‘What rights would you abolish?’ is no longer good enough for challenging the government.
Since the general election, two tiresome memes have been circulating among my mainly left-wing friends on social media.
One is a photograph of a bored-looking deliveryman standing over a trolley laden with vintage champagne outside Number 11 Downing Street. It is a perfect symbol of the return of Tory Britain – except that it was taken in 2004, when Labour was in power.
The other is a screenshot of the 1950 European Convention on Human Rights, accompanied by the announcement that the new government plans its abolition. The implication - frequently spelled out - is ‘so, which of these rights are going to be trashed?’. Again, this is off target: wasn’t the one clear ambition to emerge from last year’s Conservative party paper on rights to ‘put the text of the original human rights convention into primary legislation’?
Obviously for details on how the government proposes to achieve this - let alone the manifesto commitment to ‘break the formal link between British courts and the European Court of Human Rights’ - we will have to wait for the Queen’s speech.
But it’s not too soon for supporters of the Human Rights Act 1998 to lift the quality of their arguments. Tub-thumping that the Conservatives plan to ‘abolish human rights’ might have been sufficient when taking on former lord chancellor Chris Grayling. But the game has now changed with the appointment of Michael Gove as justice secretary and Dominic Raab as junior minister. Along with the battle-hardened Shailesh Vara, they make a formidable team.
Especially Raab, who has the privilege - rare in political careers - of being given the machinery to turn a hobby horse into government policy. Raab’s hobby horse, pace my Facebook friends, is civil liberties. He set out his stall in a 2009 book* which should be required reading for anyone who believes the 1998 act is ipso facto an essential bulwark of human rights. Raab rather presents the creep of Strasbourg case law as part of a continuum of threats to liberty, along with Labour government policies such as identity cards and 42-day pre-trial detentions for terrorism suspects.
What Raab called the proliferation of rights ‘has undermined our democracy – eroding the rule of law, blurring the separation of powers and dislocating the accountability of law-making from our elected representatives’.
His solution has a familiar ring in 2015. ‘Ultimately what we need is a Bill of Rights, to galvanise a national debate on the constitutional direction Britain is taking and reach out across and beyond party political divides.’ A British bill would celebrate the tradition of John Locke, John Stuart Mill and Isaiah Berlin. ‘It would humble an increasingly arrogant and abusive state, obliging greater humility from government ministers and officials in justifying the assumption of power, authority and the control they exercise in our daily lives.’
Above all, it would restore a presumption in favour of preserving individual liberty – ‘a presumption that might still be rebutted with compelling cause, but not on spurious grounds or trivial whims’.
He also claims that it would be possible to disapply Strasbourg case law while remaining within the convention and the Council of Europe, a topic which will no doubt consume much web bandwidth in the coming months. I look forward to the argument and hope the best bits of it will be conducted in our pages.
As Raab wrote in 2009: ‘A wider public debate on a bill of rights would allow a national stocktaking of recent developments and future direction. It would help reverse the popular disconnect with, and rising scepticism about, human rights.’
But not if one side depicts the 1998 act as the fount of all our liberties and the other as a secular satanic verse.
*The Assault on Liberty: what went wrong with rights Fourth Estate, 2009. ISBN-978-0-00-729339-1
Michael Cross is Gazette news editor