Dominic Lawson: The Conservatives should be the last people to scrap the Human Rights Act

Tories should cherish a law designed to protect the individual against the state
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The Independent Online

I imagine that it must have come as bit of a shock to Dominic Grieve, the shadow Attorney General, when he read in The Sun last week that David Cameron was backing the paper's campaign to "scrap the Human Rights Act". Mr Grieve chose to mark his maiden speech as an MP in 1997 by declaring that, "in variance with some of my colleagues on the Conservative benches", he backed the incoming New Labour government's manifesto pledge to incorporate into British law the European Convention on Human Rights.

Dominic Grieve is himself the son of a long-serving Tory MP, and I suspect that this has given him a historical perspective on the matter which perhaps eludes some of The Sun's leader-writers, and possibly his leader too. For although it was the Attlee administration which ratified the European Convention on Human Rights in 1951, it was Sir Winston Churchill who signed Britain's name to its First Protocol in 1953. This was only fitting: it was the Tory MP David Maxwell Fyfe who had a greater influence on the formation of the Convention than any other politician. The Convention was a direct response to the horrors of Nazi tyranny, and Maxwell Fyfe was, as a prosecutor at Nuremberg, more familiar than most with how that tyranny began: through the actions of a democratically elected government.

Churchill himself had already decided during the war that a Human Rights Convention was needed, and indeed, if it had not been for his vocal support, it is quite possible that Attlee would not have got the measure through his own Cabinet, some of whom were strongly opposed. The Convention's First Protocol was designed to protect the rights of people to their own property, and a socialist government with a programme of compulsory nationalisation was bound to be concerned.

During the second reading of the Human Rights Act in the House of Lords in 1997, the late Lord (Max) Beloff argued that, while it was true that the ECHR was designed to prevent a recurrence of the horrors of Nazi tyranny in Europe, "unlike many of your Lordships I was around at the time. It was never thought that that the Convention should be applied to democratic countries, least of all the United Kingdom." At this point the then 88-year-old Lord (David) Renton, a fellow Tory, rose to make a devastating intervention. "It so happens that I was on the legal affairs committee of the Council of Europe at that time. I played some part in helping to formulate the Convention. I can assure my noble friend that it was a matter on which we wished to protect all of the people of all of the countries represented."

(Incidentally, Lord Renton is still very much with us at the age of 97, and remains a wonderfully vigorous performer. Only six weeks ago he pricked the balloon of some New Labour minister who was attempting to introduce yet another piece of gobbledeygook on to the statute book: "Although I have been in Parliament for over 60 years I have never before heard the expression 'the transformational agenda'. Does the noble Baroness know what it means, and if so, can she tell us?")

Max Beloff may indeed have been right that at the time it would have seemed inconceivable that the ECHR would need to be invoked against a British government, but then at the time a Prime Minister with such a contempt for due process as Mr Blair possesses would also have seemed inconceivable. As Dominic Grieve has pointed out, Mr Blair enacted a brand-new law within 24 hours of the Omagh bombing which enabled someone to be sentenced to up to 10 years' imprisonment for belonging to a proscribed organisation, based on no more evidence than the suspicion of a police officer. Two years later that legislation was quietly repealed, as doubtless will many more of Mr Blair's instant laws designed to appeal to whatever sentiment was expressed on The Sun's front page that particular morning.

The Prime Minister is now letting it be known that the Human Rights Act itself might need to be looked at again. His latest panic appears to be caused by the fact the official report into the murder of Naomi Bryant by Anthony Rice suggests that the parole board's concern about Mr Rice's "human rights" was one of the factors behind their decision to release a highly dangerous sex offender. I readily agree that Rice's release was objectionable both in principle and in practice. But the main reason why the Parole Board took an excessive risk with the public's safety - yet again - was that it had failed lamentably - yet again -- to acquaint itself with all the facts about a criminal's record and personality. Had it done so, any protests about his "rights" would have been otiose.

In all the hullabaloo about this case, or that of the Afghan hijackers so badly bungled by the Home Office, no one from the Government seems to have had either the sense or the courage to remind the public of the benefits of the Human Rights Act; in the last few years it has been successfully invoked by the elderly and the disabled in care as a defence against local authorities who have acted with an arrogance which hitherto had been unchecked. More dramatically, in the 2000 case of JM v. The United Kingdom, it was found that the cross-examination of rape victims by the defendant in person was in breach of article 3, which forbids "cruel and unusual punishment" by the state.

I am aware of the view that such generalised terms don't fit well with the precision of English law, but exactly the same phrase banning "cruel and unusual punishment" was in the 1688 Bill of Rights; and it is much better that the interpretation of the ECHR is carried out by British judges in respect of British complainants, than by a medley of judges from countries as diverse as Azerbaijan and Moldova.

Conservatives above all should cherish a law which is solely designed to protect the individual against the state. There was a sign of this appreciation when the Countryside Alliance last year launched a High Court appeal against the law banning hunting with hounds, by invoking the Human Rights Act. The Countryside Alliance took on the leading human rights lawyer, Edward Fitzgerald, whose previous clients have included Myra Hindley, Abu Hamza, and various dodgy Chechens. I recall Edward telling me that a number of his more doctrinaire friends were shocked that he acted for the foxhunters - thus demonstrating just how dangerously narrow a view many on the left have of human rights.

David Cameron is, or rather was, a keen huntsman, so I imagine that he would have supported the action brought by the Countryside Alliance under the Human Rights Act. I am equally sure that, on reflection - and despite the need to get The Sun's backing at the next general election - he would not want to dishonour the great historical record of the Conservative Party in defence of freedom.