Last week, on Holocaust Memorial Day, full page adverts featuring the desolate tracks to Auschwitz appeared in the national press. They were placed by the human rights group Liberty to remind us of our "common values", including freedom from torture, fair trials, privacy and free speech. These are enshrined in the European Convention on Human Rights and Fundamental Freedoms, drafted as a lasting legacy of the struggle against fascism and totalitarianism. The advert encouraged us to find out more about the Human Rights Act, which incorporates the rights in the ECHR into UK law.
Despite this heritage, the HRA is sometimes painted as a party political measure. Henry Porter implied last week that the HRA was a creature of the left, used by Labour as a "figleaf" behind which to attack our freedoms. Conservative MPs also sometimes refer to "Labour's Human Rights Act". Anyone acquainted with the sequencing that led to the act will be struck by the awkwardness of this phrase.
It was the Society of Conservative Lawyers which recommended in its 1976 report, Another Bill of Rights?, that "the ECHR should be given statutory force as overriding domestic law". This was two years after Lord Scarman's famous Hamlyn lecture which galvanised the modern debate for a bill of rights.
When the House of Lords set up a select committee in 1978 to inquire whether to introduce a bill of rights, it was the three Conservative members, and only one Labour, who supported its introduction. The committee unanimously agreed that "if there were to be a bill of rights it should be a bill based on the European Convention". Former Conservative home secretary Leon Brittan proposed the introduction of a bill of rights for Scotland, based on the ECHR, in the same year.
When some years later, Conservative MP Edward Gardner introduced a "human rights bill to incorporate in British law the ECHR", he had the support of several colleagues including Brittan, Geoffrey Rippon, Terence Higgins and Norman St John-Stevas. Other prominent Tories who have argued that the ECHR should be part of UK law, in the context of debates on introducing a bill of rights, include Richard Shepherd, Ivan Lawrence, Sir Michael Havers and Quintin Hogg. It was Hogg, in his later incarnation as Lord Hailsham, just before his second stint as Tory Lord Chancellor, who famously declared that "in this armoury of weapons against elective dictatorship, a bill of rights, embodying and entrenching the European Convention, might well have a valuable, even if subordinate, part to play". (The Dilemma of Democracy, 1978)
There were, of course, some notable Labour supporters of incorporation but this was dwarfed by widespread scepticism within the party that, interpreted by judges from a narrow social base, a bill of rights would stymie the programme of a Labour government. Although the post-war Labour administration signed and ratified the ECHR this was not without significant qualms. The first formal Labour party document to propose incorporation of the ECHR into UK law was a 1976 discussion paper, A Charter of Human Rights. This emerged from a committee chaired by Shirley Williams MP but the party's National Executive Committee would not allow it to be discussed. Most supporters of a bill of rights in the Labour party, like Williams and former home secretary Roy Jenkins, left to join the SDP. The home office, meanwhile, published its own discussion document on incorporation in 1976 but came to no conclusions.
Generally speaking, support for a bill of rights within both the Labour and Tory parties evaporated when their government was in power. There were some exceptions. In a letter to the Times in March 1981, former Tory cabinet minister Geoffrey Rippon urged the Thatcher government to act on its manifesto commitment "to discuss a possible bill of rights with all parties". Like most other protagonists, he urged support for a "bill of rights bill which is intended to render the provisions of the ECHR enforceable" in UK law. Rippon noted that it was Winston Churchill who promoted and proclaimed the ECHR in the first place, a theme developed by Daily Mail journalist Peter Oborne and Conservative parliamentary candidate Jesse Norman in their Liberty pamphlet, launched at the last Tory party conference.
If there was one political party which was consistent in its support for a bill of rights it was the Liberal Democrats (and its predecessors the SDP and Liberals). The Liberal peer Lord Wade was tireless in introducing bills to incorporate the ECHR into UK law. He was followed by Robert Maclennan MP and Lord Lester, who probably did more than any other single figure to garner support for this policy.
When Labour finally adopted incorporation of the ECHR as party policy in the early 1990s, in the context of a debate about the "quickest and simplest way" to introduce a bill of rights, this was a significant departure from its previous stance. Just a few years earlier, in 1989, Alistair Darling, speaking for the Labour shadow cabinet, opposed a parliamentary motion by the Lib Dems supporting a bill of rights based on the ECHR.
Once in power, with the exception of the cabinet ministers who introduced the act, and successive human rights and health ministers who have since championed it, the government has been noted for its lamentable lack of promotion of the HRA, rather than its wholesale support. More than once after 9/11 and 7/7 the Blair government seemed close to amending, if not repealing, the HRA. Former home secretary John Reid appeared to echo David Cameron when he declared in September 2007 that "we need a review of the workings of our human rights laws at a British and European level". It was, of course, Ken Clarke, now shadow business minister, who described Cameron's 2006 commitment to replace the HRA with a "British bill of rights" that "spells out the fundamental duties and responsibilities" of the people as "xenophobic and legal nonsense". Cameron repeated these sentiments only two weeks ago.
Far from a clear-cut ideological divide between the two main political parties, they have at times seemed perilously close in their discomfort with the HRA. This is the surest sign of its effectiveness. Whilst the HRA has clearly not prevented serious incursions into our freedoms, it has put brakes on the executive that were completely absent before (more on this later in the series). Bills of rights are not panaceas. Most only allow the courts to review primary legislation after it has been passed or overturn unfair policies or decisions by officials. A bill of rights that could act like Simon Cowell, and stop acts of parliament in their tracks, would no doubt be accused of totally usurping Britain's parliamentary traditions.
The US Bill of Rights, which has a strike-down power, has also failed to stop liberty defying legislation from being introduced like the USA Patriot Act 2001, the Homeland Security Act 2002, the Real ID Act 2005, the Detainee Treatment Act 2005 or the Military Commissions Act 2006. Former DPP Sir Ken Mcdonald estimated at Liberty's June conference that "the HRA stood up to the pressures created by global terrorism more effectively than the US Bill of Rights". Amongst a growing list, it has banned evidence procured by torture from being admitted in our courts, required independent and public investigations of all deaths in custody, declared that control orders and indefinite detention breach fundamental rights, reduced the destitution of asylum seekers and safeguarded due process for mental health detainees. None of this is remotely enough, or a substitute for political action which no bill of rights can, or should, make redundant.
It would, of course, be possible to introduce a bill of rights that is wider in scope and stronger in enforcement powers than the HRA, although neither the Tories or Labour propose the latter. If it is to garner the support the HRA has lacked, it must be preceded by widespread, and lengthy, popular engagement and debate. When I worked at Liberty in the early 1990s we tried to persuade the Labour party to support incorporation of the ECHR as the "first step", with a "follow up" bill of rights based on a wider set of internationally recognised human rights and traditional British liberties. For a while this was Labour policy. Virtually all of the debates referred to above likewise proposed "a bill of rights" based on "entrenching the European Convention", as Lord Haisham put it in his evidence to the 1978 select committee. In some cases this was presented as the first stage towards a "constitutional bill of rights", in others as the last, but in no case was it ever suggested that incorporation would need to be reversed to introduce a subsequent bill of rights.
The political divide which has now emerged is not between those who support and oppose bills of rights. It is between those, like the Liberal Democrats and Labour party, who are adamant that any new bill of rights must build on the HRA, and the Tory front bench that is flying in the face of its heritage (and the rest of Europe) in arguing that it must be predicated on the HRA's denigration and repeal. Human rights are hard to win and easy to lose. They belong to no political parties. As Porter rightly argues, it is "plainly in all our interests" to stop this "struggle over ownership of rights". Human rights are not objects to barter away. They come from struggles that were begun long ago by past generations who gave their lives for these rights to be enshrined in our laws.
This article first appeared in Comment is Free
Francesca Klug OBE is a professorial research fellow in Global Governance at LSE and a senior research associate in the Centre for the Study of Human Rights.