In my first year as an undergraduate student I woke one morning to find unfamiliar words painted on the wall opposite my college: in French, “society is a carnivorous flower”. This was May 1968: the French Government was reeling from a student uprising and a workers’ general strike. The mood of student revolution spread throughout the Western world. Before long the hard left activists in my own university had broken down the gates of an administration block and occupied it. I found what was happening bewildering.
When a sixth-former, I had delivered leaflets for the Liberal Party, thinking that to be the place for a liberal, compassionate moderate. I remained, and I believe I have to this day remained, a liberal, compassionate moderate, but I have changed my mind about which organisation represented that position. The University Liberal Club proclaimed itself as to the left of the Labour Party, whilst the Labour Club ran after the revolutionaries, boasting of their own socialism. The only people who mounted reasoned opposition to the leftist craze were Conservatives. On the Burkean principle of “When bad men combine, …”, I got involved.
By the time I had finished being a student six years later I had become Chairman of a 15,000-strong national movement, the Federation of Conservative Students. We supported the Conservative Party, but that was secondary to the battle within our universities. We sought to present the case for order, free speech, and mutual respect, the case that it was wrong for activists to impose their will on everybody. Just as the left was an international movement, we, too, looked abroad for ideas how to confront them. A message used by our colleagues in Sweden was adopted as our own on our posters: “There are really only two alternatives, and if you do not agree with Marx there is only one”. That captured our emphasis on the development of our own political philosophy. The left drew strength from an intellectual framework which claimed to supply all the answers. They had to be confronted on the plane of the battle of ideas.
By the mid 1970s the student revolution was running out of steam. The values of order, free speech and mutual respect ceased to be controversial, and returned to being platitudes. Marxism retreated to the margins; and, in time, became discredited altogether. We, too, went off our separate ways: my predecessor Andrew Neil went into journalism, I went to the Bar, and only my successor, Dave Davis, tried, and succeeded, in politics. For the next 30 years my interest in conservative philosophy slumbered, forgotten.
Five years ago something happened to re-awaken it. That something was reading a lot of cases on human rights law. I had been appointed a member of a Government Commission on a UK Bill of Rights. This led me to have to involve myself in areas, such as immigration, outside the normal territory of the average civil or criminal lawyer. I was disturbed by what I found.
In my normal world of contracts and statutes, courts treat words as having their ordinary and natural meaning: if law is not certain, it is not law at all. The first principle of the rule of law, according to Tom Bingham in his classic monograph, is that it is predictable. That icon of UCL, Jeremy Bentham, applied the catch-phrase “dog-law” to the alternative: a dog, he said, learns what the master does not want only from being kicked. By contrast, Bentham said, a citizen is entitled to know before he does something whether it will incur a punishment.
The value of predictability in law, I found, had ceased to be esteemed by judges in both European and domestic courts, whenever “human rights” arose. In a short article I can give only a few examples.
The Strasbourg Court held in the Al-Skeini case that the European Convention of Human Rights applied to British forces when exercising a UN Security Council mandate in Basra, even though by its own clear wording the Convention did not apply outside the jurisdiction of Britain. In the Naomi Campbell case, the British Government was ordered to pay GBP 1.4m to Mirror Newspapers on the grounds that the tabloid’s freedom of speech was infringed by the “no win, no fee” costs legislation then in force. In Vintner they held that although the Convention does not treat the death penalty as an “inhuman or degrading punishment”, that phrase does encompass full life imprisonment: most people would surely think execution worse.
By the Google Spain case inflicted on us by the EU Court of Justice, Europeans’ search-engine results might have some entries missing, whilst computer users elsewhere in the world get the full results. Whether this alleged right to be forgotten should be given effect had been the subject of consultation and discussion in the EU institutions without a sufficient consensus for a legislative Directive. Then the Court unexpectedly hijacked the possibility of a legislative resolution of a complicated topic. It did so by holding that Google, which actually is an indexing system, with no control over the sites it links, is a “data controller”.
This tide of judicial activism has convinced me that once again we need to develop a Conservative philosophy. This time the activists are hugely well-intentioned people, judges who have a viewpoint on a contemporary issue, and just cannot resist using their power to impose it. They overlook the fact that in a democratic society, major social policy is the prerogative of the legislature, and thereby of the people as a whole.
Once again I have found inspiration from abroad, from the American Federalist Society. They began 30 years ago as a small group seeking to resist the intolerance of the prevailing activist orthodoxy in university law faculties. They have grown into a respected movement which articulates an intellectual, cogent and conservative school of thought. Here in Britain we have the Society of Conservative Lawyers. I hope there will be a growing appreciation that the value of the inherent dignity of every human, which is the true foundation of human rights, requires that judges should not supplant democratic decision-making.