Labour looks less liberal as power looms

Opposition plans to entrench human rights in British law are not as radical as they seem. Ministers, not judges, will still have the last word
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The Independent Online
Many people will be suspicious when Jack Straw, the Shadow Home Secretary, today announces details of a human rights law for Britain. These days, home secretaries and wannabees such as Mr Straw prefer to strike Rambo poses as the hard men of government. It's difficult to imagine them losing much sleep over human rights.

Mr Straw has, after all, backed provisions in Michael Howard's Police Bill that would allow extensive electronic surveillance of individuals without a warrant. It is Jack Straw who seeks to wage war against that dreadful threat to the future of the western society - the squeegee person, who wants to wash your windscreen while you wait at the traffic lights. And if Mr Straw gets into power, troublesome youngsters should expect to find themselves subject to curfews.

In short, Mr Straw sounds like a far more illiberal figure than, for example, Roy Jenkins, Labour's finest and most progressive Home Secretary. Yet Mr Straw apparently plans to do for liberalism what even Jenkins failed to achieve - incorporate the European Convention on Human Rights into British law. At a stroke, our own courts would at last be entitled to test laws passed by Parliament against, for example, the rights to life, liberty, security and freedom of expression. We have, since 1952, been subject to these provisions. But the difference, under Labour's plans, is that the aggrieved would no longer have to wait five or six years until the European Court in Strasbourg judged their complaint. They could seek a domestic remedy.

If Mr Straw enacts his proposals, the British judiciary could subject future governments to even more embarrassment than Michael Howard has been experiencing. The first British laws up for challenge could include the proposed new rules on police surveillance (which may infringe the right to privacy), Diane Blood's inability to obtain her dead husband's sperm for IVF treatment (right to found a family), refusal to provide the same state subsidies for Muslim schools as offered to Anglicans and Catholics (freedom of religion) and tight restrictions on legal aid (the right to a fair trial).

Today's discussion paper suggests that a joint committee of the Commons and the Lords should be established to ensure that future legislation is consistent with the convention. And Labour says it would consider the establishment of a Human Rights Commission, advocated by the left-leaning Institute for Public Policy Research, to support legal challenges in much the same way as do the Commission for Racial Equality and the Equal Opportunities Commission

But before civil libertarians drive round all night sounding their horns at an historic victory, they should read the small print. They will discover that Mr Straw's proposals turn out to be less liberal than they seem, because Labour's would-be Home Secretary has remained true to the time- honoured principle that Britain is ruled by an elected dictatorship, subordinate to none but the electorate once every five years, and certainly not to judges or a constitutional convention.

It is the government of the day, not the judiciary, that would be given the ultimate responsibility by Mr Straw to enforce the convention's "rights". Nowhere does today's discussion document say that the judges could strike down a law judged in breach of the convention. That provision, which existed in earlier drafts of the document, has been dropped by Mr Straw.

Instead, where the judges discover a breach of the convention, "consideration will need to be given by the government of the day and Parliament as to what action should be taken". What this seems to mean is that judges are entitled only to knock on a minister's door and say "Hey, we think you've made a mistake", and let Parliament (controlled by the government of the day) take over from there. This may be a big improvement on the status quo, but hardly a revolution in the rights of the individual vis-a-vis the state. Especially since, under the proposals, Parliament would also retain the right to pass laws which unambiguously broke the convention, provided that intention was clearly stated at the time of legislating.

The result of all this is that Mr Straw's plans leave British citizens still prey to maverick government, to ministers who, if enjoying a large enough majority in Parliament, could say to hell with the judges and the convention and do so with impunity, at least in the short run.

Compared with the "rights" other countries enjoy, entrenched in their constitutions, enforceable by the courts and almost impossible to change or ignore, Mr Straw's proposals add little to the individual's personal armoury. They look radical only in comparison with Tory unwillingness to contemplate even this modest measure.

It's not difficult to see why Labour has changed its tune. Under John Smith the party was committed to creating a Bill of Rights tailor-made for Britain. Such a reform may have seemed attractive when the party was in opposition and the Tories were creating an all-powerful central government in Westminster. But once Tony Blair succeeded to the leadership and the polls began to give Labour a whiff of coming power, retreat was ordered. A new Bill of Rights, which could hinder a Labour government's freedom of action, was quietly dropped and the party went instead for the less ambitious goal of incorporating the European Convention. Now, just as Labour looks set to take over the government front benches, the idea of limiting the executive's power looks even less attractive. Hence Mr Straw's latest watered-down proposal.

Is there any hope that Jack Straw will rise to the challenge of genuinely and irrevocably limiting state power? The signs are discouraging. There is, as today's document demonstrates, a struggle going on between Labour's liberal and illiberal tendencies. But if the liberal side fails to triumph in Opposition, it certainly will lose out when the party takes over our elected dictatorship.

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