800 years ago the King met with his Barons and Bishops at Runnymede in Surrey, where he signed a “Great Charter” which guaranteed the Rule of Law, rules around property rights and inheritance, as well as details such as fishing rights on the River Thames.
It was not the first such charter, and none of the rights it guaranteed was new – indeed it was merely an expression of English law as it was viewed by the Barons at the time. All they were seeking to do was to get King John to abide by the law. It was a struggle that was by no means new, and clearly didn’t end with the signing of Magna Carta, otherwise the case of Prohibitions del Roi would never have been needed.
The King never intended that it should be binding on him, and promptly ordered all copies destroyed. It was his son, Henry III, who signed it again, after the Barons insisted that was their price for supporting his accession to the throne.
Magna Carta fell into disuse during the late middle ages, and it was the 17th century resurrectionists such as former Lord Chief Justice Sir Edmund Coke who imbued it with some mystical power to represent a fundamental element of English law – in reality not one of the provisions of Magna Carta is enforceable in an English court.
There have been many recent comparisons between Magna Carta and the Human Rights Act. Indeed given their importance as fundamental elements of the UK’s unwritten constitution, it is unsurprising that such comparisons are being made. Yet the Human Rights Act is not a modern Magna Carta – because it is actually far more important than that.
There is a lot of rot written about both documents. It is amusing, in some ways, that those who write so passionately about the ability of Magna Carta to act as a brake on the tyranny of the State then criticise the Human Rights Act as unnecessary because ‘this country doesn’t need a brake on a tyranny that couldn’t exist here.’ It is ironic that those who declare Magna Carta fundamental to Britain don’t understand that the HRA is a modern expression of Magna Carta and is just as fundamental to our nation.
A lot of Magna Carta was about preventing foreign laws from being imported into England by our foreign King – and so is the Human Rights Act. The HRA incorporates the European Convention on Human Rights into UK national law, meaning that the Convention Rights can be considered by British Judges, rather than the obscene sight of British Citizens having to go to a foreign court to enforce what are the fundamental freedoms guaranteed by being British.
Critics of HRA say that these rights already exist. And so they do. They existed long before Magna Carta, long before Prohibitions Del Roy, long before the Bill of Rights in 1699, and long before the European Convention on Human Rights and Fundamental Freedoms was written by a Nuremburg Prosecutor who went on to be a (highly illiberal) Tory Home Secretary and Lord Chancellor.
So why do we need the Human Rights Act to guarantee these rights, if they have existed since before 1066 and the Norman Conquest? Well try taking the Magna Carta into an English court of law and relying on its provisions. Try doing the same with the Bill of Rights, which was actually passed as a Statute, and is therefore Statute law. Yes, if you needed to rely on the case law of Prohibitions Del Roy then you could, though there is much better and much more recent case law and statute upon which to rely.
The Human Rights Act requires state bodies, including the courts system, to consider the articles of the European Convention of Human Rights and Fundamental Freedoms. That’s all it does. If a decision is lawfully taken but is in contravention of those Convention Rights, then an English court can issue a declaration of incompatibility. Which the UK Government could choose to completely ignore.
So why do so many people blame the Human Rights Act for all their woes? I would point the finger of blame at certain national newspapers, who have been burned by the need to balance Article 8 rights (the right to respect for a private family life) with Article 10 (the right of freedom of expression). The Daily Mail, the Daily Express, the Sun, the Mirror, even the Times, have all lost court cases based on decisions in English courts that a private individuals Article 8 rights trump a national newspapers Article 10 rights. They have lost a lot of money through this, and they (rightly) think that without the ECHR they would have been able to print whatever they liked about private individuals who couldn’t afford an expensive libel suit.
Combined with a Tory party obsessed with hatred towards anything with the word European in the title – the ECHR is actually nothing to do with the EU, but try finding an opponent who understands that – this aggressive campaigning by the national media against the HRA has persuaded the public that they want to see it go.
Don’t be conned by the national media into doing their work for them. The Human Rights Act protects your fundamental freedoms from the tyranny of a state who already hack your phones, your email, your internet browser history, the GPS data from your phone, bug your homes, arrest and detain you without trial, kettle you in the street, and in at least one case shoot you dead without cause, reasonable suspiscion or fair trial (Jean Charles de Menezes).
Without the Human Rights Act this would be a much more dangerous state for the freedom loving, law abiding citizen.