It would be, to coin a phrase, child-like to summate the debate around the Human Rights Act as one between those in favour of protecting human rights in law, and those against doing so.
The Human Rights Act has clearly had unintended consequences. Over creative judges, not grounded in the British legal tradition, have extended the scope of a law meant to protect against the very worst of humanity to defend those who do not value it at all.
Indeed, Strasbourg's judiciary have taken a view - as recognised by numerous legal scholars -that the Convention is a 'dynamic' instrument, and where questions of interpretation or scope arise they take a liberal approach to applying the Convention. The intent of the legislators who drafted the convention is not of paramount concern, in stark contrast to our domestic system where Parliament's will is of real importance.
This approach has led to many of the worst examples of judicial legislating, extending the scope of the Convention far beyond the vision of the drafting parties and I would argue far beyond the expectations of the Labour politicians who backed the Human Rights Act. Their experience of terrorist deportations is just one area where they faced practical and political difficulties, and let us not forget that the votes for prisoners case was ruled upon in 2005, only to be launched into the long grass with gusto.
The Conservative Party broadly agrees there is a need for change. David Cameron and Theresa May have both indicated they are not happy with the law as it stands. Ken Clarke accepted the law often benefits 'unpleasant people.' However, we live in interesting times and it will be the Deputy Prime Minister who receives the findings of a Government review into the case for a British Bill of Rights.
This review is of immense significance, given the legal standing of the Human Rights Act. The need for reform is clear, the way forward less so and this review will be the first part of exploring what can be done to address the growing imbalance between the human rights of those before the courts, and the civil liberties of those who are not.
Many expect Nick Clegg to vocally defend the status quo. Yet he hasn't had to utter one word and already the debate in the Conservative party has been shut down to save face. If a badly researched anecdote is the last we hear of the debate to reform a malfunctioning law, our political classes are failing the society they were elected to defend.
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Your then go on to argue that minorities should be protected from the whims of the masses. But what seems to be happening here is that the majority is not being protected from the whims of a minority who seek to push their agenda of politcal correctness by seeking equality in any situation regardless of other relevant factors.
For example if I commit a crime then it is obviously unfair if I am punished more than an innocent person, right? If I am a foreign born terrorist then it is unfair if I am deported when a UK born terrorist would not be deported, or if my potential victims will not be deported, right? I have my human rights.
You argue that we have succesully resisted politicisation of the judiciary. I disagree. If they are seeking to impose a politically correct agenda on the masses whether they want it or not - as seems to be the case here - then in fact aren't they utterly and completely politicised?
What the courts do is prevent arbitrariness, i.e. ensure that no irrelevant factors are considered in the application not only of statutory law, but also the fundamental principles which make up the rule of law and our common ethical sensibilities. If a man commits a murder, his nationality shouldn't be a factor in determining his guilt, why should it be a factor in determining the sentencing? My point was that no law can be justified if it adveresly affects one racial, ethnic or other group because of characteristics which are essentially beyond their control; and yet, technically, the sovereignty of parliament allows them to create such laws which carry a legal obligation despite being manifestly immoral. Laws in Nazi Germany and apartheid-era South Africa were enacted through the proper procedures of the executive/legislative and were thus legal, despite being abhorrent. Our common law system is a check to this possibility of legislative abuse.
As Nick Pickles says, knowing what to replace the HRA with is hard. But, it surely can't be so hard for people who have thought about the issue and care about it? Andrew Lansley's Health and Social Care Bill is contentious but it is fully formed. It is a much bigger piece of work to reform the NHS than the HRA.
The debate shouldn't be one that was now even capable of descending to Theresa May's cat anecdote. The problem is that no-one really has the first idea what a British Bill of Rights would look like. The HRA is not so bad in itself but it highlights the difficulty of trying to introduce the mechanisms of something that looks a bit like a written constitution into a system that has flourished without one. Britain likes having a sovereign Parliament, even if something of a fiction and even if large parts of its jurisdiction have been ceded to the EU. Any law, whether it be the HRA, the European Communities Act or the British Bill of Rights which puts the power to challenge Parliament and statutes in the hands of the judiciary will have the same inherent flaw or tensions.
from politicians who appear to demonstrate a somewhat tenuous grip on the finer points of the case. Not to mention reality in general. Either a cat was crucial to said case, or it was not.
Resolve that (curiously ignored) question, and then see whose words of wisdom we should be listening to concerning this or any other matter.
"Parliament's will"
is supposedly an extension of the will of the majority of the people. That, is a demonstrably preposterous presumption.
"terrorist deportations"
We have at out disposal a technology able to distinguish truth from untruth in some matters. Yet we are still so primitive a species, that we support torture. Isn’t the Human Rights Act a necessary blunt instrument, currently being wielded to ward-off unthinking apes?
"votes for prisoners"
are as much practical use to them, or anyone else, as hacksaw blades with no teeth.
"we live in interesting times"
if you find chaos intriguing.
"Many expect Nick Clegg to"
do whatever he pleases. So, what about the Human Rights of the disenfranchised electorate?