FAQ Reform of legislation

Europe-wide convention or a British version?

David Cameron's critics were wondering last night how he could promise to introduce a British bill of rights and repeal the Human Rights Act while at the same time remain signed up to the European Convention on human rights. Some long-term human rights campaigners said the battle for a British bill of rights had been going on since Tom Paine 200 years ago and if the Tories were promising to build one on top of the Human Rights Act that would be a very welcome development. But as Mr Cameron made clear yesterday that is not on offer.

What is the muddle?

The contradiction at the heart of the Conservatives' proposition lies in the idea that it is possible to have a British bill of rights that in some way provides less protection than the much-criticised Human Rights Act while still being signed up to the European convention on human rights.

As Shami Chakrabarti of Liberty said yesterday, if the government scrapped the act but chose to remain a party to the convention, British courts would lose their power to interpret the convention while human rights cases would still be determined in Strasbourg. This is because the act simply incorporated the convention into British law, allowing British judges to hear human rights cases in British courts. As the convention was originally written by British home office civil servants in 1953, when Jack Straw, the home secretary, introduced the Human Rights Act in 1998 he called it "bringing rights home". Until that point it could take up to seven years to get a case resolved in the human rights court in Strasbourg. Repealing the act would mean individuals tramping down that road once again.

How does he want to deal with it?

Mr Cameron said the act had "introduced a culture that has inhibited law enforcement and the supervision of convicted criminals" and blocked the deportation of international terror suspects to countries where they may face torture or ill-treatment. He claimed that if we adopted a British bill of rights similar to Germany's "basic law" which parliament could not amend or repeal the Strasbourg court would defer to it under the doctrine known as "the margin or appreciation". But Ms Chakrabarti said the Tory leader had misunderstood the application of the "margin of appreciation within the European convention on human rights". The practice did not give special treatment to countries, such as Germany, with a written constitution but allowed all countries to enjoy a reasonable variation in policy over questions such as the age of consent, but not over fundamental human rights issues such as deportation and torture.

What is Labour's approach?

Tony Blair and John Reid, the home secretary, agree with Mr Cameron that the "human rights culture" has had a malign impact on fighting terrorism and crime in Britain. Mr Blair has ruled out repealing the Human Rights Act but says there are issues to do with the way it is interpreted and its case law which the Home Office is examining. The main case law involving the deportation of suspected terrorists is the Chahal case which was cited by Mr Cameron yesterday as a reason for repeal. Britain is currently backing a fast-track case to Strasbourg that would overturn the Chahal judgment, to would allow foreign terror suspects to be deported to countries where they might face ill-treatment if the risk is outweighed by the danger to Britain's national security if they remain. The government believes it can win.

Mr Reid also believes he can speed up deportations by removing legal barriers, but this does not involve the Human Rights Act.

What's the answer?

Ministers believe that legally trained "public protection" advocates in the criminal justice system could counter some "human rights" myths that are sometimes used as an excuse for simple incompetence. This was a job that was done by the Equal Opportunities Commission and the Commission for Racial Equality when the equal pay and race relations laws were passed in the 1970s. It was originally intended to set up a similar Human Rights Commission but its absence has contributed to the situation with nobody promoting a human rights culture. In this vacuum perverse interpretations have flourished.

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