Will the new Conservative/Liberal Democrat government survive?  One key test is bound to be the ability of the two parties – their respective leaderships but also their grass root and media supporters – to negotiate their differences over the Human Rights Act.  The Tories view the Act in the bleakest possible light – not only is it about universal rights (rather than individual responsibilities) but its origin as a measure implementing the European Convention on Human Rights means that it is overseen by the Strasbourg-based European Court of Human Rights, a tribunal of 47 disparate nationals presided over by a Frenchman.  Worse still, in Tory eyes the Human Rights Act has unleashed the hitherto dependable British judges into all sorts of unacceptable behaviour on behalf of various minorities – prisoners; asylum-seekers, suspected terrorists –  who in days gone by would not have got near the courts, much less persuaded any judge of the credibility of their claims. 

Before the election Mr Cameron was clear the Act had to go, to be replaced by a Bill of Rights that would better ‘protect our freedoms from state encroachment and encourage greater social responsibility’.  In opposition the Lib Dems have always been of exactly the opposite view; wildly keen on the Human Rights Act, they have long argued for it to be given even greater force in the UK and for a stronger set of human rights guarantees to be added to it as well.  The Party’s manifesto promised that everyone would ‘have the same protections under the law ‘ and that this would be achieved by ‘protecting the Human Rights Act’.

The potential conflict between these two positions was postponed not resolved by the promise in the coalition programme for government to set up a commission ‘to investigate the creation of a British Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in British law, and protects and extends British liberties.’  There is no specific guarantee for the Human Rights Act here, only a generalised commitment to the Convention – to which Cameron has in any event always promised to remain a party.  So when the Act faced its first big test – the court ruling that suspected terrorists from Pakistan could not be returned there because of the likelihood that they would be ill-treated, the Home Secretary Teresa May was not departing from the letter of the coalition agreement when she said on the radio that the Human Rights Act (which had underpinned this ruling) was to be reviewed. Nick Clegg responded to the case by explicitly committing his side to the Act, an intervention which caused predictable paroxysms of rage at the Mail. At his first prime minister’s question time on 2 June, David Cameron repeated his view that Britain would be ‘better off with a British bill of rights rather than the Human Rights Act and that is being examined’.

So what will the Commission say?  Much will depend on its composition and the balance of its membership as between the two governing parties, on which there is as yet no information. However, the fate of the Human Rights Act may be decided less by any manifesto pledge or learned report than by a combination of events and expediency.  Suppose one of these suspected terrorists who can be neither expelled nor deported is credibly suspected of involvement in an attack here, or a person subject to a control order is likewise implicated? Or the newly established National Security Council publishes a National Security Strategy that is openly hostile to the Act?  The pressure need not come only from some terrorism crisis: no policy is more vulnerable to the politics of the last atrocity than human rights protection. A parole prisoner might kill again; a mentally ill person recently released might do the same; a farmer might kill an intruder – all can be guaranteed to provoke the Tory right and much of the Murdoch/Rothermere media, leading to wild assertions that the Act has been to blame.     It is not generally appreciated how commercially valuable it would be for many newspapers to unravel the privacy protections that have come in the wake of the Human Rights Act and which have made it harder to profit from revelations about the lives of celebrities, sports people and others in whom the public can be tempted to have a prurient interest.

Labour too might be tempted to change tack.  In government they came pretty close at times to diluting the Act themselves.  As they recover their roots in opposition, and find asylum and immigration to be key issues (as one candidate for the leadership Ed Balls has already said is the case), then this is only one step away from an at least partial disowning of if not the Human Rights Act as such (for now) then of the universal language of human rights itself.

If events and political calculation conspire to heap still further pressure on the Human Rights Act, the commission set up to assess the situation may find  itself publishing its report in a climate of  hostility to the Act.  Since explicit protection of the measure is not even in the coalition agreement, it is hard to see how its dilution via amendment would stir the Lib Dems into bringing down the government, especially if the move could be dressed up (for their own consciences as much as for the general public) as a new and better bill of rights and responsibilities (albeit for the British and not all those unwelcome foreigners). The continuing availability of Strasbourg judicial oversight would provide the cover for this reduction of universal protection, albeit as is well known cases take years to get to that court and its judgments are not binding on UK courts – the newly established UK Supreme Court has recently taken a great deal of trouble in a particular case (Horncastle) to make this very clear.   Many prominent Lib Dem supporters would be fairly relaxed about these changes since they have always been keener on protecting ‘ancient’ liberties (an end to CCTV, ID cards, DNA sampling and the Big Brother state and so on) than in the plight of the weak and maligned for whom the Act has at least from time to time acted as a kind of defensive shield against state hostility. Nick Clegg and his team have already resiled from their principled opposition to 28 day detention and control orders and they have been in power for barely a month.  With its supposedly greatest supporters now in office, the Human Rights Act seems more vulnerable than ever.

Conor Gearty is a Professor of Law at the London School of Economics, specialising in law relating to Human Rights and a member of Matrix.  His website can be found here.