Addressing the Critics

Chapter 3

The previous chapter made the positive case for supporting the Human
Rights Act. I turn now to address the many criticisms that have been
levelled against it.

It may be helpful to be clear from the outset about three things. First,
I do not claim that the Act is a perfect document, or a panacea for
injustice in the UK, only that it is a good piece of legislation. Secondly,
even where a criticism of the Act is misplaced, it often springs from
important wider public concern about issues such as rights inflation.
Here my argument will be that the Human Rights Act is the wrong
target, however, and that these issues should be tackled in other ways.

Thirdly, I will assume in what follows that there is no case for the
UK to leave the European Convention on Human Rights. This move has
never been seriously advocated by any mainstream political party. Not
only was the UK the legal and historical inspiration for the Convention
and its first signatory, as noted, but departure would send a message to the world that individual freedoms, personal rights and indeed the rule of law itself can be set aside when they are inconvenient.

1. “Bad people should not have rights”

The first criticism is the most basic: that bad people should not have
rights. It may be that someone has committed a serious criminal offence, or a repeated series of minor offences, that they are a known criminal from another country, or perhaps even just that they are strongly suspected of criminal intent: in such cases the person concerned should not enjoy the protections afforded by the Human Rights Act.

This criticism should be rejected out of hand. The rights in question
are all or almost all the basic prerequisites of our law. In the words of
Horace Rumpole, it is the golden thread of British law that people are
innocent until proven guilty in a court of law. Of course the Act is most
invoked on behalf of those at the margins of society – this is only to be
expected. But these basic rights protect us all. Abolishing them would
give the state free rein to trample on the citizenry.

2. “The Human Rights Act hampers the fight against terror”

A more persuasive variant of the first criticism goes like this: of course
there can be no question of abolishing such basic rights and freedoms as such. But the Human Rights Act itself is clearly hampering the fight
against terror.

Thus the Belmarsh decision prevented the state from detaining
terrorist suspects without trial; the Home Secretary has been prevented from deporting known terrorists because of concerns that they would be tortured; and some control orders have been rejected by the courts where suspects have not been given any information about the nature of the case against them. So the Human Rights Act needs to be pruned back in order to allow effective prosecution of the war on terror.

There are several difficulties with this line of thought, however. The
first point is that it rests on a factual claim which cannot be tested – that the fight on terror has been materially hampered by the courts. Of
course the Home Secretary’s life may have been made a bit more
difficult. But this is not at all the same thing as saying that the fight on
terror has been hampered. It may actually have been assisted by the
worldwide legitimacy and reputation for fair play of British justice, as it
has often been in the past, for example with the centuries-old British
prohibition on torture. And it is noticeable that the US seems to get by
fairly well in combating terror, despite the Bill of Rights and its own
extremely vigorous culture of civil liberties – notwithstanding recent
attempts to circumvent the Bill of Rights by outsourcing interrogation
at Guantanamo Bay or via “extraordinary rendition”.

But say the factual claim is true. Would this give sufficient grounds
to prune back these basic rights and freedoms? Certainly not. There are many laws that inhibit the state’s ability to catch criminals, but we
accept them because they are valuable for other reasons. Moreover, the key rights in question already contain explicit limitations and the idea of proportionality, in recognition of the balance that needs to be struck between the interests of the state and those of the citizen. Thus Article 8 prohibits public authorities from infringing the right to respect for family and private life – except on the grounds of “national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Those are very significant carve-outs.

Even if these points were mistaken, however, to warrant this extreme
step it would still need to be shown to a reasonable standard that the
British state was already using all the effective legal means at its disposal in the fight against terror. But I know this is very far from the case – on the contrary, there has been a huge amount of incompetence in this area, notably in conceiving and managing immigration policy.

3. “The Human Rights Act undermines Parliament”

The third criticism has been much voiced by politicians on all sides of
the debate. This is that the Human Rights Act undermines the
sovereignty of parliament, by fettering it with rights that constrain its
actions, and by encouraging the judges to create new law.

There can be little doubt that as a practical matter Parliament is less
autonomous now than it was in, say, the time of Gladstone and Disraeli.
It has voluntarily restricted its own freedom of action over many years,
notably by joining the European Economic Community in 1973. But
the principle of parliamentary sovereignty, as a principle, remains as
inviolate now as it was in Dicey’s heyday. As a result, the Human Rights
Act could be repealed tomorrow if Parliament so wished.

Moreover, it bears restating that the Human Rights Act confers no
new right which has not already long been recognised in common law,
or to which the UK has not already long been committed. It enables no
new concepts or issues to be considered by judges which they were not previously able to consider. So if any undermining of the principle of
parliamentary sovereignty has occurred, it has not been done by the Act. Not only that: the Act demonstrates its commitment to parliamentary sovereignty on the face of the legislation. Indeed it preserves that sovereignty, by way of the supremely British compromise of a declaration of incompatibility. The contrast is, again, with countries in which rights are set forth as superior law and judges have the ability to strike down or annul primary legislation.

And the implication that British judges are an alternative source of
legislation is in general untrue. There is of course a broad sense in which the common law is “judge-made” law, as it has been for centuries. This is because any court judgment itself becomes part of the record, and so part of legal precedent. It was Lord Reid who in an essay on “The Judge as Lawmaker” in 1972 famously stated that the old idea that judges did not make law but simply declared it was “a fairy tale … But we do not believe in fairytales any more.” Indeed in legal cases where the question at issue has not been previously raised, or where there is a lack of clarity in the law, any decision of the court will have the effect of “making law”.

But this is very far from the judges being “legislators” in any genuine
sense. In fact there is remarkably little evidence that judges have
creatively elaborated new law, or been subject to any political influence in their decisions. To take one example, it might have been expected that the Law Lords would reject the use of the Parliament Act 1949 to push through the hunting ban, given that the Parliament Act was hardly designed for this kind of legislation and the issue was extremely politically controversial. Yet they found unanimously for the government on this issue.

4. “The Human Rights Act fuels rights inflation”

A fourth criticism is that the Human Rights Act has fuelled “rights
inflation”. That is, it has created a whole host of new legal rights, which have encouraged people to file bad or frivolous claims, stimulated a public culture of grievance and litigation, and lined the pockets of golddigging lawyers.

Perhaps more than any other, this issue is the subject of huge
misrepresentation and misunderstanding. There is clearly huge public concern about the growth of a litigious, timid, safety-first culture of
political correctness in Great Britain today. But very little of this has
anything to do with the Human Rights Act.

Contrary to public expectation, there has not been a flood of
litigation under the Act. Recent figures show that human rights legal
actions peaked in 2002 with 714, and fell to a low of 327 cases in 2008. And, again contrary to public expectation, there have been remarkably few declarations of incompatibility under the Act: just 26 in its first eight years, of which eight have been overturned on appeal. Instead, there has been an explosion of stories in the popular press about vexatious claims, very few of which in fact make it as far as the courtroom, still less secure a favourable judgment. These are the Myths of the Human Rights Act, and I analyse them in more detail in Chapter Four.

At a conceptual level, it is useful to distinguish between rights
elaboration and rights inflation. Elaboration is a normal process whereby
new areas of law are filled out over time by court judgments, which
clarify how the law applies in different contexts. Sometimes the effect
is to extend the reach of law, sometimes to hold it back. In the area of
personal rights and freedoms, a recent example is the Law Lords’
judgment that the Human Rights Act applies in principle to British
soldiers on the battlefield. The battlefield has been understood to be
subject to law for over a hundred years. What this judgment does is to
make clear that soldiers have certain basic legal rights under the Act,
such as to adequate kit and training.

Rights inflation is something else. It has little to do with the Human
Rights Act, as we have seen. But I would argue that it is a serious
problem, created by bad legislation and by the present government’s
penchant for turning even trivial entitlements into “rights”. This spills
over into public discussion of the basic rights and freedoms of the
individual, and trivialises and debases it. If there is a culture of grievance at present, then this is its source.

5. “Rulings from the European Court should not be part of British law”

The fifth criticism is that the Human Rights Act in some way imports European judgments into British law; or makes the UK subject, or more
subject, to the European Court of Human Rights in Strasbourg. It plays
on concern among the general public that the UK is dominated by the
European Union, and among some commentators that European court
judgments are of lower quality than those rendered by British judges.

Again, however, we need to be clear about the facts. Almost all of
these rights are not of European origin, but were developed through the English common law, as we have noted, in some cases hundreds of years before their European counterparts. The Article 3 prohibition on
torture, for example, arises from the common law, which even in the
15th century seems to have regarded torture both as morally degrading
to all involved and as a source of unreliable evidence. The Court of Star
Chamber continued to receive evidence from torture in the early 17th
century by exercise of the royal prerogative, but the lawful sanction of
torture was ended in 1640 in England, when the Star Chamber was
abolished by the Long Parliament. This step was then reinforced in the
Bill of Rights 1689 with its prohibition on “cruel and unusual punishment”, a phrase which in turn made its way into the US Bill of
Rights. But the legal use of torture persisted in many European countries until the 18th century, and in some until the 19th.

The second fact to note is that the European Convention is not a
treaty of the European Union. The Human Rights Act does not import
European judgments into British law: it does the opposite. It allows
British courts to decide cases concerning basic rights and freedoms
themselves, instead of their being referred to the European Court as was required before 2000. It thus brings justice closer to the ordinary person, and makes it more accessible and less expensive.

Furthermore, British judges are only obliged by the Act to “take account of” rulings by the European Court – a minimum condition, given
that these are Convention rights – not to follow them. It is in the nature of courts that they will occasionally disagree, and this is part of the value of the appeal system. Thus the European Court has occasionally made a different decision to the Law Lords on appeal; one important recent example is the S and Marper decision, where the Court decided, in effect, that the Lords were wrong to uphold the Government’s blanket policy of taking and keeping DNA samples from innocent people. However, far more often the Court has backed the Lords. And of course many more cases decided by British courts do not make it to the European Court in the first place because it is understood that they would have no chance of success. In many others, of course, an applicant will have been successful in the local courts and have no need to go to Strasbourg.

All this would change if the Human Rights Act were abolished.
Abolition would do away with the ability of British claimants to seek
justice in British courts with British judges. All such cases would need to be taken to the European Court, with huge consequent cost and delay. There would be none of the current scope for British judges to respect British traditions, concerns and values in their judgments: the European Court would simply apply the law as they saw it. Far from maintaining the relative autonomy of British law, abolition of the Human Rights Act would reduce it.

There is a wider point to be made here. Many people, and certainly
many Conservatives, are concerned about what they see as growing
European federalism. But this has little or nothing to do with the Human
Rights Act. It is a political problem, which requires political solutions. The Act has the effect, not of exposing, but of protecting both the broader British legal tradition of respect for individual rights and freedoms, and more current local concerns from decision in foreign courts.

6. “The Human Rights Act imposes huge costs on business”

The sixth line of criticism is that the Act imposes unacceptable costs on business, because of the extra expense involved in respecting the rights of employees, and in litigation.

It is true that the Act imposes some cost on the public sector, because
it requires our public authorities to comply with the Convention rights.
But these costs are not new costs: they would have been faced anyway as local government, the NHS, schools and other public bodies became aware of the UK’s obligations under the Convention.

The Act itself imposes little if any cost on the private sector. Almost
all the spiralling costs which now beset British businesses, especially
small and medium-sized businesses, have arisen from other Government
legislation, and from EU legislation. The spreading of myths about human rights by the press has added to these costs, by encouraging
frivolous complaints against companies, thus creating a situation in
which companies feel compelled to take legal advice rather than deal
with such concerns in a common-sense way. Indeed most of these claims have less to do with human rights than with the desire to escape onerous regulatory controls.

7. “The Human Rights Act is ineffective”

I can briefly address a seventh and final criticism of the Act: that it is
ineffective in operation. This has been said both by those on the
authoritarian right or left who wish to ignore or undermine the Act, and
by those of more libertarian stamp who wish to make it stronger.

The claim of ineffectiveness is a slightly paradoxical one given that
so much other criticism focuses on the supposedly malign effects of the
Act; and in fact it is not true. As noted, the Act has caused the
Government to revise its position on indefinite detention without trial
and on control orders. It has enhanced personal privacy. It has
significantly increased the accessibility of justice to the British people
on issues affecting fundamental rights and freedoms. These are not small achievements, and they underline that in its modest, conservative way the Act has proven to be rather effective. Of course, this is not to say it could not be improved – or be more vigorously supported by politicians.

These, then, are seven lines of criticism that have been advanced
against the Human Rights Act. None of them succeeds. In several cases they articulate real and pressing political concerns, which have been stoked by the press, by government actions or by legislation, especially over the past decade, and which require political solutions. In several cases abolition of the Act would in fact worsen the original problem, rather than address it.

It is, finally, notable that none of these criticisms is a reason to adopt a British Bill of Rights. I will turn to this issue in Chapter Five. In the next chapter, however, I look at the different myths that have stoked up public concerns about human rights, and attempt to put the record straight.

Why the Human Rights Act Matters

Chapter 1

I will show that the European Convention of Human Rights (ECHR), which the Human Rights Act 1998 (HRA) incorporates into British law, is an impeccably Conservative document. It was inspired by Sir Winston Churchill, drafted in large measure by the Tory politician David Maxwell Fyfe (later Lord Chancellor Kilmuir), and ratified by Britain in March 1951, the first nation to do so. And I will argue that all of the great ideas embodied by the European Convention – including those of freedom under law, restraint on the power of the state and a deep understanding of the link between individual liberty and private property – are based on ancient conservative beliefs.

I will also show that the repeated claim that the HRA is a charter for socialism and state interference is quite false. In fact the HRA is a charter against socialism and state interference. This is why the post-war Labour Prime Minister Clement Attlee was suspicious of the European Convention and only supported it with reluctance. It also explains why Tony Blair and Jack Straw, who were swift to introduce the HRA after the 1997 election, in due course became such angry critics of it. Prime Minister Blair believed in a strong, powerful and centralised state and was in general indifferent or even hostile to the rights of minorities; the HRA hindered his government from carrying out some of its most populist and authoritarian policies.

It is at first sight puzzling that, officially at least, the Conservative  Party should be opposed to the HRA. Indeed a pledge has been made to repeal the HRA if the Conservatives win the next election. A number of factors account for this paradox, which arise from a misreading of the origins, motivation and language of the European Convention.

The Conservative Party has always been properly sceptical about abstract rights and entitlements. This scepticism was set out most  famously by Edmund Burke, whose Reflections on the Revolution in  France, published in 1790, is a core text for the Conservative party in its current incarnation. Burke challenged the enlightenment proposition that human beings could or should lay claim to the possession of abstract rights such as those of Liberty, Equality and Fraternity. He did so not because he denied the existence of rights as such, but because he saw them as embedded in and grounded by tradition, experience and human institutions.

Burke warned of the dangers that would follow if these institutions were overturned and a system of natural rights set up in their place. These warnings were shown to be hideously accurate with the bloodshed and terror that followed the French revolution, and later the Bolshevik  revolution of 1917. So it is only to be expected that thoughtful Conservatives should be chary of a new system that at first sight appears so hostile to the English system of common law, which has set the framework for justice in this country for some nine hundred years.

However, as I will show in the posts that follow, Conservative  scepticism about the HRA is based on an erroneous interpretation both  of the European Convention, and also of the teaching of thinkers such  as Burke. The truth is that the Convention was framed by British jurists, working within a common law legal tradition stretching back past the US Bill of Rights 1791 to encompass our own Bill of Rights 1689, and the Petition of Right 1628. So it is not surprising that its essential principles – including the right to a fair trial, the right not to be held  without charge, and the right not to be subject to cruel and unusual  punishment – are manifestations of the English common law as it took  shape during a centuries-long jostling for power between the different estates of the realm.

In the 20th century the great British war leader Sir Winston Churchill was determined that these freedoms, for him the essence of civilisation as such, should be publicly set forth in the European Convention. He saw this as a response both to the barbarity of fascism, then a recent and appalling memory, and to the sinister threat to human freedom posed by the Soviet Union in the post-war period. The ECHR thus marks a vital codification of the common law, not its repudiation.

A second objection to the HRA is that it is not really about justice at all as properly understood, and that its real purpose is to insinuate into the British legal system a left-wing social and political agenda.

The criticism goes right to the heart of the political debate as to the nature and purpose of the law itself. The conservative vision of law is, broadly, a procedural one. Conservatives insist that the rules should be observed, wherever they may lead. They attend to history. They are fastidious in distinguishing between different institutions. They demand impartiality of administration, equality of access to justice and a ban on special treatment. For them the proper means to address public issues of social inequality is simply through politics. Individual freedom is preserved through the rule of law, backed by the state as final enforcer. Human society becomes what the philosopher Michael Oakeshott called a “civil association”: a group of people who agree to subject themselves to a set of common rules of conduct, so that they can better pursue their own various lives and interests with as little interference as possible.

For the left, by contrast, the focus is less on means than on ends. Legal procedure is subsumed in the quest for social justice. At its most utopian, this view holds that any institution – national or local, public or private – is potentially available to be used to pursue social goals. Thus even the integrity of the judicial system itself is of interest only insofar as it serves to secure equality of outcomes and to enforce social justice.

In Oakeshott’s phrase, human society becomes an “enterprise association”: made subject to some overriding purpose which takespriority over private interests and which stands ready to sacrifice individual freedom for the greater good. It is in this sense “rationalist”, in seeing politics as simply a series of problems to be solved, if only a suitably detailed and comprehensive abstract plan existed to do so. An enterprise society is moralizing and ambitious. It is, so to speak, always on a war footing. In such a society the rule of law is always at risk.

In these terms the European Convention on Human Rights and the Human Rights Act are exquisitely conservative documents. The European Convention nowhere asserts that human beings have a right to equality of economic status, possessions or material comfort – it is silent on these questions. Its rights largely amount to a set of limitations as to how the state is permitted to behave towards those within its jurisdiction. For instance, it insists the state cannot arrest someone without good cause, determine what kind of books they read or unlawfully sequestrate their property. These are without exception rights which give ordinary citizens the ability to carry on with their private and family lives as best they can without interference from the state, or anyone else.

By contrast the left has historically demanded a much more activist kind of rights culture. It demands so-called socio-economic rights, such as the right to work. Furthermore, it has a fundamentally collectivist view of rights, placing the state or the “common good” above all else. When the Soviet Union guaranteed certain human rights in its 1977 Constitution, it warned that “citizens’ exercise of their human rights must not harm the interests of society, the state, or other individuals.”

By contrast the European Convention, scrupulously drafted and rigorously defined, provides no comfort for socialist conceptions of social or economic justice. It is implicitly sceptical about the power of the state. It falls on the side of civil, and not enterprise association; on the side, to use Churchill’s words in his Hague Congress Speech, in which the people own the government, and not the government the people.

The same is not true, however, of the European Union’s Charter of  Fundamental Rights, to which Britain was signed up in 2008 as part of the Lisbon Treaty. As I argue below, this document does indeed enfranchise as “rights” a host of secondary social and economic entitlements. Almost as alarming is the Government’s intellectually catastrophic Rights and Responsibilities Green Paper, published earlier this year. Contrary to its name, this legislation would introduce no new legal rights or obligations into British law whatever. But it would cloud the area with unenforceable and rhetorical statements of right, opening the way up to exactly the kind of “rights inflation” so feared by critics of the HRA. It is documents like these, and not the astringent and rigorous European Convention or the HRA, that pose the real legislative threat to liberty in the years to come.

A third Conservative criticism of the Human Rights Act is that it is part of an anti-democratic conspiracy because it supposedly devolves to a foreign court the task of interpreting British liberties: a task which should much better be carried out at home and which undermines the sovereignty of parliament.

This broad anti-federalist instinct is well-motivated and widely shared across the British political spectrum. Yet the specific criticism, when examined forensically in relation to the HRA, makes no logical sense at all. The first point to make is obvious enough, but frequently forgotten. The European Convention on Human Rights has virtually nothing to do with the European Union. It was ratified six years before the formation of the common market. And it contains no federalist agenda beyond a common commitment to human decency and liberty in the light of the great fight against totalitarianism of both right and left.

Indeed the overwhelming purpose of incorporating the European Convention into British law through the Human Rights Act is precisely so that decisions can be reached by British judges in British courts within the British legal framework, thus building up a body of British case law in this area. This is already happening, and there is already plentiful evidence that the European Court of Human Rights in Strasbourg is respecting the integrity of British judicial decisions.

The Conservative pledge to repeal the HRA, if carried out, would thus have the perverse consequence of moving the judicial process overseas. Unless the Conservative Party actually proposes to withdraw from the European Convention on Human Rights – and it does not – there is no avoiding this.

A fourth criticism of the Human Rights Act concerns national security. The most emotive argument against the HRA is the one used by Tony Blair and successive Labour Home Secretaries: namely, that the HRA impedes the ability of the security forces of the British state to fight the threat of terrorism. Indeed the period since 9/11 has been marked by a running argument between British politicians and British judges over counter-terrorism legislation.

The argument came to a head at the end of 2004, when the Law Lords ruled that Part 4 of the Anti-Terrorism, Crime and Security Act 2001 – which allowed the British Government to imprison foreign terrorist suspects without charge, thus undermining the ancient principle of habeas corpus – was incompatible with the HRA (the Belmarsh judgment). As a result the Government decided to find an alternative mechanism; and the situation was resolved, temporarily at least, with the introduction of so-called control orders in the Prevention of Terrorism Act 2005 which restricted the movements of suspects.

Claims that the HRA makes Britain less safe are untrue. The Human Rights Act requires the courts to balance human rights against safety and accepts that important rights may be restricted to protect national security. In the vast majority of cases it does not prevent those who pose a threat to our national security from being deported. What it does do is to prevent the government from sending terror suspects back to countries where they may be tortured. As evidence grows of possible British Government involvement in the “extraordinary rendition” of suspects, and amid allegations of complicity in torture, it is clear that these protections are desperately needed.

Furthermore, it is important to understand that the common law by itself proved insufficient to protect British liberties in the aftermath of 2001, including as venerable and sacred a liberty as habeas corpus. As the historian Ben Wilson has written of the Belmarsh judgment: “Incompatibility with the Human Rights Act made this possible, not incompatibility with the British tradition of liberty.” This episode showed that it is now the HRA, and not simply the common law, which has become the fundamental guardian of freedom against oppressive and arbitrary government.

The opposition of many Conservatives to the HRA is not only, however, the result of a misreading of its rights and function. The empirical basis for a great deal of public debate on the Act is also badly flawed and incomplete. Indeed a great deal of the popular hostility towards the HRA is based on sheer ignorance, made worse by misunderstanding. Myths abound about the HRA. These start out as newspaper reports. Soon they enter popular discourse. It is not long before they are used in the speeches of politicians. And yet almost invariably they are fabrications, or sometimes outright lies.

One example is the very widespread belief that the Human Rights Act has been successfully used to allow prisoners access to hardcore pornography in prison. In 2001 the Daily Mail correctly reported that the serial killer Dennis Nilsen was “using the controversial new human rights law to demand porn magazines in prison”. The key point, however, is that he was not using it successfully. When he went before the High Court to argue that denial of access to these materials was “inhuman or degrading treatment” the case was thrown out at the first instance.

A later Prison Service Order on prisoner property, unconnected with the HRA, gave prison governors some discretion as to what inmates should read. Yet the Telegraph reported, falsely, that “prisoners win their claim that hardcore porn is a human right”. Since then the Nilsen case has been reported again and again as fact by newspapers on left and right, and it has been highlighted by politicians trying to show that the HRA promotes a “compensation culture”. Later I will  show in detail how these myths emerge, and how they shape public opinion and create a false public discourse about the HRA and the European Convention.

I also draw attention to a coincidence. These myths, distortions and fabrications appear most in newspapers and broadcasting media which believe they have a powerful vested interest in the failure of the HRA.  Specifically, they believe that they could be adversely affected by the right to a family and private life contained in Article 8 of the Act.

A large element of the selling power of some British newspapers depends on their ability to break stories about the private lives of celebrities and other public figures. Furthermore, many editors and proprietors passionately believe that there is a strong public interest that such stories should be published. Celebrities and others have successfully used this right to prevent newspapers from publishing some stories about their private and family lives, and it seems likely that this has fuelled hostility towards the HRA by some parts of the press.

In general the same newspaper groups and media organisations which have campaigned most powerfully against the Human Rights Act are also those most powerfully affected by the privacy provisions of the HRA. Perhaps for that reason those pledging to abolish the HRA are guaranteed a generous media reception. Indeed it is unlikely that reform of the HRA would be on any political agenda, were it not for the potent advocacy of the most powerful media groups in the country.

In fact, however, it is far from clear that the HRA is contrary to the interests of the media. While there may be understandable and legitimate concerns about the impact of the right to privacy on press freedom, those in the press who have pilloried the HRA seem to forget that it is only because of the HRA that their freedom of speech is properly protected at all. The simple fact is that before the introduction of the HRA there was no enforceable right to free speech in this country – a position we would return to if the HRA were repealed.

Take the case of Sally Murrer, for example. She was the journalist on the Milton Keynes Citizen who had a conversation with a police officer which was secretly recorded by the Thames Valley Police, as a result of which she was prosecuted. She successfully argued that she had a right to freedom of expression under Article 10 of the HRA to do her journalistic job and to protect her sources. The prosecution case against her was thrown out as a result.

Moreover, if criminal proceedings had been brought against the Telegraph for its extraordinary revelations about MPs’ expenses earlier this year, it would be to the HRA that the newspaper would best have turned for a legal defence. And it should not be forgotten that even the much maligned right to privacy is championed by the same press that otherwise rail against it – when it is the State, and not the paparazzo, that wields the camera.

Abolition of the HRA would sweep away these protections for the press. And it is debatable whether abolition would in fact choke off theemerging law of privacy. The common law on breach of confidence might itself be a sufficient legal basis for the development of a de facto privacy law even without the HRA.

No: if newspaper editors and proprietors are unhappy with the way in which the common law is developing in conjunction with the HRA, the remedy is clear: they should lobby Parliament in the usual way for the introduction of new legislation to balance personal privacy with the media’s right to free speech. It is short-sighted in the extreme to call for the repeal of constitutional protections of fundamental rights, including those that offer direct protection to journalists, simply because of individual fact-specific judgments that displease – especially when the reporting of those judgments is often so distorted.

What, then, of the Conservative party? The strength of the party as a political movement has often derived from a tension between different principles which is intrinsic to conservatism itself. Nowhere is this clearer than in its attitude to freedom. On the one hand the mainstream party has consistently adhered to the ancient and liberal tradition of British scepticism about the role and extent of the state. This can be traced back through dissenter and patrician alike, through philosopher, campaigner and common law judge, through Cobbett and Dicey, through Burke and Blackstone back to Harrington and Bolingbroke, and well beyond. It emphasizes exactly the kind of individual liberties enshrined in the HRA.

On the other hand there is also a tradition of Conservative respect for authority, which can sometimes elevate the state above the rights and liberties of individuals. This strand of thinking lay at the heart of nineteenth century nationalism and is in general more commonly associated with continental movements of right and left, and with the Fabian tradition in this country, than with conservatism. But this more authoritarian strand of Conservatism still has its adherents, and it has received fresh impetus since 9/11. The logic can seem compelling: the first duty of the state is to protect its citizens; global terrorism poses a potentially existential threat to British citizens; so any measures by the state are legitimate to combat this threat. The argument receives further potency from the language of warfare, with its implicit suggestion that normal constitutional arrangements are to be set aside.

There is no need to rehearse the arguments on this issue. I would just make three obvious remarks. The first is that very serious terrorist threats are not new. Lest we forget, the Gunpowder Plot of 1605 was designed to kill both the monarch and his successor and the entire political and ecclesiastical leadership of this country. The second is that this country is not in a state of emergency. In an emergency, the supreme necessity of survival creates an imperative for action. Rightly or wrongly, various leaders including Pitt and Lincoln have even thought it necessary to suspend habeas corpus in order to protect the life of the nation and the government itself in the most difficult possible circumstances. The third is that the curtailment of individual liberties should be not the first but the last resort for government. Of course, as Mark Twain said, when all you have is a hammer everything looks like a nail. But the evidence is that this government in particular has been far too ready to reach for legislation to fight terror, in this area as in every other, rather than do the job well.

But the real point is this: that in its modern form this authoritarian strand is hardly a form of conservatism at all. Rather, it is rationalist, in seeking to suborn human society to a single moralizing project. Ultimately, this line of thought would put at risk both the freedom of our institutions and the rule of law itself.

Under the leadership of David Cameron, however, the Conservative Party has re-embraced the first and more dominant philosophical tradition. It has fought important battles for personal freedom: opposing 42 day detention of suspects without charge, opposing ID cards, and opposing unjust extradition and the poorly designed and safeguarded European Arrest Warrant. And it has taken these positions in a thoughtful and well-calibrated way, without naivety as to the gravity of the issues involved.

As a General Election approaches, it is important for the Conservative Party to drive home the message that it stands for freedom, decency and British liberty. It should drop its opposition to the Human Rights Act. As I show the existence of the HRA’s rights and freedoms derives from British common law. Their codification was specifically inspired by Winston Churchill and the Act is thoroughly conservative in its content and operation.

It is time, then, for the Conservative Party to make the Conservative case for the Human Rights Act. It is our own Bill of Rights, and Churchill’s legacy.