The Times/Matrix debate on the motion “Should the Human Rights Act be scrapped and replaced by a British Bill of Rights?” took place on 20th April 2010. The motion is not just an abstract proposition, the Conservatives have promised to repeal the Act if they win the election. The debate also reflects a wider process of constitutional soul searching currently occurring in the United Kingdom, as the role of the new Supreme Court and suggestions of a written constitution are discussed and scrutinised.

The opening poll revealed 174 against the motion and 4 in favour. Facing an audience of this kind was no doubt daunting for those proposing the motion: David Davis MP, Martin Howe QC, and Andy Hayman, the former Head of Counter Terrorism. David Davis positioned himself as a protector of civil liberties, he pointed out that the Act had failed to prevent the growth of a surveillance state or the implementation of authoritarian legislation in recent years. Martin Howe criticised the Act for its lack of clarity and argued that a Bill of Rights would reinforce ‘British’ rights and hand more power back to Parliament. Andy Hayman presented himself as a ‘simple cop’ who aimed to provide a ‘reality check’, he suggested that the Act hampered law enforcement and created the perception that the rights of offenders were valued over those of victims.

These are all interesting points – but viewed together they lack both coherence and substance. Terms like ‘reinforcing British Rights’ sound impressive but what they mean in practice is unclear. It is easy to accuse the Act of being too vague, but in its drafting it is very similar to legislation of its type in other jurisdictions, for example the Canadian Charter of Rights and Freedoms and the American Bill of Rights. Other questions and inconsistencies were also apparent. Is the Act too strong or too weak? Is there a clear template for a Bill of Rights other than a fuzzy idea that it will somehow be more British? What about devolution? How can the argument that rights will be better protected by handing power back to Parliament be reconciled with the fact that Parliament passed the 2005 Crime and Terrorism Act and has voted on an annual basis to extend the use of control orders?

Those proposing the motion failed to offer plausible rebuttals of these concerns (admittedly they had limited time). But neither did the opposition press them for answers on these issues, with the exception of Shami Chakrabarti.  Cherie Booth QC and Rabinder Singh QC (who stepped into the breach at the last minute to replace Lord Falconer) both focused on the virtue of human rights, the important cases that have been resolved as a result of the Act and the role of the media in creating common misconceptions of the Act. These are valid points, but it felt as if too much reliance was placed on the argument that human rights are a ‘good thing’ ergo the Act is as well, those who support the Act are automatically on the side of the saints.

It is a somewhat British tendency to find saints a little irritating; paragons of virtue are preferred if they have few affectionate flaws. The Human Rights Act does have its problems and these need to be recognised and addressed. How could the government that introduced the Act ride so roughshod over it? How should judges balance between the rights contained within the Act in a manner that is systematic and has an element of clarity? Surely the way that the Act is implemented can and should be improved.

Support for the Act cannot be gained solely by reiterating that rights are good. The rights to life and liberty are easy to agree on, it is working out how to apply them that is difficult and needs to be tackled. In practice, the Act raises difficult questions that force us to examine the kind of society we are and the kind of society we want to be – and therein lies part of its value. The Act should provoke controversy and make people think, and it should be something to aspire to. To scrap the Act and replace it with the legislative equivalent of tea and scones (quintessentially British, cosy and uncontroversial) reveals a distinct lack of constitutional imagination.

The account of the debate in the Times can be found here.

Anita Davies was the winner of this year’s “Times Law Award” essay competition with an essay on the Supreme Court.