Q&A: What next for the Human Rights Act?

Is the Human Rights Act going to be repealed? The new home secretary, Theresa May, said yesterday that no decision had yet been taken by the coalition on the future of the act, but she added: "We did say that we thought [it] wasn't working in certain areas and we are now discussing with our coalition partners what we will be doing in that area." She confirmed that the coalition would set up a commission to resolve the issue . Why is that controversial? The Conservatives went into the election with a manifesto commitment to repeal the HRA and replace it with a British bill of rights, while the Liberal Democrats made it clear they would fight to retain the legislation. However before the election, Dominic Grieve, then shadow justice secretary, indicated that it was not an issue that would have much priority before the third or fourth year of a parliament. The surprise appointment to the post of justice secretary of Ken Clarke – who once called the British bill of rights proposal "xenophobic and legal nonsense" – appeared to seal its fate. Clarke said last week that a bill of rights was not a high priority. This impression was compounded on Monday when the Cabinet Office minister, Francis Maude, let slip that he thought "we had already decided not to go ahead with that". It was widely felt that the issue had already been consigned to the long grass. So May's statement that repealing the HRA was still on the table set alarm bills ringing around the human rights world. What changed? The Special Immigration Appeals Commission ruling yesterday that two terror suspects could not be sent back to Pakistan because of the threat of ill-treatment or torture at the hands of the authorities was widely blamed on the Human Rights Act. Wide sections of the Conservative press and the Tory backbenches voiced concern when they learned that repeal of the HRA was not a coalition priority. This was why May was careful to spell out that talking to the Lib Dems about HRA reform was not a betrayal of their manifesto. "We are in discussion as to what our approach should be. We are talking to the Liberal Democrats about that, but you cannot say that, across the board, somehow we have sold out our supporters, when you look at the whole agreement that has been reached between us and the Liberal Democrats," she said. But the Tory backbencher Bill Cash was not satisfied and said keeping the HRA was "not in my manifesto". How did the Lib Dems react? Nick Clegg, in his reform speech , defended the HRA and warned that "any government would tamper with it at its peril". The senior Lib Dems Chris Huhne, the energy secretary, and Lord McNally, the justice minister, have told party members they would resign over the issue if necessary. How is this likely to be resolved? As shadow justice secretary, Grieve argued there were ways to reform the HRA without resiling from the European convention on human rights, which the act incorporates into British law. In particular he suggested that the test on what should be taken into account in respect of Strasbourg case law by the British courts could be changed. "A bill of rights would be compatible with the ECHR. In areas where ECHR rights are absolute, such as the article 3 prohibition of torture, those protections will not be removed. But there is no reason why our courts should be bound by Strasbourg court jurisprudence, if their own interpretation is different, particularly where rights should be balanced by responsibilities," Grieve said in March. He said this could open the way to deporting terror suspects as long as there were assurances that they would not face ill-treatment. Other human rights lawyers dispute this interpretation.