WHAT did the suffragettes teach us, which links Dominic Raab’s proposed new Bill of Rights, the US Supreme Court overruling Roe v Wade, and America’s indefensible gun laws?

The answer is: that our civil liberties are better protected by parliamentary legislation than by judicial decisions.

Until Tony Blair’s Human Rights Act, which the new Bill of Rights will repeal and replace, we knew and understood the implications of this lesson in the United Kingdom, even if the Americans have always been deaf to it. Women did not get the right to vote in Britain because some court gave it to them in case law. They won it through parliamentary enactment. The suffragettes are remembered for their long and successful political campaign, not for their litigation strategy.

It was the same with trade union rights. The trade unions in early 20th-century Britain certainly fought their corner in the courts, but they lost, over and over again. It was not the judges that wrote trade union rights into British law: it was Parliament.

As the right to strike, much in the news of late (and not only when it applies to rail workers) comes to be more and more widely exercised over this apparent summer of discontent, it is worthwhile remembering where it came from. Employees have no judge-made (common law) right to withhold their labour – for the judges such action is a breach of contract and may open the employee to liability for dismissal. It is parliamentary legislation unions and their members have to thank for the rights they are now seeking to take advantage of.

In the 1960s and 1970s it was the same with race discrimination, equal pay and, yes, abortion. All of these monuments to progress – for that is what they are – were fought and won in Britain in Parliament. Women in this country have the right to choose to terminate a pregnancy not because any court has said it is a constitutional right, but because Parliament legislated for it in the famous Abortion Act 1967.

Thus, a woman’s right to choose in England and Wales depends on the votes not of five justices in a Supreme Court, but on 650 Members of the House of Commons (to say nothing of the House of Lords). In Scotland the matter is devolved although, to its immense credit, Holyrood has thus far left the law of abortion well and truly alone. Long may that continue.

But here is the point: were it not to continue, the campaign to ensure that abortion rights remain intact would be well and truly political. Whether in England or in Scotland, fighting a court battle would have nothing to do with it.

Not so in America. In 1972, a majority of the US Supreme Court ruled that abortion was not a matter that could be left to the 50 State legislatures. Rather, they ruled, it was a matter of law and, indeed, of constitutional right. This was the outcome of the famous Roe v Wade case, which a new majority of the current US Supreme Court overturned last week.

For America’s women, last week’s case is a tragedy. There are at least 15 and perhaps as many as 20 States where lawful abortion will now be drastically and radically reduced. The poor will not be able to travel the vast distances to more enlightened States where abortion remains lawful. Illegal, unregulated, dangerous “back street” abortion will return to America. It is a ghastly prospect.

But it is the inevitable result of leaving an issue as sensitive as abortion in the hands of half a dozen justices, secluded in their chambers in Washington’s Supreme Court. What passes for the American left – the liberal and more progressive elements of American society – made a terrible mistake in the 1960s and 1970s, when they did the very opposite of what the suffragettes and the early trade unionists taught us in Britain.

For, in America, the preferred strategy of the progressives was to achieve social reform through judicial case law, rather than through the winning of political arguments in the legislature. This is why the American judiciary has become so politicised and, at the same time, it is why precious liberties such as the right to choose have become so fragile today in the so-called land of the free.

For it is not only abortion that is in the sights of the current Supreme Court. The rule that States may not criminalise sodomy may be next in line. And, after that, the rule that States must recognise and license same-sex marriage. Had American progressives done what British and European progressives have done, and ensured that there were firm political and legislative majorities in favour of abortion rights and of the rights of same-sex couples, these matters and others like them need never have been entrusted to the unreliable judiciary.

To see how untrustworthy the courts are as the repository of our rights and freedoms, one need look no further than the US Supreme Court’s hideous twisting of the Second Amendment. This was always intended to mean that States have the right to sustain a militia in their defence but it was morphed, in the hands of the judges, into a right of individuals to own and indeed to carry lethal weapons.

I do not want to live in a country where rights and freedoms are the playthings of judges. I want to live in a country where their articulation and defence is a matter for Parliament. Dominic Raab’s Bill of Rights will help steer us back towards that course, away from the American fixation with fundamental, constitutional, or human rights that Tony Blair’s Human Rights Act flirted with. For that reason, it is warmly to be welcomed.

If you want freedom in Britain, you have to fight for it not in the courts but in our parliaments. That is what the suffragettes knew. And that is as it should be.

Adam Tomkins is the John Millar Professor of Public Law at the University of Glasgow School of Law. He was a Conservative MSP for the Glasgow region from 2016 to 2021.