Scrapping the Human Rights Act would be an anti-Magna Carta moment for Britain

Proud justice. But for how long? Ben Sutherland, CC BY-SA

Britain should be proud of its human rights history – from the Magna Carta in 1215, through the Bill of Rights in 1689, to taking a lead in drafting the European Convention on Human Rights, Britain has demonstrated a belief in human rights and a strong commitment to strengthening their reality.

But the proposal to scrap the Human Rights Act (1998), which features in the Queen’s Speech, risks destroying this proud legacy in favour of political expediency. Antipathy towards Europe threatens to undermine our centuries-old commitment to human rights and our international reputation and standing.

Human rights are not always popular – they do not pick and choose their beneficiaries. Everyone: the soldier, the refugee, the hospital patient and the newspaper editor alike, is endowed with human rights simply because we are human. Human rights really are universal.

Bringing Rights Home through the Human Rights Act was a logical and powerful step. There was time lag of almost two years before the act came into force to give our public services and our courts the time they needed to make sure that human rights were properly understood and embedded in all that they do.

Every individual in the United Kingdom should be able to enforce their human rights through the country’s own laws and in its own courts so that remedies are swift and effective.

Building a fairer society

It is through the act that the vulnerable, the dispossessed and the bereaved can hold the authorities and public services to account. The Human Rights Act is about achieving a fairer society and mutual respect for ordinary people.

None of us can anticipate when we might need our human rights. If the police ignore our cries for help, if children are neglected by social services or wrongfully separated from their parents, where young people are left to fend for themselves and allowed to be targeted by paedophile gangs, we can call our public services to account through the law.

Where it all began: Magna Carta. etee, CC BY

If we are a member of a minority group we can challenge discriminatory treatment; one of the earliest landmark judgments recognised equality for gay couples when one partner has died and is threatened with eviction from the home they built together. This was not about special treatment, it was about eliminating discrimination.

A bereaved parent whose adult child commits suicide while on ill-advised home leave from hospital can challenge the wisdom of medical decision-making – all through the Human Rights Act. As Baroness Hale said, it may be in practice that the people who have had most need of it are “out of the ordinary”, but the point is that it is there for all of us as we go about our everyday lives.

Justice should begin at home

With its strongly libertarian tradition, we can be confident that English common law will protect our right to be free from wrongful interference by the state. It is the 250th anniversary of the great case of Entick v Carrington which held that the search of premises could not be justified by state necessity, in other words the state cannot carry out a lawful search if there is no authority to issue a warrant.

But the common law can be muted when we want to assert rights that reflect positive obligations on the part of the state. In an age of austerity, when our public services are under pressure, it is particularly important that we can protect our rights at home rather than having to seek redress in Strasbourg.

The Sunday Times needed to go to the European Court of Human Rights to uphold freedom of the press in its efforts to fight for the rights of the victims of Thalidomide, a process that took several years. The Strasbourg institutions will still be available to anyone in the UK whose rights are violated, but would it not be better that its role were limited to overseeing the implementation of the convention rights by our own courts?

There will be times when the European Court of Human Rights instigates change. But nobody now questions that it is right that gay men and women can openly serve in the British military following the 2002 decision in Smith & Grady v the United Kingdom, or that all separated fathers, married or unmarried, are treated alike.

We need access to remedies for breaches of human rights in our own courts – the Human Rights Act made this a reality. Without the act, many people would not have been able to shine a light as swiftly or as readily in the darker corners of our public services. Whatever the shape of human rights in the future, an effective domestic remedy must be at the heart of the United Kingdom’s obligation to ensure rights for all.