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Summaries for my two blogs - Conor Gearty Comment, and at the Guardian's Comment Is Free site.

Conor Gearty Comment

My blog, noreply@blogger.com (Conor Gearty)

Summaries of the five most recent posts here, follow each link for the full article or subscribe to the feed

a new book-as-a-blog: published on Mon, 16 Aug 2010 06:21; I am launching a new book on the web, on 6 October 2010. The idea is to write regularly about freedom and human rights, inviting comments on the work as I go along. Then when I have all the comments in the material will be revised and published as a book early next year (2011) at LSE's third annual literary festival. More details to follow. What do you make of the idea? ... [read more]
should academic lawyers want to be understood by the general public?: published on Mon, 01 Jun 2009 05:58; There was a dispiriting moment in the Q and A session after Professor William Twining's excellent address to the Society of Legal Scholars last Thursday, on the need to foster the public understanding of law. An academic colleague described how the business of writing his academic treatise meant he had little time for other, non university stuff, dealing with the media for example, or making ... [read more]
GAZA: published on Wed, 14 Jan 2009 09:40; Israel’s attack on Gaza is its consolation prize for not being allowed bomb Iran: like a school bully denied the chance to attack another Form, it has picked on some small kids in the playground so as to satiate its anger. Is there any way that, out of the suffering of the inhabitants of Gaza, something positive can be forged? The key is President Obama, the new head teacher at whom the bully’s ... [read more]
The economic collapse: published on Wed, 01 Oct 2008 17:08; The great good fortune is that these events have taken place before not after the US presidential election: had this happened in March 2009, and had Obama won a tight contest he would have been powerless for a disjointed four years. Now, instead, not only is he more likely to win (if only because, in the welter of real news the Republicans have been unable to mount their usual campaign of ... [read more]
Should Ian Blair resign?: published on Wed, 07 Nov 2007 08:58; I have not liked the Metropolitan Police Commissioner Sir Ian Blair since one of my students of many years ago – a police officer who received the George Medal for bravery in confronting an IRA gang in London in 1975 – felt compelled publicly to contradict the Commissioner’s account of his (allegedly central) role during the same incident. If Sir Ian could be so casual about the truth in ... [read more]

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My blog posts at the Guardian's site

Summaries of the five most recent posts here, follow each link for the full article or subscribe to the feed

Liberal in name only | Conor Gearty

published on Fri, 09 Jul 2010 18:30

In civil liberties as in most else, there is a huge gulf between what Lib Dems say and what they do

How real is the Liberal Democrats' dedication to civil liberties? This may seem an odd question, given that the protection of liberty would seem to be among the very few areas on which liberals of all political persuasions agree, and that the decision to end stop and search powers under the Terrorism Act 2000 was announced on Thursday.

But to what, exactly, is the party committed? Clearly there is a strong libertarian thread, a belief that the big brother state needs to be shaken off, and this explains the hostility to identity cards, CCTV cameras and the retention of DNA samples. Another theme is a romantic dedication to the past, with promises to "protect historic freedoms" through a return to jury trial, to "restore rights to non-violent protest" and to act to prevent "the proliferation of unnecessary new criminal offences".

If carried forward in an unambiguous manner, these policies will have big implications in terms of criminal law enforcement, the safety of the general public and the administration of justice. Nick Clegg's website consultation on which laws should be abolished, Your Freedom, gives a taste of the marauding jungle of free individuals in which it would seem many libertarians of this sort believe we should live – Hobbesians, but without a belief in any need for Leviathan.

It is hard to believe that much will be allowed to come out of this "radical" initiative since so little of it would survive political examination: no CCTV on the roads? Give up on all DNA? Juries even where severe intimidation has been proved? Every government starts with grand gestures in the arenas to which they have especially committed themselves in opposition. No doubt there will be a freedom bill with a few sensible safeguards improving this or that, but it will be more a learned Law Commission report than constitutional revolution.

And the Lib Dems have bottled the big issues, where they could have made a substantive difference. The suspended stop and search powers had already been the subject of a hostile Strasbourg ruling, which needed to be addressed at some point, by whoever happened to be in government. In opposition, the Lib Dems' freedom bill promised an end to 28-day detention without charge and to anti-terrorism control orders. But each remains, with a review promised in the autumn. What is the likelihood of the party learning something between now and then that propels them to insist on repeal over Tory opposition? It was one of their founding fathers, Roy Jenkins, who in 1974 introduced the first terrorism law – and he said it was for just six months. A review or three later, and the law is still with us, greatly expanded and doing harm to the Muslim community in the way that it once did to the Irish. No party becomes more, rather than less, liberal on terrorism issues when in power. The moment for change has passed: the review is merely a way of camouflaging the retreat.

The same is true of the supposed commitment to "restore rights to non-violent protest", which has made it into the joint programme of government. But what can this mean if the police are able to clear Parliament Square of protestors with apparent impunity on the very morning of the Queen's speech to parliament announcing a bill to restore freedom and civil liberties? Imagine if Labour had initiated a new term in this way – the liberty activists who convinced themselves we were living in a police state under Blair and Brown would be hysterical with rage – but from them, silence.

In truth, in civil liberties as in tax and welfare and everything else, there is always a large gulf between what the Lib Dems say and what they do. Sunk in opposition for decades, they have found words easy and cheap applause so seductive that they have become inured to both. This is not the best training to resist a Conservative party that believes the Thatcherite era to have been a golden age, and which will need police power to deal with the unrest and union activism that its attacks on the poor and the workers are bound to produce.

An early target for the Tories is likely to be the Human Rights Act. The joint programme for government commits only to a commission to investigate the whole issue, and already (after a court ruling resisting the expulsion of suspected terrorists on the ground that they would be tortured in their home states) both the home secretary and the prime minister himself have made clear their dislike of the act.

We are only an atrocity or two, or a hyped-up media campaign, away from real pressure on the act. Lib Dem support for the Human Rights Act has always been lukewarm – their goal had long been for a much grander constitutional settlement. And there are many civil libertarians who would relish its passing if it could be replaced by a "British" bill of rights with freedoms aimed more at keeping big brother out of English castles than asylum seekers and prisoners out of despair.

Conor Gearty

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The ever-illiberal Conservative party | Conor Gearty

published on Thu, 13 May 2010 13:41

Tories always move from libertarianism in opposition to pushing for more state power – and the Lib Dems won't change that

It might indeed turn out that this Conservative government (with a few liberals in grand-sounding posts to make up the numbers) will turn out to be the crusading defender of civil liberties for which so many of those who turned away from Labour have pined. If this does happen, it will be quite against the grain of history.

The Conservatives have a long record of deploying state power to crush dissent to which their attacks on the poor and on organised labour have invariably given rise. It has been Tory administrations that have unleashed the police against the miners, the print unions and eventually (with the poll tax) the community at large.

The common law powers that serve as the state's residual line of resistance against dissent have never been challenged by any Conservative administration, though they have always seized every opportunity to add to them. It has been at the direction of the party as well that a succession of illiberal laws have been enacted: from Heath's Immigration Act in 1971, through Margaret Thatcher's Public Order Act in 1986 and her attack on gay people with section 28 (to pick two examples among many) to John Major's harsh treatment of prisoners and asylum seekers in the 1990s.

The party has opposed every single progressive measure aimed at countering this drift into deep illiberalism: the early race relations laws pioneered by the Wilson government; the freedom of information legislation enacted in the first term of the Blair government; above all, the Human Rights Act, which of course the Tories wanted to repeal, to be replaced by some vague bill of rights which would require we behave responsibly in return for receiving our "British" rights.

Maybe this will all change, because the Tories have taken an interest in civil liberties in opposition. But this is what the Tories always do: when Labour is in power, the party invariably recovers its antagonism to the state and sings the hymn of libertarianism – until, that is, it wins an election and needs the power of the state to push through its regressive policies. We didn't hear much about Sir Keith Joseph's 1975 pamphlet on the need for a bill of rights ("to save the law from parliament and parliament from itself") after 1979, and it was Thatcher's first lord chancellor Lord Hailsham who argued with comic brio for a bill of rights – but only when his party (and himself) were out of power, happily rediscovering the virtues of "elective dictatorship" whenever he was part of one.

David Davis – the one Tory who actually cares about this stuff – is nowhere to be seen, while another who at least actually understands it, Dominic Grieve, is cast into the legal limbo as attorney-general. The Tory occupation of the civil libertarian centre-ground will last as long as the "big society" smokescreen with which Cameron tried to camouflage the effect of his policies on ordinary people – and it is already long gone, two days into government.

Well, if all else fails, perhaps we still have the Liberal Democrats. True, a few bullet points in their deal with the Tories promise a freedom bill, the scrapping of ID cards, a return to trial by jury, and "the restoration of rights to non-violent protest" – whatever that might mean. Mostly though, it is vague waffle – the kind of thing that gets standing ovations from audiences who think Labour have turned Britain into a police state. But even the high priest of this tribe, Henry Porter, has torn himself away from applauding for long enough to note that "important" tests of the "coalition's real nature" lie ahead – let's start with: immediate repeal of 28-day detention; an end to the banning of peaceful organisations on suspicion of being "terrorist" under the over-wide definition of that term in the 2000 Terrorism Act (which should itself be repealed); an end to control orders; the repeal of arbitrary stop-and-search; and then (reaching further back) repeal of section 5 of the Public Order Act 1986, which clearly criminalises protest if the police want to.

But – surprise – none of this is anywhere to be seen in the agreed plan. Instead, it's jury trial (for all offences? What is to happen if convictions can never be obtained because of serial intimidation?), a commitment to less unnecessary stuff on this and that and more safeguards for what we already have – none of it revolutionary or even particularly meaningful. No Lib Dem is in any of the key cabinet positions charged with oversight of any of this agenda. This week's Spectator is absolutely right when it says that "The Lib Dems are left with prestigious-sounding non-jobs ... we have been served up a sausage government and it is never edifying to see how sausages are made. But the meat in this sausage is most certainly Conservative. The Lib Dems are the gristle."

Conor Gearty

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The Rule of Law by Tom Bingham | Book review

published on Sun, 07 Feb 2010 00:07

Conor Gearty praises the wise judgments of Tom Bingham, one of our greatest crusading judges

I grew up hating judges. It might have been because of the lunch I had with my father in a Dublin restaurant when I was 13, joviality all round until the arrival of a spectral figure whose silent brooding dominated everything thereafter – a high court judge in search of the memory of what socialising had been like. Or maybe it was the fact that the judges were all ex-barristers and these were people I hated even more, pouring into my home town from Dublin, shouting and roaring in court, taking all the best cases, getting drunk, patronising us yokels.

Then 25 years ago I had lunch with Lord Lane, the lord chief justice of England, who was about to confirm that the Birmingham Six were as guilty as, well, all the other "IRA terrorists" who had been randomly thrown in jail for walking into police stations at the wrong time. My contempt for the judicial branch was complete.

Lord Bingham, as lawyers know him, is probably the main reason I have let my prejudices go. The now retired Bingham was in the front line as a senior judge and occupied all the great positions (master of the rolls, lord chief justice, senior law lord). Magnificently, unexpectedly, he has immatured with age, as Harold Wilson said of Tony Benn. His has been the guiding spirit behind a series of judicial decisions that have stood up to the executive in the fields of counterterrorism and public-order policing, while also transforming the law so as to improve the capacity of inquests to do justice, to inhibit the state from forcing starving asylum seekers on to the streets and much else besides.

Written in a jaunty, broad-brush style, this book is an enjoyable excursion through the greatest hits of the common law in general and English law in particular. It reads like the transcript of a parlour game played by a particularly precocious set of undergraduates: what are the 12 best "rule of law" kind of things to have happened since 1200? What are the eight most important features of the rule of law today? (Each gets a short chapter here.) One wishes at times for a little more historical nuance; with Bingham, the constitution often reads like a roll-call of great events that popped out of nowhere to make a marvellous difference.

The contradictions between parliamentary sovereignty and the rule of law are rather glossed over (even though he sensibly sees that Parliament needs to trump judicial will) and the danger of the judges interpreting the rule of law in a way that legitimises oppression (stop and search, for example) are simply ignored. But there's only so much immaturing a man in his 70s can do.

Most of all, this book is worth reading for the insight it gives into a special kind of mind, one with a sense of logic and order so compelling that its contents spill on to the page like a musical score or a well-judged poem. Tom Bingham is a Lord Denning of sorts, but one with discipline in place of egoism, a consistent rather than selective sense of right and wrong and a sensible retirement age to make impossible the temptation to go on and on. He has been a key guiding spirit behind the unexpected renaissance that has taken the judges from the nadir of the miscarriage of justice cases to their current position of high public esteem. He will be – already is being – missed.

Conor Gearty is professor of human rights law at LSE and a barrister at Matrix Chambers

Conor Gearty

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I've changed my mind about the Human Rights Act | Conor Gearty

published on Wed, 30 Dec 2009 10:00

I saw human rights as a bourgeois tool for thwarting radical change, but I now realise that modern socialism needs them

I have reluctantly decided that I did change my mind during the past decade, on whether or not Britain should have a Human Rights Act. For years I was sure that when I decided to celebrate the act after years of having opposed the very idea of it, I was – despite appearances – being totally consistent.

The act we have, I used to argue, was not the one that they (liberals, lawyers, New Labour, Lord Lester etc – my opponents) had wanted, but was one that instead much better reflected our side's goals (the socialists, the democrats, Old Labour). After all, I pointed out, the UK Human Rights Act preserves legislative sovereignty, empowers public authorities to ignore human rights when parliament tells them to and denies the judges power to strike down law. This was human rights so lite as to be a victory for the sceptics rather than the enthusiasts. Human rights that existed in name only could be supported even by those hostile to the idea.

All very clever for sure – to be in favour of a law because it is not what it claims to be. If this was my true position, I would now be relaxed about the repeal proposed by the still most likely next government, David Cameron's Tories. But I am not – instead I am anxious. The Human Rights Act has done some very good work, a fair bit that is neutral and hardly anything at all that is downright destructive. The terrorism laws have been sharply modified. Asylum provision has been strengthened. The inquest system has been transformed for the better. Britain's imperial adventures abroad have been rendered accountable at home. A new law of privacy has undermined media efforts to make money out of prurience. Police common law powers to control protest have been reined in. And much else.

On the debit side, for sure there are judicial decisions I do not like and various tangles the judges have got themselves into. One early decision unravelling rape law to the disadvantage of complainants was very bad. But this case and one or two others apart there has been nothing too extreme, no spectacle of a reactionary bench fighting a progressive Labour administration.

This is the rub and the explanation for my change of mind about my change of mind. The judges don't look too conservative to me, but it's hard to tell for sure because Labour governments since 1997 have certainly not been radical – or at least not radical in a socialist, challenge-the-established-order, kind of way. Human rights are not any longer a bourgeois way of fighting socialism (which is what I thought they were). In our bleak, post-1989 capitalist era they have become (for now) the only way of doing socialism.

When we talk about human rights these days we are often in fact discussing issues – the fight against poverty; the push for greater equality; a decent health system; greater support for developing nations – that were the common vernacular of that now largely extinct species, the international socialist. And when we see "communist" China apparently reject co-operation in Copenhagen, we cannot help but wonder whether the civil and political rights denied by the guns of Tiananmen might have made a difference.

In short, human rights are the answer to many of the seemingly intractable questions with which we are faced. The Human Rights Act has played a part in keeping the flame of universalism flickering, small for sure – but the Conservatives should not be allowed to snuff it out without a least a fight from everybody who thinks of themselves as of the left. There may come a time when it will be safe once again to attack the term – but we are not there now and it may be quite a while yet before it is safe to change my mind back.

Conor Gearty

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Hay festival: Does the left still care about liberty? Part 4 2 | Conor Gearty

published on Mon, 25 May 2009 13:13

Hay festival: Conor Gearty: Author and professor of human rights Conor Gearty debates the motion 'Does the left still care about liberty?' in the Guardian's Hay debate

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