Let them eat the Human Rights Act

If you still think political conservatism is alive in Britain, read Daniel Finkelstein’s article in The Times.

Fink, as he styles himself when writing about football (wouldn’t be my first choice of a pseudonym, but there we have it), starts out by offering an unimpeachable premise: “One of the key attributes of being a British conservative is standing up to populist enthusiasm when it threatens limited government, individual rights, due process and the rule of law.”

Yes, but how best to achieve such desiderata? It’s in answering this question that Fink shows his uncertain grasp of conservatism.

According to him, the Conservative Party should adopt “a practical rather than ideological approach to leaving the European Union” and “drop its opposition to the Human Rights Act”.

The first proposed step, bandied about by all visceral Remainers, is important in its connotation, not denotation. For what they mean is that we should bang the EU door but then stay inside.

‘Practical’ to them means Britain continuing to pay billions into the EU coffers, admit an unlimited number of immigrants and still fall under the jurisdiction of various EU laws spearheaded by the Human Rights Act and the ECHR.

One wonders why bother leaving at all. The only effect of such practicality would be Britain failing to regain much of her sovereignty, while losing even the pathetic 1/28 of the voice at the EU table.

Anyway, if Fink wants to stay in the EU, de jure or de facto, he’s entitled to that view. He’s even entitled to put forth arguments in favour of the Human Rights Act. However, passing them for the voice of conservatism is sheer larceny.

We need the HRA, says Fink, to protect our property against requisition, similar to what Hugo Chávez perpetrated in Venezuela and Jeremy Corbyn would do in Britain given the chance.

In other words we need the EU to save us from ourselves. This implies that until 1998, when Britain signed up to the HRA, property in the country had been at the mercy of sticky-fingered tyrants with requisition on their minds.

Yet the rights of Englishmen is a notion predating the HRA by some 800 years and, apart from Henry VIII’s raid on the monasteries and some seventeenth-century excesses, one can’t recall offhand too many instances of property left unprotected by Britain’s own laws.

Our constitution is arguably the best and certainly the longest-lasting the world has ever seen. Over, say, the past century Britain’s record on human rights stands up against any other EU member, including the EU powers that be, Germany and France.

Germany… well, we know all about her. And the French will insist they have the rule of law, but that’s not exactly true. What they have is the rule of lawyers.

Unlike English Common Law, based on precedents accumulated over centuries, the French practise positive law, one imposed by the state. These incompatible legal systems are vectored in opposite directions: from bottom to top in Britain, from top to bottom in France.

When French kings ruled by divine right, they didn’t need much legislative activism. The need only arose with the advent of perverse politics inspired by the Masonic slogan of liberté, egalité, fraternité.

Lacking an organic claim to legitimacy, the revolutionary government – and all its kaleidoscopically changing successors – drowned the population under a deluge of laws.

Since 1789 France has had 17 different constitutions, spawning thousands of laws. Most of them come from the fecund minds of avocats who bang their clever heads together to devise legislation supposed to hasten the arrival of paradise on earth, which so far has been late in coming.

By contrast, English Common Law has over centuries built a solid capital of justice. We’re currently living off the interest, rapidly frittering the principal away. But at least there’s some left, and that’s what we must strengthen and build on.

English Common Law can protect us, as it has been doing for centuries. We have no need for any EU guarantors of the rights of Englishmen. The European Human Rights Act is no more synonymous with human rights than the European Union is with Europe.

According to Fink, the only alternative to EU protection would be a British Bill of Rights. However, he laments, “The Tories have never had a coherent plan for a British Bill of Rights or anything approaching the unity with which they need to proceed. So why not admit that this has been a blind alley?”

So admitted, as directed. This is indeed a blind alley. For we don’t need another Bill of Rights any more than we need the HRA. Though such a constitutional document wouldn’t be issued by foreigners, it would be inspired by the spirit of positive law, which has a distinctly alien, continental flavour.

Anyway, we already have one Bill of Rights, passed in 1689 as a result of the Dutch occupation known as the Glorious Revolution. Having another one would be tantamount to a tacit admission that there was something wrong with the first Bill. So there was, plenty, and England has never been the same thereafter.

But at least it could be argued then that the Glorious Revolution represented such a tectonic constitutional shift that its legal aspects had to be summed up in a written document. Nothing like that is happening now – in fact Britain has moved towards reclaiming her ancient constitution, freeing it from the yoke of European legalism.

When new laws are redundant, they’re harmful. Lucius Cary, 2nd Viscount Falkland put this epigrammatically: “When it is not necessary to change, it is necessary not to change”.

But then, unlike Fink, he understood the nature of England’s constitution. And, as he proved in 1643, he was ready to die for it.