Because parliament, when it passed the 2003 Extradition Act, relied instead on the weak and watered-down language of the European Convention, giving to the Home Secretary power to stop extradition only when it would lead to punishment that is "inhuman and degrading". The Americans are not inhuman and their prisons are no more degrading than ours, so McKinnon has to go into one (his sentence is estimated at 8-10 years), and will probably commit suicide there. He will be a victim of the European Convention, or at least of parliament's ignorance in preferring the convention's loose language to that of its own, more stalwart predecessor.

There is mounting evidence that the weasel words of the European Convention are damaging other basic British rights. Take the "open justice" principle, the rule that justice must be seen in order to be done. As Jeremy Bentham put it, "It keeps the judge, while trying, under trial." First articulated by Lilburne when put on trial by Cromwell in 1649, it was given definitive shape by Lord Halsbury in the great case of Scott v Scott in 1913: "Every court in the land is open to every subject of the king." And so it was, until the European Convention imposed by the 1998 Human Rights Act began to take hold, with its myriad of exceptions. It says: "The press and public may be excluded from all or part of a trial in the interests of morals, public order...or where the protection of the private life of the parties so requires..."

This is one of the "lowest common denominator" compromises made in 1950: Scandinavian courts were always shielding their defendants from embarrassment, while German courts would persecute homosexuals viciously, but always in secret. (Hence Baron von Cramm, the German tennis ace, shortly after losing the Wimbledon final in 1938, disappeared behind the closed doors of a Nazi "morals" court.) Thanks to this loose language, British judges are now being prevailed upon quite regularly to close their courts and to gag the press from reporting names and details of litigants. The law reports are full of cases titled A v B, and the docket for the first term of our new Supreme Court reads like alphabet soup.

Then, of course, there is the problem of freedom of speech, guaranteed by Article 10 of the Convention in apparently powerful terms that establish a presumption in its favour, which can only be overridden by subsidiary rights, such as the right to reputation, when this is necessary in a democratic society. This was an improvement on British common law, and the early Strasbourg cases liberated our law of contempt (thanks to the Sunday Times thalidomide case) and established the right of journalists to protect their sources. But at Strasbourg more recently, some anti-press judges (from places like Malta) have insisted that "reputation" is a right that should be given equal weight because it is an aspect of privacy, and so it can be "balanced" against free speech that should have no presumption in its favour at all. This is an intellectually devious reading of the Convention, because back in 1950 an attempt was specifically made to insert "reputation" as a privacy right, and it was roundly defeated. To bring it back through the subterfuge of "judicial interpretation" has damaged respect for the European Court of Human Rights.

And then there is privacy. There is nothing wrong with protecting intimate personal details, or aspects of home and family life, from media intrusion, and this was a serious gap in the common law. But it has not been satisfactorily filled by the sprawling and incoherent Strasbourg jurisprudence, which defines privacy as "physical and psychological integrity...ensuring the development of the personality of each individual in his relations with other human beings...there is a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life."