Welcome To On Fantasy Island!

I hope you enjoy your stay with us on Fantasy Island.  Where are you, you might well ask?  How did you wash up here?  On 18 May 2016 the United Kingdom government announced that it was bringing forward proposals for a new Bill of Rights for Britain. This would inevitably entail the repeal of the country’s Human Rights Act, a law passed at the start of Tony Blair’s time as Prime Minister, back in 1998. Now if you think this is odd, then it is: Britain is a democratic country and we have all got very used to thinking of human rights as among the things that democracies protect. Now of course the government says it wants even bigger and better rights, especially tailor-made for the British, but by the sounds of what they are planning this will entail in practice removing the rights of many, or at least making the assertion of their rights very much harder.

How have we got to this pass?  The trouble with the Human Rights Act the government want to ditch is that it has suspect origins –based as it is on a European Convention on Human Rights that was agreed in 1950, and reliant as well on that treaty’s European Court of Human Rights, based in Strasbourg. Now many of the Conservatives who run the country at the present time have a huge bee in their bonnet about Europe: they hate its intrusion into the affairs of our ‘scepter’d isle’.  They want out of this Europe as well as the other one on which as I write battle also rages. That is where the plan comes from – it has been brewing for years and is finally albeit slowly coming good.

This web site is a snapshot of a book that will be coming out in a couple of months about the UK human rights debate we are now as a country embarking on.  On Fantasy Isle has the subtitle Britain, Strasbourg and Human Rights. Now a word about me and my perspective right at the start. I am very sceptical of the reasons given for repealing this law – in fact I think they are made up of a mix of misinformation, errors of fact and spurious assertions about the dangers of universal human rights.

In the book I go through the fantasies that drive the debate here – I think the best way to understand what is going on is to see it as driven by multiple fantasies, about the greatness of Britain, the majesty of its common law, the hopelessness of the Europeans, and much else.  After reflecting on these fantasies I set out the facts about the Human Rights Act – not ‘facts as I see them’ but simply ‘the facts’ – about the sort of impact the Human Rights Act really has, not on the imagination but on real people.  Then at the end I reflect on our various possible futures, especially the one that awaits us when we are shorn of our formal human rights protection.

Every week I will be setting out here excerpts from the book, working my way through its various sections (fantasies, facts and future).  I’ll also be commenting on the debate as it proceeds.  The whole point of this is also to involve you, the reader.  You will be able to comment on everything you read here, and I will absolutely promise to reply (unless what you say is really off the wall, or an advert for your business, or something startlingly offensive).

So unpack your bags, stay as long as you like, read or write as much as you like, here On Fantasy Island! You can read Chapter 1: Why The Human Rights Act Matters now.

CONOR GEARTY

18 May 2016

10 thoughts on “Welcome To On Fantasy Island!”

  1. Such a timely initiative, of such critical importance! Chapter 1 is highly thought-provoking.

    I would probably only seek to qualify, or perhaps further elaborate on, the principle in the following excerpt:

    “Even more than the European Union, the European Convention on Human Rights—with its forty-seven equal members and its court with a single judge drawn from each place no matter how large, powerful, or great its history—is for many evidence of decline before it even opens its judicious mouth. It is much easier to savage the messenger than understand the news it is bringing, both particular (this or that verdict) and general (Britain’s modest place in the world as one European state among many, equality having replaced exceptionalism).”

    If legal and political chauvinism (to speak like Marc Ancel) is what partly accounts for UK hostility towards the ECtHR – and there is indeed much evidence to support this – then we need to point out what a missed opportunity this has been for the UK.

    Equality may have replaced exceptionalism, but the common law tradition remains distinct, its institutions are highly respected in Europe, their idiosyncratic character continues to capture the imagination of Continental observers. In other words, there was (and perhaps still is) a leading role for the UK to play in Europe, in Strasbourg; but through helping the Court give effect to cherished common law (universal) concepts – ‘fairness’, ‘liberty’, ‘freedom’ and ‘the rule of law’ – and through dialogue not isolationism, power politics and succumbing to the populist temptation…

    The UK, just one of the forty-seven equal members, with just one judge, like all other forty-six members, and yet with a unique opportunity to enrich the European legal tradition (in the same way, conversely, that Continental influences enrich the common law).

    Maybe all is not lost just yet. But the time to act is now.

    Thank you.

    1. Very thought-provoking. I like the contrast between exceptionalism and equality. The common law dazzles those not sure how it works, but is less attractive to the many whose efforts to use it to secure freedom over the years have proved so unavailing. In chapter two I analyse the record of the common law on civil liberties – a record I find revealingly poor, contra the views of those who talk the common law up as part of some kind of English ‘Golden Age’.

  2. Thank you very much, and I agree; had it not been for the Convention, certain rights – the right to private and family life, for instance – would remain a common law fantasy.

    There are other areas – fair trial rights in particular – where the common law has exercised an important influence in Europe…

    I very much look forward to reading Chapter 2. Thanks again, this is an outstanding initiative.

  3. Unless I have completely misunderstood the contention made, to date, the assertion is that a stand must be made against any desire to replace the Human Rights Act with a British ‘Bill of Rights’, because such a view can only be held by ‘little Englanders’, mostly from the inward looking reactionary right. Further, that the Blair/Brown ‘New Labour’, or ‘third way’, movement in introducing the Act into UK law was somehow a move that accepted international constraints because of a recognition of Britain’s declining place and influence in the world.

    Respectfully, issue can be taken with both of these arguments. Moreover, looking to the present Human Rights Act and to Europe so as to solve what is a more fundamental problem inherent within UK constitutional arrangements, is akin to calling an ambulance only to receive a sticking plaster.

    Firstly, the national standing. Unless overall military prowess and capability is the criteria, Britain’s place has not diminished. Economically, it has been relatively troubled since the late nineteenth century. Yet, aside from Asia-Pacific institutions, there is hardly an international committee or organisation in which it does not play a significant, or leading, part. In comparison to most countries it is strong, developed, and listened to. It is, in fact, only the ‘little Englanders’ that somehow see it as one day again ruling the waves that have cause to bemoan its weakness. Taking all considerations into account in the round, including military, along with quality of life, general freedoms and judicial independence, availability of services, and even disposable income, we should celebrate the fact that maybe a score of other civilised nations have risen to a broadly similar stature; they have risen, we have not necessarily fallen. The more something is talked down the harder it becomes to effect any repair that is needed.

    Secondly, the Blair/Brown administrations were not reformist per se, but politically pragmatic usually with knee-jerk, ill thought out, overnight actions – witness the Bank of England ‘independence’ without proper thought to control of the clearing banks, and the creation of a Supreme Court, worked out on the back of an envelope during a Cabinet reshuffle. The HRA again has achieved little compared with what it could have been, aside from raising awareness and creating a whole new industry. The number of cases referred to a backlogged Strasbourg, as opposed to being dealt with domestically, has actually increased dramatically! Moreover, the executive still maintains a measure of control through Parliament under s.3, and s.2 has simply caused confusion.

    It is perfectly possible for those holding moderate centrist views to see a British Bill as an opportunity. Britain has a long and proud history of developing and implementing principles of affecting human rights – from the historic determination not to have taxation without redress of grievances, to habeus corpus, slavery, the suffrage, modern equality laws, access to basic health and education services, and many other examples. True, there are setbacks from time to time, and many attacks on existing rights have to be resisted, such as those arising out of the extreme ends of anti-terrorist legislation, not to mention the recent attempted mean-spirited attack on disability allowances, and many examples featuring asylum and immigration. The list is unacceptably long.

    Yet looking to the present Human Rights Act to solve most of these, and similar, problems is to delude ourselves. No one still pretending to be in their right mind would suggest that Britain withdraws from the Convention altogether, but a British Bill could give real meaning to HR and significantly more power to the judiciary, especially with the Brighton Declaration and subsidiarity being given full effect so as to meet local needs and aspirations.

    The final Chapter of ‘On Fantasy Island’ is to seemingly deal with the political sphere and involvement of the judiciary – which is inevitable however human rights are tackled. One step in the right direction of recent reforms, of which the executive, I am sure, didn’t appreciate the full effect, was to distance judicial appointments from it. Equally, the present government have dug themselves a hole in insisting on a ‘British’ solution which, with the right lobbying, they just might be pushed into. A British Bill which permitted the now even more independent judiciary to wholly implement the Convention domestically just might go some way to solving the real underlying problem – Bagehot’s ‘disguised republic’, or Hailsham’s ‘elective dictatorship’, whilst enhancing HR generally. Strasbourg judgments would not be ignored as through long standing precedent aspects of international law and effects of treaties are implemented, or persuasive. Similarly, the judiciary have been very receptive to importing continental doctrines, proportionality and legitimate expectation being the prime examples.

    The left always wants to tear things down and replace them, the right to return to a fairytale past. What we should be campaigning for is a true third way; a British Bill which would solve the underlying problem with the constitution – limitations placed on controlling the executive because of its control of a supreme Parliament. This can only be done by fully implementing domestically Convention rights without the exception and confusion inherent within the HRA. The Government has left itself with little room to manoeuvre and now just might be the right opportunity. ‘Little Englanders’ would not know what had hit them and the newspapers cited could free themselves from xenophobia and hypocrisy.

    With apologies from a former student!
    David Lane (Wolfson 1986-92).

    1. Hallo David and first I really have to say how nice to hear from you! In many ways this post of yours stands on its own as an excellent deepening of the discussion made in the course of this excerpt from my chapter one. Some of the points raise are addressed in other parts of the book But I will say this here: the argument made by David for a Britain that is not ashamed of itself or sulking in some post-imperial corner is a very strong one indeed. My critique is indeed aimed at others – many in power of course – who hold to a past of greatness and see the present diminished by it. They are wrong but – sadly it might be thought – they matter.

      On the bill of rights I do worry that the ‘half-a-loaf’ critics of the Human Rights Act combine with the ‘no-loaf-at-all’ brigade to repeal the Act and then find to their horror that nothing, or something worse than nothing, is proposed to replace it. The question resolves itself down to one of trust and power. Do we believe that the government’s intention in repealing the Human Rights Act and replacing it with a bill of rights is truly to improve the protection given by law to all those who live in this country? To be honest I doubt it. I see the government as reacting to strong pressure against the Human Rights Act and then using the idea of a new bill of rights as cover through which to do its work.

      1. You are right, of course, but I live in hope. I suspect that in the real world of today’s politics the proposal for a British Bill will be quietly dropped anyway once the strength of the opposition to it from both inside and outside Parliament is fully appreciated (even on government benches). Anyhow, I thoroughly enjoyed reading the outline of your book following on and adding to your 2014 lecture.

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