Populism, political courage and why the Tories are attacking the wrong target

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The Independent Online

One way and another, the Tories have been busy on the populist front this summer. From law and order to A-levels, from "lax" asylum rules to "hidden" unemployment, Michael Howard and his Shadow Cabinet have been trying to convince still sceptical voters that the Tories are wide awake and looking after your interests, even when everyone is away. Now, though, we have something rather more serious. The shadow Home Secretary, David Davis, has announced the establishment of a commission to review the Human Rights Act. It will start work in October and report - guess when? - in time for the general election.

Presenting his thoughts yesterday, Mr Davis reeled off a whole catalogue of iniquities this Act has supposedly spawned, from the snappily styled "compensation culture" that threatens children's playgrounds and sports days to the freedom of travellers to camp in fields with impunity, via a serial killer's "right" to peruse pornography in jail. The law, Mr Davis said, was "malfunctioning", and the options open to the commission would include reform, replacement and even repeal.

The point is probably not repeal, though; it is rather to place the Act in the spotlight and keep it there for political advantage. For the 1998 Act is the perfect populist vehicle for a Tory shadow home secretary. As the European Convention on Human Rights effectively incorporated into this country's law, it came already tainted with the malodour of Brussels and "lost" British sovereignty. Nor, as Mr Davis cheerfully noted, are the Tories alone in finding both the Act and the Convention hard to live with. When forced to choose between provisions of its Terrorism Act and compliance with the Convention on Human Rights, the Blair government opted out of the Convention. Rights and responsibilities are now the subject of a debate within government, too.

In one specific respect, Mr Davis is correct. After the Human Rights Act came into effect in 2000, there was - as he says - a big rise in the number of cases coming before the courts in which human rights were an aspect. But he is being disingenuous when he presents this as the whole story. It was entirely predictable that the number of such cases would rise exponentially once the Act was in force. This is what the law was there for and why it was needed. Before that, cases involving alleged violations had to be taken to the European Court in Strasbourg for adjudication, an expensive and cumbersome procedure. Now, this court is a final instance to which far fewer people need recourse.

It was predictable, too, that the Act would produce some perverse judgments. But the serial killer's pornography is not one: the prison authorities decided this themselves. Nor, necessarily, is the 40 per cent rise in the number of prisoners granted parole in Scotland, singled out by Mr Davis. This may be as much a reflection of the illiberal character of the Scottish prison system before the Act was passed as on any excess of permissiveness since.

And for Mr Davis to blame the Human Rights Act for the "compensation culture" is just plain absurd. The simple fact is that today people are better informed about all their rights and use the law accordingly. Many deserve the compensation they receive. The growing number of lawyers operating no-win, no-fee arrangements, not always scrupulously, is also part of the explanation.

There is another, equally simple fact, however, that Mr Davis chooses to ignore. The 1998 Human Rights Act is no foreign accretion. It is but the most recent expression of a home-grown tradition that began with Magna Carta and includes the Bill of Rights. In protecting individuals against the power of the state, the Act enshrines freedoms that are at the heart of Conservative philosophy. If the Tory Opposition wants to hunt down real threats to our liberty, it could do worse than consider the restrictions and intrusions authorised by the Terrorism Act. If ever there was a case for a commission to "reform, replace or repeal", this is it. But that would take real political courage.

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