Last Friday David Cameron made 10 scissor-happy pledges to Sun Readers – ranging from cutting the deficit to cutting incapacity benefit. High in at number three was the most baffling of all: a promise to scrap the Human Rights Act (HRA) and replace it with a British Bill of Rights to “strengthen Britain’s traditional liberties” . Peter Oborne and Jesse Norman serendipitously published the Tory case for the HRA in a pamphlet for Liberty. They point out, as did those that campaigned for the Act in the early 90s that British Lawyers drafted the European Convention on Human Rights. They add that Churchill saw the Convention as the extension of common law protections to the rest of Europe following the experience of totalitarianism.  Far from being an imposition from Brussels, the Act (which entrenches the Convention in to UK law) has impeccably British bona fides.

The Tories first mooted the idea of a British Bill of Rights in 2006 and they have been as clear as mud ever since on what this might mean. Does scrapping the HRA mean a future Tory Government would be prepared to derogate from the Convention on Human Rights, thereby taking Britain out of the EU altogether? While the rabidly euro-skeptic wing of the party would have no problem with this, there is no sign to date that Cameron’s Faustian pact with them has been anywhere so extensive. With the Irish voting yes to the Lisbon Treaty, the need for general clarification on a Cameron Government’s stance toward Europe will only become more pressing. Yet if withdrawing from the convention is off the table, does scrapping the HRA mean that British citizens will have to go to European Court of Justice in Strasbourg to take on the Government in Human Right’s cases  - as they did before 1997?  This hardly seems in keeping with Cameron’s call for a radical decentralization of power made following the expenses scandal.  

Of course, the Tories are not alone in using the HRA as a political football. The Government has been more than willing to publicly slap it’s own child for tabloid edification. Part of the reason for public ambivalence around the Act was the way in which it was conceived. While many may benefit from it they don’t feel like they own it. This speaks less to its content (e.g. free expression, the right to life, prohibitions on torture) and more to the process by which it was introduced – a clever but closed deal between human rights campaigners, the Judiciary and the incoming Labour Government.

Such elite deals are of course the norm for most forms of legislation:  the point is that the introduction of a near equivalent of Bill of Rights is an exceptional constitutional moment that needs to be recognized as such.  The Government’s belated attempt to do this through the intellectually fatuous British Bill of Rights and Responsibilities, has woefully failed to ignite public imagination or debate.  This is not simply because the idea of codifying responsibilities makes no sense but more fundamentally because the process has restricted itself to codifying what exists. Introducing a Bill of Rights in the UK would be a profound constitutional change; one that would warrant extensive public involvement in authoring and authorising the resulting document.  The first step in such a process is clarity and transparency of purpose. Short of political opportunism and manipulation, the Tories have yet to articulate such a purpose.

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