On Conservatives and Civil Liberties

Sometimes it's hard to be a Conservative voter; giving all your vote to just one party.

What makes it most difficult is their present attitude to civil liberties and human rights. They currently just do not "get it".

Indeed, I despair when the topic comes up at any Conservative meeting at which I am present. "Repeal the Human Rights Act!" will say one cheerful activist; "Leave the ECHR!" will growl a second; "SOUND!" will be affirmed by the delighted chap at the back.

And so, living down to Mill's description of the Tories as the "Stupid Party", the Conservative Party is saddled with the daft commitment to repeal the Human Rights Act.

One is reminded of the eighteenth century jibe, "there are 40,000 stout fellows ready to fight to the death popery without knowing whether popery is a man or a horse."

The Human Rights Act is to be repealed by those not knowing what it says or how it works.

I had pinned my hopes on Dominic Grieve, now the shadow justice secretary (and previously shadow home secretary). Here is a Tory lawyer who not only cared for civil liberties and human rights, but one who had a practical grasp of how such concerns can be given effect through legal instruments. He actually understood the merits of the Human Rights Act 1998, which implements the ECHR into English law.

This legal and constitutional insight meant that Grieve differs from the other Tories who have similar concerns. For example, David Davis - for whom I have a lot of time and admiration - can only resort to "Magna Carta" and "Habeas Corpus". Heady and sentimental, but hardly the stuff of practical human rights or civil liberties.

But Grieve has had to buckle. Faced with his party's hostility to the Human Rights Act and the ECHR, he has come up with an alternative wheeze, see here.

Somehow, someway the Conservatives are going to enact primary legilsation which will allow them to repeal other primary legislation which affects fundamental rights. This can be done, but it really is not the best thing to do.

If such legislation requires repeal it appears to me that should be done by means of the usual parliamentary process, and subject to scrutiny, and not by the fiat of a minister or an unscrutinized statutory instrument.

But the underlying problem is the Conservatives' current refusal to accept or even understand the Human Rights Act or the ECHR. This is a shame as, to my mind, both are actually rather Tory.

In fact, the ECHR was in part formulated by the great Tory lawyer Sir David Maxwell-Fyfe (a hero of mine, who destroyed Goering by cross-examination at Nuremberg).

Almost all of the rights provided for under the ECHR - privacy, freedom of expression, etc - are "qualified rights", meaning that the courts has to balance the right against legitimate exceptions; rights against responsiblities.

And the Human Rights Act has legal bite in two admirable ways: first, it forces the courts to respect primary legislation, which is to be interpreted in a way complaint with the ECHR, but never ignored; second, public authorites have to abide by the ECHR in the exercise of their powers.

I would have thought respect for primary legislation and limiting the powers of public bodies would be attractive to Tories.

The Human Rights Act should be built on, not repealed. The party of Rab Butler should always believe politics to be the art of the practical.

But to deal practically with the increasing concerns for human rights requires that the party now accept the principles of the Human Rights Act and the ECHR, and then it should seek to work to further entrench human rights and civil liberties in English law.

Instead the new shadow Home Secretary, who replaced Grieve, just calls for more wrongs and fewer rights.