The news that this increasingly right wing Tory party, in flight from the UKIP attack, is now promising to unravel the Human Rights Act, has upset two of its most distinguished grandees and rightly so. Dominic Grieve and Ken Clarke have been busy on the media expressing anxiety and dismay at the plans put forward by Chris Grayling, the Justice Secretary.
Whatever the frustrations of Ministers over its application in cases they lose, we need this to stay in force for one very good reason which overrides all other considerations. We do not have a written constitution. This means that the constitution can be varied at any time by parliament. It is often an advantage to be able to do this; the Scottish referendum and the subsequent promise of rapid extensions to devolution are good examples.
But there is a shortfall and it is a big one. With a written constitution the terms are approved by the people in a referendum and provide a rule book not only guaranteeing their rights, but also the framework within which they are to be governed; rules for government which government cannot be varied without the specific authority of the people. With that kind of instrument underpinning the State, it could be argued that a Bill of Rights incorporated into it would be secure and binding, beyond the reach of parliament. But under the proposals put forward by Grayling, it is a fact that any legislation granting a Bill of Rights can readily be superseded by legislation from a later government to take it away.
That is why, while Britain remains one of only three countries in the world without a formal constitution approved by the people, they are guaranteed their freedoms by an instrument, the European Convention on Human Rights, which in the final analysis is beyond any government’s control. This is what ails the Tory right. Everyone else should see it as their ultimate guarantee of freedom.