The Human Rights Act (HRA) is one of new Labour’s great constitutional innovations. By entrenching the European convention on human rights in our law, public bodies — schools, prisons, government departments and so on — are required to uphold basic human rights, such as privacy or the right to a fair trial. This is a welcome check on the “democratic absolutism” of British governments and has led to improved public administration.

So the principle is sound enough, but the act is proving to have some unwelcome consequences. These arise in part from its underlying philosophy, which is excessively hostile to the democratic nation state. More specifically, as Charles Clarke, the home secretary, now seeks to combat extremism and terrorism with new laws and deportations, two aspects of the act — and indeed the wider human rights movement — ought to give British liberals pause for thought. The first is the transnational character of the act, the second is the judicial activism it seems to encourage.

On its transnational character, the HRA requires public authorities to respect equally the human rights of all individuals in Britain, whether British citizens, those temporarily here or even those illegally here.

In today’s conditions of global migration and cross-national terrorism this requirement to give non-citizens many of the legal protections of citizens is hard to justify, especially in a country as open as Britain (with its 90m arrivals a year). Furthermore, it seems to be connected to a wider fallacy about the origin and nature of rights.

People are not born with rights and many of the world’s 6.4 billion people have few or none. Rights are a social construct, a product of history, ideas and of states that are neither too weak nor too strong. Most people in this country have rights because they belong to the political and national community called the United Kingdom, with its infrastructure of laws and institutions.

We would all like the rights enjoyed by people in developed countries extended to the rest of the world. And the West sometimes tries to project its idea of rights through force or through extending the reach of its laws. For example, article 3 of the European convention on human rights states that nobody shall be subject to torture or degrading treatment. Judges have interpreted this in such a way as to stop states that are party to the convention from deporting people to countries where they may be subject to such treatment.

Most of the time extending protection and sustenance to the non-citizens who come within our jurisdiction is uncontroversial, whether it was Soviet dissidents in the 1970s or most of today’s legitimate asylum seekers. But should we really have no discretion about extending our protection to jihadists who hate us and may attempt to harm us or to people who have been involved in human rights abuses? Ultimately, in a democracy, rights can only be sustained if a critical mass of the population accepts the corresponding obligations. We should extend our rights to outsiders because of our sympathy with them. But we should be free — through our political representatives — not to extend those rights, especially when doing so may conflict with the wellbeing of British citizens.

In the case of most entitlements, such as welfare rights, we accept that eligibility is linked to membership of a national community in which there are reciprocal demands to perform certain duties, to pay taxes and so on. The HRA undermines that notion of reciprocity when it comes to legal rights. This is not accidental.

The ideology of human rights is universalist and individualist. One would expect the British left to be sceptical of this ideology but it has embraced it, because it shares with the human rights movement an anachronistic dislike of the nation state.

Human rights activists insist that the first response to a non-citizen who commits an offence here should be prosecution here, and they emphasise we already have the laws to bring people to book. But this does not confront the real difficulty.

Suppose we have enough information about someone to be convinced they are a threat but not enough to prosecute. If they are a British citizen we would have to accept that as the price for having a high standard of proof, but if they are a visitor — with a revocable claim to be here — we should be able to revoke that claim.

If that means sending people back to face possible ill-treatment, then that should be a consideration in the decision after weighing up how serious a threat they are to British citizens. Moreover, if the government can negotiate properly monitored memorandums of understanding on the fair treatment of deportees with countries such as Jordan, then that should surely be welcomed as an extension of western rights into those countries, not rejected by judges, human rights nongovernmental organisations and the United Nations.

Much of the threat from Islamist extremism is, of course, home-grown. But over the decades we have also attracted many Islamist militants from abroad to “Londonistan”. Now the government has decided, strongly backed by public opinion, to close that haven and the judges should not stand in its path unless it acts in an obviously unreasonable way.