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This brings me to the second problem with the HRA — judicial activism. Last year the House of Lords ruled it was contrary to the HRA to detain without trial at Belmarsh nine non-citizens suspected of involvement in terrorism, but who could not be deported because of the treatment they might face. The government complied and placed the men under “control orders”.

In response Lord Hoffmann, the law lord, famously said that the real threat to the nation was not terrorism but the actions of a government that invoked the threat of terrorism to restrict liberty. The laws the judge was railing against may have been flawed, but they had been passed by a legislature that has to renew its mandate at least every five years and is subject to constant media scrutiny.

Judges, by contrast, are neither accountable nor representative (the law lords consist of 11 elderly men and one woman). In any case, a court is not an ideal setting for deciding the weight of a collective interest, such as security. Judges are practised in declaring the law and adjudicating disputes between parties, not in considering issues that affect society as a whole.

The complex debate about balancing individual rights and collective security can and should take place within the framework of the HRA with judges acting as a brake on over-hasty legislation and ensuring politicians stay within the bounds of proportionality.

But it is democratic politicians who should be decisive in this debate, because they have superior knowledge (through access to intelligence reports and so on), deeper legitimacy and are responsible for the consequences.

There is a lot of sneering about how the government cannot have it both ways on human rights — passing the HRA and then wanting to sidestep it when it is inconvenient. But the obstacle to many of the actions the government wants to take is not the HRA but Britain’s judicial culture.

The French judiciary allows a more draconian stance on security issues, especially towards non-citizens, despite being subject to the same European convention.

I wonder whether one reason for this is France’s more robust conception of democratic citizenship, which gives judges a greater confidence in prioritising the rights of French citizens over non-citizens when they conflict.

Allowing the settled view of democratic politicians and public opinion to influence the judicial process is not the first step to mob rule, as some of our legal mandarins imply. Indeed, it may be a condition of retaining public confidence.

It is one of the marks of a civilised society to offer sanctuary even to some unattractive outsiders and to hold on to due process in difficult times. But listening to human rights activists, one sometimes gets the impression that they believe the democratic nation state is the greatest threat to our liberty, rather than its bulwark.

David Goodhart, editor of Prospect magazine, and Roger Smith, director of Justice, debate the Human Rights Act in the current issue of Prospect magazine, www.prospect-magazine.co.uk

Simon Jenkins is away