David Cameron has proposed a British Bill of Rights, but would such an initiative work? Roger Smith assesses the Tory leader’s efforts to address rights


David Cameron so wants to play with the big boys. He must have been delighted after being praised as ‘singing from the Sun’s songsheet when he says he is ready to ditch the Human Rights Act’. Actually, a rather careful lawyer had clearly gone through Mr Camerons’ speech and its import may not be quite as the Sun reckons.



For a start, the Conservative Party leader notably did not use the Sun’s own examples of the Act’s ‘crazy rulings’. This is just as well since many of these turn out to be untrue or exaggerated. For example, Dennis Nilsen did not use the Act to get hardcore pornography. The prison governor successfully rejected his request. Nor does the Act or the convention justify the delivery of fast food to suicidal maniacs protesting on rooftops over lunchtime.



Mr Cameron chooses his examples with more honesty but that, of course, makes it more difficult. He quotes the case of Anthony Rice, who allegedly intimidated the authorities into giving him parole by threats to sue them under the Act. Mr Cameron has the grace to admit that Mr Rice never actually did litigate – he just threatened to do so.



Indeed, Mr Cameron is sufficiently fair to admit that ‘some of the direct consequences of the Human Rights Act have been positive’. He cites the non-separation of married couples entering care homes, and representation at inquests. However, he does not like the effect of the Chahal case, which prevents the removal of suspected terrorists to third countries where they might be subject to torture or ill-treatment.



In this, Mr Cameron joins Prime Minister Tony Blair. The government’s response has been, on the one hand, to seek to intervene in a case going to the European Court of Human Rights that might overturn Chahal and, on the other, to seek memoranda of understanding with the relevant countries that returnees will not be tortured. These are not responses that human rights organisations find attractive and, indeed, Justice has intervened in the same case as the government to take an opposing position.



However, procedurally, the government is correct. These are two routes through which the effect of Chahal can be properly tested in the courts.



The difficulty for Mr Cameron is that, at this point in his argument, he needs to differentiate himself from the Prime Minister and consequently finds himself impaled on a painful dilemma. He is realistic enough to accept that the UK needs to remain a member of the Council of Europe and sign up to the European Convention on Human Rights.



This minimal position is not accepted by some of the anti-rights diehards. For example, political commentator Melanie Phillips not only wants us to join Belarus as the only country in 46 mainland European states outside the convention, but sees positive advantage in the prospect of our consequent expulsion from the EU. Ms Phillips writes: ‘If the price of protecting our parliamentary democracy from the assault by unelected judges is our membership of the EU, we should surely bear that prospect with our customary fortitude.’



Mr Cameron, attracted to Europhobia though he may be, actually hopes to be Prime Minister one day. So, he needs to keep his position reasonably plausible. He advances the idea that we might agree a British Bill of Rights that would be slightly different from – more domestic and rather looser than – the European convention. He argues that the judges would agree that this was within an acceptable national discretion or, in the appropriate jargon, ‘margin of appreciation’. Alas, this is complete hogwash. States cannot circumvent decisions of the European court by such an obvious wheeze.



The culmination of Mr Cameron’s argument is the establishment of ‘a panel of distinguished jurists and other experts’ to draft the Bill of Rights. David Pannick used his recent column in The Times to warn off lawyers wishing to retain their credibility from collaborating with this exercise. And, indeed, it is not intellectually coherent. You can join those such as Ms Phillips on the outer periphery of realism and withdraw from the European convention. Alternatively, you are subject to it. There really is no middle way.



Therefore, the point arises of how to respond to Mr Cameron’s proposal. Some, whose scepticism might have been thought likely, have embraced it. They include Lady Kennedy and campaigning journalist Henry Porter. And, in a way, Mr Cameron is on to something. The very form of the Human Rights Act precluded democratic discussion about the form of actual rights because it simply incorporated into domestic law an existing document, about which there could be no argument.



Indeed, Mr Cameron’s proposal might actually have two enormous benefits. First, the jurists could start to scope out how the rights in the convention can be increased. Second, the process of the review could help reconcile the Conservative Party to a more logical position. Either way, the Sun is unlikely to remain quite so pleased. On inspection, Mr Cameron’s speech looks more like an attempt to hit a difficult issue into the long grass than the herald of any kind of realistic policy position.



Roger Smith is director of the law reform and human rights organisation Justice