It was never going to be long before the Tories noticed NuLabour were trying to outflank them on law & order from the right and decided to do something about it. The ConDems have decided to ‘anonymise’ DNA samples the authorities hold of people who have been arrested but never convicted of a crime:
One of its key features of the Protection of Freedoms Bill, we were assured by Nick Clegg in January, would be an end to the “indefinite storage of innocent people’s DNA”.
That seemed to be an unambiguous promise, and a welcome one. Unfortunately, as The Daily Telegraph reveals today, the Government has decided not to keep this promise, bringing the number of policy U-turns to at least 14.
Instead of clearly and simply wiping out the DNA of more than one million people who have been arrested but not convicted, the authorities will retain the samples, but in an “anonymised” state.
This means that the names and other identifying features will be removed from the police database but kept elsewhere, enabling agencies with the right expertise to join the pieces of data together again and identify the DNA.
In the clumsy but revealing phrase of James Brokenshire, a Home Office minister, the genetic information will “be considered to have been deleted”.
Considered by whom? Certainly not by civil liberties groups, which have accused the Government of betraying an explicit commitment in the Coalition Agreement and ignoring a judgment of the Court of Human Rights.
Back we trot to the database state, which would always reform under different guises, with different agendas in play. The motive here seems to be straightforward party political – splitting Ed Miliband from his authoritarian underlings, whilst snubbing the European Court of Human Rights (ECHR) to please the right wing of the Tories. We deserve better politics than this, but there seem to be very few politicians in the British parliament who have any interest whatsoever with the rule of law. You’d think with the influence of Murdoch waning that you’d have one or two MPs shrieking with outrage at the injustice of it, no longer that worried about a NOTW campaign against them, but no – the cowardice lives on.
There’s a fight under way behind the scenes between the ConDemNation coalition partners over the Human Rights Act. The Tories have long wanted to supplant the Human Rights Act (HRA) with a British Bill of Rights, on the one hand not trying to extract the country from the European Convention on Human Rights, but also trying to, as Helena Kennedy puts it:
“protect our freedoms from state encroachment” on the one hand and “encourage greater social responsibility” on the other.
She then goes on to add:
No explanation is given as to how to achieve these triangulated aims without weakening the protections we now have in the HRA.
It’s also not quite clear what those aims actually mean in practice. The language is quite reminiscent of New Labour’s similar idea of a British Bill of Rights and Responsibilities, although when discussed at the Convention on Modern Liberty early last year the idea was kicked thoroughly into touch for failing to identify what additional responsibilities should be codified other than to obey existing criminal law. Both parties have in recent years tried very hard to conflate civil rights with human rights, and have notably attacked the latter when rulings under the HRA haven’t been to their political benefit. But that’s not a sufficient reason to replace the Act, quite the opposite in fact, particularly, as Richard Norton-Taylor acknowledges:
All the Human Rights Act, brought in by the Blair government, really did was incorporate the convention into UK domestic law, avoiding long and expensive delays in disputed European court cases.
And as of an interview in the Times yesterday morning the Deputy Prime Minister wasn’t having any watering down of the HRA or any suggestion of its repeal. Clegg said:
“Any government would tamper with it at its peril.”
In response, Theresa May, the new and already illiberal Home Secretary has seemed to back down:
May was asked about the manifesto promise in an interview on BBC Radio 4′s Today programme, she downplayed the significance of this pledge. “We did say that we thought the Human Rights Act was not working in certain areas,” she said.
She went on: “We are currently in discussions with our coalition partners about what we will be doing in this area.”
‘Discussions with our coalition partners’? We can only hope they went along the lines of ’you tamper with it at your peril’, but there are pressures for both sides to do just that. The HateMail has unsurprisingly gone on the offensive:
A flagship Tory pledge to tear up the Human Rights Act has been watered down in the coalition pact with the Liberal Democrats.
In opposition, the Conservatives repeatedly promised to replace Labour’s controversial legislation with a Bill of Rights.
But Government sources said last night that an independent commission would now be established to examine the ‘feasibility’ of the move.
‘Are we going to replace the Human Rights Act with a Bill of Rights? Very possibly,’ said one. ‘But the commission is going to look into all that.’
A commission? Shami Chakrabarti, Director of Liberty, has said:
“A coalition that has attempted to tie itself together with the language of civil liberties cannot now renege on fundamental human rights.
Given the way in which Liberal Democrats all the way up to the Deputy Prime Minister vowed to defend our Human Rights Act, any attempt to dilute it would spell the end of this Coalition – and rightly so.
Governments like people are bound together with common values not vested interests. There is nothing more British than the free speech, fair trials, personal privacy and rule against torture protected by the HRA.”
Yet the final coalition agreement accepts this commission. We have to hope that its findings aren’t against retaining the HRA – both for our sakes, and for the Deputy Prime Minister’s political future. Helena Kennedy concludes:
it may be very tempting for the Liberal Democrats to carve out victories on some areas of reform by making concessions elsewhere. This is why we have to make it clear that the terrain of human rights must not be the ground on which any further deals are done. Human rights have to be non-negotiables in this new political landscape.
And Clive Baldwin warns:
Experience shows that a taste for human rights acquired in opposition can soon wear off in government. Once comfortable behind their desks, new ministers tend soon to find the very repressive and authoritarian measures they decried in opposition rather congenial and useful once they sit in government. Let’s hope that the novelty of coalition government can buck that trend.
I couldn’t agree more. It would be alarming if the new Prime Minister actually negotiated effective repeal of the HRA and achieved his ambition of curbing the power of the judiciary:
And it’s why we will abolish the Human Rights Act and introduce a new Bill of Rights, so that Britain’s laws can no longer be decided by unaccountable judges.
It’s a second gripe about the HRA, it isn’t related to the first, and is a common refrain from the Right – ‘unaccountable’ or ‘activist’ judges must be stopped from interpreting codified, semi- or actual constitutional laws, because it interferes with the legislators’ political agendas. But to suggest the Act is at fault because judges have been free to interpret the European Convention on Human Rights from a British perspective makes no sense other than a political one – the judges and the Act get in the way, and the Tories would prefer they themselves had control over human rights law in the UK. Except the UK would still be covered by the convention.
The immediate effect would be to effectively deny access to the European Court for those who really need it because they simply wouldn’t be able to afford it – it’s dog whistle politics, Tories agreeing amongst themselves that some people deserve access to human rights, and not others. But Helena Kennedy is right – human rights are human rights – they are (and must be kept) universal. A replacement, which the final Coalition Agreement hints at, would water down the principle of universality and endanger those most in need of human rights protection. Clegg surely understands that, and given the rumours that all other disagreements in the coalition are being referred to similar ‘commissions’, it does look as though this battle will remain at stalemate. Any other outcome would surely smash the coalition into smithereens.
It sure looks so. Clarke has never been supportive of repeal, and now the Tories have the Lib Dems as coalition partners it appears the new government is unlikely to make moves against the HRA any time soon:
The Tories had promised to replace the act, which many believe protects criminals more than innocent people, with a UK Bill of Rights.
But Mr Clarke, who was appointed to head the Ministry of Justice on Wednesday, suggested it was not high on the list of actions while the pledge was notable by its absence in the coalition agreement published this week.
In 2006, Mr Clarke attacked David Cameron over his “anti-foreigner” proposals to tear up the Human Rights Act, which was introduced by Labour, and said a Bill of Rights was “xenophobic and legal nonsense”.
And shortly after taking up his new Cabinet post, Mr Clarke said: “We are not committed to leaving the European Convention on Human Rights, we have committed ourselves to a British Human Rights Act.
“We are still signatories to the European Convention on Human Rights.
“I have also got to see when the coalition agreement is completed how high a priority this is going to be given.”
It looks like a signal that the Tories’ intent to repeal the Act has been kicked into the long grass. If so it would represent an enormous success of the ConDemNation coalition. The main benefit of the Human Rights Act has been to make the European Convention on Human Rights more accessible to those who need it the most, and whilst I’ve always understood the Tories have never intended to leave the Convention, I believe the British Act to be indispensable. Explicitly proscribing the universality of human rights, not limiting them on nationalistic or any other grounds, and making access to the provisions of the Convention easier by incorporating them into British law was one of the greatest achievements of the New Labour government. If the Tories think they can’t get a repeal past the Liberal Democrats (or indeed the Justice Secretary), that’s something we should all be grateful for.
Ken Clarke is now the Justice Secretary, a role which had been expected to steer the repeal of the Human Rights Act if David Cameron became PM. But take a look at Clarke’s views on that idea, as recently as 2006:
Mr Clarke, a former home secretary and failed Tory leadership contender, has become the latest critic of the proposal.
He said he was not saying Mr Cameron hated foreigners.
Mr Clarke told BBC 2′s Daily Politics programme the European convention had itself been drawn up by a British lawyer.
The Tory leader is appointing a group of lawyers and experts to work out what should be in the new British Bill of Rights.
But Mr Clarke said: “He’s gone out there to try and find some lawyers who agree with him, which I think will be a struggle myself.”
The Human Rights Act has come under fire in some newspapers, who believe it has put the rights of criminals above those of victims of crime.
But Mr Clarke said: “In these home affairs things I think occasionally it’s the duty of politicians on both sides to turn round to the tabloids and right-wing newspapers and say ‘you have your facts wrong and you’re whipping up facts which are inaccurate’.”
Is Clarke going to completely undermine himself or does his appointment signal Cameron accepts he won’t be able to repeal the Human Rights Act with the Liberal Democrats as coalition partners?