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Cross-posted from The Times Online on 21st October >> Frances Gibb (Legal Editor) provides a balance sheet on the Human Rights Act and a British Bill of Rights, facing down Conservative gestures of throwing away the Act and considers Keir Starmer’s recent highly politicized remarks defending the HRA.

It was good knockabout stuff. Dominic Grieve, QC, the Shadow Justice Secretary, v Lord (Charlie) Falconer of Thoroton, on the subject of the Human Rights Act.

Grieve was said to be a lone voice who had to attempt to please the party faithful while speaking from a different hymn sheet to his audience of liberal lawyers, Lord Falconer said.

The former Lord Chancellor and Justice Secretary was accused, in turn, of seeing onto the statute book an act that had failed to protect society from “one of the most authoritarian periods of government”.

But the debate this week held by Doughty Street Chambers, a fund-raising event for Leukaemia Research in memory of Mr Justice (Henry) Hodge, was also a useful pre-election skirmish.

The Human Rights Act 1998 was hailed as a flagship reform of the New Labour Government. Instead, it has become something of an albatross, scorned and derided as a criminals’ charter.

Both main parties have pledged reform — and there have been mutterings in some (Conservative) quarters of doing away with it altogether.

Grieve admits that he was in a minority within the Conservatives in favouring the incorporation of the European Convention on Human Rights into domestic law. His colleagues feared the marginalisation of Parliament and growth of a judiciary fuelled human rights culture.

Ten years on, were they right? What the Act had not done, he told his audience of lawyers, was to protect society from “one of the most authoritarian periods of government” that had seen proposals for 42-day detention before trial, ID cards, databases and the growth of the surveillance state. “On all this the Human Right Act was mostly silent.”

He accepted the myths it had spawned — such as the need to give protesting prisoners pizza or Dennis Nilsen, the convicted killer, pornography. But authorities could also hide behind it. “We shouldn’t assume that it has been all sweetness and light. In some areas it has been very damaging.”

The original aim had been to give the judiciary wide discretion as to how far to follow the case law of the European Court of Human Rights in Strasbourg. But many judges had followed it closely, creating problems, he said. “This was meant to bring rights home but that is not the public perception. It’s that rights are being imposed.”

Yet supporters of the Act can take comfort from Grieve’s plans. First, he insists that his party has no intention of pulling out of the European Convention, “however inconvenient the decisions made under the Act seem to be”.

“It is not [David Cameron’s] policy, nor that of any rational person.”

Nor was there any intention to scrap or derogate from the prohibition on deporting people to countries where they may be tortured. “It’s not going to happen. It can’t happen and it will not.”

But a new Bill of Rights, building on the Human Rights Act but tailor-made for Britain, could provide plenty of scope for rebalancing the Act towards public protection.

What would it include? Core constitutional principles, he said, including “beefing up the role of Parliament” and protecting the right to trial by jury.

So far, so good. Much of it, as Lord Falconer said, was “very encouraging, if very surprising”. Will, though, Grieve carry his party? “Dominic Grieve is our best hope [among the Conservatives] for the protection of human rights,” he said. “I genuinely believe that. You should meet the others.”

Grieve says that he did not intend to make changes to the Act but he needed to answer how he would square that with his constituents, Lord Falconer said.

He accused Grieve of drawing on old incidents, of raising irrelevant cases and of pretending that the Act could be substantially refocused — when the reality was that it could not, while remaining signed up to it. There was a new Grieve/Dacre axis, he jibed — a reference to the Daily Mail Editor’s attack over the Human Rights Act and the growth of privacy laws.

And in a frolic of his own, Lord Falconer said that he would be in favour of extending human rights to “enforceable minimum rights” that would cover minimum standards in health, education and environmental protection.

There was one ominous note in this general consensus as to the value of human rights. Grieve warned that public opinion was fickle and could change. There was an assumption that “the European Convention is here for keeps — that’s a bit optimistic”.

By chance, last night the Director of Public Prosecutions threw his own views into the pot. He warned that scrapping the Human Rights Act would jeopardise victims of crime. Keir Starmer, QC, a human rights barrister himself from Doughty Street, said that calls to rebalance the criminal justice system, often after a “questionable decision that receives undue notoriety”, tended to come back to the Human Rights Act.

But in the second annual Crown Prosecution Service lecture to be given in London tonight, Starmer says that “such loud headlines obscure the truth”.

Stripping defendants of their rights would do nothing to “promote the dignity and respect of victims”. He went on: “It would be to this country’s shame if we lost the clear and basic statement of our citizens’ human rights provided by the Human Rights Act on the basis of a fundamentally flawed analysis of their origin and relevant to society.”

The Doughty Street debate indicates otherwise, despite electioneering. And it raised some funds. It was the idea of Gavin Millar, QC, and Alastair Campbell, his brother-in-law and former Blair spindoctor, with Gerald Shamash, the Labour Party solicitor. It was Campbell who floated the idea of raising £50,000, in Hodge’s memory, for Leukaemia Research on his website and the event raised some £10,000 towards that.

Hodge — a radical lawyer and passionate believer in human rights all his life — would have been pleased.