The Bill of Rights would be useless anyway

I would like to defend the coalition from allegations that there has been a deplorable Tory concession on the Human Rights Act. Tearing it up was never in the Tory manifesto. Dominic Grieve, who drafted the Tory plan, is one of those lawyers who is rather passionate about the European Convention of Human Rights (ECHR) and praised it in his maiden speech. I had many conversations with him about this: for Britain to pull out of it, he said, would send an “odd” signal to the countries on the fringes of Europe whom we were trying to pull into our orbit.

Grieve’s plan was to propose a Bill of Rights which would look and sound like something that would supplant the ECHR (put into British law by the Human Rights Act). But what all too few people realised was that the proposed Bill would be junior to Strasbourg – and, ergo, utterly useless. This distinction was, I’m afraid, lost on many senior Tories – I heard Chris Grayling say on radio once that the Tories would “tear up” the HRA. But it was never going to happen. I had hoped that Cameron might, at the last minute, insert a line into the legislation saying that the new UK Bill of Rights was the most senior legislation in England and therefore we were repatriating control of our legal system. But Grieve was bitterly opposed, and the Tory leadership were not particularly fussed about it either way: they hoped the Bill of Rights would “clarify” areas where the HRA was open to interpretation.

But in the most famous cases, the Bill of Rights would be useless. Strasbourg has repeatedly ruled against the use of anonymous witnesses in murder trials, for example – Jack Straw was on a hiding to nothing when he said he’d change the law. The law, in this regard, was not his to change. This is how Strasbourg works. The Dutch found this out in 1989, the Austrians in 1990 and the Portugese in 1998. Anonymous witnesses are banned in Article 6 of the ECHR and no amount of “clarification” from a UK Bill of Rights would change that. The only option was to pull out of the ECHR and that was never on the cards.

My point: that there has been no concession here. The ECHR was always was going to stay in place, Strasbourg always was going to reign supreme, and coalition with the Lib Dems has not changed that.

UPDATE: Sir Trev Skint, the Human Rights Act may have been replaced by the Bill of Rights – so technically, Cameron would have been correct. But the ECHR and its jurisdiction over England (the root problem) would not be addressed. This was the trick.

Noa, Grieve told me no more or less than what he said in public. My point is that he is, for better or worse, passionately committed to the ECHR and what he regards as its principles (Justicia’s comment gives another taste of this viewpoint).

Denis Cooper, what matters is how Strasbourg interprets the ECHR and if you click on the cases that I mention it makes clear that Strasbourg thinks anonymous witnesses violate Article Six.

Catesby, a Bill of Rights may well be an improvement – but it would not tear up the HRA in a way that people had been led to believe.

Vulture, I’m a journalist. It’s my job to have chats to people in Westminster and then share knowledge with readers.