The commission on a bill of rights has ducked the big questions. With Ukip looming, we know how David Cameron will respond
A final showdown over Europe looms. In his guide to the perfidies of the Human Rights Act, the justice secretary suggested yesterday that the Conservatives would use the 2015 election campaign as a battle cry to disengage from one of the most important foundations of the postwar settlement.
In one respect, Chris Grayling’s frustration was understandable. He was anticipating publication of a report by a commission established by the government to look at a UK bill of rights. After nearly two years’ work, courtesy of the taxpayer, a small group of great and good agreed to disagree and duck the main questions. In a lawyerly ego-fest, they indulged themselves with mini-manifestos at the conclusion to the voluminous document.
“I will read and digest the report of the commission,” Grayling wrote dismissively in the Daily Telegraph, “and will see what help it gives me to deliver change in the short term.” His next line was more important: “I will also be looking clearly towards the next election, and starting work on ensuring that we have a real plan for change then as well.”
Grayling, who was promoted to remove the woolly liberal Ken Clarke, is on a mission to root out what he – and many voters – believe is the distortion of human rights. The needs of Abu Qatada (he doesn’t mention him by name, but we get the gist) are not the same as those of Andrei Sakharov.
We know that Long Lartin high security prison isn’t the Gulag. Such simplistic comparisons do not help policymakers navigate their way through a debate that is based both on important principle and complex detail. The European court of human rights, Grayling adds, “has pried more and more into matters that should be routine issues for national courts and parliaments to deal with. It has interfered in areas which its creators would never have imagined that their work related to”.
Not even the staunchest of defenders of Strasbourg or the Human Rights Act – one of the most commendable early pieces of Blair-era legislation, which enshrined the European convention into UK law – would defend all its decisions. The right to wear a Christian cross while at work became the legal equivalent of the straight banana, a symbol of Eurocrats and Euro-judges getting it wrong.
Step forward a bill of rights made in Blighty, upholding all that is good in a document endorsed by Churchill while discarding the “nonsense”, such as prisoners being able to vote or terrorist suspects being detained without trial indefinitely but not being extradited to countries where prisoners are tortured.
The problem, as the commission found out to its cost, is that the solutions are much harder to find. What should be in the bill of rights? What is its relationship with the Human Rights Act? And crucially, what is its relationship with the European convention? Answers came there none.
For two members of the commission with estimable liberal-legal credentials – Helena Kennedy and Philippe Sands – this was all too much. Their minority report suggested that, contrary to the apparent media consensus, voters are not unhappy with the Human Rights Act. They argued that respondents to the inquiry in Scotland and Wales had more trust in judgments from Strasbourg than in those from London. (Curiously, the Lib Dem peer Anthony Lester expressed his own defence of the Human Rights Act and concerns about its replacement, while choosing to side with the commission’s majority opinion.)
All sides have agreed that nothing should be done until after the referendum on Scottish independence in autumn 2014, for fear of antagonising the locals. This paves the way for May 2015, and the coalition’s reckoning with voters. If current opinion poll trends are sustained, David Cameron will be looking over his shoulder at Ukip.
He will want to offer as much red meat as he can to the millions of disaffected English who are flocking to the party with the easy answers about Europe, immigration, gay marriage and all things cosmopolitan.
Cameron appears reluctant to go down the route of embracing full withdrawal from the EU – although, should he win the next election, he may yet get bounced into that in a referendum during the second half of the decade. What is potentially more attractive to him, and he thinks enticing to voters, would be a pledge to fashion a homegrown bill of rights that would rid the UK of the worst “excesses” of Europe. For that to happen, withdrawal from the European court of human rights would be the clearest option.
That is not what yesterday’s muddled report from the commission says, as the chair Sir Leigh Lewis was keen to point out. Any new bill of rights would not reduce any of Britain’s existing obligations. At the same time, he insisted this would not be a rebranding exercise. Both assertions cannot be true. Nor should it be assumed that even under a UK-only law, our pesky judges would act differently on issues of extradition or prisoner voting.
None of these considerations are likely, however, to interfere with the politics. It is now open season on pretty much anything European. The Conservative road map is clear, but how will Nick Clegg and Ed Miliband respond? One hopes in a more enlightened manner, but nothing can be guaranteed. A mess has just been delivered. Prepare for the mayhem.