In the 16 October Spectator, Roger Scruton tells us that the new claim-based rights are in danger of depriving Britons of their old procedural-based rights as enunciated in the 1689 Bill of Rights.  In fact, perhaps the word ‘procedure’ is more important than the word ‘right’ here.  According to Scruton: “Although the Bill of Rights declared some of the rights of the British subject, it was, in doing so, merely rehearsing established procedures of the common law, and re-affirming them against recent abuses.”

From gypsy squatter parks to the right to a proper education, Scruton sees examples of the new style of rights leading to irresoluble conflicts and a murky system of law where the courts have no choice but to decide matters as they see fit.  The new rights are not so much rights as claims – claims that must be enforced on everybody else.

If we compare the history of modern Britain under the common law with that of Europe under the civilian and Napoleonic jurisdictions that have prevailed there, we will surely be impressed by the fact that the jurisdiction which has so persistently refused to define our rights has also been the most assiduous in upholding them. This is because it recognises that rights define the limits of power, and that these limits must be enforced by the citizen himself, through the procedures of justice, rather than by the state, through some all-comprehending and in the event all-authorising doctrine.

The rights that have historically protected the citizens of liberal democracies are, in general, negotiated restraints on state power.  A right that must be enforced by the exercise of state power is something else entirely.