Is how the Daily Mail sums up David Cameron’s position in the party conference season-spat over the Human Rights Act 1998.

Poor Cam. This is an example of the more right-wing media’s take on the Coalition at the moment, where the Liberal Democrats are painted as the woolly, hand-wringing bogeymen holding Cameron’s Tories back from doing what’s right (and, presumably, what’s right-wing). Interestingly, this was also part of the narrative that the Lib Dems were spinning at their own Conference . . .

But what is it that the Tories are reacting to? Following the August riots, the Deputy Prime Minister outlined his approach to the possibilities for the Bill of Rights Commission set up under the Coalition agreement – suggesting that the Bill of Rights must actually become a ‘Human Rights Act plus’:

“The Labour government that passed the Human Rights Act then spent years trashing it, allowing a myth to take root that human rights are a foreign invention, unwanted here, a charter for greedy lawyers and meddlesome bureaucrats.

“This myth panders to a view that no rights, not even the most basic, come without responsibilities; that criminals ought to forfeit their very humanity the moment they step out of line; and that the punishment of lawbreakers ought not to be restrained by due process.

“The reality is that those who need to make use of human rights laws to challenge the decisions of the authorities are nearly always people who are in the care of the state: children’s homes, mental hospitals, immigration detention, residential care. They are often vulnerable, powerless, or outsiders, and are sometimes people for whom the public feels little sympathy. But they are human beings, and our common humanity dictates that we treat them as such . . .

“It has long been my party’s policy to use a bill of rights to deepen our commitment to the protections of the Human Rights Act, and also to protect other British liberties, such as the right to jury trial.”

Clegg pushes the line that the Government should use it’s chairmanship of the Council of Europe, to push for reform of the European Court – some suggestions on which, were helpfully made in the Bill of Rights Commission’s interim advice and the additional letter.

There is a point of agreement between Cameron and Clegg, however – as Clegg explains:

“But the biggest problem with the Human Rights Act is not how it operates in the courts, nor how it interacts with other rights. It is how it is manipulated not just by the media but by overcautious officials. It was, for example, of no help to anyone when police spokespeople blamed human rights for a decision to deliver a KFC meal to a fugitive on a roof: this had nothing to do with the Human Rights Act. There is no human right to fried chicken.”

Nonetheless, Clegg’s language at his party’s conference in Birmingham was much more sanguine; giving a robust defence of the Act he declared:

“These are British rights, drafted by British lawyers. Forged in the aftermath of the atrocities of the Second World War. Fought for by Winston Churchill.

“So let me say something really clear about the Human Rights Act. In fact I’ll do it in words of one syllable: It is here to stay.”

This has caused some Conservatives to argue that Clegg should be bypassed on human rights decisions.

Labour’s response to the Bill of Rights Commission and the spat over the HRA has been low key. Commenting on the fact that Liberal Democrat and Conservative Ministers have publicly expressed disagreement about the future of the Human Rights Act, Sadiq Khan MP, Labour’s Shadow Justice Secretary, said: “Government policy is a shambles” (presumably he struggles with the concept that Ministers of different parties in coalition might express opinions at their party conferences, which might not be Government policy). He then goes on to basically re-hash Clegg’s quote:

British lawyers in Churchill’s Government drafted Europe’s human rights laws. The Human Rights Act reaffirms the moral standards that Britain calls for and provides leadership on across the world. We should be proud of this, not ashamed.

Meanwhile, at the Home Office, Theresa May is tinkering according to The Daily Telegraph, by promising at her party conference that rules will be “rewritten to stop foreign criminals and terrorists using the Human Rights Act to remain in Britain”:

“Mrs May will announce today that immigration rules will be rewritten to set out explicit exemptions which would allow deportation regardless of family. The new rules will direct the courts to give greater weight to sections of the ECHR which allow exceptions to be made.

Clause Two of the article permits exceptions that are “necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country”. Mrs May will say that the courts should consider that a range of factors outweigh a foreigner’s right to a family life. Such factors will include criminal offences, breaches of immigration rules and relying on welfare benefits for income and housing.”

Update: Here is that Theresa May speech in full.

Update II: May’s speech has highlighted potential splits in the Conservative party on the issue of the HRA/ECHR.

It would remain to be seen whether this legislative change would have any effect in practice, if there were contrary Strasbourg jurisprudence. But as Hugh Tomlinson QC explained on this blog in January 2010:

“Section 2 of the Human Rights Act 1998, requires a court to “take into account” any judgment of the Court of Human Rights in determining any question to which such judgment is relevant. This is clearly not a mandatory requirement: the [courts are] not, in any sense, “bound” by decisions of the Court of Human Rights.”

The UK Supreme Court in the 2010 decision in Horncastle provides:

“There will, however, be rare occasions where the domestic court has concerns as to whether a decision of the Strasbourg court sufficiently appreciates or accommodates particular aspects of our domestic process.  In such circumstances, it is open to the domestic court to decline to follow the Strasbourg decision, giving reasons for adopting this course.”

Over at the UK Human Rights Blog, Adam Wagner sums it up by saying: “There is plenty of nonsense out there about the Human Rights Act.”

He feels that the Act will probably repealed but that:

“The key thing about the Commission on a Bill of Rights is that it is not permitted by its terms of reference to recommend withdrawal from the ECHR. At the moment we have a Human Rights Act, which incorporates the ECHR into UK law. Any Bill of Rights would have to be a ‘Human Rights Act plus‘, as thanks to the Coalition Agreement, it cannot be a ‘Human Rights Act minus‘. Put another way, the exterior may change but the ECHR engine will remain. So any UK Bill of Rights will be a bit like an updated Ford Fiesta; a new look and a few new features, but essentially the same car.”

So there you have it, in summary:

Cameron: “I want to scrap the Human Rights Act but Clegg won’t let me.”

Clegg: “There is no human right to fried chicken.”

May: “We all know the stories about the Human Rights Act . . . the illegal immigrant who cannot be deported because – and I am not making this up – he had pet a cat. [Except, of course, she is].

Wagner: “Any UK Bill of Rights will be a bit like an updated Ford Fiesta.”