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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

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]
Luck & The Irish.: published on Mon, 15 Oct 2007 15:15; If Ireland were ever to spend some of its recently acquired vast fortune on a ‘Museum of National Treasures’, Roy Foster should be asked to open it. This occasionally angry, sometimes whimsical and frequently hilarious account of the Republic of Ireland’s ascent from gombeen-land to the happiest place on earth (according to the Economist in 2004: ‘Gratifyingly for many Irish people, the UK ... [read more]

Global: Conor Gearty | guardian.co.uk

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

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

Conor Gearty

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Review: What Price Liberty? by Ben Wilson

published on Fri, 22 May 2009 23:01

Conor Gearty studies an examination of the history of our freedoms

This impressive and learned but lightly written book tries hard to avoid the errors that usually litter popular writing on freedom in the United Kingdom, and in general succeeds. One of these pitfalls is the tendency to hysteria: Britain is a police state; freedom has all but disappeared; Orwell's nightmare is upon us.

Ben Wilson, who has studied history at Cambridge (which is all the cover tells us about him, apart from the fact that he was born in 1980), knows too much about the past to fall into this particular trap. There is context here and a sense of proportion in his treatment of how freedom has slowly emerged from a past of tyranny and oppression: "Liberty is the product of human history and of the study of history." The central chapters are a terrific romp through the story of liberty in Britain, much better than in many other works by more celebrated writers in the field. The organisation is unashamedly chronological, with the reader treated to a succession of staccato treatments of particular periods, from the intense debates of the early 17th century through revolution, the Enlightenment and the Victorian liberalism of JS Mill and AV Dicey, into a 20th century of administrative controls, war and (eventually) Thatcher, Blair and Brown. If this sounds like erring on the traditional side, then the compensation is an enthusiastic accessibility that is rare in more earnest, ideological studies.

It is when he reaches the contemporary, however, that Wilson's historical touch deserts him. It seems that in recent years, "we have cut ourselves off" from our "cultural attachment to liberty" - but can this really be true when we have thousands thronging the London Liberty Convention, and a prime minister who gives speeches about liberty while legislators reject as infringements of liberty his flagship proposals to counter terror?

Another pitfall of the genre which Wilson only half avoids is the drift into the cul-de-sac of libertarianism. On the one hand it is clear that he sees the risks of too extreme a hostility to government: "Part of the problem is that the word liberty has been transformed into a philosophy of purely personal autonomy," he writes, when it is clear that "the state does have a positive role in extending freedom."

Yet when he turns to the present, the tone changes, so that at times he sounds as though he is auditioning for a speech-writing position with David Cameron: we are "more inclined to demand personal rights" these days, and we are "more fearful" than ever before, imbued with a "modern tendency towards risk-aversion and safety at all costs". "Health and safety" may be all very well, but there is a problem about "the attitude which lies behind the quest for these benefits". To make matters worse, nowadays "officialdom has lost any instinct for self-restraint" with the result that we live in a "more controlling society" with a "tendency to submit to the tidal wave of regulations". A final chapter, "Taking Sides", is almost aggressive in its celebration of the "basic liberties" which the reader is left in no doubt belong primarily to the west: "For all the horrors of western hegemony - all the hypocrisies and acts of violence - I'm not sure that I'd rather have lived under another system."

Labour is rightly attacked for its approach to counter-terrorism law but there is surprisingly little awareness of the larger picture, in particular the way in which the Blair government diverged from its predecessors - of all parties - in its willingness to make rods for its own back: the Human Rights Act (hardly referred to here) has produced a totally unexpected accountability for the exercise of military power abroad; the expenses catastrophe that has engulfed Parliament is a result of Labour's Freedom of Information Act; the exposure of police malpractice at recent protests is being investigated by another Labour creation, the Independent Police Complaints Commission, to name just a few of the functionaries whose job it is to add to the government's woes.

How much of this New Labour machinery will disappear with the change of government that seems now almost inevitable? In his concluding chapter, Wilson gives us a taste of the kind of arguments which will camouflage the loss of accountability for both business and the police that is likely to follow a Tory victory. There will be much talk of liberty and bonfires of red tape, while behind the scenes the Human Rights Act (all those personal rights we are insisting upon these days) will be dismantled; asylum-seekers will no longer have to be fed and the new right to privacy will be easily hacked back (while keeping press freedom in place through guarantees of free expression).

Above all, travelling people, the homeless, prisoners, the poor and other undesirables will be reminded of their place in a Britain that has returned to the "freedom" of what we should all have hoped was a bygone era. This may not be the kind of society admirers of traditional liberty want, but their distaste for the rights culture of the present may play a part in bringing it about.

• Conor Gearty, a professor of human rights law at the London School of Economics, will take part in the Guardian debate "Does the Left Still Care about Liberty" at Hay tomorrow

Conor Gearty

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Conor Gearty: Is there a risk that in pursuing its liberty agenda, the left is drifting into a dangerous brand of libertarianism?

published on Mon, 02 Feb 2009 16:00

Is there a risk that in pursuing its liberty agenda, the left is drifting into a dangerous brand of libertarianism?

Tony Benn's strong defence of liberty is a reminder to us of the important role of government in defending the weak and the vulnerable. Benn realises that you cannot leave the unfortunate and disadvantaged in our society to stake their futures on a set of random acts of kindness from the rich. We enjoy the civilised society we have today largely because of the courageous actions of past generations of democratic activists, people determined enough to wrest political power from the few and deploy it for the benefit of the many. Such early democrats knew the value of government and well appreciated how the most resistant to regulation were those whose wealth and privilege were likely to be reined in by proper democratic government. To camouflage their self-interest in morality, these forces of conservatism described themselves as libertarian, in other words as committed to freedom and on that account opposed to governmental intrusion into their lives. These are the "right wing libertarians" whom Benn rightly excoriates at the end of his essay: the only interest they have is in their own freedom to continue to act selfishly at the expense of others.

Is there a risk that in pursuing its strong liberty agenda, the left is now also drifting into a dangerously similar brand of libertarianism? Of course there is much to be concerned about in recent state actions on a whole range of topics: extended police powers with regard to anti-terrorism; the growth of a "surveillance society" as some would describe it, with CCTV cameras on the streets and databases attached to our phones and computers. There are two recent developments in particular that for many symbolise the drift towards unacceptable state power that they say needs now, in the name of liberty, to be resisted. These are the development of a compulsory British identity card and the building up of an increasingly comprehensive DNA database.

It is clear that there are many practical objections to each of these, related to the integrity of the technology, the sufficiency of the safeguards against abuse, and so on. But should our objections to each also be rooted in principle? The emerging left/liberal libertarian position seems to be that the answer to this question should be a resounding yes, that a proper commitment to liberty demands that – without further discussion – we should have neither identity cards nor a wideranging DNA database. But why is this automatically the right point of view to take? Why are passports and modern car licenses OK if an identity card is not? What exactly is the nature of our privacy interest in our individual DNA? Where do the rights of those who are entitled to protection from crime (ie the community as a whole) fit in all this, especially vulnerable sections of it (victims of sexual violence, for example)? Why does liberty require us as a matter of principle to deny the police a tool to catch their attackers?

There are two strands to the concept of liberty which are in opposition here. One is the libertarianism we have just been discussing, the "Englishman's home is his castle" school of thought. The other is the position of the civil libertarian who sees the freedom of protest as essential to the proper running of our democratic state because he or she ultimately believes in the power of the state to do good. The first wants to hide from society, the second wants to make it better. There is all the difference in the world between the individualism of the libertarian and the idealism of the political activist. The left naturally belongs with the second of these not the first. Of course there are issues of privacy, of surveillance and of the state's unnecessary encroachment into our personal lives that need to be addressed. But they do not exhaust what we mean by liberty. If we fetishise individual freedom at the expense of our wider struggle for transformative change, we play into the hands of the right who use libertarianism as a shield with which to resist change. Do we really want to go on the barricades with Jeremy Clarkson to fight for the freedom to drive at excess speeds without fear of punishment? This is not my kind of freedom.

Conor Gearty

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