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ANTHONY JENKINS / THE GLOBE AND MAIL

The Globe and Mail

The budget-cutting austerity program of Britain's new coalition government has been claiming all the headlines, but David Cameron's cabinet is breaking with its Labour predecessor in another key area as well: human rights. Indeed, the rights experiment that Tony Blair's government brought to Britain has failed.

Faulted by some for its inability to prevent "illiberal" anti-terrorism measures, the Human Rights Act is criticized by just as many others for hampering counterterrorism policy. Indeed, many people mock the very notion of human rights, which is seen as leading to "loony" concessions that favour criminals and terrorists. Overall, the reaction of both press and public is one of disillusion and cynicism.

Britain famously has no written constitution or, until recently, anything resembling a modern Bill of Rights. Instead, we have the Magna Carta and cricket. The concept of universal human rights is literally foreign - enshrined in the broad-brush principles of the European Convention on Human Rights, whose court sits in Strasbourg. Until recently, anyone who wished to bring a human-rights case against the British government had to go to France.

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Times changed when Mr. Blair took office in 1997. With fanfare - reflected in the slogan Rights Brought Home - the Human Rights Act came into effect in 2000. But the high-minded liberalism of the day's elite had a practical point as well: Should the government have any soiled linen, it should be laundered in British courts rather than aired before a panel of international judges.

Yet, the British public never engaged with the process. As Mr. Blair's wife, Cherie Booth, herself a human-rights lawyer, lamented, "the majority of people feel that human rights are not relevant to their lives."

There's a lesson here: If it's not broken, don't fix it. Put another way, actions speak louder than words.

When compared with human-rights abuses that truly affect humanity, the complaints dealt with by the British courts are small beer. Which child goes to what school or what public housing is offered to which asylum seeker will be of concern to many people. But using the broad brush of "human rights" to resolve such issues trivializes the concept. It also inhibits proper debate. After all, what responsible public body wants to be accused of violating human rights?

Indeed, the threat of human-rights litigation has made providers of public services overly cautious and defensive. This has led the popular press to howl that we now live in a costly, bureaucratic and inefficient "human-rights culture" - a charge with profound political resonance. Before he became prime minister, Mr. Cameron called for the Human Rights Act to be replaced with something more "British."

Paradoxically, some deem human rights to be wholly inefficacious where their recognition is most required. Many MPs who backed the incorporation of the European human-rights convention into British law came to view formal recognition of human rights as a grave inconvenience when faced with al-Qaeda-inspired terrorism. In short, having brought rights home, the Blair government ended up trying to hide them under the sofa.

This conundrum is symbolized by the debate over detaining terrorism suspects without charge or trial. Initially, Mr. Blair tried to force through detention without charge for up to 90 days. Parliament settled on 28 days - still the longest such period in the Western world.

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So much, then, for Article 6 of the European Convention, which provides that everyone charged with a criminal offence has the right "to be informed promptly" of the accusation against him. So much, also, for the Magna Carta, which provides that "no freeman shall be taken or imprisoned … but by lawful judgment of his peers, or by the law of the land."

The fact is, however, that any piece of legislation purporting to embody human rights is vulnerable to a political system in which Parliament is supreme. The Human Rights Act must inevitably yield to subsequent legislation. All legislation is passed by a simple majority. And judges cannot strike down legislation. The result? Rights brought home one day, detention for a month without charge the next.

Even when the cause of human rights is being advanced, the Human Rights Act is now overlooked. In May, in his first major policy speech, Deputy Prime Minister Nick Clegg announced the sweeping away of the Big Brother state that Mr. Blair had constructed: no more ID cards or national identity register, new restrictions on the storage of DNA, tighter regulation of the closed-circuit television surveillance that had made the British the most monitored people on Earth. All this and not one mention of "human rights" - an absence that reflects their political sensitivity in Britain and that tacitly acknowledges that, when the stakes are high, the Human Rights Act cannot be relied on.

Where, then, does that leave the Cameron government's supposed extirpation of Big Brother? One way forward would be to go further than Mr. Blair by ring-fencing certain principles and creating some form of constitutional court to defend them. But the cost of such rigid rules may be high, and their effectiveness is less foolproof than sometimes imagined.

So, perhaps in a mature democracy, human rights should be dignified by actions rather than words. Instead of introducing more legislation tainted both in the popular imagination and in its utility, Britain could trust its constitution to act as and when required to safeguard liberty and fair play. For good or ill, democratic sentiment will win out, and Britain's human-rights record, while imperfect, remains strong.

Jonathan Small is a Queen's Counsel in London.

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