By Aswini Weereratne QC
The Great Charter or Magna Carta of 1215 is often wrongly proclaimed to have embodied principles such as the right to a jury trial. In fact the true power it wields is as the embodiment of the principle of the 'rule of law', so far as that is understood to be the tool by which the power of the state exercised over all free 'men' is controlled. It marked a significant watershed recognising that even the supreme power of the state, at that time the king, must be subject to certain overriding rules.
It is also gave birth to the basic notion of individual rights which was extended in the Petition of Right of 1628, the Bill of Rights in 1689, and the Claim of Right of 1689 in Scotland. And, as everyone is fond of endlessly saying, the European Convention on Human Rights, which was drafted by British lawyers. So human rights are as British as fish and chips and chicken tikka masala.
Over the centuries these rights have been developed by the courts into common law rights and they include many that are familiar today, such as the right of access to the courts, to know the charges faced, to have the opportunity to challenge the evidence against you, to have a public trial and not to be detained without trial.
In this 800th anniversary year Westminster Central Hall has been festooned with banners proclaiming the proud English legal traditions emanating from the Magna Carta. At the ceremony appointing new QCs in February, the then lord chancellor Chris Grayling was fulsome in his praise of the traditions of English law and Magna Carta.
The lord chancellor's oath of office requires each new incumbent to swear to respect the rule of law and defend the independence of the judiciary "So help me God".
Yet as we know the new government and the new lord chancellor have renewed the promise to repeal the Human Rights Act 1998, now vilified as a 'villains charter' and accused of ceding parliamentary sovereignty to the judiciary (including those in Strasbourg), and replace it with a truly British bill of rights. This government has also severely curtailed the right of ordinary people to question and challenge government action in the court through judicial review: the guardian of the rule of law.
How are these Janus faces of the government, to be reconciled? Do they reveal a significant disconnection from the fundamental principle of the rule of law, and an intolerance of a critical judiciary that demonstrates a constitutional crisis all of its own?
In 2012 the commission on a bill of rights, which was set up by the coalition government, reported that there was a fear, even among those who had some reservations about the workings of the Human Rights Act, that the call by some political parties for a UK bill is "motivated by a desire to reduce existing human rights protection, and reduce the power of the ECHR, rather than by any genuine belief in human rights". The result could be 'human rights minus', or human rights light.
The commission, having noted that only a minority of those responding to its consultations favoured a UK bill of rights, went on to conclude by a majority that there was a strong argument for a new bill of rights. But it did so explicitly on the basis that "such a bill would incorporate and build on all of the UK’s obligations under the European Convention on Human Rights" and that “it is essential that it provides no less protection than is contained in the Human Rights Act and the devolution settlements".
That does not sound anything like the rhetoric of the government and some sections of the media on the 'villains charter’, wrongly preventing the deportation of terrorists and permitting convicted prisoners to vote.
There is also confusion whether the villainy stems from Strasbourg or the radical judgments of English judges.
There is no question that the HRA protects the principle of parliamentary sovereignty. It only requires convention case law to be 'taken into account' and it does not permit the convention to be used to override primary legislation. The court has a discretionary power to make a declaration of incompatibility in the event that it finds primary legislation is incompatible with the convention. It cannot strike down the law. It is for ministers to change the law. The courts have also developed the concept of a "discretionary area of judgment" or deference to the government. These are not radical judges but they must apply the law.
Conversely, if human rights are at stake the courts may scrutinise the government’s decisions more closely. Who could quarrel with that? Surely it is to be welcomed? The government’s hastily passed Data Retention and Investigatory Powers Act 2014 (Drip) and its proposed sibling the investigatory powers bill propose wide-scale retention of individuals' emails and mobile phone records for no properly defined purpose. This affects all citizens. Liberty has referred to this as a "turbo-charged snoopers' charter" and is challenging it in court as being incompatible with the right to respect for private and family life under Article 8 of the convention. The court will now quite properly scrutinise the justification for these draconian legislative measures.
The commission and others cite the lack of public understanding and commitment to the 'European' HRA as a structural problem. It is true that more should have been done to promote understanding of the HRA and the benefits it brings to all levels of society when the time the Act came into force.
The convention is now over 50 years old. It may be a 'living instrument', but there are gaps in the protections it provides. As the commission states, there may therefore be "reasonable, principled and academic arguments" in favour of a UK bill of rights. They promote a UK Bill because they would like it to contain additional rights to those in the convention, such as children’s rights, disabled rights, equality, environmental and socio-economic rights like healthcare and education. But do we really believe that is this government's motivation?
What we do not want is a Britain without adequate rights protection because this would damage and undermine a universally held reputation that the British are generous and fair minded. An open debate now should be aimed at reminding the public of the manifest benefits of full human rights protection just as the commission set up by the government concluded in 2012. These are benefits derived from the Magna Carta and an honourable history of which all British people should be justly proud.
Aswini Weereratne is a specialist in mental health law at Doughty Street Chambers.
The opinions in politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.
Aswini will be speaking at the Alternative Magna Carta rally - a festival of civil liberties and free speech - this weekened in Clerkenwell. Buy tickets here.
Taking place at three venues in London, the event will bring together hundreds of people from across Britain for a day of discussion, debate, art and culture.