked when did national security issues conflict rights of freedom of religion and freedom of speech?
The existence of an entrenched constitution does not result in a 'settled' understanding of rights since most rights tend to involve a balance of competing aims; security against freedom, rights of choice against unborn rights of life. This means that in the UK and USA rights are always debated and rebalanced in the light of events and changing social attitudes. Following the attacks on America on 11 September 2001, there was a debate concerning the appropriate balance between protecting rights and liberties on the one hand and protecting the nation from terrorist attack on the other. Many Americans felt that Congress’s passage of the so-called USA PATRIOT Act tilted the balance too far in terms of national security, thereby endangering the effective protection of individual rights. New rules on the detention of immigrants, new search powers of homes and businesses as well as of telephone, e-mail and financial records, all caused civil rights groups considerable unease. The detention camp at Guantánamo Bay, and the ‘war on terror’ during the administration of George W. Bush, caused some to be concerned over the balance of security as against rights. In 2020 the debate focused on law and order set against 'Black live matter' after the murder of George Floyd. In 2022 the Supreme Court's decision to overturn Roe v Wade resulted from a change in political and social attitudes rather than a more accurate or sophisticated understanding of the constitution. All constitutions aspire to establish stable, fixed points of agreement and pre-commitment, which its defenders consider to be possible and desirable, while its critics deem impossible and undesirable.
In both the USA and the UK there is an overriding cultural belief in the principle of the rule of law — a concept that emphasises the supremacy of the law, stresses the equal protection of individual rights from misused government power and emphasises respect for the law. In the UK the rule of law is subject to the supremacy of Parliament which means that politics is dominant, however, in the USA politics and the law are far more balanced than in the UK. Congress is not the dominant branch and it it not the sovereign branch. One of the consequences is the politicisation of the law which in turn results in the enhanced role of pressure groups in the protection of rights. In the landmark civil rights decision in 1954, it was the legal defence and education fund of the National Association for the Advancement of Colored People (NAACP) that brought the Brown v Board of Education of Topeka to court. Indeed, many of the Supreme Court’s most important civil rights cases have involved sponsorship by a pressure group. In landmark decisions regarding such issues as abortion, gun control and affirmative action, interest groups on both sides of the case may be influential in submitting arguments to the court. In many way the USA has a considerably more judical politics than the UK. As the 19th Century writer Alexis de Tocqueville observed: There is hardly any political question in the United States that sooner or later does not turn into a judicial question.' 1835
In both the USA and UK rights are safeguarded by all three branches of government, as well as pressure groups, political parties and the media since constitutions and laws do not of themselves offer effective protection of those rights. To be meaningful and effective, these rights need to be rigorously, consistently and impartially enforced through the political system and through the courts. It is the role of the media, pressure groups and parties (particularly when in opposition) to at as watchdogs of rights.
In the UK there has been an increase in the UK courts’ use of judicial review over the past three decades, which has encouraged UK pressure groups to focus their campaigning on the courts, and not just on Parliament and relevant government departments. Playing a similar role to that performed by the ACLU in the USA is the UK civil rights group Liberty. It campaigns on issues such as the use of torture and extradition, as well as the rights of asylum seekers, refugee children and members of the UK armed forces. However, the UK courts can never offer pressure groups the possibility of the kind of landmark decision such as Brown v the Board or Obergefell v Hodges.
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