Bruce Anderon: Why we need a new Bill of Rights

British subjects need legal protection, drafted in Britain in accordance with British principles
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The Independent Online

Shortly after becoming Home Secretary, David Blunkett said that the Human Rights Act had been the worst mistake of Labour's first term. Tony Blair may now agree. His recent speech on the need to balance freedom and order was an implicit attack on the human rights judicial culture which the HRA has created - and Mr Blair has only himself to blame.

He cannot claim that he was not warned. The HRA's critics argued that it would lead to a politicised judiciary while making it harder to deal with crime. But in 1997, inebriated by the exuberance of a large majority, Mr Blair and his ministers took no notice. They assumed that anything with a human rights label must be a good thing. Still left-wing enough to be contemptuous of their own country's human rights record, they were delighted to incorporate the European Convention on Human Rights (ECHR) into English law. Foreigners knew better.

All modern governments have been guilty of passing too many laws while turning the House of Commons into a sausage factory. But Mr Blair was worse. Previous governments had at least tried to think through the consequences of their laws. The Blairites found it liberating to legislate first and think - if at all - later. Now they wonder why judges refuse to allow them to treat foreign terrorist suspects on a different basis from British nationals. "Enact in haste, repent at leisure" should be one of this government's many epitaphs.

There was no need for a Human Rights Act any more than there had been a need to subscribe to the ECHR. In the 18th century, David Hume had written that as a result of the Glorious Revolution and its Bill of Rights, "we, in this island ... (enjoy) ... the most entire system of liberty, that ever was known amongst mankind". That has remained broadly true. So there might seem to be a simple solution to the current travails: repeal the HRA and repudiate the ECHR.

David Cameron is offering a different solution. Rejecting the simplicities of repeal, he will argue that the growth of the modern state has created a dual menace: the increased power of government and the increasing intrusions of bureaucracy. In view of this, British subjects need legal protection, drafted in Britain in accordance with British legal principles.

So Mr Cameron will propose a bill of rights and responsibilities. Leaving aside other considerations, this is also good politics, for two reasons. Although there may be a strong case for repeal, it is not an easy one to sell to the public. Even if the voters are irritated by rights for prisoners, rights for terrorists et al, a root-and-branch repudiation might seem too drastic.

Then there is Gordon Brown. He has plans for the British constitution and he intends to make them one of the main features of his premiership. They will not be based on a profound reading of history; still less, on an empathy with Britishness. Mr Brown will make a populist, opportunistic attempt to seize the headlines and persuade English voters that he is not hostile to their interests.

As Tony Blair could testify, the Chancellor is entirely devoid of political self-knowledge. It is likely that any constitutional proposals which he puts forward will come across as clumsy, thoughtless and menacing. Even so, the more that Mr Cameron can produce thoughtful measures, the harder it will be for Mr Brown to make his plans seem plausible.

There are some higher-minded arguments for the Cameron line. At moments, various groups of people come to believe that they should run the country. This is often true of businessmen and academics. Occasionally - God help us - it is even the case with journalists. But the tribe most prone to this deformation professionelle is, inevitably, the lawyers. It is a short step from interpreting the law to making the law.

In recent years, with the growth of judicial review reinforced by the HRA, the step has become a mere scintilla. David Cameron will complain that it is almost impossible to find a lawyer who is opposed to the HRA. There is no reason why a new government should not defy the legal profession's received wisdom.

Despite the clumsiness of this government's attacks on the judges, the lawyers are not always right. But it would be easier to govern with the tacit support of a majority of the legal profession. A British Human Rights Act should secure this.

There is another argument which Mr Cameron could deploy. As the Marxists would say, it is no accident that the enactment of the HRA, which gave judges great power, has been followed by the most sustained attack on judicial independence since Charles I's battles with Sir Edward Coke. It would be easier to defend judicial independence if it were exercised within limits. If the judiciary were happy to recognise the sovereignty of the High Court of Parliament, it would be easier to argue that judges should be sovereign in their own courtrooms.

The judiciary are not alone at being at fault. One of the strongest arguments which Mr Cameron could cite in favour of his bill of rights is the Blair government's record, best described as inefficient authoritarianism. We desperately need a government which will do less and do it better, and a British Bill of Rights may have a contribution to make to the necessary process of improving our government's performance.