Needless to say it featured high in the list of laws intended for swift repeal in the Conservative manifesto. For the Liberal Democrats, though, on paper and on all that their leaders had previously said on the matter, they have had a strong commitment to maintaining this great Labour measure.
At the level of personalities the Coalition position is more complex still with dove-ish Tory ministers (the lawyers), Ken Clarke and Dominic Grieve, taking the senior legal positions as Justice Secretary and Attorney General respectively, most responsible for policy in this area, but with the rest of the parliamentary Conservative Party firmly for repeal. The hawk-ish view given voice in the Ministry of Justice by Minister of State Nick Herbert, who, as the last shadow Justice Secretary, repeatedly attacked the Act and much of what it represents.
The fudge reached by the Coalition, though currently little more than rhetorical, has been to talk of the replacement of the Human Rights Act with a Bill of Rights. A document intended to form, to some degree, a written constitution, setting out responsibilities as well as rights, as well as (apparently) being compliant with the UK’s European Convention obligations. The extent to which it will incorporate the current Act and the now settled body of case law on human rights is presently entirely unclear as is whether and the extent to which the Bill of Rights would contain any legally enforceable rights. Wholly devoid of content the present policy fudge reflects the wholly divided view in the Coalition of the current Act.
The divisions in the Coalition on this policy represent, on one level, a simple political opportunity for Labour in Opposition and a chance to drive a wedge between the Coalition parties and, even, within departments. Such obvious chances, even in a coalition government, will not be that often in coming and Labour must take advantage of it. However, human rights are not an area in which political gamesmanship can easily or, even, should be fought, and Labour has to deal with its own recent commitment to a (very different) Bill of Rights. Under Gordon Brown’s premiership a long-standing policy commitment of parts of the Labour Movement to a rather different Bill of Rights, one that was intended to incorporate enforceable social rights, appeared to come to the fore only, as with a number of constitutional measures, not finally to transpire before it was too late.
So what approach should Labour take to in this divisive policy area?
My own view is that whatever is proposed for a Bill of Rights, it is not going to be what the proponents of a Bill of Rights within Labour would want it to be; it will not protect employment, social care, education and other social rights in addition to the established human rights. The best option for Labour, therefore, is not to get distracted by talk of a Bill of Rights from this Government, but to try to defend what works and not allow the debate to be distracted away from a strong commitment to the Human Rights Act which has proven to be such a proportionate and measured intervention.
The Labour case should tackle head on the arguments that the current Act is unpatriotic and causes weak government. We can properly argue that the Human Rights Act has brought human rights home to Britain. Human rights issues have been decided in domestic courts by domestic Judges which has created a solid, established and predictable jurisprudence essential for the Rule of Law. The unthinking mainstream Tory view confuses repeal of the Human Rights Act with patriotism little thinking that the alternative is law made in Europe by Judges who, on the whole, will have little knowledge or understanding of the British setting whether legally or more generally.
Labour should, for now, now forget the Bill of Rights and stand up for the British Human Rights Act which has in large part delivered a desirable level of protection of fundamental human rights. Keeping the agenda firmly focussed on the current Act should also have the politically advantageous effect of putting the spotlight on a dividing point for the Coalition parties.