Duncan Hamilton: Bill of Rights debacle exposes Tory and Lib Dem divide

WHEN politics and law collide, things tend to get messy. Just ask David Cameron. Having pledged an all-out assault on the Human Rights Act and surfed a wave of support from xenophobic right-wing tabloids, the Prime Minister suddenly finds himself all at sea.

The problem with the policy was that it drew inspiration from base motives. Cameron saw the chance of cheap headlines and couldn't resist. He seized on our courts refusing to deport suspected terrorists because of the risk of torture – something which would have breached the European Convention on Human Rights (ECHR). The Human Rights Act, incorporating as it does most of the ECHR, became a focus for all that was wrong with modern Britain. In attacking it, David Cameron saw the chance to develop a theme which would simultaneously resonate with core supporters, play to swing voters and attract the Murdoch media. It also allowed him to promote an alternative "Bill of Rights" and so claim to be championing real liberties whilst using that new Bill to define what, in his view, it was to be "British".

The barely suppressed subtext of resisting the encroachment of "Europe" was perfect mood music in uniting a still basically anti-European party. Politically, that cocktail of potential advantage was simply irresistible. But if it looked too good to be true, that is because it was.

For now, on the far side of an election he failed to win, David Cameron is in partnership with a Liberal Democrat party which opposes his position. That party is pro-European, fiercely defensive of the Human Rights Act, proud of the rights enshrined in the ECHR and responsible to a party activist base which will not countenance any dilution of the present position. There is almost no better example of how far apart these two parties, and particularly their members, are on matters of substantive policy.

The result was the announcement in the coalition "Programme for Government" that "We will establish a Commission to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties." Not so tough now, are you Dave?

The wording of that commitment matters, because it explicitly confirms that any Bill of Rights will do none of the things that the Tories promised it would. For example, on the very day the Programme for Government was launched, two suspected terrorists successfully appealed against deportation to Pakistan on the basis that they would be tortured on their return – the very issue that had previously so enraged the Tory leader. This, you would think, was the very example upon which the new Prime Minister would take a defiant and public stand. Well, not so much. And why? Presumably because he now recognises that the ECHR is here to stay and that the court was wholly entitled to decide as it did. The silence of the Prime Minister confirms that the pre-election sabre-rattling was both legal fiction and political opportunism.

In truth, the whole issue was bogus. The truth is that the courts had been interpreting Article 3 (the prohibition on torture) in the same way since at least 1996. David Cameron might reflect on the fact that not only does that predate the Human Rights Act 1998, but it was also under a Conservative Government. In short, therefore, unless David Cameron proposes to pull out of the ECHR – and he now explicitly says that he won't – each and every one of the deportation cases he claims to oppose will continue to be decided precisely as they were before. It is posturing of the most contemptible kind.

In reality, the only purpose to any future Bill of Rights will be supplementary and additional to ECHR. In fact the original proposal was always for the Human Rights Act to be the first of a two-stage process. In 1993, John Smith and the then shadow home affairs spokesman, Tony Blair, announced a package of measures both to introduce ECHR via a Human Rights Act and thereafter to introduce a separate UK Bill of Rights. That never happened, but it makes the point that the right context to this debate is now, and always has been, about adding to and not replacing the Human Rights Act.

The welcome conversion of the Labour Party under Smith underscores that this debate has always been intensely political. Labour recognised that Conservative Governments of the 1980s had driven through massive and unpopular change on a minority vote. As one academic puts it, "The reputation of the legislature as a bulwark against the government was pretty much in tatters. Parliamentary sovereignty was exposed as executive sovereignty in all but name." Labour therefore sought to use a Bill of Rights partly to provide an alternative opposition. The concept has a long history of being hijacked for political purposes.

It is now clear the original Tory proposal was legally flawed. It misunderstood the impact of the pre-existing jurisprudence, wrongly assumed that repealing the Human Rights Act would solve the problem and entirely fudged the vital question of the prevailing importance of the ECHR. As it transpires, the advent of the coalition has killed the original Tory plan and booted proposed reform into the longest of grass. Should a proposal to implement a Bill of Rights ever return, it will do so in a form that neither achieves what David Cameron originally wanted nor removes any of the rights enshrined in the ECHR. New politics 1, Old Tories 0.