David Cameron listed the repeal of the Human Rights Act at number three on his list of priorities as he set out his stall for government in the Tory-supporting Sun on the eve of this week's Conservative Conference.
There are, of course, very understandable reasons why Conservatives should feel hostile to the act. Some see it as a charter for socialism and state interference; others as an attempt to insinuate into the British legal system a leftwing social and political agenda. Eurosceptics regard it as part of an anti-democratic conspiracy that undermines the sovereignty of parliament and hands British liberties over to a foreign court; neocons as an obstacle to British security forces in the fight against terrorism.
In a book published tomorrow, the Conservative philosopher Jesse Norman and I show that each one of these criticisms is unfounded. Not only that: we demonstrate that the act is a thoroughly Conservative piece of legislation, as a matter of history, of law and of philosophy.
Start with history. The rights set out in the act are taken directly from the European convention on human rights, which was signed by the UK in 1951. They were inspired by a Conservative politician, Sir Winston Churchill, and drafted under the guidance of another one, David Maxwell-Fyfe (later Lord Chancellor Kilmuir) in the face of considerable opposition from the Attlee government. The act should thus be regarded as the creation not of New Labour, but of the Conservative party.
Moreover, Conservative critics are wrong to say that the rights of the act are in general socioeconomic entitlements. In fact, they are absolutely fundamental to the British common law tradition. They include the right to life; the prohibition of torture, first enacted by the Long Parliament in 1640; rights to liberty and security of person; the right to a fair trial, which dates back to Magna Carta; the right to respect for private and family life; rights to freedom of expression and religion; and the right to freedom of association. These rights are not radical: they are deeply Conservative.
And finally, the act itself operates in a peculiarly Conservative way. It confers no new right that has not already been long recognised in common law, or to which parliament has not already long committed the UK. Its rights are not inviolable, but can be set aside at will. Where there is an inconsistency of law, it leaves it to parliament to decide how to resolve that inconsistency, and only if it chooses. A more Conservative approach could hardly be conceived.
Myths abound about the act. 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 even outright lies. In our book we provide numerous examples. It is widely reported that hardcore pornography is available in prison thanks to the act, that the police cannot put up "wanted" posters thanks to it, and that it prevented Britain deporting Learco Chindamo, the killer of headteacher Philip Lawrence. All these stories – and many others – have distorted and poisoned public discourse on the Human Rights Act. They are false.
There is indeed a problem with rights inflation – but it lies elsewhere. The European Union's charter of fundamental rights, to which Britain was signed up in 2008 as part of the Lisbon treaty, enfranchises as "rights" a host of controversial 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 act. Legislatively, it is documents like these, and not the astringent and rigorous European convention or the act, that pose the real threat to liberty in the years to come.
Where, then, does this leave the Conservatives? Formally, they have pledged to repeal the Human Rights Act. Yet the party has consistently adhered over decades to the ancient, 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 emphasises exactly the kind of individual liberties enshrined in the act.
Under Cameron's leadership the Conservatives have re-embraced this magnificent tradition. They have 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 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.
It is time, now, for the Conservative party to take the final step: to make the Conservative case for the Human Rights Act. It is our own bill of rights, and it is Churchill's legacy.