Amidst the current political turmoil, it is easy to overlook just how recently the United Kingdom elected its first Conservative majority government in almost 20 years. It is this which provides the broad political context for both Five Ideas to Fight For: How Our Freedom Is Under Threat and Why it Matters by Anthony Lester and—albeit to a slightly lesser degree—Conor Gearty’s On Fantasy Island: Britain, Europe and Human Rights. Published within a few months of each other, and either side of what will unquestionably go down as one of the most significant moments in the UK’s modern political history, both books contain impassioned and accessible arguments against the future they foresee under a Conservative majority government. Five Ideas was published in the months leading up to the referendum on European Union (EU) membership. With David Cameron still in post and the opinion polls generally predicting a comfortable victory for remain, Lester offers up a bleak prognosis. Prepare for ‘five long years’, readers are warned (p 239). If the implications of Conservative Party rule had not become fully evident during the coalition period, they soon would be. Free of their coalition partner’s moderating influence, the Tories were now well placed to put the liberal cause back a generation or more. Upon this foundation Lester issues a spirited call to (cerebral) arms. Fearful that regressive steps might be pursued over the next few years, he encourages readers to involve themselves in the fight ‘for a more open, democratic society’ (p 11). His suggested battleground covers five themes or ideas—human rights, equality, free speech, privacy and the rule of law—with each given a dedicated chapter. These themes have been at the heart of much of Lester’s professional life (p 3), and so unsurprisingly a good deal of colour is added to the prose with tales from the front line, including the rueful admission that he ‘idiotically’ voted against his own amendment to the Public Bodies Bill (p 10); insight into the challenges posed by civil servants who disapprove of your policy agenda (pp 25 and 33); and memories of his time in the United States during the civil rights movement (pp 63–64). His book is not supposed to be ‘self-serving’ (p vii) or autobiographical (p 1), though. Anecdotes are included to illustrate the value of active engagement, and show that important social change can be achieved through sustained legal and political activism. On the whole they complement Lester’s account of the legal and political landscape, the tensions which lie beneath, and the challenges which lie ahead, and his message remains clear throughout. Important headway has been made over the last 50 years or so, but that progress has been hard won, and could be quickly undone if our politicians were allowed to change course without a fight. For anyone who, like him, cares about the core values of liberalism, there is much work to be done. On Fantasy Island was published on the other side of the EU membership referendum, with the Conservative Party still in power, but Cameron in the departure lounge and the victorious architects of the ‘Out’ vote ‘nowhere to be seen’ (p xi). The book’s focus is—somewhat appropriately—exceptionalist attitudes towards Europe. However, with the EU referendum already lost, it is not exceptionalist attitudes towards this European entity that Gearty takes aim at. His target are exceptionalist attitudes directed towards the European Convention on Human Rights (ECHR), and the Act of Parliament which operates as its domestic conduit: the Human Rights Act 1998 (HRA 1998). Frustrated by the misleading narrative that has been allowed to develop around both, and fearful that the HRA 1998 is ‘[t]he next target being sized up for destruction’ (p xiii), Gearty looks to provide readers with a more accurate account of the UK’s human rights framework, and a rejoinder to the reform movement which has gathered momentum in recent years. The HRA 1998 ‘has managed extraordinarily well’ in difficult circumstances (p 4), readers are told, and it is imperative that it remains in place as one ‘cog in the wheel that helps keep our world shining in a civilised way’ (p 219). The book itself is divided into three main sections. The first of these sections—headed Part II and entitled ‘The Fantasies’— grapples with a range of arguments which are used to question the value of the HRA 1998, or justify its repeal or replacement. Chapters 2, 3 and 4 focus on claims that tend to promote apathy towards the Act by casting doubt on its importance. Chapter 2 challenges the ‘warm retrospectives’ (p 21), which romanticise the place of individual rights in the history of the common law, whether to doubt the extent of its impact or, in some cases, to question the need for the HRA 1998 at all. Chapter 3 suggests that modern strains of the same sort of thinking—those which accept the existence of imperfections in our past but suggest that the present judiciary are far better attuned to the importance of individual rights than their predecessors—should be approached with caution, for while ‘the common law is in a better state now that it has been in the past’ (p 46) there is no telling what the future might hold. Chapter 4 questions the ‘Whiggish’ narrative which portrays human rights and the HRA 1998 as some sort of inevitable consequence of our liberal enlightenment, preferring to see their rise and their future as owing as much to political circumstance as fate. Chapters 5, 6, 7 and 8 target those ‘fantasies’ which provoke hostility towards the HRA 1998, rather than apathy. Chapters 5 and 6 tackle the role of the domestic judiciary under the Act, and the supposed powerlessness of our elected representatives against a power-hungry judiciary determined to foist their political agenda on to us. Chapter 7 disputes the subservience of our domestic courts to the European Court of Human Rights in Strasbourg, instead suggesting that an attitude of ‘calm co-responsibility’ (p 109) now exists which now sees our domestic judiciary as active partners in the interpretation and application of the ECHR. Chapter 8 defends the HRA 1998 itself against the accusation that it is ‘a protector of villains’ (p 113) with some interesting thoughts on how the Act might also be said to support the use of state power, rather than simply subvert it. Chapters 9, 10 and 11 form the second of the book’s principal sections (headed Part III). Entitled ‘The Facts’, this section shifts emphasis from the misleading arguments against our human rights framework, to the HRA 1998’s positive impact. Its work in providing those ‘whose tenuous connection with the mainstream has left them vulnerable to being passed over by conventional legal frameworks of support’ (p 131) are the focus of Chapter 9 while its interaction with more mainstream aspects of society is the focus of Chapter 10. Chapter 11 considers the role that human rights can play as a source of identity behind which disparate communities can gather, before Gearty looks to the future in the book’s final substantive section (Part IV) with some discussion about why the result of any attempt to reform our current human rights framework is likely to result in ‘either no change at all or a damp squib’ of some sort (p 188) (Chapter 12) and a chapter which cautions against any further drift towards human rights being used as ‘a cultural weapon’ to protect Judaeo-Christian culture (pp 203 and 211). Like Lester, Gearty concludes with a plea for action, this time to defend the HRA 1998 and the UK’s broader human rights framework against the fantasists who wrongly think that there is much to be gained, and little to be lost, from pressing ahead with wide-ranging reforms. The two books clearly differ in important ways. Their overall breadth is one example, since Lester covers five topics and Gearty just one. This in turn facilitates certain stylistic differences. Lester’s overall approach tends to be less ‘scholarly’ and more ‘practical’ (p 1), and so while Gearty’s discussion is more detailed and analytical, Lester’s discussion takes place at a more general, sometimes superficial, level. Once attention turns to the key concern of each book, though, there are more similarities than differences. The scope of Lester’s fight is certainly bigger, but fundamentally both books are concerned about the same thing: namely, that in the current political climate, the survival and prosperity of important parts of our current legal and political order cannot be taken for granted. One might wonder how well this message—and perhaps the two books more generally—have weathered the recent political and constitutional storm. After all, Lester’s warnings largely focus on a political leadership which has now left office, and any notion that Theresa May and her team will push through legislation that either fundamentally undermines Lester’s five ideas, or drastically alters the HRA 1998 and our relationship to the ECHR, perhaps under estimates the size of the challenge she currently faces. Minor aspects of each book inevitably have a slightly dated tinge—for instance, the claim that Cameron’s government was ‘a master class in public relations’ (Five Ideas, p 239) could do with review—but it would be wrong to use such material as the basis on which to dismiss either book out of hand. For one, there certainly remains a good deal of political will to pursue the sort of reforms that Lester and Gearty fear. The current Prime Minister is no closet liberal, as she showed during her time in the Home Office, and should May’s government fall and come to be replaced by one led by Jeremy Corbyn, it is not beyond all possibility that he might come to share some of her views. Parts of the left have long been sceptical about the legal protection of human rights, and even if Corbyn has yet to show signs of this particular strain of European scepticism, his attitude might well start to change should the ECHR be employed as a shield against the sort of state action that he seems to have in mind (On Fantasy Island, pp 123–25). On its own, the political will to change something is, of course, not enough. There also needs to be a willingness to pursue reform and, maybe most importantly, an ability to get that reform through the legislative process. Perhaps the key point to emphasise here, therefore, is not that some of our leading political figures continue to desire change, but that Brexit has not made it impossible for them to achieve it. True as it is that unnecessary and controversial legislation is unlikely to be attempted by any government in the near future—let alone a minority one tasked with delivering Brexit—the implausibility of more fundamental reforms getting through the legislative process does not push all possible options for reform off the table. In particular, we should be careful not to under estimate the danger posed by less ambitious legislative actions. As Five Ideas illustrates, for all that landmark legislative enactments might come to be seen as important staging posts in our liberal journey over the last 50 years or so, the majority of that journey has been made up of smaller enactments, provisions or actions which have, for instance, helped to chip away at the existing edifice or lay the foundations for a shift in direction. Nothing prevents a current or future government—even one which has to spend the majority of their time on Brexit and its consequences—adopting a similar approach. In fact, the continued relevance of these two books can be taken a step further, for not only do both books remain relevant in our changed (and changeable) political situation, recent developments actually add to the strength and urgency of each author’s argument. One reason for this is that an increased level of vigilance is now required from those concerned about the future of the HRA 1998, and liberalism more generally. The likelihood of the government attempting unnecessary and ambitious legislative reforms may have lessened for the time being, but it remains possible that the Brexit process itself could have important consequences, whether because its all-consuming nature might lead to some non-Brexit-related Bills avoiding proper scrutiny, or because it might pave the way for other changes to the UK legal and political order. For example, depending on how the negotiations pan out, the range of rights which receive protection in the UK might change, as might the shape of the debate surrounding the future of the HRA 1998, and the wisdom of replacing it with some sort of British Bill of Rights and Responsibilities. More broadly, though, it is difficult to deny that there is something especially timely about two books which encourage their readers to rise up and fight for the cause or causes they hold dear. Liberalism is never short of a vocal critic or two, and with so much of the UK’s future up in the air—including perhaps its very existence as a sovereign state—we can be certain that there will be plenty to fight about in the years to come. The only question is whether Five Ideas and On Fantasy Island will attract enough new recruits to win whatever battles lie ahead, for while both books are undoubtedly passionate about their respective causes, it is tempting to conclude that both, thanks to their passion, end up spending too much time preaching to the converted. To understand why, we must consider the political climate we find ourselves in. On one hand, there are reasons to be positive, for at present there is much less scope for complaint about the absence of public engagement with politics. Certain sorts of ‘alienation’ or ‘disaffection’ undoubtedly still exist (Five Ideas, p 238), but—for the time being at least—our public discourse is as lively and as inclusive as it has been for a long time. On the other hand, this increase in the number of participants in the discourse, or the enthusiasm with which they partake in the discourse, has not led to a commensurate increase in the quality of the debate. In fact, on this score, there has been an unsettling downturn. Reasoned debate has come to be replaced by ideology, dogma and the portrayal of inconvenient facts or evidence as fake, biased or, perhaps worst of all, unpatriotic. Moreover, nuance and detail has come to be masked behind labels which present complicated, competing, issues not as differing shades of grey, but as black or white. Lively and energetic though the discourse may be, it is also fundamentally, perhaps worryingly, divided. In such times, books which tap into this type of approach—which paint their opponents as dangerous enemies or fantasists who must be resisted; that fail to give contrary arguments an overly fair hearing; or offer little scope for nuance or subtlety—run the risk of playing into the hands of those they fear most by failing to challenge them on their own terms. Those risks become ever more acute when, like both Lester and Gearty, your chosen topic is easily dismissed as part of the pernicious “liberal agenda”. No doubt there will always be some temptation to fight fire with fire, and counter sustained, imbalanced criticism with similarly slanted responses—especially when some alternate views are woefully misguided or receive strong backing within parts of the right-wing press—but sometimes there is value in eschewing that temptation and opting for a more balanced approach, if only to ensure that your case will have the broadest possible impact. There is no doubt that Five Ideas and On Fantasy Island will find fans amongst those who worry about where the so-called ‘Nasty Party’ might lead us, as well as perhaps those who are yet to be convinced that Corbyn et al. provide a realistic or attractive alternative, but neither Lester’s, nor Gearty’s, fight will be won unless at least some of those who have doubts about the liberal cause, and are not already signed up—or predisposed—to fight in whatever battles lie ahead, are won over, too. In conclusion, while Lester’s Five Ideas is more wide-ranging, and Gearty’s On Fantasy Island is more analytical and focused, both books represent welcome attempts to engage and persuade at a time when much of the UK’s political and constitutional future is up in the air. Only time will tell what sort of country will emerge if and when the UK exits the EU, and whether those who long campaigned to ‘take back control’ from Brussels will finally be satisfied when reality hits home. Whatever happens, those eager to protect our human rights framework, or worried about the liberal cause more broadly, will not want for encouragement or ammunition in the fights ahead, even if those less eager to enter the fray may require a little more convincing. © The Author(s) . Published by Oxford University Press. All rights reserved. For permissions, please email: firstname.lastname@example.org This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
Human Rights Law Review – Oxford University Press
Published: May 25, 2018
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