Replacing the Human Rights Act could lead to a permanent constitutional revolution rather than a statement of basic values
By Shami Chakrabarti
'A dog with a fine slab of meat in his mouth crossed a bridge over a river and saw his reflection in the water. Thinking it to be another dog with a larger piece of meat, he let go of his own and dived at the other dog to take it. He surfaced with nothing and his dinner washed away in the current." This famous fable might be rewritten as "The Lawyer and the Bill of Rights".
Friday saw the close of the public consultation phase of the government's commission on a UK bill of rights; an enterprise designed to paper over a fundamental faultline in the coalition consensus.
Liberal Democrats vowed to defend the Human Rights Act and Conservatives to replace it. The tension between these positions was significant enough for assumptions that the Human Rights Act was safe for this parliament. But while the coalition agreement was infused with the language of liberty and considerable substance in terms of scrapping ID cards, reviewing anti-terror laws and rationalising databases, one of the most progressive inheritances of the Labour government was not protected. Instead the lengthier second agreement promised to establish what many commentators described as a "long grass commission". Snakes sometimes lurk in long grass.
I have admired some of the lawyers on this committee for my entire adult life. Others I have come to know and respect more recently. However, the challenge for friends of human rights in Britain today is neither one of jurisprudence nor drafting.
Some critics tell you that the Human Rights Act is too "European" because it incorporates the "European" convention on human rights and might perhaps be confused with the euro or Silvio Berlusconi or a bratwurst. They should perhaps reflect on the Eurosceptic own goal of scrapping or diluting the act that allows British judges, and not just a Strasbourg court, to adjudicate the convention that was Winston Churchill's postwar legacy.
Others say that the act gives too much power even to British judges. Have they ever actually read the other bills of rights in democracies around the world that grant strike-down powers to higher courts rather than preserving parliamentary sovereignty, as remains the case in Britain?
Then you get those who are simultaneously more clued up, honest and terrifying. Their beef is with protecting human beings rather than citizens. In their view, laws should never prevent deportation – even to places of torture or when, after years of delay and maladministration, the authorities decide to remove someone who would never have established a family life in Britain but for their negligence.
The second year of the coalition seems to reveal a tacit agreement to unite over the deficit, and divide over human rights (at least at home). Remember the prime minister feeling "physically sick" about decisions of "unelected judges"? There was a time when it was only the hard left who thought that judges should be elected. Later he thought the Human Rights Act to blame for the summer riots. The home secretary caught a particularly virulent strain of this bug when she said that the act must go because cats (not ministers' or Border Agency instructions) were impeding immigration control. Credit to Nick Clegg for promising in his party conference speech that "the Human Rights Act is here to stay"; but the legal fraternity should be careful what they wish for, and wary of doing anything that makes this position or the lord chancellor's wicket-keeping more difficult.
Yes, it would be possible to draft a bill of rights that added to the rules against torture, slavery and arbitrary detention – added to the protection of fair trials, privacy, conscience, free speech and association and equal treatment under the law. Social and economic rights, specific rights to jury trial and a whole menu of further delights have been mooted at various times. But do we really believe that any of this is realistically on the cards?
It would be equally possible to copy out the rights and freedoms in the act and remove the references to the "European" convention on human rights. Maybe the new instrument could be published complete with a union flag to aid its popularity in Scotland and Northern Ireland?
But does anyone think that this Botox bill of rights is going to fool the critics? Instead it would feed the idea that bills of rights are creatures of fad and fashion, to be thrown out or "made over" with each passing government – a kind of permanent constitutional revolution rather than a statement of basic law and values for all democrats and generations to unite around. The Human Rights Act is our modern bill of rights and, unlike the dog with the meat or aspiring founding father, I will stick and not twist.
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